Law and Economics in Retrospect - Università degli Studi di Siena

siena memos and papers on law and economics
ANTONIO NICITA
UGO PAGANO
Simple
23/04
LAW AND ECONOMICS IN RETROSPECT
UNIVERSITY OF SIENA FACULTY OF ECONOMICS R.M. GOODWIN

Simple 23/04
ANTONIO NICITA & UGO PAGANO
LAW AND ECONOMICS IN RETROSPECT
Università di Siena
nicita@unisi.it
pagano@unisi.it
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ANTONIO NICITA AND UGO PAGANO
Law and Economics in Retrospect
forthcoming in
E. BROUSSEAU and J-M. GLACHANT (Eds)
New Institutional Economics. A Textbook.
Cambridge University Press, 2005
Contents
1. The case for Law and Economics: beyond disciplinary Nirvanas
2. Comparing Coase and Fuller
3. From Chicago with Law
4. Does New Institutional Economics meet Law&Economics?
5. Meaning of transaction costs: New vs. Old Institutional Economics
6. Transactions, Institutional complementarities and the role of history
References
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1. The case for Law and Economics: beyond disciplinary Nirvanas
The Law and Economics movement has reached in recent years a widespread diffusion 1 . As
Mercuro and Medema (1997) have pointed out, “Law and Economics has developed from a small
and rather esoteric branch within economics and law to a substantial movement that has helped to
both redefine the study of law and expose economics to the important implications of the legal
environment” 2 . Law and economics has appealed to legal scholars and practitioners and has had
such an important impact on legal doctrine because, using a coherent theory of human decisionmaking
(rational choice theory), law and economics offers an attractive method of describing how
people are likely to respond to law and of making normative judgments about legal rules and
institutions (Ulen, 2005).
According to David Friedman (1998) “the economic analysis of law involves three distinct
but related enterprises. The first is the use of economics to predict the effects of legal rules. The
second is the use of economics to determine what legal rules are economically efficient, in order to
recommend what the legal rules ought to be. The third is the use of economics to predict what the
legal rules will be” 3 . While the standard law and economics approach refers typically to legal rules,
recent developments have been concerned with a more general concept of ‘institutional’ rules,
including informal and customary rules, and the wide range of institutions performing private
orderings and enforcement. Law and Economics only appears to be a well-defined field of research.
While traditional “Law and Economics” (LE) is mainly identified with the Chicagoan tradition
starting in the fifties and covering a number of long investigated topics (such as the economic
analysis of contract law, property law and torts, criminal law, competition law and corporate
governance), most law and economics researchers would also include in the list the theory of the
firm, the theories of institutions and regulation, the evolution of norms and behavior and so on. The
resulting picture outlines the complexity surrounding current methods and approaches to law and
economics and stresses the need to go beyond the Chicagoan tradition as well as the standard results
of the New Institutional Economics approach in order to assess the full range of interdependencies
between legal rules, economic behaviors, motivations and institutional change. Of course, the
seminal works by Aaron Director, Ronald Coase, George Stigler, Richard Posner, Frank
Easterbrook, Gordon Tullock, Guido Calabresi, Harold Demsetz, Oliver Williamson, among others,
1 See J. Backhaus (1999), ‘Introduction’ in The Elgar Companion to Law and Economics Edited by J. Backhaus,
Edward Elgar, p. 1-4; Mercuro and Medema (1997), Economics and the Law. From Posner to Post-Modernism,
Princeton; Shavell S. (2003) Foundations of Economic Analysis of Law (Harvard University Press).
2 Mercuro and Medema (1997), p. IX- X.
3 D. Friedman “Law and Economics”, in The New Palgrave . A dictionary in Economics, MacMillan, 1998.
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constitute the very bulk of the economic analysis of legal and economic institutions and share the
fundamental merit of having outlined the need for an interdisciplinary approach at the intersection
of Law and Economics in order to properly understand “the very stuff of economic policy” 4 .
However, all the above approaches share, in our view, the fundamental limit of a partial equilibrium
analysis, assuming each time as exogenously given some essential feature of the institutional
environment surrounding the choices of economic agents.
The traditional Law and Economics approach is generally embedded in what we can call,
respectively, the economic and the legal ‘nirvanas’, meaning a state of ultimate perfection in both
disciplines characterized by ideal conditions hardly encountered in real-life societies.
Economic theory, and specifically the so-called ‘pure economic theory’ based on Walras’
ideas and developed in neoclassical economics, constitutes an ‘economic nirvana’: Pure Economics
concentrates on the internal consistency (equilibrium) and on the efficiency of decentralized
decisions of rational maximizing individuals. However if we look at some of the conditions
surrounding the economic nirvana we have to conclude that it is based on (and depends upon) a
‘legal nirvana’: it assumes the existence of well-defined and complete rights for every contractible
use for which there is (or there could be at any given time) a supply and a corresponding demand
and for which it is always available at zero costs an effective enforcement system.
A legal nirvana is also assumed in the ‘pure theory of law’: according to Kelsen’s pure
theory of Law, “the law, or the legal order, is a system of legal norms. The questions we have to
answer, therefore, are: what constitutes the unity in diversity of legal norms? why does a particular
legal norm belong to a particular legal order?
In Kelsen’s view a multiplicity of norms constitutes a unity a system or an order when
validity can be traced back to its final source in a single norm.” 5 Thus Pure Law concentrated on the
validity of laws, that is the internal consistency of legal systems that were assumed to stem from a
single authority or from a single grundnorm. Pure Law assumes that the legal ordering could be
completed and made consistent by a single agent or on the basis of a set of basic norms without
limitations due to transaction costs of any nature, bounded rationality, cognitive ability, failure of
collective action and other limits due to the scarcity of resources. In other words, in this case, it is
the legal nirvana which is based on an economic nirvana. The two disciplines, Economics and Law,
seemed to live into separate pure Nirvanas and, besides their purities, only a formal analogy seemed
to relate them. But there were also some hidden relations between the two Nirvanas, the consistency
of pure economics being based on an assumption of complete and fully enforceable rights and the
4 See R. Coase (1988), p. 31.
5 See H. Kelsen (1992) Introduction to the problems of Legal Theory, A Traslation of the first edition of the “Reine
REchlehre”, Clarendon Press, Oxford
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consistency of pure law being based on an assumption of fully rational maximizing agents. As a
consequence, the removal, in each discipline, of both legal and economic Nirvanas, seems to be the
pre-requisite to move towards an integrated interdisciplinary approach trespassing the boundaries of
law and economics. However, if we look at the evolution in the law and economics approach
starting from Chicago to today’s contributions provided by the most known scholars in that
discipline, we have to point out a limited effort devoted to overcome the Nirvanas assumption. The
traditional Chicagoan approach takes as given agents’ (mainly judges’) ability to minimize
information and search costs so as to produce the most efficient outcome in terms of rights’
allocation after a dispute arises. At the same time, agents’ preferences are assumed to be exogenous
in the decisional process whereas their efforts are all oriented towards the unique aim of
maximizing Kaldor-Hicks efficiency. On the other side, the New Institutional or Transaction Costs
Economics approach (TCE/NIE), focusing on the role played by private orderings, such as the
internal organization of firms in modern capitalism where the entrepreneur acts as an arbitrator over
internal disputes, failed to provide an integrated framework within which analyzing the complex
interaction between public and private orderings as well as the proper nature and dynamics of
private orderings under the shadow of law. Another limit which stands as a common feature in both
traditional LE and TCE/NIE approaches relies on the assumption that property rights, when
existing, are always a complete and well-defined bundle of contractible uses 6 . This assumption
shows, as we will outline below, some problems of coherence when property rights are employed as
a legal and economic device for the governance of incomplete contracts relationships in New
Institutional Economics or when the allocation of property rights by Courts is depicted as the most
efficient way to solve disputes among conflicting parties. However, if property rights are
themselves the result of a legal and economic process or the solution of a complex legal-economic
game then we need to investigate also the nature, the emergence and the process of change of
property rights 7 , rather than taking rights as exogenously given at zero costs.
In the next sections, following this framework, we will attempt to outline the main features
of LE and TCE/NIE approach to the complex relationship between legal rules and economic
institutions, stressing the need to move towards an integrated approach on the lines traced by Old
Institutionalism in economics (OIE) 8 which actually should be regarded as one of the first attempt
to jointly overcome Nirvanas in Law and in Economics. According to OIE, a transaction is a
complex legal and economic relationship affected by the nature of property rights, liberties, powers,
liabilities and immunities surrounding parties in a contract and between those parties and their best
6 See A. Nicita and M. Rizzolli (2004)
7 See H. Demsetz (1967)
8 See Hodgson (2004), Pagano (2000), Nicita (2001).
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competitors in the open market. The enforcement of a transaction is thus a multipurpose device
jointly performed by legal, economic and informal rules which do emerge also as a the outcome of
institutional complementarities, legal origins and political pressure. The great complexity
surrounding this object of study should not encourage to take easy short cut in studying the
interaction between law and economics.
2. Comparing Coase and Fuller
While there have been several attempts respectively in Law and in Economics to overcome their
own disciplinary Nirvanas, there has not been a pervasive attitude towards removing legal Nirvana
in Economics and the economic Nirvana in Law. Let us consider two polar cases in the contribution
of Coase (1937, 1960) for economics and in the work of Fuller (1958, 1969) for Law. Under many
respects, Coase and Fuller developed a very similar theory of the firm. According to Fuller, within
the firm, the entrepreneur/manager plays also some juridical activity: some of the typical activities
generally attributed to public legal ordering are decentralized to firm’s internal governance.
R. Coase reached a similar conclusion by observing that in the ideal world of ‘pure economics’ all
decisions were coordinated by prices at zero costs. In this world firms would not exist. We would
live in what became later the world of the “Coase theorem”. In the world of the Coase theorem all
possible externalities, including those related to economies and diseconomies to scale would have
been internalized by market transactions. Firms, state regulation and other arrangements can only
appear in a world where no alternative institution is available at zero costs. In the Coase-theorem
world with zero transaction costs attributing the rights to a particular individual has no “economic”
consequences. In any case rights will flow to the individual who values them the most. We are in a
Legal and Economic Nirvana where judges can ignore the economic consequences of their
decisions. Thus, the main lesson provided by R. Coase is that there is no Economic Nirvana: all
institutions are costly and the choice of the appropriate institution is a second best choice, based on
the dimension of transaction costs. In a world with positive transactions the decisions of the judges
have economic consequences because rights will not necessarily flow efficiently to the individuals
who value them the most. According to Posner (and to much classical Chicago law and economics)
judges should allocate rights, according to criteria of economic efficiency to the individuals who
value them the most. However a Legal Nirvana seem to persist in Coase’s works and in the
Chicagoan tradition: the process of law is always meant to be efficient in solving economic
conflicts. The process of defining or enforcing rights, also through the intervention of Courts, seems
to occur in a frictionless fashion and to produce efficient outcomes. The evolution of norms, at least
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in common law systems, which starts in response to market failures, is thus able to replicate and to
re-activate an efficient process: the Legal Nirvana seems thus being implicitly employed to
overcome the removal of economic Nirvana.
On the other side, in Fuller’s work, law is defined as “the enterprise to subject to rules
human behaviour”. This enterprise is too costly to be carried out by a centralized ordering. The
costs of Law can and are in fact decreased by decentralizing its enterprise to a plurality of orderings.
Unions, Churches, Universities, Firms are all private orderings and it turns out that there is no Legal
Nirvana: completeness, unity and consistency can possibly be the aim of a legal ordering but they
cannot be taken for granted in real-life societies characterized both by public and private orderings.
However, also in Fuller’s work we may say that there is still an implicit assumption that all
decentralized decisions are somehow efficient at their level or that somehow they will persist over
time: thus the removal of legal Nirvana is possible since an Economic Nirvana allows agents to
always take the right economic actions according to their rationality.
If we take Coase and Fuller as two polar examples, respectively, in Economics and in Law, of an
attempt to remove own disciplinary Nirvana through recurring to another Nirvana (a legal Nirvana
for Economics, and an economic Nirvana for Law) we have an immediate tool for investigating
both the evolution of the Law&Economics movement and the way ahead for future research
agenda.
In next sessions we first start recalling the main features of the Chicagoan approach. Then we
compare LE with NIE/TCE. After having outlined the limits which actually characterize traditional
methods and approaches to Law and Economics we suggest how going back to OIE may provide
new insights as many points of departure in trespassing disciplinary Nirvanas, setting a research
agenda for law and economics in which legal rules and economic behaviors interact each others in a
complex institutional environment shaped by culture, motivations, social norms, technological and
institutional changes, institutional complementarities and path-dependency.
3. From Chicago with Law
Law & Economics today is not only ‘Chicago L&E’. Several schools of thought have been
developed 9 which link the study of law with that of economic institutions and organizations.
Notwithstanding important differences among them, some common features could be underlined:
9 For the purpose of simplicity we can distinguish Chicago Law and Economics; New Haven School; New Institutional
Economics; Institutional Economics; Public Choice Theorists; Critical Legal Studies; Post-Chicago Law and
Economics; Behavioral Law and Economics.
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(a) the economic analysis of emergence, evolution and change in private and public
orderings, norms and customs;
(b) the study of the effects of law on the economy and the study of the effects of the
economy on legal change;
(c) the application of economic methodology on the analysis of law;
(d) the acknowledgment of complexity and interdependence between legal rules, social
norms and economic institutions.
Three main approach have been distinguished (Jolls, Sunstein and Thaler, 1998): Positive Law and
Economics, which investigates how agents behave in response to legal rules and how rules are
shaped; Prescriptive Law and Economics which analyzes what rules should be adopted to advance
specific ends; Normative Law and Economics which studies how to select specific ends of the legal
system.
As Mercuro and Medema (1997, p.51) pointed out, “law and economics…came of age as an
intellectual discipline within economics and law in the 1960 and 1970 through the work of such
notables as Ronald Coase, Guido Calabresi, Henry Manne, Gary Becker and Richard Posner. The
work of these scholars, of whom Posner […] is perhaps the foremost exponent, form the core of the
Chicago approach to law and economics, an approach that has attracted a large following and has
come to dominate scholarship within the economic analysis of law”.
The first wave in Chicago
Posner (1975) distinguished two main waves of schools of thought in Chicago. The first wave has
been referred to the works of Aaron Director, Ronald Coase and Guido Calabresi (even if Calabresi
was the founder of the so-called New Haven School 10 in law and economics thought) and some
others, as further refinements of an early tradition in legal theory moved from Continental Europe to
United States (Mattei, 1994) and emerged in 1960s, as an application of methodological
individualism and mainstream economics (Ruthenford, 2003) with the purpose of applying
“economics to core legal doctrines and subjects such as contract, property, tort and criminal law”
(Duxbury, 1995, p.340; Mackaay, 1999). The impulse towards revisiting the meaning and the extent
of antitrust law was essential to the extent that law and economics of competition became the
privileged field of investigation and application of new ideas: dominant firms’ behaviors should not
be considered per se as anticompetitive when involving strategies such as bundling, tying, exclusive
contracts with distributors, vertical integration through mergers and so on. The argument developed
was that in many antitrust cases, by applying simple microeconomic tools (as the analysis of well-
10 See Mercuro and Medema, (1997).
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known ‘double mark-up problem’ (Hovenkamp, 1994)), it was possible to show how the above
strategies were not the result of a monopolization attempt, as stressed by the predominant view,
rather they were aimed at pursuing efficiency in terms of transaction costs minimization. In this
respect, Coase’s works on the efficiency of vertical integration within the firm and on the efficiency
of property rights allocation in the presence of transaction costs was kept as a peculiar framework
within which developing a new theory of the efficiency of vertical restraints together with a new
favor towards ‘big dimensions’ in firms. According to the new wave, Antitrust statutes as well as
any form of State regulation should be taken into account, for the purpose of externalities’
absorption, only when the level of transaction costs is such to inhibit any Pareto relevant market
exchange of well-defined property rights. Coase was not very much interested in explaining how
legal entitlements are allocated and protected as much as he was concerned with the problem of
externalities: the costs/benefits of somebody's activity borne/enjoyed by third parties, that are not
captured via the price system. Overcoming Pigouvian theory, Coase (1960) observed that
externalities are reciprocal in nature and that -in principle- injurers as well as victims can eliminate
harm. Realizing this simple evidence allowed him to hypothesize that private bargaining can be a
substitute for regulatory intervention and tort disputes as a mean of internalizing externalities and
thus addressing the problem of social costs. Coase undermined Pigou's analysis by conjecturing a
frictionless state in which transacting is costless. In such a world -he showed- entitlements would
eventually end-up in the hands of who value them the most through private bargaining and
regardless of whom the entitlements were initially assigned to and provided that clearly defined
property rights were in place 11 . However, the world Coase had in mind was actually one with
positive transaction costs 12 .
Chicago and New Haven
The ‘property rights approach’ which came out as a result found rapidly a new impulse in the New
Haven School, with Calabresi’s theory of liability 13 and with his distinction among property rules,
11 See Nicita and Rizzolli (2004).
12 The world of zero transaction costs has often been described as a Coasean world. Nothing could be further from the
truth. It is the world of modern economic theory, one which I was hoping to persuade economists to leave Coase, R. H.
1988. The firm, the market, and the law. Chicago: University of Chicago Press.
13 Calabresi, Guido (1965), ‘The Decision for Accidents: An Approach to Non-Fault Allocation for Costs’, 78 Harvard
Law Review, 713-745; Calabresi, Guido (1965), Fault, Accidents and the Wonderful World of Blum and Kalven, Yale
Law Journal 75 (1965/1966) 216; Calabresi, Guido (1968), ‘Transaction Costs, Resource Allocation and Liability
Rules: A Comment’, 11 Journal of Law and Economics, 67-73; Calabresi, Guido (1970), The Costs of Accidents: A
Legal and Economic Analysis, New Haven, Yale University Press, 340
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liability rules and inalienability rules 14 . In his theory of the costs of accidents, Calabresi pointed out
how in a world in which transaction costs of defining and bargaining ex-ante property rights over
uses exposed to a high risk of ex-post third parties’ interference would be prohibitive. To face these
problems, states Calabresi, the legal systems has developed liability rules, and mainly Tort law, as
an efficient response to the problem of ex-post absorption of externalities. Later on, Calabresi and
organized the vast array of tools for externality absorption in a coherent tripartite family made of
(i) property rules, (ii) liability rules and (iii) inalienability rules. Property rules confer to the holder
of the entitlement the exclusive power to exclude others from using it along with the power of
alienating it at the price fixed exclusively by himself. Thus, all non-consensual transfers would meet
with an injunction by the court. Conversely, liability rules grant to non-holders the power to take the
entitlement, even without consent of the holder, and pay a price accordingly determined by the
court or the legislator. The holder, in this case, retains the right to seek damages but does not
control exclusively the entitlement any longer. Finally, inalienability rules rule out any transfer of
the entitlement regardless the consensual vis-à-vis non-consensual nature of the alienation.
Calabresi and Melamed's work suggests that in contexts where transaction costs are high the court
should opt for liability rules whereas when transaction costs are low the opposite holds true.
Calabresi and Melamed (1972) argued that entitlements should be assigned according to criteria
based on economic efficiency as well as on other considerations such as society's distributional
preferences and other justice reasons. This conclusion represent one of the most important point of
disagreement between the Chicago and the New Haven School.
The second wave in Chicago
As Richard Posner, unanimously depicted as the most important contributor of the second wave
(starting from 1973) of law and economics thought in Chicago, has emphasized, the legal system is
(and should be) aimed at producing and enforcing efficient rules, in the sense of maximizing the
Kaldor-Hicks criterion of efficiency. Common Law, as a Judge-made Law, “is best understood not
merely as a pricing mechanism but as pricing system designed to bring about an efficient allocation
of resources in the Kaldor-Hicks sense” (Posner, 1987). According to Posner, Judges, aware of the
economic consequences of their actions should behave like quasi-markets attributing the rights to
the individuals who in a world of zero transaction costs would have acquired them. They apply the
Kaldor criterion, according to which an allocation is efficient if the gainers could have compensated
14 Guido Calabresi and A. Douglas Melamed, (1972) 'Property Rules, Liability Rules, and Inalienability: One View of
the Cathedral' 85(6) Harvard Law Review.
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the losers. Posner claims that this criterion is consistent with an intuitive view of justice. If avoiding
some damages is very costly for some agents and not costly for the others, the latter are guilty for
the damages. As a consequence the “development of the Common Law could be explained as if its
goal was to maximize allocative efficiency” (Mercuro&Medema, 1997). Under this respect, any
human behavior subject to a legal rule, and not exclusively economic decisions (as Becker works on
divorce, family and religion have shown), could be regulated by a legal norm entailing an efficiency
purpose. Richard Posner embraces fully the Economic Nirvana of neoclassical economics and
applies it to the emergence and the enforcement of legal rules. In Posner’s approach, individuals are
always informed rational maximizers and their behavior is easy to formalize and predict. Economic
agents respond to price incentives and the simple tools of Microeconomics works always well. This
approach has been successfully extended to nonmarket decisionmaking (theory of the State, voting
rules, bureaucratic choice, regulation, corruption, etc.) and to the analysis of rent seeking, stressing
how, in several terrains, the motivation for political exchange could be indicated in searching for
mutual advantage (Tullock, 1965; Peltzman, 1976). However, from 1983 onwards, “the confidence
with which Chicago research agenda for law and economics was taken for granted as the only game
in town appears shaken. The debates allows viewpoints dissonant from strict neoclassical
economics to come out of the shadow” (Mackaay, 1999).
4. Does New Institutional Economics meet Law & Economics?
Surprisingly, one of the most prominent criticism towards the Posnerian approach to law and
economics came, in recent years, from those whose works were heavily quoted by Posner as best
examples of the economic analysis of law and of economic institutions: Ronald Coase and Oliver
Williamson. In an special issue of the 1993 Journal of Institutional and theoretical Economics 15 ,
Posner had the misfortune of being attacked both by Coase and Williamson exactly on the nature of
the Economic Nirvana surrounding his analysis. Posner starting point was that “(...) NIE, save in
Coase’s version, is just economics (…) and the L&E movement is economics too”. Posner’s
attitude towards using mainstream economics was clear: “we should be pragmatic about theory. It is
a tool, rather than a glimpse of ultimate truth, and the criterion of a tool is its utility” However since
economics is, in Posner’s view, the ideal-type of mainstream neoclassical economics, Coase’s
15 Ronald Coase (1993) "Coase on Posner on Coase and Concluding Comment", 149 Zeitschrift für die Gesamte
Staatswissenschaft (Journal of Institutional and Theoretical Economics) 96, 360; Ronald Coase (1993) "Law and
Economics at Chicago", 36 Journal of Law and Economics 239-254 (1993); Posner, R. (1993) "The New Institutional
Economics Meets Law and Economics". Journal of Institutional and Theoretical Economics (JITE, ZgS), 149 (1), 73-87;
Williamson, Oliver E. (1993) "Transaction Cost Economics Meets Posnerian Law and Economics," Journal of
Institutional and Theoretical Economics, 149(1), 99-118
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eaction was quite strong: “after having read Posner’s paper I felt I could not remain silent (…) [on]
Posner’s highly inaccurate account on my views.[…] The trouble with Posner (…) is not with what
he doesn’t know but with what he knows that “ain’t so”.
Looking at the original Coasean approach we can easily see the distance between Coase and
Posner. In his 1937 paper on the nature of the firm, Coase derived the notion of transaction costs
first from the limits of rationality and knowledge embedded in human action in a context of
uncertainty either when searching for the best market options, or when governing a growing size
organization. As Coase refers (1937), “the question of uncertainty is one of which is often
considered to be very relevant to the study of the equilibrium of the firm. It seems improbable that a
firm would emerge without the existence of uncertainty”. Looking at Frank Knight’s influential
theory of uncertainty, we may say, thus, that in Coase, the second best world produced by the
existence of transaction costs first generates in human mind, in agents’ inability to immediately
jump, without costs, towards first best choices. In Posner’s view a Court has, surprisingly, all the
virtues (in terms of knowledge, rationality and certainty) which conflicting parties lack in
autonomously solving their disputes in an efficient way. In setting efficient rules Courts, and the
legal system, show a superior rationality which is inhibited to parties involved in a dispute. Thus
from one side it is assumed that, for some reason, economic agents do not have the abilities to
autonomously move towards efficient configuration; from the other, the legal system provides at
zero costs efficient solutions to market failure. Unsurprisingly, this contradiction could hardly be
conciliated within the Coasean framework. Under the Coasean framework, institutions are not the
source of efficient solutions to the emergence of externalities, they are always second best devices
which internalize externalities at the lowest level of transaction costs. At the same time, we may
aksy, in Coasean terms, if Courts and the legal system performs efficiently, why should we observe
the emergence and the persistence of institutional structure of vertical control over transactions,
such as firms? If Courts always perform well, why having firms acting as private courts? According
to the Posnerian analysis we should expect to have a lower level of private orderings in Common
law countries, whereas the realm of modern societies suggests quite the opposite 16 .
A similar debate has interested Posner versus Williamson. The New Institutional Economics
approach re-conciliated by Williamson (1985, 1996) in the so-called Transaction Cost Economics,
has as its distinct feature the idea that the unit of analysis is represented by a transaction, whereas
the paradigmatic problem is that of minimizing transaction costs. The distinguishing features of a
transaction are bounded rationality, incompleteness of contracts, opportunism and asset specificity.
When transactions are involved, economic agents generate economic institutions (private orderings)
16 See Dixit (2004) for an explanation of the complementary existence of private orderings and the efficiency of
common law courts.
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to deal with the costs incurred in transactions. The economic institutions which survive over time
are those which best perform agents’ behaviors, in terms of minimizing transaction costs. Posner
(1993) disregarded the distinguishing feature of NIE/TCE and pointed out that: “(...) in the process
of moderating Coase, Williamson has gone toward collapsing the NIE back into mainstream
economics – which is fine with me […]. The L&E movement differs from the new institutional
economics in that it has no, or at least very few, aspiration to change economic theory or
economists’’ empirical methodology”. In Posner’s view, ‘bounded rationality’ states simply that
“economic actors have and must (rationally) act on less than full information” and as for the idea
that ‘mind is a scarce resource’, according to Posner that idea simply implies that “the mind has
limited information-processing capabilities”. The same is true, in Posner’s analysis, for the notion
of opportunism to which a large part of Williamsonian work is devoted: “as used by Williamson
and other economists, it means taking advantage […] it is self-interest in setting in which private
incentives cannot be relied on to promote social welfare”. Thus Posner conclusion on Williamson’s
works is simple: “they are merely new words for old themes in economics”, whereas “the novelty of
Williamson’s works […] lies in inviting economists’ attention to a host of unexplored problems”.
Even in this case, the answer given by Williamson has been firmly grounded: “Posner has not
understood the Coasian message (or does not like what he hears); he misconstrues game theory; he
has a truncated understanding of bounded rationality, the economics of information, and
maximizing; mischaracterizes empirical research in transaction costs economics”.
From the above debate, we may thus conclude that New Institutional Economics did not meet
Posnerian Law and Economics, i.e. a Law and Economics approach based on an acritical adherence
to the economic Nirvana represented by mainstream economics. However, as Medema and Mercuro
observed (1997) the NIE/TCE approach is fully integrated into the Law and Economics approach
and it has been applied also to the compared analysis of legal system and to the study of
misalignment incentives in Courts in common law countries 17 .
If from one side, Coase and Williamson are clearly unsatisfied with Posnerian embracement of
economic Nirvana (and the more with Posnerian embracement of Coase’s and Williamson’s works),
from the other they share with Posner the idea of a Legal Nirvana: when property rights do exist, in
Coase’s and in Williamson’s analyses, they are always well-defined, completed, clear and fully
enforced at zero costs. In other words, Coase and Williamson fail to apply to the process of
creation, emergence and enforcement of property rights the same paradigm which is applied to the
governance of costly market transactions. It seems as if, in NIE’s world, a pre-existent ideal world
has previously produced property rights and continues to maintain an efficient enforcement system
17 Edward L. Glaeser and Andrei Shleifer, 2003. "The Rise of the Regulatory State," Journal of Economic Literature,
American Economic Association, vol. 41(2), pages 401-425, June.
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over them without incurring in any of the failures generally attributed to market transactions
(Pagano, 2000). This implies, in our view, that the economic notion of transaction generated by the
NIE/TCE approach while aimed at removing the Economic Nirvana still embeds a Legal Nirvana,
taking as given the legal process of creation and enforcement of well-defined property rights. In the
next session, the compared analysis of the notion of transaction in NIE and in OIE may help us in
investigating the complexity surrounding transactions at the intersection of law and economics.
5. Meaning of transaction costs: New vs. Old Institutional Economics
In New Institutional Economics: a transaction is defined in terms of the additional costs that
economic agents have to sustain, with respect to the perfect competitive market exchange, in order
to carry out a Pareto-relevant exchange. In Coase (1937) transaction costs are defined in terms of
the costs of collecting and elaborating relevant information on prices; in Coase (1960) they are
defined both as information and contractual costs; in Williamson (1985) as the governance and
enforcement costs of private orderings; in GHM models (1986, 1990) as the costs of defining
agents’ ability to generate social surplus and assigning the relevant property rights on assets.
The resulting theories of transactions and organisations explain relevant features of
decentralised bargaining for externalities absorption, long-term contracts, exclusive contracts,
vertical and horizontal integration, and internal organisation of firm. However, they seem to neglect
other relevant aspects such as the emergence and change of legal rights, firms’ organisational
diversity and their persistence over time, the impact of ex-post potential competition on contracts
and firms, the endogenous and reciprocal shaping of legal and private orderings.
Moreover, New Institutional approach to the governance of transaction maintains a
pervasive incoherence which is difficult to conciliate: from one side, institutions, such as firms, are
always the efficient adaptation to market failure generated by high transaction costs in carrying a
given transaction in the open market; from the other the internal allocation of property rights and
control within the firm (let us say the well functioning of the market for internal hierarchy) is
always reached without any friction and property rights are always complete and easily enforced by
a costless public ordering.
In other terms, New Institutional Economics approach to transaction still maintains some
‘Nirvanas’ on the way in which property rights are generated and enforced and on the way in which
public and private orderings interact each other to shape a given transaction.
14

In order to enlarge the framework built by New Institutional Economics some effort should
be spent in order to assess the full range of interdependencies between legal rules, economic
behaviours and institutional change. In this respect, the notion of transaction outlined by Old
Institutionalist Economics constitutes, in our view, a promising point of departure which integrates
in a unique framework bilateral exchange, competition dynamics and market discipline, the
enforcement role of an arbitrator, the different nature of fully enforceable rights versus poorly
defined rights.
Among the Old Institutionalist scholars, J.R. Commons (1924) deserves a particular
position. In Commons’ view, economic exchanges which take place in the real-life economy are
characterised by positive transaction costs. Consequently, in order to properly assess the nature and
the extent of transaction costs it is necessary to investigate in more detail the notion of transaction.
In Commons’ view a transaction is a complex interaction involving relations of rights, power,
competition and enforcement. Commons developed the legal relations originally introduced by
Hohfeld (1919) 18 .
To simplify the argument we shall consider only the transactions between two agents
i and j. According to Hohfeld, "first order" jural relations define some necessary relations between
the two agents i and j . For instance i may have (not have) the claim that j saves him when his ship
is in trouble (Action A) and j may be deprived of the corresponding liberty to leave without
assisting.
In other words we have that:
(1) claim (right) of i ⇔ Duty of j
or, in other words, an agent i has legal claim towards an agent j that j does the action A if
and only if j has with respect to i the duty to do A.
(2) No right (exposure) of i ⇔ Liberty of j
or in other words, an agent j has a legal liberty towards an agent i to do A if and only if i has
no right towards j to prevent j from doing A and is, therefore, exposed to the liberty of j.
Of course, similar relations hold for the claims of j and the liberties of x:
(3) claim (right) of j ⇔ Duty of i
(4) No right (exposure) of j ⇔ Liberty of i
18 Parts of this section are based on Pagano (2000).
15

In this simple two-individual-relation, the set of actions for which i has rights do not
only define the duties of j. They also define the remaining actions for which j has the liberty to act
(i.e. the set of actions for which i has no right to interfere and is exposed to the liberties of j). In
other words, in this simple framework, the jural relations entail that the boundary between the
rights and the exposures of i should coincide with the boundary between the duties and the liberties
of j and vice versa. Thus, concentrating our attention on relations (1) and (2) we have the
following Table 1 concerning first order jural relations.
Table 1
First order jural relations (authorized transaction).
Right of i
Exposure of i
Duty of j
Liberty of j
Beside the above relations we have "second order" jural relations in terms of powers
and immunities. Thus second-order jural relations are characterised by the following relations
that are analogous to those that we have considered above:
(1') power of i ⇔ liability of j
or, in other words, i has a legal power over an agent j to bring about a particular legal consequence
C for j if and only if some voluntary actions by i would be legally recognized to have this
consequence for j.
(2') disability of i ⇔ Immunity of j
or, in other words, an agent j has a legal immunity with respect to an agent i from a specific legal
consequence C if and only if i does not have the legal power to do any action that according to the
law would have the consequence C for j.
Again, similar relations hold for the powers of i and the immunities of j:
(3') power of j ⇔ liability of i
(4') disability of j ⇔
Immunity of i
Second order jural relations also entail symmetric correlation between the positions of the
two agents. In this case too, the boundary between the powers and the disabilities of i should
coincide with the boundary between the liabilities and the immunities of j and vice versa. Again,
concentrating our attention on relations (1’) and (2’), we obtain the following Table concerning the
second-order legal relations.
Table 2:
Second order legal relations (authoritative transaction)
16

Power of i
Disability of i
Liability of j
Immunity of j
Both first-order and second-order jural relations have a prominent role in Commons'
analysis of transactions and, in particular, in his distinction between authorised and authoritative
transactions. While authorize transaction depend directly on the ‘hierarchy’ of a judge or third party
with respect to well’defined rights, authorative transaction depend on relationship of power.
According to Commons the minimum description of a transaction involves the two
transacting agents, the two agents who are the next best transacting alternatives for each agent and
the working rules according to which the transaction takes place 19 .
According to Commons (1950, p.50), “when we reduce all prospective buyers and sellers
upon a given market to those who participate in one bargaining transaction as our smallest unit of
investigation, then they are the ‘best’ two buyers and the ‘best’ two sellers, meaning the two buyers
who offer the highest prices and the two sellers who offer to accept the lowest prices, in
consideration of transfers of ownership 20 . [...] The best two sellers are those able to sell at the
lowest price. They compete for choice of alternatives offered by the best two buyers, those able to
buy at the highest prices, while, in turn, the best two buyers are competing for choice of
alternatives offered by the best two sellers”. As a consequence, under a transaction, “instead of the
‘exchange’ of physical things between two parties, as contemplated in the former physical
economics, there are five parties, all of whom are ‘potential’ and then they are successively ‘actual’
participants in the lawful alienation and acquisition of ownership”.
These five parties are four competitors (two buyers and two sellers) and the ‘enforcer’ or
judge who is “ready to issue commands to any of the buyers and sellers in the name of sovereignty,
if any dispute arises”. Given a transaction among these five agents, a contract regards at least three
agents: the ‘actual’ buyer and seller (those who agree upon the terms of the transaction) and the
judge or third party.
The working rules of the transaction include the definition of the rights, duties, liberties and
exposures of the agents or, in other words, their entitlements. However, there is no guarantee that
the working rules of the transactions satisfy the relations considered above 21 . If we concentrate our
19 In other words, Commons' notion of transaction costs not only includes the traditional enforcement costs that
characterize relations with another agent. It also includes the cost of the public institutions and competition costs to be
sustained by the agents when they seek to exclude their competitors from the market. On this point see Nicita (1999
and 2001) who introduces the notion of cross competition that arises when both the assumptions of zero enforcement
and competition costs are removed.
20 According to Commons every economic exchange implies alienation and acquisition of property rights in a
commodity, whereas the word ‘commodity’ identifies not only the merely possession of a physical thing but also a
‘lawful ownership’ (1924).
21 Commons (1924) observes that Hohfeld transactions can also be interpreted as ethical relations between the agents
which may also be supported by traditional beliefs. However, Commons (1924 p. 85) observes, "There is, however, a
17

attention on the two agents i and j that are involved in the transactions, the two agents may well
hold different views on their entitlements. For instance, the rights of the agent i may not match the
duties of j and the liberties of j may not match the exposures to these liberties of i. In other words,
the limit between the rights and the exposures of i may not coincide with the limit between the
duties and the liberties of j. An important distinction in Commons’ analysis is that between
"authorised transaction” and "authoritative transactions”.
Authorised transaction. An "authorised transaction” is defined as a transaction governed by
“the will of a superior party or parties imposes limits on their transactions by imposing or
interpreting rule of conduct applicable to dispute” (p.87). Thus it occurs when, because of the
activity of a fifth agent (the public authorities), the limit between the rights and the exposures of
each agent coincides with the duties and the liberties of the other agent.
However, "authorised transactions" cannot be taken for granted unless we imagine a world
of complete law or of complete rights (and corresponding duties) for every possible action or use
potentially exposed to an externality 22 . As long as we live in a world of incomplete rights, most
potential relationships among economic agents are governed by "authoritative transactions" or
second order jural relations, which means they are governed by rules of power and liability.
Authoritative transaction. An "authoritative transaction” is defined as a transaction
governed by relation of power in which “the subject person is not permitted to choose any
alternative when once the superior person has decided” (p.107). This power is determined from
one side, by the completeness of the legal system and from the other by the dimension and by the
actual configuration of the market in which the transaction occurs.
Thus we can see how at any time, in a given legal system there is a reciprocal shaping
between authorized and authoritative transactions. This relationship between "authorised
transactions" and "authoritative transactions” strictly depends, in a given legal system, on the
degree of completeness of property rights: the more property rights are complete and well defined
the greater is the presence of "authorised transactions" over "authoritative transactions and the
weaker is the impact of market discipline over contractual or vertical relationships. On the opposite
difficulty with these ethical mandates. They are mental processes and therefore as divergent as the wishes and the fears
of individuals. Hence, when they emerge into action they are individualistic and anarchistic. They are unrestrained in
action by an actual earthly authority to whom each party yields obedience." The lack of subjective correlation may
express itself in the fact that one agent considers that the boundary of his rights differs from the related boundary of the
duty of the other agent. For this reason, according to Commons (1924, p. 86), "It seems that the only procedure that will
collerate the wishes and fears of each and prevent anarchy is to resort to a third person of an earthly quality whom each
consents to obey, or each is compelled to obey."
22 See Nicita and Rizzolli (2004).
18

side, when rights are poorly defined authoritative transactions act as a surrogate for the legal
system and actual contractual parties are exposed to relations of economic power.
As we can see from the above analysis, the notion of transaction provided by Commons is a
complex one, which integrates all the possible social interactions (also in the form of multiple
equilibria) which actually affect a transaction. This stylized five parties’ transaction is useful both
for positive and for normative analysis and acts as a paradigm to study in a comprehensive way
legal and economic interactions as well as to outline possible ‘local’ structuring of transaction in
institutional complementarities destined to perpetuate over time. In Commons’ terms, complex
transactions generate a governance structure according to the relative dimension of "authorised
transactions" and "authoritative transactions”. The relative weight of the two depends on many
variables and mainly on the way in which legal positions structure themselves as institutional
complementarities (Pagano, 2005). Another remarkable change in parties’ transaction does emerge
when new remove the assumption that agents’ preferences and behaviors are exogenous. This is one
of the main result of the approach named Behavioral Law and Economics (Jolls, Sunstein and
Thaler, 1998) which investigates the way in which law affects human behavior and individuals’
likely response to changes in the rules. According to this last approach, in a context of endogenous
preferences many of the expected outcomes induced by change in law might be reversed with
counterintuitive consequences in terms of social welfare.
5. Transactions, Institutional complementarities and the role of history
As Aoki (2001) recently pointed out the notion of institutional complementarity may provide a
useful tool to analyse how equilibria are selected in a complex transaction characterised by multiple
equilibria. The notion of institutional complementarity relies on the idea that, in a given
institutional framework characterized by complex transactions, economic agents face different
domains and do not strategically coordinate their choices across domains games. As a consequence,
the institutional choices in one domain act as exogenous parameters in other domains and constitute
the ‘institutional environment’ under which choices are being made. In this setting “one type of
institution rather than another becomes viable in one domain, when a fitting institution is present in
another domain and vice-versa” (Aoki 2001).
19

The emergence of institutional complementarities 23 between legal and economic domains in
transactions brings also to the possibility of having equally (in)efficient multiple equilibria which
tend to persist over time. The analysis of institutional complementarities in the context of complex
transactions has the following implications: (1) the interdependence among legal and economic
domains may generate multiple institutional arrangements; (2) according to initial conditions
affecting the available choices in one domain, some Pareto-inferior institutional arrangement may
emerge; (3) since institutional arrangements self-enforcing in nature and destined to perpetuate over
time (by path dependency and cumulative causation) unless some exogenous change affects one
domain or the other so as to shift the choice to another institutional arrangement. These outcomes
completely reverse the Posnerian attitude to view the process of legal change as a continuous and
progressive tendency towards a systemic efficiency rather than towards the emergence of diversity
and fragmentation in legal systems. Moreover, since the interdependence between legal and
economic domains may strictly depend on the degree of discretionary power on the degree of
incompleteness of rights, the co-evolution of economic and legal domains may well be shaped by
reasons other than the maximization of aggregate wealth. That is consistent with recent analyses
showing how, even in common law countries, the rise of the regulatory state was an institutional
response to the belief that private litigation was the sole appropriate response to social wrongs. As
Glaeser and Shleifer (2003) pointed out, since private litigation was subject to ‘subversion’ (we
may say to the power exerted by authoritative transaction) the regulatory state has grown as an
institutional response to (the excess of ) discretionary power in private litigations. This has another
relevant consequence against the claimed ‘efficiency of property rights’. Not only the allocation of
well-defined property rights, but also the process of right definition is subject to discretionary
23 A formal definition of institutional complementarity is the follows. Assume two domains of choices X and Y and,
respectively, two set of choices {X1, X2} and {Y1, Y2}, with agents i choosing in X and agents j choosing in Y,
according to their utilities (respectively, u for i and v for j). Standard conditions of institutional complementarity are
defined by the two following circumstances: (a) for agent i, the additional benefit of having institution X1 instead of
institution X2 in domain X is greater when institution Y1 (instead of institution Y2) is chosen in the domain Y:
u( X 1;
Y1
) − u(
X 2;
Y1
) ≥ u(
X 1;
Y2
) − u(
X 2;
Y2
) ; (b) for agent j, the additional benefit of having institution Y2 instead of
institution Y1 in some domain Y is greater when institution X2 (instead of institution X1) is chosen in the domain X:
v(Y 2
;X 2
) − u(Y 1
;X 2
) ≥ v(Y 2
;X 1
) − v(Y 1
;X 1
). The above conditions, considered by Aoki (2001), re-state in terms of
institutional choices the super-modularity conditions among strategies considered by Milgrom and Roberts (1990) and
are concerned with the property of incremental pay-offs with respect to a change in parameter value. They do not
exclude the possibility that the level of the pay-offs of one rule is strictly higher than that of the other for the agents of
one domain or of both domains, regardless of the choice of rule in the other domain. In other terms, there is the
possibility of a unique equilibrium. However, under the super-modularity condition, there can be two pure Nash
equilibria (institutional arrangements) for the system comprised in X and Y i.e. (X1,Y1) and (X2,Y2). When such
multiple equilibria are possible, we say that domains X and Y are institutional complements of each other and that: X1
and Y1 are institutional complements; X2 and Y2 are institutional complements. Moreover, as Aoki (2001) points out,
when multiple equilibria exist, it is possible that the overall institutional arrangement could result in a Pareto-inferior
outcome. For instance, suppose that (X2,Y2) is such that u ( X 2 ; Y2
) − u(
X 1;
Y1
) > 0 and that v ( X 2 ; Y2
) − v(
X1;
Y1
) > 0.
However if initial conditions are such that X1 or Y1 is selected in one of the two domains so as to act as a parameter in
the other domain, this selection will induce the choice of the institutional complement, respectively, Y1 or X1. As a
consequence, the equilibrium selected will be (X1,Y1) rather than (X2,Y2), i.e. the Pareto-inferior outcome.
20

power and nothing guarantee, under a theoretical framework, that property rights are defined in
principle so as to perform efficient transactions. This was one the main conclusions of the approach
named Critical Legal Studies, for which Law is a social institution and the Posnerian idea of a
world provided with efficient norms (wealth maximizing) embodies a liberist masking aimed at
preserving existing social order in which the evolution of law and rights depends on the allocation
of power 24 . Moreover, when property rights are poorly defined or incomplete, access to property
rights may affect the way in which parties give content to original rights in shaping interactions.
This result reverses also the belief that the mere existence of property rights is itself a pre-requisite
for efficiency. The ultimate effect of property rights for the efficient governance of a given
transaction will depend on the way in which property rights are defined, enforced and exerted.
In terms of future research agenda, Post-Chicago developments show heterogeneity in object
but a common feature in challenging traditional assumptions (bounded rationality but predictable
maximizing behavior; explicit consideration of agents’ hidden purposes). Norms are not simple
solutions in a game but the result of institutional complementarity among several domains of
choices (Cafaggi, F. A. Nicita, U. Pagano (2005)). The enforcement of legal rules is the complex
result of complementary devices (such as the State and the Market) and the impact of legal change
needs to be assessed and predicted under a wide and enlarged framework according to actual
behavior of real-life agents. This approach could thus be employed to analyze the emergence of
self-enforcing path-dependent equilibria in the governance of transactions between economic and
legal domain, so as to explain the variety of legal systems, and the structuring of alternative
governance systems for transactions according to historical local conditions. When legal relations
are inconsistent this does not simple mean that there is a better alternative where they would fit (that
defines a case of weak complementarity) but also that the consequent mismatch in the expectations
of the agents will cause some costly conflict in the economic system (that defines a case of strong
complementarity). Both public and private orderings are costly and imperfect systems to align
expectations ex-ante and avoid costly conflicts ex-post. Their institutional comparative advantage
depends on the relations of complementarity that exist between the legal system and other domains
where individual exercise their choices and, in turn, the relative efficiency of these other
institutional domains depends on the arrangements that prevail in the other domains. No one of
these domains must be assumed to be an independent Nirvana that could support the efficiency of
the other domains. It is the absence of this Nirvana assumption that, in our opinion, should set the
future research agenda for law and economics.
24 See also Bowles S., Gintis H. (1999).
21

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24

SIMPLE
http://www.unisi.it/lawandeconomics/simple.html
ELENCO DEI CONTRIBUTI RICEVUTI FINO AL NUMERO ODIERNO
2004
23 ANTONIO NICITA & UGO PAGANO Law and Economics in Retrospect
23 ANTONIO NICITA & MATTEO RIZZOLLI The evolutionary complementarity between property rules and liability
rules
22 ANTONIO NICITA Hold-up, Competition and Vertical Integration:Another look at Fisher
Body/General Motors?
21 PIER LUIGI PARCU Dominant Firm and Its Abuse
20 EMILIO ASARO Collusion and Auctions: a survey
2003
19 FRANCESCO FARINA Game-theoretic solutions to endogenous contractual incompleteness
18 SIMONE SEPE La cartolarizzazione: aspetti giuridici ed economici
17 FRANCESCO DENOZZA Consumer transaction costs at the intersection of Antitrust and intellectual
property
16 THOMAS ULEN Firmly Grounded:Economics in the Future of The Law
15 LUCA FIORITO Transaction cost economics before Coase: L. K. Frank on industrial
integration
14 ROBERTO GALBIATI Durable goods monopolies: some insights on time inconsistency
13 ANTONIO NICITA Concorrenza e sanità: il 'pendolo delle riforme' in Europa
12 LAURA AMMANNATI, ROBERTO GALBIATI, Regolazione e concorrenza nei servizi pubblici locali
GIORGIO NIZI
11 MARCELLO CLARICH Servizi pubblici e diritto europeo della concorrenza: l'esperienza italiana e
tedesca a confronto
10 GIUSEPPE BELLANTUONO Contratti incompleti e norme sociali
9 DONATELLA PORRINI Financial internalization of environmental damage: legal framework for
economic solutions
8 RUGGERO PALADINI Law & Economics ed economia pubblica
7 MAURIZIO FRANZINI, ANTONIO NICITA Externality, efficiency and fairness: understanding inertia in coase theorem
6 LORENZO SACCONI Incomplete contracts and corporate ethics: a game theoretical model under
fuzzy information
5 ANTONIO NICITA Esternalità, transazioni e ambiente. Una rivisitazione del teorema di Coase
4 ARMAN KHACHATRIAN Theory of the firm. A critical survey
3 GIOVANNI RAMELLO Diritto d'autore e tutela della concorrenza nell'esperienza antitrust europea e
italiana
2 ANTONIO NICITA, UGO PAGANO Le istituzioni economiche del capitalismo alla prova della globalizzazione
1 LAURA AMMMANNATI Diritto e Mercato Una rilettura delle loro attuali relazioni alla luce della
25

simple
Siena Memos and Papers on Law & Economics
La collana di quaderni SIMPLE nasce nell’ambito della ricerca collegata alla Scuola di Dottorato di
Ricerca in Diritto ed Economia (sezione Law and Economics), nata dalla collaborazione tra
l’Università di Siena, l’Università di Trento, il Liuc Castellanza e la Scuola Superiore in Economia e
Finanza. Il dottorato L&E si propone di formare studiosi e dirigenti di istituzioni economico-sociali
nazionali ed internazionali e di imprese per le quali sia richiesta una preparazione interdisciplinare
con particolare attenzione all’area giuridico-economica.
Il percorso didattico, al quale contribuiscono docenti provenienti da diverse università italiane ed
estere, nonché esperti di istituzioni pubbliche e private, si propone di costruire un bagaglio di
conoscenze e strumenti comuni nelle aree di diritto ed economia, partendo da basi disciplinari
differenziate, come quelle offerte nella facoltà di economia, giurisprudenza e scienze politiche. In
particolare, l’attività didattica e di ricerca offerta dal dottorato è rappresentata dalle seguenti macroaree:Contratti,
Diritti di Proprietà, Responsabilità; Organizzazioni economiche e Corporate
Governance; Concorrenza, Regolazione e Antitrust; Istituzioni, Organizzazioni e Scelte pubbliche;
Regolazione e Organizzazioni internazionali. Nell’ambito di questo percorso formativo sono previsti
inoltre moduli di formazione di base per economisti e giuristi e moduli/seminari specialistici, tra i
quali: diritti di proprietà intellettuale, finanza d'impresa, sistemi finanziari, analisi dell'impatto della
regolamentazione, etica e impresa, diritto penale ed economia del crimine, tutela ambientale e tutela
del consumatore. L’ iter formativo si divide in tre segmenti: uno di frequenza obbligatoria delle
lezioni della durata di un anno e mezzo, un secondo di eventuale formazione all’estero e/o di stage
presso istituzioni o enti di ricerca, di durata variabile da un semestre ad un anno, l’ultimo,
focalizzato alla preparazione della tesi. L’obiettivo formativo è diretto a condurre lo studente ad una
preparazione interdisciplinare orientata ad una successiva specializzazione tematica.
http://www.unisi.it/lawandeconomics
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