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Our answer is "less often than you might think." We qualify and defend this answer in several steps. First, we offer some suggestive evidence that major scholarly contributions in law and economics have had relatively more influence with academics than with judges. For example, ranking articles on the basis of judicial citations rather than academic citations produces interesting results: Judges cite Ronald Coase's "The Problem of Social Cost," by far the most cited paper in the legal academy, much less frequently than doctrinal papers that have received relatively little attention from scholars. Second, we argue that some common features of law and economics scholarship are unappealing to judges. The broadest form of explanatory law and economics—like the hypothesis that the common law has tended to produce efficient rules—is often of little use to judges, who require reasons for making or justifying current decisions. Prescriptive law and economics, meanwhile—like various arguments that the legal system should produce efficient rules—often proceeds from ideological premises that judges don't share, or fails to account for the institutional constraints under which judges operate. In short, much law and economics scholarship is insufficiently doctrinal to appeal to the average judge. These features of law and economics scholarship don't prevent judges from using economics all the time. After all, economics is a basic social science, and judges encounter economic questions with some regularity. But, even here, we find little evidence that today's judges are making greater use of concepts like "efficiency" and "incentives" than those of the past. Throughout this essay, we comment on Guido Calabresi's "The Future of Law and Economics" (2016) and Richard Posner's "Divergent Paths: The Academy and the Judiciary" (2016). [ABSTRACT FROM AUTHOR]

This paper has two purposes. First, it considers what the components of an 'Austrian' law and economics might consist of. I argue that Ronald Coase's conception of law and economics precludes the economic analysis of legal institutions and, in particular, the beliefs that support them. In doing so, Coase's conception precludes an Austrian law and economics. In contrast, Richard Posner's conception of law and economics makes such analysis the core of its study. In doing so, Posner's conception provides a productive foundation for an Austrian law and economics. Second, to illustrate what some aspects of an Austrian law and economics might look like in practice, I consider several examples of the economic analysis of beliefs of import for the law. I focus on objectively false beliefs, or superstitions, and argue that some such beliefs are socially productive. [ABSTRACT FROM AUTHOR]

Gordon Tullock critiques two specific aspects of the common law system: the adversary system of dispute resolution and the common law process of rulemaking, contrasting them with the inquisitorial system and the civil law systems respectively. Tullock’s general critique is straightforward: litigation under the common law system is plagued by the same rent-seeking and rent-dissipation dynamics that Tullock famously ascribed to the process of legislative rent-seeking. The article concludes that Tullock’s critique of the adversary system appears to be stronger on both theoretical and empirical grounds than his critique of the common law system of rulemaking. [ABSTRACT FROM AUTHOR]