Functional and Consequential Analysis in Legal Research
CBS PhD School
Course is postponed to December 2024 - exact dates to be confirmed.
Target group
The course is designed for PhD students in law who wish to draw inspiration from theories of law and economics, and/or to include a law and economics perspective in their thesis. The course is open to all Ph.D students in the social sciences.
Basic aims
The course aims to let you focus on the nature of your research questions and on how functional and consequential analysis is relevant to them. The analysis is functional when one is interested in how well the law addresses certain goals. It is consequential when these goals are formulated as real world consequences, often in terms of welfare.
A framework for understanding, predicting or assessing law from a functional perspective will formulated and exemplified with examples from contract and tort law.
Required reading
The Craft of Research, by Booth, Colomb and Williams. Chapter 1-10 (inclusive), mainly 2-10. The book is online at the library.
Property rules, liability rules, and inalienability, Harvard Law Review 85(6), 1089–128, by Calabresi and Melamed.
A note on the Coase theorem, by Henrik Lando and Gunnar Nordén (on canvas)
A pragmatic view of fairness and social welfare in the analysis of law, Henrik Lando (file:///Users/henriklando/Downloads/SSRN-id3630533.pdf)
Economic analysis of accident law, Steven Shavell, chapter 1-3. http//www.fd.unl.pt/docentes_docs/ma/LTF_MA_24338.pdf
Supplementary reading (not required)
Analytical Methods for Lawyers, by Jackson, Kaplow, Shavell, et al. Foundation Press, 2003. Chapter 1-3, 6.5 – 6.8, 7.
Economic analysis of accident law, Steven Shavell, chapter 1 and chapter 2 section 1 on unilateral accidents :http//www.fd.unl.pt/docentes_docs/ma/LTF_MA_24338.pdf
An Introduction to Law and Economics, Mitch Polinsky.
On Law and Justice. By Alf Ross. 1959, Berkeley, CA: University of California Press, Ch. 1-4;14-15.
The legal analyst, Ward Farnsworth.
Before the course
Before the course, you should read the required readings above
Moreover, as the aim of the course is to address how you might apply functional and consequential analysis in your thesis, it may be useful for you to reflect on your research questions before the course. In this reflection, some concepts from Williams et al. may be useful.
You should therefore do the following homework before the course and to send your answers to hl.law@cbs.dk two weeks before the course, i.e. on November 24.
We will form groups that will discuss your research questions from a functional and consequential perspective, on the second day of the course. To form groups that have themes in common, it is important that you do send the answers. Members of your group will then receive your answers, and to each thesis a person will be designated as discussant.
On the basic or applied nature of your research questions:
Williams et al. distinguish between applied and basic research questions, where the point of applied research is that if we know the answer we can act more effectively. The point of basic research is that if we know the answer we can do better applied research
Describe your research question and explain whether it is applied or basic. Use up to four paragraphs to do so.
If your question is basic, describe:
What can be improved in our fundamental understandings or concepts?
If your question is applied:
What is not working and what should we know in order to fix it?
Whether applied or basic, describe:
Does functional and consequential reasoning, i.e. reasoning about how the law affects behavior, enter your research questions? If so, how?
Course Schedule
Day 1: December 7, 2023
Morning session: A functional understanding of law
9.00 am – 12.15 pm
Understanding law from a functional perspective HL and GN
Readings:
The Optimal Structure of Law Enforcement, Steven Shavell
The Journal of Law & Economics, Vol. 36, No. 1, Part 2. (can be found here: https://www.jstor.org/stable/725476)
A note on the Coase theorem, Henrik Lando and Gunnar Nordén (on canvas)
Property rules, liability rules, and inalienability, Harvard Law Review 85(6), 1089–128. Calabresi and Melamed.
Lunch: 12.15 pm – 1.15 pm.
1.15 pm – 2.30 pm
An example: understanding tort law from a functional perspective
Readings:
Kapitel 1-3 in Shavells textbook:
https://www.nber.org/system/files/working_papers/w9694/w9694.pdf
2.45 pm – 3.15
Case om produktansvaret: U 2017.1122 Ø som illustration af funktionelle overvejelser i fortolkningen af produktansvarets defekt-definition. HL
3.30 – 4.15 pm
On normative criteria applied to law. HL and GN
Readings:
A pragmatic view of fairness and social welfare in the analysis of law, Henrik Lando (file:///Users/henriklando/Downloads/SSRN-id3630533.pdf)
Day 2: December 8, 2023
Morning session: 9.00- 12.15.
Student group work where students present their research questions
Groups of four members are formed beforehand, see above, and to each presenter there will be a designated discussant. The presenter will begin by explaining:
a) What exactly is (are) the research question(s)?
b) Whether consequential or means-end analyses are relevant.
c) Whether economic normative criteria are relevant (e.g. Pareto-efficiency, Kaldor-Hicks efficiency or the utilitarian optimum).
To the presenter, and also to the discussant, is allotted 15 minutes. 15 minutes is also allotted to plenum discussion.
Lunch
Afternoon session: 1.15-4 pm
Plenum discussion, led by HL and GN, addressing questions that have come up in the morning session concerning both the nature of research questions and the role of consequential analysis.
For full course description and registration please visit the CBS web site.