Richard Posner’s Law and Brisker Laws

Of the various movements that have surfaced in American legal theory in recent decades, law and economics has emerged as perhaps the most influential, leading some to characterize it as the dominant contemporary mode of analysis among American legal scholars. In this essay, Levine considers law and economics in the context of a comparative discussion of another prominent intellectual legal movement, the Brisker method of Talmudic analysis, which originated in Eastern Europe in the late nineteenth century and quickly developed into a leading method of theoretical study of Jewish law. The Brisker method takes its name from the city of Brisk, home to the movements founder, Rabbi Chaim Soloveitchik. Reb Chaim developed a highly original model that quickly emerged as the predominant form of theoretical study of Jewish law, featuring an emphasis on precise definition and categorization of legal concepts. For the purposes of this Essay, it may be helpful and appropriate to associate law and economics with the theories of the Chicago school and to focus on the approach and contributions of its leading academic proponent, Richard Posner. According to Posner, economics is defined as the science of rational choice in the world–our world–in which resources are limited in relation to human wants. Thus, economic analysis of law provides a broad conceptual framework for the application of the principles of economics in the context of legal issues. Levine aims to examine some of the common elements that have contributed to the success of these intellectual movements. Toward that end, the Essay compares the founding principles of the movements, exploring similarities in their essential characteristics.