Economic Analysis of the Law and the Civil Rights Perspective

This semester I finally had the chance to take Economic Analysis of the Law here at UT Law School.  In this class we examine different legal policies from an economic standpoint in order to determine how best to maximize social welfare.  In order to make the analysis work we have to start with certain assumptions about human behavior.  Among other things, we assume that people make rational decisions, and that they attempt to maximize their individual welfare.  These assumptions are certainly not always true, but they simplify the world into a system that is useful when predicting behavior in the real world.

In general the civil rights crowd tends to be hostile to this merging of law and economics.  We tend to see rights as intrinsic to human life, and therefore outside this economic system.  To a certain extent I agree.  After all, it seems impossible to put a price on the freedom of speech.  But while you can’t sell your freedom of speech, you can let the government borrow it for a while.

As lawyers we voluntarily forfeit our freedom of speech whenever we take on a new client.  We must respect attorney-client privilege and remain loyal to our clients no matter what our individual political preferences may be.  We accept these restrictions on our rights because we feel they are less valuable than our client’s right to fair representation.  In situations like these you could say that rights are being traded.  Even if there is no money involved, it is clear that one right is valued more highly than the other.  Once we acknowledge that some rights are more valuable than others, putting specific prices on them is just a matter of working out the details.

While a full adoption of the law and economics school of thought is probably unnecessary, we should at least be prepared to think strategically about our options and how best to protect civil rights and civil liberties when they are challenged.  Often times protecting one person’s right requires the forfeiture of another person’s right.  We should make an effort to balance these interests rather than blindly supporting the creation of rights wherever they can be found.  In some instances this may mean reducing them to a variable in an equation.  In others it might just mean taking some time to consider the consequences of our policies, whether they are intended or not.