Episode 11 - Economic Analysis of Law (ft. Fabrizio Esposito)

In this episode, we delve into the topic of the foundations of the economic analysis of law. Where do we stand nowadays in law and economics? How has the field evolved from the classical economic analysis of law to the rise of law and political economy? Is there room for a “limping third way” between these approaches? What are the main methodological problems shaping the field today: unilateralism from economics to law, conceptual simplifications, or institutional pressures within academia? What could a true reconciliation between legal reasoning and economic analysis look like?Fabrizio Esposito joins us to explore these questions and to outline possible paths forward for the discipline. We discuss the evolution and internal divisions of law and economics, the growing distance between theory and practice, and the methodological challenges that hinder interdisciplinary dialogue. Esposito proposes a “fitness-based bilateralism” that bridges empirical and normative inquiry through comparative, inferentialist methods, while also emphasizing the need to revive minoritarian and “third way” perspectives that bring law and economics closer to the realities of legal reasoning and institutional choice.Fabrizio Esposito is an Associate Professor of Private Law at NOVA School of Law (Lisbon). At NOVA, he co-coordinates the Master’s in Law Applied to Technology (Law & Tech) and the Data-Driven Law Knowledge Centre, and he is also Librarian Professor and a member of the NOVA Consumer Lab. Outside NOVA, he coordinates the MetaLawEcon network and works as an analyst for EU Law Live.His research sits at the intersection of private law, EU economic law, law & economics, and legal theory, with particular attention to how consumer law, data protection, competition law, and sector-specific regulation respond to technological change in the “attention economy.” Current strands of work include price personalization and theories of harm in consumer law, especially where consumer data is involved. He has published in international journals such as Computer Law & Security Review, European Review of Contract Law, and the Journal of Consumer Policy, and has co-edited volumes such as Research Methods in Consumer Law (Edward Elgar, 2018) and Economics in Legal Reasoning (Palgrave, 2020).[This episode was hosted by Julieta Rabanos and Bojan Spaić; edited by Bojan Spaić; uploaded and formatted by Julieta Rabanos](00:00:00) Intro – HAPL Podcast(00:00:16) Introduction to the Episode – Hosts and Guest(00:01:12) Fabrizio Esposito – Academic Genealogy and Research Interests(00:07:49) Where Do We Stand in Law and Economics?(00:17:20) Economic Analysis of Law vs. Law and Political Economy vs. the Limping Third Way(00:17:43) Clarifying What “Law and Political Economy” Really Means(00:19:35) Interdisciplinarity Problems – Economists, Lawyers, and Institutional Barriers(00:22:21) Theory and Practice – Are Legal Philosophers Also Guilty of Disconnection?(00:30:41) Balancing, Proportionality, and the Use of Economic Concepts in Law(00:36:13) Constitutional Adjudication and the Limits of Economic Analysis(00:38:04) Methodological Underpinnings – From Descriptive Models to Foundationalism(00:45:20) What Are the Methodological Problems in Law and Economics?(00:57:29) Institutionalization and the Academic Detachment Problem(01:04:09) What Is the Way Forward? ‘Fitness-Based’ Bilateralist & Institutional Solutions(01:18:20) The Role of Abstraction and the Value of Theory(01:26:40) Normativity in Law and Economics(01:36:15) Exploring the Third Way and Minoritarian Views(01:43:10) Legal Education and Institutional Reform(01:46:22) Teaching Across Disciplines – Law, Philosophy, and Economics(01:50:45) Realism and Optimism About the Future of Law and Economics(01:54:02) Farewell Reflections – Interdisciplinarity and Academic Change(01:57:10) Outro – HAPL Podcast