The course will analyze the allocative efficiency (and to a lesser extent the distributive impact) of various tort, contracts, and property doctrines. We will begin by defining "allocative efficiency" and analyzing the relationship between the allocative efficiency of a decision and its overall desirability. We will then analyze the factors that will influence the allocative efficiency of such doctrines as proximate cause, negligence, contributory negligence, comparative negligence, strict liability, expectation damages, restitution damages, impossibility, tenancies in common, large lot zoning, and housing codes (warranties of habitability). The assumptions underlying these analyses will be carefully articulated and realistic assumptions will in the end be employed. The course will examine and criticize the contention that the common law can best be predicted through the economic analysis of allocative efficiency--that the "right" common law answer will virtually always turn out to be the most allocatively efficient doctrine a court could design and implement. No background in economics will be presupposed though students without such a background will have to work harder at the outset. There will be a midterm as well as a final. The exams will be preceded by extensive review sessions.
Markovits, Richard S