About two decades ago, the Law and Order Group of the Nigerian Economic Summit organized by the Nigerian Economic Summit Group (NESG) proposed the training of judges in the rudiments of economics to enhance their understanding of economic crimes. This recommendation, by a group headed by the judicial colossus, the Late Justice Kayode Eso, retired Supreme Court judge, forms the basis of a consideration of the need for teaching economics in our law faculties as many American universities have been doing for decades.
The University of Chicago Law School pioneered the practice 75 years ago (1939) in 1939 when it offered tenure to the economist Henry Simons. For nearly eight years, Professor Simons fired the imagination of several law students who took the anti-trust course he gave. Shortly before his death in 1946, Simons was succeeded by Professor Aaron Director. Among
other courses, Director taught economic analysis and public policy to excited law students. He also became the first editor of the Journal of Law and Economics (JLE) for which Chicago is famous. Director’s successor as editor of JLE was the towering Ronald Coase who held forth for 19 years beginning from 1964. Professor Coase also taught price theory and antitrust to the law students at Chicago.
Yale, Harvard, and Emory are among other notable American centres for the study of law and economics. Walton Hamilton, Ward Bowman and Guido Calabresi are economists who have played their part in Yale. Ed Mason, Dick Musgrave and Dick Caves have had remarkable influence at Harvard. Also, John Moore’s work at Emory University cannot be ignored.
Among Professor Directors’ students in the years following World War II was Robert Bork, a former Alexander Bickel Professor of Public Law at Yale who became judge, United States Court of Appeals for the District of Colombia circuit about the year 1982. Professor Wesly J. Liebeler of the University of California, Los Angeles, was another. These legal
scholars who have published extensively in the law and economics field are united in extolling the virtues of the economic analysis of legal problems.
The latter testified in 1981 that economic analysis of law is not only relevant to the teaching of case law but is much more powerful than anything the law professors have to say on case law. He suggested that economic analysis of the law turns into incoherent statements many
of the conclusions that emerge from analysis of cases based on the doctrine of precedent. One other student of Aaron Director surveyed the place of bankruptcy, tax, tort, contracts, and jurisprudence on the law curriculum and concluded that economics pervades the law.
Why teach economics in the law faculty? The Justice Eso group advanced a professional reason for its advocacy: to enhance the understanding of economic crimes by judges. This is necessary for three main reasons. First, the involvement of modern governments in economic management through regulation of private markets has thrown up cases that the courts cannot satisfactorily handle by relying on precedents to resolve issues as had been characteristic of the 19th Century. Perhaps a more
fundamental reason for teaching economics in the law faculty is the hope that exposure to the discipline will over a period of time influence the way the law will develop.
This is highly plausible. Did some wit not quip that law is what the courts do? The possibility is strong, as one observer has suggested that as lawyers get to understand more about economics and are called upon to deal with economic problems, they might wish to move in different directions than they had been moving in the past. What, for example, is the effect of minimum wage on the economy? What are the effects of a huge arbitrage on national welfare? What are the macroeconomic consequences of insider dealing on the stock exchange?
Second, scientific and technological advances have brought into
existence forms of contract unknown to mankind in the recent past. One notable example is the contract of surrogate motherhood under which a woman undertakes to carry a pregnancy for another.
Lastly, and deriving from the above, is the growing recognition that lawyers need an additional technique for reaching decisions.
It just happens that economics meets this need largely on account of remarkable advances in the study of property rights. Certainly, the need for lawyers and lawmakers to understand the economic implications of law – existing or proposed – on these and similar public issues is great and urgent.
The Council on Legal Education should provide leadership in this matter. Our various University Law Faculties should swing into action. The National University Commission and the Nigerian Bar Association should give the necessary prodding.
On its part, the Nigerian Economic Society should encourage its members to rise up to the challenge of spending part of their professional life in the law faculties. Beyond this, economists should stand ready to function not only as amicus curiae in
appropriate cases but also as expert witnesses in the temple of justice.
NB: Earlier version of this article by this writer appeared in the
Financial Standard of March 22, 2004.
Weneso Orogun
