This chapter shows how thin the legal-economic analysis of property law has been and responds to a few particular arguments in that field, including arguments about the general structure of property law, adverse possession, and dead-hand control.

This chapter describes the motivations for an analytical, “internal” critique of the law-and-economics movement. In particular, it discusses earlier types of critiques and shows that, while they are probably successful on their own terms, they have done little to dislodge economic-style thinking as a dominant force in American private law. Instead, a critique on the law-and-economics movement’s own terms is needed. The chapter also identifies several recurring problems, or “antipatterns,” in legal-economic reasoning.

This chapter summarizes the problems of the law-and-economics movement and tries to outline new ways for economic thinking to make a more lasting contribution to law.

This chapter develops and critiques the major economic arguments in tort law, focusing mostly on the model of bilateral precaution, which attempts to analyze the foundational choice between negligence and strict liability. It also responds to “least-cost avoider” arguments and shows how little progress economic thinking has made in understanding most of tort law. The commonplace conclusion that tort law has easily succumbed to the law-and-economics movement is incorrect.

This chapter responds to leading arguments about contract remedies, including the theory of efficient breach, contract interpretation, rules of disclosure (or permitting nondisclosure), consideration, and other topics in contract law. It shows how little progress the law-and-economics movement has made in understanding most areas of contract law, despite the obvious connections between contracts and economics.