Law or Economics? An Empirical Investigation into ...

Law or Economics? An Empirical Investigation into the Influence of Economics on Australian Courts Russell Smyth Senior Lecturer, Department of Economics and David Syme School of Business, Monash University

This article investigates the influence of economics on the Federal Court and High Court through counting the number of times which the law and economics literature has been cited in cases published in the Federal Court Reports and Commonwealth Law Reports. The main finding of the article is that the courts cite economics literature in areas of the law where economics has had a traditional role such as restrictive trade practices, but the impact of the new law and economics on judicial reasoning has been minimal

introduction This article examines the impact of the "old" and "n ew" law and economics in Australian courts.1 There has been much speculation about the impact of law and economics on the courts and legal scholarship in both Australia and overseas. Landes and Posner suggest it is "the most influential of the explicitly interdisciplinary ('law and ...') movements". 2 On the other hand a number of _ _ 1

in this article the "old" and "new" law and economics are

defined as in C Veljanovski, The New Law and Economics A Research Review (Centre for Socio Legal Studies, Oxford, 1982). Veljanovski (at ρ 2) states: "The 'old' law and economics is concerned with legal subject matter that affects the operation of the economy and markets. It examines the effect that law has on competition, economic organisation and such economic variables as prices, investment, profits, income distribution and the production and distribution of resources. The areas of antitrust, labour law, industry regulation (such as controls on nationalised industries and public utilities) and tax law, all fall into this category. The subject matter of the 'new' law and economics is the entire legal system and the doctrines and procedures of the civil, criminal and public laws irrespective of whether they regulate explicit 'economic relationships' or not." This definition is also similar to definitions which other authors give. For example, see M Trebilcock, "An Introduction to Law and Economics" (1997) 23 Mon LR 123 at 123 124. 2 W Landes and R Posner, "The Influence of Economics on

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scholars in the United States have argued that the i c s movement has peaked and that

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it is now on a downward slide.3 For example, writing within the law and economics school, Epstein recently wrote of the "glorious past and clo u d y future" of law and economics. 4 This has resulted in some soul searching within the movement. Some influential advocates of law and economics such as Becker have suggested that the discipline of law and economics is becoming too theoretical. 5 Others, such as Ellickson and N ussbaum have argued that it will stagnate unless it 6 draws on other disciplines. In Australia the im pact of law an d econ om ics h as

Law: A Quantitative Study" (1993) 36 J Law & Econ 385 at 385. 3 For example, see M Horwitz, "Law and Economics, Science or Politics?" (1980) 8 Hofstra L Rev 905; O Fiss, "The Law Regained" (1989) 74 Cornell L Rev 245. 4 R Epstein, "Law and Economics: Its Glorious Past and Cloudy Future" (1997) 64 U Chi L Rev 1167. 5 G Becker, "The Future of Law and Economics: Roundtable Discussion" (1997) 64 U Chi L Rev 1129 at 1137. 6 R Ellickson, "Bringing Culture and Human Frailty to Rational Actors: A Critical Critique of Classical Law and Economics" (1989) 65 Chi Kent L Rev 23; M Nussbaum, "Flawed Foundations: The Philosophical Critique of (a Particular Type of) Economics" (1997) 64 U Chi L Rev 1197.

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not received the same amount of discussion as in the United States, but authors have still expressed differing opinions. Michael Kirby laments that "legal decisions ... susceptible to economic analysis, have very little of it in the courts of Australia".7 Sir Anthony Mason postulates that "the impact of economics on substantive law, especially judge made law ... has been less than many supporters of the law/ economics school would have predicted".8 However, others have suggested that these remarks are misguided. In a response to Sir Anthony Mason, McGuinness suggests: "Whether or not economic analysis has had the most extensive influence of all social sciences in the growth of legal theory over the last few decades is debatable; there can be little doubt, however, that its impact has been the most profound".9 A surprising feature of this debate is the lack of quantitative evidence. There are a few studies which attempt to measure the impact of law and 10 11 economics on legal scholarship and the courts in the United States, but there are no empirical studies

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M Kirby, "Law and Economics: Is there Hope" ht t p^ww^^^ Sir Anthony Mason,

for Australia. The objective of this article is to take some first steps toward filling this gap in the literature through examining the extent to which the High Court and Federal Court cite law and economics material in decisions published in the authorised reports. The results in this article should be of value to three sets of people. First, the results should be of interest to counsel appearing in the Federal Court and High Court. The following issues are of relevance to counsel: To what extent are the courts willing to consider economic arguments? In which subject areas are judges most willing to entertain economic arguments? Are the cases restricted to matters under the Trade Practices Act 1974 (Cth) or is the influence of law and economics more pervasive? Which judges are most receptive to economic arguments? This article attempts to answer these questions. Second, it is of value to prospective authors who want to influence judicial opinion to know which periodicals the courts cite most often in the law and economics area. Third, the results should be of interest to academics and others interested in the citation practice of the courts in a more general sense. In Canada and the United States there are a number of studies which investigate different aspects of the citation practice the courts, 12 but there are few studies o f

Law and Economics: Monash Law

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School Foundation Lecture" (1991) 17 Mon LR 167 at 167. 9

K McGuinness, "Law and Economics A Reply to Sir Anthony Mason CJ Aust" (1994) 1 Deakin L Rev 117 at 120 121. 10 Landes and Posner, op cit η 2; Ellickson op cit η 6; G Stigler, "Law or Economics?" (1992) 35 J Law & Econ 455. 11 I Englard, "Law and Economics in American Tort Cases: A Critical Assessment of the Theory's Impact on Courts" (1991) 41 Uni of Toronto Law Journal 359 (impact of Calabresi and Posner on torts cases in the United States); J Harrison, "Trends and Traces: A Preliminary Evaluation of Economic Analysis in Contract Law" (1988) 1 Ann Surv Am L 73 (impact of law and economics on contract cases in the United States). A number of articles consider Easterbrook's and Posner's use of economics in their published decisions for example see W Samuels and N Mercuro, "Posnerian Law and Economics on the Bench" (1984) 4 Int Rev of Law & Econ 107; G Cohen, "Posnerian Jurisprudence and Economic Analysis of the Law: The View from the Bench" (1985) 133 U Pa LR 1117; J Wilson, "Justice Diffused: A Comparison of Edmund Burke's Conservatism with the Views of Five Conservative Academic Judges" (1986) 40 U of Miami LR 913; J CuIp, "Judex Economicus" (1987) 50 Law & Contemp Prob 95; Note, "Judge Frank H Easterbrook: A Faithful Adherent of the Law & Economics Approach Advocated by Professor Frank H Easterbrook" (1987) 50 Law & Contemp Prob 265. 6

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investigating the citation practice of Australian courts. 1 3

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Some better known examples are J Merryman, "The Authority of Authority: What the California Supreme Court Cited in 1950" (1954) 6 Stan LR 613; J Merryman, "Toward a Theory of Citations: An Empirical Study of the Citation Practice of the California Supreme Court in 1950, 1960 and 1970" (1977) 50 S CaI LR 381; L Friedman et al, "State Supreme Courts: A Century of Style and Citation" (1981) 33 Stan LR 773; R Kagan et al, "The Evolution of State Supreme Courts" (1984) 76 Mich LR 961. A number of studies take a law and economics approach; for example see W Landes and R Posner, "Legal Precedent: A Theoretical and Empirical Analysis" (1976) 19 J Law & Econ 249; W Landes and R Posner, "Legal Change, Judicial Behaviour, and the Diversity Jurisdiction" (1980) 9 J Legal Stud 367; W Landes et al, "Judicial Influence, A Citation Analysis of Federal Courts of Appeals Judges" (1998) 27 J Legal Stud 272; M Kosma, "Measuring the Influence of Supreme Court Justices" (1998) 27 J Legal Stud 333. l3 As far as I am aware there are just four published or forthcoming studies investigating the citation practice of Australian courts: P Von Nessen, "The Use of American Precedents by the High Court of Australia" (1992) 14 Adel LR AUSTRALIAN BUSINESS LAW REVIEW

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Law or Economics? An Empirical Investigation into the Influence of Economics on Australian Courts The article is set out as follows. The next section examines some of the main reasons judges cite economics literature. Section three considers different judicial views on whether it is appropriate for judges to cite articles and texts on economics or advocating an economic approach in their reasons. The advantages and disadvantages of using citation practice as a measure of use and/ or influence are canvassed in section four. Section five provides an overview of the sample and methodology used in this study and examines the major patterns of citations to economics in the Federal Court and High Court. Section six looks in detail at which periodicals, scholars and texts received the most citations. The citation practice of individual judges is examined in section seven. The last section contains some conclusions and reiterates the limitations of the study. Why do judge s cite e c o no mic s literature ? There are at least five separate reasons why judges cite economics literature. The first is to assist with deciding die definition of economic concepts in statutes. In the cases in this study two prominent examples were the definition of "market" in s 46 of the Trade Practices Act 1974 (Cth) and "economic efficiency" in s 3(1 )(c) of the Fisheries Management Act 1991 (Cth). Second, some sources are cited because they have been approved in previous cases as correctly stating the law. For example, in the sample cases the High Court cited a number of economic texts in Queensland Wire Industries ν BHP14 relevant to the issue of market structure. In subsequent cases, the Federal Court has cited a number of the same texts because they received approval by the High Court in that case. Merryman makes the point that "the fact of citation gives a work authority to some degree and it will

thus exert some influence on the way the law grows". 15 Third, some economics articles and texts are cited because of the reputation of the author. For instance, in the sample, when citing Breyer, Easterbrook and Posner, the citing judge often pointed out that these authors were now judges in the United States. In the eyes of the citing judge this gave their views added authority. The same was true for articles by Professor Maureen Brunt. The fact that, at one point, she was a member of the Trade Practices Tribunal appeared to give her views on market structure added force. Fourth, some secondary authorities are cited to summarise the law in other jurisdictions. In the sample cases, some texts on antitrust were cited when considering the operation of the Sherman Antitrust Act 1890 in the United States. Fifth, some judges cite economics literature and other social science material to examine the "legislative fact" that underpins legal rules or further explore the evidence of economists acting as expert witnesses. 16 i t ude s to us ing e c o no mic s in . . re ac hing dec isions

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The role of economics in the decision making process in courts has received the most attention in t h e United States where a number of prominent law and economics advocates are now judges. 17 Most of scholars, though, have drawn a distinction t n ese between their adherence to law and economics as academics and as judges. For example, Posner (the academic) writes: "Judges are increasingly receptive 18 H owever, Posner (the t o economic arguments." judge) is more cautious about the value of using economics: "Although there is bound to be some

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Merryman, op cit η 12, at 413 (emphasis in original). For example, in QlW Retailers ν David Holdings (1993) 42 FCR 255 at 275 Spender J states: "I have discussed many of the authorities and a number of articles by experts in deference to the elaborate arguments that were presented to the court both in course of submissions and in the course of some of the evidence of some of the economic experts who were called in the proceedings." ,7 Notable examples are Bork, Breyer, Easterbrook, Ginsburg, Middlebrook and Posner. ,8 Landes and Posner, op cit η 2, at 386. 16

181; R Smyth, "Academic Writing and the Courts: A Quantitative Study of the Influence of Legal and Non legal Periodicals in the High Court" (1998) 17 U Tas LR 164; R Smyth, "Other than 'Accepted Sources of Law'? A Quantitative Study of Secondary Source Citations in the High Court" (1999) 22 UNSW LJ 19; R Smyth, "What do Judges Cite? An Empirical Study of the Authority of Authority in the Supreme Court of Victoria" ( 1999) 25 Mon LR 29. 14 (1989) 167 CLR 177.

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Smyth relationship, it would be quite wrong to imagine that a professor would become a judge in order to smuggle into the judicial reports the ideas he has developed as a professor, or having become a judge, for whatever reason he had done so, he would then set about to see how much of his academic writing he could as it were enact into positive law."19 Other adherents to law and economics have made similar points since being appointed as judges. For example, Easterbrook (the academic) wrote an article suggesting areas where the United States Supreme Court could benefit from using more economic reasoning.20 However, Easterbrook (the judge) is more circumspect, pointing out the inherent limitations on the uses to which economics can be put.21 Breyer adopts a similar stance to Easterbrook suggesting that an understanding of economics is important in antitrust and regulation cases, but there is little role for economics outside of these areas.22 Bork argues that there is a middle ground for economics between "an enthusiasm so overdone that it leads to the delusion that all of law's problems can usefully be analyzed through economics ... [and] nihilistic delusion that price theory is so far removed from a science that it is virtually useless anywhere in the law".23 However, Patricia WaId, Chief Judge, United States Court of Appeals for the District of Columbia, criticises the view that there is a middle road. She suggests that judges cannot "pick up or set down the powerful tools of economics like a slide rule".24 As WaId sees it, the problem is that judges don't have

the "ability to analyze its techniques and ascertain the extent to which they incorporate assumptions that [they] are not ready to accept".25 This view has some support from judges who complain that they don't have the training to use economic analysis in their reasoning. For instance, Stewart Pollock, a Justice of the Supreme Court of New Jersey, makes the point that even in the United States, "most sitting judges have [little] formal training in law and economics"26 and hence are reluctant to use it. In Australia there has been less judicial comment on the value of using economics in deciding cases than in the United States. One of the strongest critics of the new law and economics in Australia is Sir Anthony Mason who criticises Posner's concept of wealth maximisation as being inconsistent with doing justice between the parties. He states: "The courts have no charter to articulate legal principle in order to serve particular economic goals."27 However, other senior judges have been more reserved in their assessment of the merits of law and economics. Michael McHugh writes: "Whether [law and economics] will be fully received into the body of Australian law remains to be seen. Nonetheless, it provides one valuable insight: judges cannot lose sight of the economic consequences of their law-making."28 Michael Kirby goes even further than this. He argues that the courts should make increased use of economic analysis, in its "more modest guise" and suggests that Sir Anthony Mason's comments cited above show an "excess of caution".29 In New Zealand, Sir Ivor Richardson, of the New Zealand Court of Appeal, argues that economic reasoning in negligence cases can make judicial assumptions more transparent. He suggests there needs to be an "increasing emphasis on rigorous analyses of the economic and social and administrative costs" in

19 R Posner, "Wealth Maximization and Judicial DecisionMaking" (1984) 4 Int Rev of Law & Econ 131 at 131. 20 F c iL· ,!, ' υ «c A TU ^ Λ *u r Easterbrook, Forward: The Court and the Economic System" (1984) 98 Harv L Rev 4. 21 F Easterbrook, "The Inevitability of Law and Economics" (1989) 1 Legal Educ Rev 3 at 21 28. 22 See S Breyer, "Economics for Lawyers and Judges" (1983) 33 J Legal Educ 294; S Breyer, "Economics and Judging" (1987) 50 Law & Contemp Prob 245. 23 R Bork, "The Role of the Courts in Applying Economics" (1985) 54 Antitrust LJ 21 at 22. 24 P WaId, "Limits on the Use of Economic Analysis in Judicial Decision Making" (1987) 50 Law & Contemp Prob 225 at 226.

n e g l i g e n c e cases g i v e n that judicial assumptions „«. " • , , · • , · * · fÄ αψ%A 0 „ Λ Λ Α Λ Μ Μ / Λ* O wi o „ i o t ^" 30

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tend to be intuitive and are orten not articulated .

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Ibid at 227. S Pollock, "Comments on Professor Harrison's Paper" (1988) 1 Ann Surv Am L 115 at 123. 27 Op cit η 8, at 180. 28 M McHugh, "The Law Making Function of the Judicial Process Part 1" (1988) 62 ALJ 15 at 31. 29 Op cit η 7, ρ 2. 30 Sir Ivor Richardson, "Changing Needs for Judicial Decision

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AUSTRALIAN BUSINESS LAW REVIEW

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Law or Economics? An Empirical Investigation into the Influence of Economics on Australian Courts The pros and cons of using citation practice to measure use This article uses citation practice to measure the influence/use of law and economics in Australian courts. However, some criticisms have been made of counting citations as a measure of influence/use. Hence, it is important to be aware of the limitations of this approach as well as outline some of its strengths. There are three issues that might be of concern when counting citations in judgments. First, it is argued that a negative citation (that is, citation for the purpose of criticism) should not receive the same weight because it is possible that an article which is poor in standard might receive many citations because of widespread criticism of its contents.31 The problem with this criticism, though, is that judges are under no obligation to cite economic material. Hence, if the judge believes the article is of poor standard or not worth citing he or she will ignore it altogether.32 At the same time, large numbers of negative citations could reflect the fact that an article is both controversial and influential.33 Landes and Posner make this point clear when writing about citation practice in legal scholarship: "When speaking of influence, rather than quality, one has no call to denigrate critical citations. Scholars rarely bother to criticize work that they do not think is, or is likely to become, influential. They ignore it."34 A second possible problem is obliteration. The work of some writers is so influential that it becomes part of the common body of knowledge to the extent that it is no longer considered necessary to cite the original article or text.35 For example, a judge might refer to the Coase Theorem without

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citing Coase's 1960 article36 because the proposition *s s o w e ^ ^ c n o w n · Whether this is a major limitation in this study, however, is debatable. Writing about citation practice in scholarship, Shapiro argues that "any work so successful as to achieve this status would have already amassed an impressive citation total before becoming 'obliterated'".37 This need not be true for citation practice in the courts if a reference has been widely cited previously in the academic literature (such as Coase's article). Nevertheless, for most law and economics references obliteration should not be a problem because at least amongst Australian judges and legal practitioners the principles are not so widely known that there is no need to cite the supporting literature. A third limitation is that judges might read or otherwise be influenced by economic reasoning, but not cite it in their judgments. Harrison makes the point that there are a host of subtle and perfectly legitimate processes through which law and economics can influence the substantive law without receiving judicial citation.38 For example, articles or texts could be cited in argument, but not in the final judgment. Moreover, judges read more articles than they cite in their judgments. For example Judith Kaye of the New York Court of Appeals observes, "the idea of measuring impact by counting citations [strikes] me as odd - I read a great many more law review articles than I cite in my opinions".39 From this perspective, it is difficult, if not impossible, to capture the full influence of law and economics on the courts. This consideration suggests that studies such as this will underestimate influence, and therefore the results should be treated as a lower bound. While each of these factors means that we have to be careful in evaluating the results, most commentators have viewed these limitations as minor when compared with the advantages of using citations. The main advantage of using citation

Making (1991) 1 Journal oj Judicial Administration 61 at 65.

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Landes and Posner, op cit η 2, at 389 390. This came through strongly in the results of the study

(discussed below). Initially, the intention was to document the number of times law and economics received critical and favourable citations. However, the vast majority of citations were neither critical nor favourable. 33 I Ramsay and P Stapledon, "A Citation Analysis of Australian Law Journals" (1997) 21 MULR 676 at 678. 34 Landes and Posner, op cit η 2, at 390. 35 F Shapiro, "The Most Cited Law Review Articles" (1985) 73 CaI L Rev 1540 at 1543 1544.

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practice is that it is the most objective indicator of influence. After an exhaustive review, Lawani and

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R Coase, "The Problem of Social Cost" (1960) 3 J Law & Econ 1. 37 Op cit η 35, at 1544. 38 Harrison, op cit η 11, at 81. 39 J Kaye, "One Judge's View of Academic Law Writing" (1989) 39 J Legal Educ 313 at 313.

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Smyth Bayer conclude "considerable evidence has been accumulated to suggest that citations do indeed 40 provide an objective measure of ... influence". Maru supports this conclusion, stating that: "When an author cites something, it is a reasonable assumption that he has nearly always read, analysed and thought about it and that he finds it significant enough to refer to it in his own work. I do not think that we can describe use in more significant terms than these or that 41 we can find a better way to measure it." For this reason citation practice has been used in previous research to measure influence in a range of disciplines including accounting and science as well as economics and law.42 Citations to e c o no mic s in the Fe de ral Co urt and H igh Co urt Data and methodology The data assembled in this article were collected using LBC Information Services Federal Cases (Current) on CD ROM. This covers all cases reported in volumes 150 to 192 of the Commonwealth Law Reports and volumes 11 to 81 of the Federal Court Reports« The data were collected in three stages. In the first stage a range of terms with economic significance plus the names of prominent law and economics scholars were entered into the search engine to compile a list of cases raising economic issues. The "economic" terms used included antitrust, competition, economic, economics, efficiency, market, microeconomic, microeconomics and regulation. Three sets of "prominent" law and economics scholars were entered in the search engine. First the "founding

fathers" of law and economics as elected by the American Law and Economics Association (Coase, Calabresi, Manne and Posner). Second, academics working on law and economics in the top 15 law schools in the U nited States as identified and used 44 in the citation study by Landes and Posner. Third, "other" well known scholars in law and economics from N orth America plus individuals associated with law and economics in Australia.45 This method at first might appear to be random and, stopping short of reading every case decided over the period, it is impossible to be certain that it generates all relevant cases. H owever, there is good reason to be confident that it identified at least most of the cases that addressed economic issues or used economic reasoning. This is reflected in the fact that particularly towards the end of this process several of the names and terms entered into the search engine identified the same cases. In the second stage, each case on the final list was read and all P °s s i b l e c i t a t i o n s t 0 e i t h e r e c o n o m i c s o r " l a w « d economics" articles or texts were counted. In stage three the cited material was read to confirm that it addressed economic issues and the authors were ^corded as an economist or lawyer, T w o methodological issues deserve specific mention. First, when reading the cases, if an item r e c e i v e d re P e a t c i t a t i o n s i n t h e s a m e Ρ ^ Γ 2 1 Ρ η rt w a s c o u n t e d οη1 * on ce' bu t if Λβ Γβ w e r e reP eat c i t a t i o n s t 0 t h e s a m e s o u r c e in subse < *u e n t Paragraphs these were counted again on the presumption that the source was being cited for a d i ffe r e n t Proposition and therefore had separate significance.46 In order to give proper weight to

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Lawani and Bayer, "Validity of Citation Criteria for Assessing the Influence of Scientific Publications: New Evidence with Peer Assessment" (1983) 34 J Am Soc'y Information Sci 59 at 61. 41 O Maru, "Measuring the Impact of legal Periodicals" [1976] American Bar Foundation Research Journal 227 at 229. 42 See the references cited in Ramsay and Stapledon, op cit η 33, at 678. 43 The timeframe covered should be sufficient to gauge the influence of law and economics on Australian courts given that the new law and economics at least did not start to have a significant effect on legal scholarship in the United States until the mid 1970s see Harrison, op cit η 11. 10

Landes and Posner, op cit η 2, break their sample into two: first, economists without law degrees who are faculty members of top 15 law schools these are Cooter, Goetz, Goldberg, Haddock, Hay, Klevorick, Landes, Polinsky, Rose Ackerman, Rubinfeld, Salop, Shavell and Wächter; second, law professors with joint degrees at top 15 law schools. These are Ayres, Bebchuk, Donohue, Hansmann, Hylton, Kaplow, Kornhauser, Levmore, Markovitis and Sykes. 45 This was done in a more or less haphazard manner. Some of the North American scholars tried in addition to those listed in the above footnote were Areeda, Bork, Breyer, Easterbrook, Stigler and Trebilcock. Some of the Australian scholars entered were Brunt, McEwin, Norman, Richardson and Williams. ** This is consistent with the methodology adopted in previous citation practice studies in the United States and Australia. For example see W Daniels, "'Far Beyond the Law Reports': AU STRALIAN BU SIN ESS LAW REVIEW

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Law or Economics? An Empirical Investigation into the Influence of Economics on Australian Courts citations in joint judgments, the number of citations in these judgments was multiplied by the number of participating judges when calculating the total 47 figure. However, in cases where Judge A concurred with Judge B and Judge B cited an economic article or text, Judge A was not attributed with having cited that material. Second, in the beginning an attempt was made to distinguish between cited material which explicitly purported to be "law and economic" and cited material which was primarily or wholly concerned with economics with little or no reference to the law. However, in cases dealing with s 46 of the Trade Practices Act 1974 (Cth) and ss 90 and 92 of the Constitution the distinction was muddied. More importantly, it was clear that the judges did not differentiate between the two categories making the distinction artificial. Hence, in these cases all citations to straight economics and "law and economics" literature were subsumed under old law and economics. 48 y. , Λ f

The next biggest subject group was cases relating to the Constitution which accounted for just over 18 per cent of citations. Most of these citations were in cases concerning either s 90 or s 92 of the Constitution. Articles and texts using an economic approach were also cited in cases dealing with torts, the Fisheries Management Act 1991 (Cth), workers' compensation, calculation of damages, patients' rights to access medical records and criminal law. Turning to differences in the citation patterns of the courts, the main reason that law and economics material was cited more in the Federal Court seems to be that that court hears more cases under the Trade Practices Act 1974 (Cth). All of these citations were to the old law and economics. In the High Court over half of citations to law and economics articles and texts were in constitutional cases. While 38 citations is not a high number given the composition of the High Court's case load, this is still somewhat surprising given previous commentators have argued that law and economics

Overview of the results

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Table 1 gives information on the number of law and economics articles and texts cited in the sample cases. There were 209 citations altogether; of these 88.5 per cent (or 185 citations) were to the old law and economics and 11.5 per cent (or 24 citations) were to the new law and economics. There were 137 citations in the Federal Court and 72 citations in the High Court. Table 2 breaks citations down according to the main subject covered in the case. Most citations to law and economics articles and texts were in cases under the Trade Practices Act 1974 (Cth). These made up over 70 per cent of total citations. This is not surprising given the close relationship between economics and antitrust law. . Secondary Source Citations in United States Supreme Court Opinions, October Terms 1900, 1940 and 1978" (1983) 76 Law

Lib J l at 3 4. This is consistent with previous citation practice studies in Australia. See the references cited in η 13. 47

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instance, Easterbrook argues that in constitutional matters: "there is usually no role [for law and economics] at all. Constraints on the acts of other branches come from political rather than economic theory. Efforts to introduce economics are unwarranted."49 However, previous research in the United States suggests that Chief Judge Posner, at least, cites economics in constitutional cases. Chubb examined 300 opinions of Chief Judge Posner over the period 1981 to 1984. He found that just over a third of Posner's citations to economics references were in constitutional cases. 50 What determines these patterns? Merryman suggests that "citations by lawyers arguing before the court exercise an important influence on what · t h e

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difficult to be certain about the influence of counsel in the Federal Court and High Court because argument is not reported at the beginning of cases in

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To take one example, it seemed artificial to distinguish between H Varian, Intermediate Microeconomics: A Modern Approach (4th ed, W W Norton, New York, 1996) (clearly primarily an economics text) and P Areeda and D Turner, Antitrust Law: An Analysis of Antitrust Principles and their Application (Little Brown, Boston, 1978) (a law and economics text) when both were being cited for their discussion of industrial structure.

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Op cit η 21, at 28. L Chubb, "Economic Analysis in the Courts: Limits and Constraints" (1989) 64 Indiana L J 769. 51 Merryman, op cit η 12, at 414.

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Smyth the Federal Court Reports and only parts of argument are reported at the start of cases in the Commonwealth Law Reports. One might expect that the practice directions of the court could offer some insights. However the practice directions of both the High Court and Federal Court are restricted to practical issues such as organisation of authorities. There are no practice directions placing restrictions on what can and cannot be cited. How do these results compare with previous findings for courts in the United States? Harrison used Westlaw to determine the number of times 58 specific law and economics articles and texts that focused on contract law were cited in Federal and state courts in the United States.52 He found that about half of the articles and books examined had not been cited by a state or Federal court. The remainder were cited a total of 77 times. His conclusion was "that the impact of law and economics has been clear, but modest". 53 Englard examined the impact of law and economics on tort law in the United States using Lexis and Westlaw.54 His research method was similar to that used in this study. He examined cases for the names of prominent scholars in law and economics and adopted alternative strategies for double checking. Englard found that law and economics had had a minimal impact on the development of tort law in the United States. He states: "It should be recalled that among the presumably thousands of tort cases published during the nearly three decades covered by this analysis, only a small fraction made explicit use of the economic approach. Moreover, even in those opinions where Calabresi's or Posner's writings are mentioned, the reference is often made perfunctorily without real significance in terms ofjudicial process."55 Studies which have considered the impact of law and economics on legal scholarship have reached mixed conclusions. Ellickson examined the publications of academics at four "elite" law schools to see whether the fraction of economics

56

scholarship was growing and found it was not. Stigler considered publications in three major law reviews (Harvard Law Review, University of Chicago Law Review and Yale Law Journal) over three periods (1965 1968, 1975 1978, 1985 1988). 57 He concluded: "It is quite evident that these law journals are not a significant outlet for writing by economists. In the most recent period (1985 88), of 208 contributions, four were by economists and two were by lawyers with advanced degrees in 58 economics". However, both of these studies can be criticised on the basis that the sample sizes were small. Landes and Posner undertake the most comprehensive investigation into the impact of law and economics on scholarship.59 They use the Social Science Citation Index to determine the number of citations to three sets of prominent law and economics scholars over the period 1976 to 1990.60ThCIr major conclusion was "that the influence of economics on law [scholarship] was growing". 61 _ / . , , , , / . . Reasons for the low level of citations Echoing the comments of Englard cited above, the total number of citations in particular citations to the new law and economics in the High Court and Federal Court is minimal relative to the number of published cases over the sample period. There are several reasons that might explain this. Chubb and Harrison put forward various reasons for the low level of citations to law and economics in United States courts that are also applicable to Australia.62 First, law and economics is a relatively young discipline and the law is slow to embrace new ideas. Secondly, most judges do not feel competent to use law and economics in their decisions. Chubb makes the point:

56 Ellickson, op cit η 6. Stigler, op cit η 10. 58 ibid at 463. $7

59

Landes and Posner, op cit η 2. The three sets of scholars were the same as those tried in stage one of this study the "founding fathers" of law and economics (Calabresi, Coase, Manne and Posner), economists at top 15 law schools and law professors with advanced degrees in economics at top 15 law schools. 6l Landes and Posner, op cit η 2, at 424. 62 Harrison, op cit η 11, at 99; Chubb, op cit η 50, at 798 800. 60

— 52 53 54 55

12

Harrison, op cit η 11. Ibid at 82. Englard, op cit η 11. Ibid at 369.


Volume 28

Law or Economics? An Empirical Investigation into the Influence of Economics on Australian Courts "Posner is able to apply economic theory in some of his opinions because of his vast knowledge of economics. However, a majority of highly proficient judges without the same knowledge would find it difficult if not 63 impossible." Michael Kirby makes a similar comment in the Australian context, noting that: "Of my generation there are few indeed who studied economics."" Thirdly, Harrison suggests that the imperialistic claims of law and economics have deterred some 65 judges. In his academic writings Posner argues that economics has applications in almost all areas of the common law, interpreting statutes and interpreting the Constitution. Most of Posner's far reaching claims are greeted with judicial indignation, even from judges who in general are supportive of using more economics in judicial reasoning. To take one example, Posner argues that rape can be viewed in economic terms. He suggests that legalising rape would be the equivalent of communalising property rights in women. 66 Michael Kirby points out: "This analysis of such a deep affront on human dignity and privacy will be unpersuasive, even offensive, to many. It overlooks certain fundamental and universal features of human rights."67 Scepticism about the value of using economics in areas of the law such as rape might lead some judges to be dismissive of the use of economics altogether, even in areas where its application is more apparent. There are also some additional factors that tend to suggest that Australian courts might cite the law and economics literature less than courts in the United States. First, law and economics is more established in legal scholarship in the United States than in Australia. Secondly, Englard suggests that courts in countries such as Australia might be less policy minded than courts in the U nited States and, therefore, less willing to adopt the functional

63

Ibid at 799. Op cit η 7, ρ 1. 65 Harrison, op cit η 11, at 99. 66 R Posner, "An Economic Theory of the Criminal Law" (1985) 85 Columbia L Rev 1193 at 1198 1199. 67 Op cit η 7, ρ 9. 64

February 2000

language of law and economics. 68 Thirdly, Australian courts in general cite fewer secondary 69 authorities than courts in the United States. One reason for this is the existence of a Bill of Rights in the United States which gives the United States Supreme Court more of an overt political role than the High Court performs in Australia. __ .Λ , . ,. . , . , Λ T h e m o s t C l t e d Pe™dicals, scholars and texts . ,. , p Table 3 provides details on which periodicals containing articles on law and economics were cited over the sample period. There were 25 periodicals cited altogether; these were cited a total of 95 times. There were 87 citations to articles on the old law and economics and eight citations to articles on the new law and economics. The five most cited periodicals were the Australian Business L aw Review (38 citations), Australian L aw Journal (seven citations), Federal L aw Review (seven citations), European Law Review (six citations) and Harvard Law Review (five citations). Two issues come through in Table 3. First, of the 25 periodicals, six are published in Australia, seven are published in Europe and 12 are published in N orth America. This reflects the fact that law and economics is a more established discipline overseas. It also suggests that the Federal Court and High Court are receptive to overseas academic opinion. This finding is similar to previous research examining which periodicals the High Court cited on all topics over the period 1990 to 1997. In that study, of the 20 periodicals which received the most citations, seven were published in Australia, seven were published in N orth America and six were

6« Englard, 0 p citn n , at 362. Secondary authorities covers all references other than citations to sources traditionally considered to be primary. Hence, secondary authorities include articles in journals and books but exclude administrative regulations, the Constitution, case law, court rules, executive orders, parliamentary debates, parliamentary committee reports and statutes. For further discussion on differences in citation rates to secondary authorities in the High Court and the United States Supreme Court see Smyth, "Other than Accepted Sources of Law", op cit η 13.

69

~

ΠΓ

Smyth published in the United Kingdom.70 Secondly, of the 25 journals which were cited in this study, 21 are legal periodicals, two are law and economics periodicals and two are economics periodicals. This suggests either that judges feel more comfortable citing legal periodicals for economic propositions, perhaps because of the mathematical nature of most economics journals, or have better access to, and knowledge of, legal periodicals.71 T lexls

Altogether 43 separate books or chapters were cited; 38 books or chapters on the old law and economics and five books on the new law and economics. Table 4 lists all books that received three or more citations. The four most cited texts on the old law and economics were Areeda and Turner, Antitrust Law, Areeda and Kaplow, Antitrust Analysis, Kaysen and Turner, Antitrust Policy and Scherer, Industrial Market Structure and Economic Performance. The four most cited texts on the new law and economics were Cooter and Ulen, Law and Economics and Posner's three books, The Problems of Jurisprudence, Economic Analysis of Law and Law and Legal Theory in England and America. One aspect of Table 4 which stands out is the dominance of texts on antitrust. Two-thirds of the texts were cited for propositions on industrial market structure. ç , , òcholars A complete list of law and economics publications cited by the Federal Court and High Court is given in the appendix. Eleven scholars (Areeda, Bain, Baxt, Brunt, Cooter, de Q Walker, Posner, Richardson, Stigler, Turner and Williams)

Review once.72 Brunt received the second largest number of citations. Most of these were to a single article in the Australian Business Law Review on market definition which was cited 20 times, making it the single most cited article.73 Posner had the largest number of separate publications cited. The Federal Court and/or High Court cited four of his books (the three mentioned in the last section plus The Federal Courts: Crisis and Reform) in addition to an article he wrote in the University of Chicago law Review and an article he co-authored with Landes in the Harvard Law Review.74 It is interesting to compare the scholarsfromthe United States who were cited in the Federal Court and/or High Court with the results of peer review studies. Whaples, Morriss and Moorhouse conducted surveys of random samples of members of the American Economic Association and American Law and Economics Association.75 One of the questions they asked was: "If you could choose up to five articles/texts on economics for a law and economics course, what would they be?". Out of the authors which were recommended 10 or more times in that study, just two (Posner and Stigler) were cited in the Federal Court and/or High Court.76 The only article or text recommended in that study which was cited in this study was Posner, Economic Analysis of Law. This suggests a gap between the articles or texts that academics think are important, at least in the United States, and what Australian judges find helpful. To get some indication of the relative impact of law and economics on the courts, the names of prominent scholars from three other interdisciplinary areas

received citations to two or more different works.

η

Areeda received the largest number of citations. The High Court and/ or Federal Court cited Areeda and Turner, Antitrust Law on 14 occasions, Areeda and „ , j Λ. Λ j , . j Kaplow, Antitrust Analysis on nme occasions and an article Areeda wrote in the California Law

Century Past and the Future" (1987) 75 CaI LR 959. 73 M Brunt, "Market Definition Issues in Australian and New ? e a l a n d T r a d e ?neúm Liti ß ation " (198u6>14 ^ L R 86 · A c R Posner, "Legal Reasoning From the Top Down and From Λ β Bottom U p: ^ Q u e s t i o n o f U nenume rated Constitutional Rights" (1982) 59 U Chi LR 433, W Landes and R Posner,

— 70

Smyth, "Academic Writing and the Courts", op cit η 13. Landes and Posner, op cit η 2, at 422 423 offer a similar explanation for the fact that scholars writing in major law reviews in the United States cite either economic articles in legal periodicals or law and economics journals for economic propositions rather than economics journals. 71

14

p

Are e da ?

"Monopolization, Mergers and Markets: A

"Market Power in Antitrust Cases" (1981) 94 Harv L Rev 937. R Whaples, A Morriss and J Moorhouse, "What Should Lawyers Know About Economics" (1998) 48 J Legal Educ 120. 76 Calabresi was also recommended 10 or more times in the Whaples, Morriss and Moorhouse study. G Calabresi, A Common Lawfor the Age of Statutes (Harvard University Press, Cambridge, Mass, 1982) was cited three times in the Federal Court, but was not counted in this study because it did not use an economic approach or economic reasoning. 75


Volume 28

Law or Economics? An Empirical Investigation into the Influence of Economics on Australian Courts were entered into the search engine of Federal Cases (Current) on CD Rom. The following interdisciplinary areas and specific scholars were not chosen at random. These specific areas and scholars are identical to those employed in the Landes and Posner 77 study where they were used to measure the relative impact of law and economics on legal scholarship. The three groups were "the political theorists" (Ackerman, Dworkin, Fiss, Fuller, Hart, Michelman and Sunstein), scholars of "critical legal studies" (Frug, G abel, Horwitz, Kelman, Kennedy, Peller, Schlegal, Tushnet and U nger) and "legal feminists" (Becker, McKinnon, 78 Minow, Olsen, Radin and West). Most of these scholars received no citations. Of those who were cited, Fuller was cited seven times, Sunstein was cited twice, Dworkin was cited once, Radin was cited once and U nger was cited once. This suggests that while economics has not had a significant effect on the Federal Court or High Court, the impact of scholars in law and economics has been greater than other interdisciplinary groups.

Previous research in the U nited States suggests that the propensity of judges to cite secondary authorities is related to their political philosophies, For instance, Daniels argues that "liberal" judges cite a higher proportion of secondary authorities than "conservative" judges. 79 However, previous research using data from 1960, 1970, 1980, 1990 and 1996 found this was not true for the High Court. 80 To some extent it is difficult to test this relationship in this study because law and economics is often viewed as innately conservative. H ence, following D aniels, does this mean that judges who cite a high proportion of law and economics literature are conservative (because law and economics is seen as being conservative) or liberal (because they are citing secondary literature)? For instance, even though Chief Judge Posner cites a relatively high proportion of law and economics literature on the United States Court of Appeals for the Seventh Circuit, he would hardly be viewed as "liberal" in the sense D aniels uses the term. N evertheless, putting this issue to one side,

The citation practice of individual judges

H" ^

J & Table 5 shows the number of times individual judges cited law and economics literature in the sample cases. In the High Court Dawson J had the most citations (36 citations) while Brennan CJ and Deane J cited just one law and economic reference each. One interesting feature of Table 5 is that in spite of expressing different views about the value of law and economics, Mason CJ and Kirby J both had the same number of citations (four citations each). However, it has to be remembered that over the sample period, Mason CJ had a much larger pool of published judgments so the findings are not directly comparable. In the Federal Court, Spender J had 32 citations and Gummow J cited law and economics literature 18 times. At the other end of die spectrum a number of judges in the Federal Court cited no law and economics articles or texts at all; ofthose who did^Beaumont J (one citation) and Dav.es Einfeld and Sackville JJ (two citations each)

D aniels s view. In the High Court Kirby J (who as "liberal") and G ummow J couid D e regarded ( w n o could be regarded as "conservative") both j a w a n d economics literature on four Cite¿ occasions. Rather than look at citations to law and economics in general, a better indicator might be to J 00 ^ a t t n e extent to which judges cite the new law ^ d economics, but again no real differences emerge between judges labelled as conservative and judges labelled as liberal.

——

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77

Op cit η 2. In addition to entering the names in the search engine, various forms of double checking were used. Related terms such as "CLS" and "critical legal studies" were also tried. 78

February 2000

79 w

Daniels, op cit η 46, ρ 10. Smyth, "Other than Accepted Sources of Law", op cit η 13.

~

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Smyth Practices Tribunal. Thirdly, the study is restricted to a consideration of cases published in the authorised reports over a specified period of time. While the Federal Court Reports and Commonwealth Law Reports publish the most important decisions of the Federal Court and High Court respectively, these represent a small fraction of total cases decided. Fourthly, the results in this article show the number of times periodicals and texts have been cited in the Federal Court and High Court, but should not be interpreted as an attempt at ranking journals and texts in the law and economics area. In order to provide meaningful rankings we would need to make adjustments for age and number of pages published.81 However, there were not enough citations to ensure that adjusted rankings would be reliable in this study. With these limitations in mind, we can draw three main conclusions from this study. First, the impact of economics and in particular new law

and economics in the High Court and Federal Court has not been significant given the number of published cases that were sampled. Secondly, the use of old law and economics in areas such as antitrust, regulation and taxation, has been much greater than the use of new law and economics in areas of the law where there is no obvious role for economics. Thirdly, on the basis of preliminary investigation using Federal Cases (Current) on CD Rom, the impact of scholars in law and economics would appear to be greater than that of scholars from other movements such as critical legal studies and legal feminism. However, this conclusion is subject to more detailed inquiry. These results should be of interest to a range of people including counsel appearing before the Federal Court and High Court, prospective authors in law and economics and academics interested in citation practice of the courts,

Table 1 Citations to Law and Economics in the Federal Court and High Court Court High Court Federal Court TOTAL

Old Law and Economics Articles Texts Sub total 15 41 56 72 57 129 87 98 185

New Law and Economics Articles Texts Sub total 9 7 16 _ 8 8 9 15 24

TOTAL 72 137 209

81

For further discussion of this issue see Ramsay and Stapledon, op cit η 33, at 685. 16

AU STRALIAN BU SIN ESS LAW REVIEW

Volume 28

Law or Economics? An Empirical Investigation into the Influence of Economics on Australian Courts

Table 2 Citations to Law and Economics According to Subject Categories

Constitutional Tort Patients Rights to Access Medical Records Criminal Damages Trade Practices Act Fisheries Management Act Workers Compensation TOTAL

High Court Old Life E NewL&E 35 3 9 1

Federal Court OldL&E NewL&E 1

1 2 21 56

128 16

5 3 8

129

TOTAL 39 9 1 1 2 149 5 3 209

Table 3 Citations to Periodicals Containing Articles Adopting an Economic Approach Periodical ABLR ALJ Fed LR European L Rev Harv L Rev Communications Law Bulletin St Louis Univ LJ Ann Surv Am Law Int Rev Law & Econ J Law & Econ Journal of Monetary Economics LQR Mod LR Tex LR U Penn L Rev CaI LR Can Bar Rev European Economy Fordham LR LIJ NYU L Rev Torts LJ U Chi LR Virginia L Rev Yearbook of European Law TOTAL

February 2000

Old L & E 38 7 7 6 5 3 3 2

New L & E "

2 2 2 2 2 2 2 1 1 1 1 1 1 1 1 1 1 87

8

17

Smyth

Table 4 Texts Cited Three or More Times Text Areeda and Turner, Antitrust Law Areeda and Kaplow, Antitrust Analysis Kaysen and Turner, Antitrust Policy Scherer, Industrial Market Structure and Economic Performance Samuelson, Hancock and Wallace, Economics Bain, Barriers to New Competition Bain, Organisation and Industry Posner, The Problems of Jurisprudence Stigler, The Organisation of Industry Cooter and Ulen, Law and Economics Corones, Competition Law in Australia Posner, Economic Analysis of the Law Posner, Law and Legal Theory in England and America Richardson and Williams (eds), The Law and the Market Trebilcock et al (eds), Federalism and the Canadian Economic Union

OldL&E 14 9 9 8 7 4 4

NewL&E

4 4 3 3 3 3 3 3

Table 5 Citations According to Individual Judges High Court

Old L&E A"

Brennan Dawson Deane Gaudron Gummow Kirby Mason McHugh Toohey Wilson Sub Total

10

18

A

5

1 1 1 1 2 9

OldL&E A 2 1 5 3 5 1

4 7

New L&E

T

1 36 1 2 4 4 4 5 10 5 72

2

2

4 3 41

15

TOTAL T

2 1 3

Federal Court Bowen Beaumont Beazley Burche« Cooper Davies Dmmmond Einfeld French Gummow Lockhart Morling Sackville Spender von Doussa Wilcox Sub Total TOTAL

New L&E

T·4 1 26 1 2

A

TOTAL

T

1 8 8 1 3

1 10 4 2 2

1 3 11 10 1

30 3 3 72 87

2 4 7 57 98

3 2

9

8 15


3 1 5 11 13 2 3 2 13 18 12 3 2 32 7 10 137 209

- Volume 28

Law or Economics? An Empirical Investigation into the Influence of Economics on Australian Courts Appendix

Articles and Texts Cited in the Federal ^

ec

P osner, Economic Analysis of the Law L (x 3) P osner, Law and Legal Theory in England and

i

merica

996

3)

^] J \ f

, , .

,

n o o m

f

Posner, The Problems of Jurisprudence (1990) L

85

Court and High Court New Law and Economics

Articles Bowles and Whelan, "Judgment Awards and Simple Interest Rates" (1981) 1 Int Rev Law & Econ 111 EE (x 2) Cooter and Freedman, "The Fiduciary Relationship: Its Economic Character and Legal Consequences" (1991) 66 NYU L Rev 1045 LE* Feldhusen and Palmer, "Economic Loss and the Supreme Court of Canada: An Economic Critique of Norsk Steramship and Bird Construction" (1995) 74 Can Bar Rev 427 LE Kirby, "Law and Economics Is there Hope?" unpublished manuscript LA Markesnis and Deakin, "The Random Effect of their Lordships' Infallible Judgment: An Economic and Comparative Analysis of the Tort of Negligence From Anns to Murphy" (1992) 55 Mod LR 619 LL Posner, "Legal Reasoning From the Top Down and From the Bottom Up: The Question of Unenumerated Constitutional Rights" (1992) 59 U Chi LR 433 L Richardson, "Constitutional Freedom of Political Speech in Defamation Law: Some Insights from a Utilitarian Economic Perspective" (1994) 4 Torts LJ 242 L A Veljanovski and Whelan, "Professional Negligence and the Quality of Legal Services An Economic Perspective" (1983) 46 Mod LR 700 LE* Texts Cooter andUlen, Law and Economics (1988) LE* (x 3) — 82

This table docs not include M Kirby, "Law and Economics Is there Hope?" unpublished manuscript which is included in Tab le 1 under "Articles". 83 A refers to articles. Μ τ *• • • / · ιJ u χ T refers to texts (including chapters in texts). 85 if cited more than once, the number of occasions cited is in parenthesis. E denotes the author is an economist, L denotes the author is a lawyer, E* denotes the author is an economist who has held an appointment at a law school or centre for legal research, A denotes that the author or at least one of the authors in the case of a co authored paper is based in Australia. February 2000

( x 4 ) P o s ne r

'

The

Federal

Courts:

Crisis

and

Reform

(1985) L( x 2) Old Law and

Economics

Articles Algie, "Does Australian Law Recognise Predatory Pricing?" (1993) 67 LIJ 161 LA Areeda, "Monopolization, Mergers and Markets: A Century Past and the Future" (1987) 75 CaI LR 959 L Arndt, "Judicial Review under Section 90 of the Constitution: An Economist's Perspective" (1952) 25 ALJ 667 E A B A K , "The Role of Supply Substitutability in Defining the Relevant Market" (1979) 65 Virginia L Rev 129 (unknown) "Competitive Regulation of the Media" B axt, (1991) 11 Communications Law Bulletin 5 L A ( x 2) Baxt, "What Price an Informed Securities Market?" (1994) 22 ABLR 58 L A Breyer, "Five Questions About Australian Antitrust Law" (1977) 51 ALJ 28 L (x 2) Brunt, "The Use of Economic Evidence in Antitrust Litigation: Australia" (1986) 14 ABLR 261 E* A Brunt, "Market Definition Issues in Australian and New Zealand Trade Practices Litigation" (1990) 18 ABLR 86 E* A (x 20) d e Q Walker, "Casenote" (1976) 50 ALJ 89 L A (x 2) de Q Walker, "Product Market Definition in Competition Law" (1980) 11 Fed LR 386 L A (x 7) de Q Walker, "The Trade Practices Act 1974 and the Freedom of the Press" (1980) 54 ALJ 57 L A ( x ^) Easson, "The Internal Market and the Elimination f Fiscal Frontiers" (1990) 10 Yearbook of r0 τ Λ An European Law 141L „ , , LLrrrt . . . ,, , , Λ Λ . Χ , A Easterbrook, The Limits of Antitrust ( 1984)63 Tex LR 1 L (x 2) E m erson et al, "T h e E con om ics of 1992" ( 1988) 35 E u r o p e a n Economy 44 E ^ ^ ,. . . ^ *^ „ • , ΛΟ Λχ ^ F a m a > Ban kin g in the Theory of F inance (1980) 6 \9

Smyth Journal of Monetary Economics 39 E (x 2) Fuller, "Article 86 EEC: Economic Analysis of the Existence of a Dominant Position" (1979) 4 European L Rev 423 E (x 6) H awke, "European Economic Community and United States Antitrust Law: Contrasts and Convergences" ( 1988) 16 ABLR 282 L H ubbard, "Potential Production, A Supply Side Approach for Relevant Product Market D efinitions" (1980) 48 Fordham LR 1119 (unknown) Landes and Posner, "Market Power in Antitrust Cases" ( 1981 ) 94 Harv L Rev 937 LE * (x 2) Mann, "Outline of a History of Expropriation" (1959) 75 LQR 188 L( x 2) Moses, "Antitrust and the M edia" [1984] Ann Surv Am Law 723 L (x 2) Nagarajan, "The Regulation of Predatory Pricing Within Section 46 of the TPA (1974)" (1990) 18 ABLR 292 L A (x 3) N orman and Williams, "The Analysis of Markets and Competition under the Trade Practices Act: Towards the Resolution of Some H itherto U nresolved Issues" (1983) 11 ABLR 8 EE A( x 12) Pengilley, "Restrictive Trade Practices Regulation of the M edia" (1991) 10 Communications Law Bulletin 10 L A Steel, "Joint Operating Agreements in the N ewspaper Industry: A Threat to First Agreement F reedoms" (1989) 138 U Penn L Rev 275 L (x 2) Stigler and Sherwin, "The Extent of the M arket" (1985) 25 J Law & Econ 555 EE (x 2) U nsigned, "Refusal to Deal by Vertically Integrated M onopolies" (1974) 87 Harv L Rev 1720 (unknown) (x 3) Werden, "The Law and Economics of the Essential Facility D octrine" (1987) 32 St Louis U niv LJ 433 E (x3) τ

Areeda and Kaplow, Antitrust Analysis, Problems, Texts, Cases (various editions) LL (x 9) Areeda and Turner, Antitrust Law: An Analysis of Antitrust Law Principles and their Application ( 1978) LL (x 14) Bain, Barriers to New Competition (1956) E (x 4) Bain, Organisation of Industry (1968) E (x 4) Balassa, The Theory of Economic Integration ( 196I ) E Corones, Competition Law and Policy in Australia 20

(1990) L A (x 3) D ownes and Ellison, The Legal Control of Mergers in the European Community (1990) LL D ue and Friedlander, Government Finance: Economics of the Public Sector ( 198I ) E El Agraa, International Economic Integration (1988) E Jovanovic, International Economic Integration (1992) E Kaysen and Turner, Antitrust Policy (1959) LL ( x9) Mann, The Legal Aspect of Money L (x 2) Mathews and G rewal, The Public Sector in Jeopardy Australian Fiscal Federalism from Whitlam to Keating (1997) EE A Mathews and Jay, Federal Finance: Intergovernmental Financial Relations in Australia since Federation (1912) EE A McLure (ed), Tax Assignment in Federal Countries (1983) E Mill, Principles of Political Economy ( 187I ) E (x 2) N icholson, Microeconomic Theory ( 1985) E Pritchard (ed), Economic Development, Foreign Direct Investment and the Law (1996) L Richardson and Williams (eds), The Law and the Market ( 1995) LE A (x 3) Roberts, Roberts on Competition/ Antitrust: Canada and the United States (1992) L Robinson, Monopoly (1941) E Robson, The Economics of International Integration (1987) E Rowley and Baker, International Mergers: The Antitrust Process LL Samuelson, Hancock and Wallace, Economics (1975) EA (x 7) Scherer, Industrial Market Structure and Economic Performance ( 1980) E (x 8) Stigler, The Organisation of Industry ( 1968) E (x 4) Sullivan, Handbook on the Law of Antitrust (1977) L (x 2) Von Kalinowski, Antitrust Laws and Trade Regulation (1971) L (x 2) Varian, Microeconomic Analysis (1984) E Whisk, Competition Law ( 1989) L Williamson, Anitrust Economics (1989) E* . , , a p erS

l

Coper, "The Economic Framework of the Australian Federation: A Question of Balance" in AU STRALIAN BU SIN ESS LAW REVIEW

Volume 28

Law or Economics? An Empirical Investigation into the Influence of Economics on Australian Courts Craven (ed), Australian Federation: Towards a Second Century (1992) L A Mason, "Price and Production Policies of Large Scale Enterprises" (1939) Supplement to the American Economic Review. Reprinted in Mason (ed), Economic Concentration and the Monopoly Problem (1957) E (χ 2) Pritchard and Bendickson, "Securing the Canadian Economic Union: Federalism and Internal Barriers to Trade" in Trebilcock et al (eds), Federalism and the Canadian Economic Union (1983) LL Sawyer, "The Future of State Taxes: Constitutional Issues" in Mathews (ed), Fiscal Federalism: Prospect and Retrospect L A

February 2000

Silzer and Krasnick, "The Free Flow of Goods in Canadian Economic Union" in Krasnick (ed), Perspectives on the Canadian Economic Union (1986) LL Trebilcock et al, "Provincially Induced Barriers to Trade in Canada; A Survey" in Trebilcock et al (eds), Federalism and the Canadian Economic Union (1983) L Whalley, "Induced Distortions of Interprovincial Activity: An Overview of Issues" in Trebilcock et al (eds), Federalism and the Canadian Economic Union (1983) E

2\