Economic Analysis of Law in European Legal Culture

Seminar programme

Chair: Professor Jukka Mähönen, University of Oslo

Presentation Summary

The role of economic analysis in law is a much debated topic. While it has become readily acceptable, and even in some instances mandatory for economic impact assessments to be included in the legislative process. The application of economic arguments in legal adjudication is still highly contentious.

Prof. Klaus Mathis will discuss the role of economic analysis in regulation. Firstly, he will describe the Regulatory Impact Analysis conducted during the Swiss legislative process. Subsequently, he will delve into the behavioural law and economics uses in legislation by the example of “Nudging”. Finally, he will give a brief overview of the law and economics movement at the University of Lucerne.

Lynn Gummow will discuss the potential openings in legal reasoning for economic arguments in adjudication. The first opening for economic arguments is given where statutes explicitly instruct the courts to apply such arguments. The second opening can occur when the interpretation strategy pursued seeks to find the purpose or aim of a norm in question. Another opening to economic arguments can be seen in instances where the court makes proportionality considerations. Finally, economic arguments can also be found in instances where the judge must act modo legislatoris.

The proposed openings to economic arguments will be illustrated by means of a comparative case study between a civil law and a common law tradition jurisdiction, the purpose of which is to see, if the theoretical openings to economic arguments result in the actual use of economic arguments by the Courts.