Whether you are an advanced law student looking to review the basics, or an aspiring law student looking for head start, this course will help you build the foundation you will need to succeed in law school and beyond. This course will introduce you to terminology, concepts, and tools lawyers and legal academics use to make their arguments. It will help you follow these arguments—and make arguments of your own. This course consists of a series of short lectures and assignments. A reading list complements each lesson, providing you with a roadmap to help you explore the subject matter more deeply on your own. Although the lessons may cross-reference each other, they are modular in nature: you should feel free to approach them in whatever order fits your schedule, interests, and needs.
3.1 - Lecture
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Из курса от партнера Yale University
A Law Student's Toolkit
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Law and . . .
Interactions between the law and academic disciplines such as economics, philosophy, and psychology.
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Ian AyresWilliam K. Townsend Professor
Yale Law School
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The most cited article in all of legal academics was written by Nobel Prize
winning economist, Ronald Coase.
The article's called the Problem of Social Cost and it includes
what has become to be known as the Coase Theorem.
The Coase Theorem holds that in a world without transaction costs,
the choice of legal rules does not affect efficiency
because private parties would always bargain their way to optimal behavior.
Coases' famous example, concerns the potential of railroad
train sparks to cause fires to adjoining farmland.
In the absence of bargaining, one would expect railroads to take more precaution.
For example, by adding spark guards to their trains.
If the law held railroads responsible for any fire damage losses to farmers' crops.
In contrast,
in the absence of bargaining, one would expect farmers to take more precaution,
for example by planting their crops further away from the railroad tracks.
If the law held that the farmers had to bear any fire damage losses
that occurred to their own crops.
Before Coase, lawmakers believed that in deciding whether to hold
railroads liable for crop damages the law would be
influencing the amount of precaution taken by both railroads and by farmers.
But by exploring a frictionless world of contracting, where potential
contractors without cost agree to all mutually beneficial transactions,
Coase deduced that the law need not influence precaution taking.
In a world without transaction costs, the parties will have a mutual incentive to
agree to have each expend the efficient level of precaution.
In a world without transaction costs,
if the law holds railroads strictly liable for all fire losses,
the railroad will pay farmers to take the appropriate amount of precaution.
In contrast, if the law holds railroads blameless for
any crop losses, then Cosean contracting
will lead farmers to pay the railroad to take the efficient level of precaution.
In a world of costless contracting, the choice among different legal standards for
liability will not impact the levels of precaution taken by the railroads and
by farmers.
The legal standards will only impact the distribution of wealth
as the background legal rules will often determine who pays whom.
The theorem holds that in the absence of transaction costs the assignment of legal
rights will not impact the ultimate allocation of rights.
This is sometimes referred to as the allocational invariance result.
Because rights flow to their highest use.
The Coase Theorem also holds that in the absence of transaction costs
the rights will be efficiently allocated.
But again the assignment of rights will impact the distribution of income
because if the most efficient owner is not initially assigned a right, he or
she will have to pay for it.
A huge and contested body of literature endlessly debates
the circumstances under which the Coase Theorem predictions hold.
Few scholars think that the conditions of costless contracting ever obtained.
But just as the assumption of frictionless motion has proven to be a useful
construct for physics, the assumption of frictionless contracting allowed
Coase to analyze the effect of unimpeded bargaining in the shadow of the law.
With unimpeded bargaining, different legal rules will not influence allocative
efficiency, they'll only have distributional effects.
The Coase Theorem has also interesting implications for contract law.
Oliver Wendell Holmes Jr.
famously reoriented contract law toward a dyadic conception of contractual duties.
For Holmes,
a contractual promise was not a sacred duty that simply had to be performed.
Rather, a contractual promise was merely the duty either to perform or
pay compensatory damages.
But the Coase Theorem invites a triadic conception of promise.
Following Coase, we might see a promise is a duty to perform,
pay damages, or renegotiate your way out of performance.
Imagine, for example, that Holmes promised to paint Coases' picture for
a thousand dollars.
In a bizarre jurisdiction that imposes
property rule-like damages that are 20 times the contract price.
If Calabresi come along and offers Coase $10,000 to paint Calabresi's picture.
Instead, the prospect of huge damages would
normally deter Coase from breaching the initial contract.
But the Coase Theorem suggests that Coase will have an incentive to approach
Holmes and try to buy his way out of the Holmes in contract.
The Coase Theorem suggests that we don't have to worry about too few
breaches when damages are high because promisers will bribe their way
out of having to perform an inefficient promise.
Can you see how a similar argument means we don't have to worry about too
many breeches when damages are low?
The Coase Theorem has even stronger implications with regard to
the laws choice among different possible default rules.
For example, in most jurisdictions, the default rule is at will employment.
This means that in the absence of contractual provisions to the contrary,
an employer can fire an employee for good, bad, or no reason.
Some commentators have proposed that a better default rule would be
a just caused employment [COUGH] condition.
Under just cause default an employer
would promise not to fire an employee unless the employer had just cause.
As applied to the choice among default rules, the Coase Theorem suggests that
the law will impact neither allocative efficiency nor the distribution of wealth.
In a world with costless contracting, the employer and employee will contract for
the efficient level of protection that maximizes their joint gains,
regardless of the default rule.
And regardless of the default rule the parties will contract for the same salary.
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