| Law and economics is a leading contender in challenging the doctrinalism that has dominated legal research and teaching in law schools for over a century. For nearly three decades the field has been dominated by the Chicago School and Richard Posner. At the center of Posner's work is his efficiency hypothesis, which had two primary types of support: (1) studies undertaken by Posner and other scholars associated with the Chicago School purporting to show that common law doctrines are, in fact, efficient, and (2) a mechanism for bringing efficient rules into being. Most law and economics scholars associated with the Chicago School found the mechanism in an evolutionary theory of common law development. This study attempts to show that both of these types of support are problematic.;Using the efficiency criteria found in the economic analysis of law, this study looks at English common law rules governing the allocation of losses resulting from forgery and argues that between 1840 and 1927 the English courts shifted from an efficient rule to the most inefficient rule, the direct opposite of what the efficiency hypothesis would predict. Finding that English forgery doctrine, which is at the heart of the English payment system and its economy, is inefficient raises serious doubts about the hypothesis.;The second type of support is problematic because the current evolutionary theories being developed by law and economics scholars suggest that the common law does not evolve toward a set of efficient rules. Instead, the current theories claim that through the litigation process the common law evolves into a set of rules that favor organized, repeat players with adequate resources to pursue their objectives through litigation. In the process of developing these new theories many law and economics scholars have either rejected or ignored the efficiency hypothesis along with the early evolutionary theories.;The final part of the dissertation (1) presents a critique of the new evolutionary theories, and (2) using concepts from sociolegal studies concludes with an outline of an explanation for the development of nineteenth-century English forgery law. |
