Libertarianism, Law and Economics, and the Common Law


This article was prepared as a contribution to the Chapman Law Review’s symposium on “Libertarian Legal Theory.”  While libertarian legal theory and law and economics share many affinities there are places in which both the method of the common law and the substantive rules of the common law differ from libertarian philosophy.

In this article I focus on some of these differences and explain why in the end I have come to side with the rules generated by the common law and explained by law and economics when those results clash with those derived by libertarian philosophy.  To some extent the essay is autobiographical: I initially came to my study of the common law with strong libertarian priors but have eventually found the common law and law and economics to provide a more compelling positive and normative structure for understanding law than philosophical libertarianism.