US Supreme Court Justice Stephen Breyer delivered a very nice speech (in impressive French), March 7, 2011 at the invitation of the Association Internationale de Droit Economique, in Paris (disclosure: I'm a member of that association). The title of the Seminar was "La prise en compte de l'Economique par la Cour Suprême des Etats-Unis, des cours supérieures européennes (CJUE, Cour de Cassation, Conseil Constitutionnel français, etc …)", thus, roughly, on the relevance of economics ("l'Economique", by that meaning, possibly, economic theories, models but also bare economic data) in taking legal decisions at the highest court instances, both in the US and France (but also, as other speakers covered, in Belgium).
This is my personal take on that intense speech.
In general, and perhaps not surprisingly given the palpable charisma emanating from such an eminent figure, I was quite fascinated first of all by the firm, solid structure of the 20-minute or so speech. Justice Breyer started off by quoting the Irish-born statesman, philosopher and orator Edmund Burke (who, by the way, gave up legal studies – my add). Commenting on rather relevant events taking place at the end of the 18th century in France, Burke (E.Burke, Reflections on the Revolution in France, 1790) doomily noted that "(T)he age of chivalry is gone. -- That of sophisters (read lawyers, SV), economists, and calculators, has succeeded; and the glory of Europe is extinguished forever". Justice Breyer summed up his own reflections by politely remarking that Burke was of course wrong.
Legal scholars and economists are bound to build a special "partenariat" and this is by all means a delicate, nuanced exercise. One of the reasons, so I gathered, is that "les juristes" are quite fond of principles, whereas economists prefer thinking at the margin ("un peu plus et un peu moins"). Also judges, of course, realize that the "cost factor" should at times be highlighted in decision taking, and Justice Breyer cited by way of example his opinion in Entergy Corp. v. Riverkeeper, Inc., concurring in part and dissenting in part. Actually, as far as I have understood, economic thinking, and here particularly a strict cost-benefit analysis, according to Justice Breyer, could be quite effective in justifying exceptions to the principle, or rule.
However, as it is well known, Justice Breyer was not much impressed by the reasons for deviation from the per-se rule on vertical price fixing given by economists in Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877 (2007). In particular, Justice Breyer made it rather clear that he couldn't be counted among the fans of the "passager clandestin" (free rider) argument and other economic rationales for vertical price fixing, but the majority of the judges could, and therefore he delivered a dissenting opinion (a must-read for any antitrust/competition scholar, if I may).
The third topic chosen by Justice Breyer in order to dwell on the partenariat between sophisters and economists/calculators was IP law. Again, my impression was that our distinguished and much entertaining guest was not totally convinced by the "incentives reasoning" commonly presented by main-stream economists, especially when it is put forth to provide solid backing to a copyright term extension (Marcel Proust was a telling example of an author whose literary, artistic prouesse would hardly have been significantly improved by a stronger IP system). He also advised the audience not to sing Happy Birthday in the US because of the risk of copyright infringement (copyright owner: Time Warner). Quite interestingly, Justice Breyer also seemed to feel very strongly about the real challenge posed by orphan works.
Legal scholars and economists are bound to build a special "partenariat" and this is by all means a delicate, nuanced exercise. One of the reasons, so I gathered, is that "les juristes" are quite fond of principles, whereas economists prefer thinking at the margin ("un peu plus et un peu moins"). Also judges, of course, realize that the "cost factor" should at times be highlighted in decision taking, and Justice Breyer cited by way of example his opinion in Entergy Corp. v. Riverkeeper, Inc., concurring in part and dissenting in part. Actually, as far as I have understood, economic thinking, and here particularly a strict cost-benefit analysis, according to Justice Breyer, could be quite effective in justifying exceptions to the principle, or rule.
However, as it is well known, Justice Breyer was not much impressed by the reasons for deviation from the per-se rule on vertical price fixing given by economists in Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877 (2007). In particular, Justice Breyer made it rather clear that he couldn't be counted among the fans of the "passager clandestin" (free rider) argument and other economic rationales for vertical price fixing, but the majority of the judges could, and therefore he delivered a dissenting opinion (a must-read for any antitrust/competition scholar, if I may).
The third topic chosen by Justice Breyer in order to dwell on the partenariat between sophisters and economists/calculators was IP law. Again, my impression was that our distinguished and much entertaining guest was not totally convinced by the "incentives reasoning" commonly presented by main-stream economists, especially when it is put forth to provide solid backing to a copyright term extension (Marcel Proust was a telling example of an author whose literary, artistic prouesse would hardly have been significantly improved by a stronger IP system). He also advised the audience not to sing Happy Birthday in the US because of the risk of copyright infringement (copyright owner: Time Warner). Quite interestingly, Justice Breyer also seemed to feel very strongly about the real challenge posed by orphan works.
The last part of this fascinating speech was about the necessity both of change(s) and resistance to change for a society to thrive. Law's inherent conservatism could be explained in this way. Change, however, comes very often from the different opinions that the essential institutions of each democratic system (among which Justice Breyer expressly mentioned, as far as the US is concerned, the powerful American Bar Association) are supposed to let blossom and spread. The key message here, as far as I'm concerned: while the glory of Europe might not be considered as extinguished yet, it is essential to preserve the intensity of the looks across our many ponds, geographically and beyond.