Economic Analysis in Judicial Decision Making – an Assessment Based on Judge Posner’s Tax Decisions.

I. INTRODUCTION In the past half-century, proponents of law and economics have used the tools of economics to analyze a wide array of legal issues, starting with tax and antitrust and expanding to fields as diverse as torts, criminal law, free speech, and family law. (1) Although often promoted as a tool to be used by policy makers, scholars have argued that judges either are or should be guided by economic principles when deciding cases. (2) Over the past few decades several of the most vocal advocates of law and economics have ascended to the bench, including Richard Posner, Frank Easterbrook, and Guido Calabresi. Not surprisingly, they have used economic analysis to varying degrees to help them decide the issues and cases they confront as jurists. As the ranks of lawyers who have been trained in the law and economics approach continue to grow and are appointed to the bench, the judicial use of economic analysis is likely to expand, or continue at the very least.

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