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The Journal of Law, Economics & Policy JOURNAL OF LAW, ECONOMICS & POLICY Cite as 10 J.L. ECON. & POL’Y 3 Journal of Law, Economics & Policy (ISSN: 1553-4367) George Mason University School of Law 3301 Fairfax Drive Arlington, Virginia 22201 [email protected] www.jlep.net The Journal of Law, Economics & Policy is a triannual publication at George Mason University School of Law, though additional issues may be added during a publication year. One issue is devoted to papers presented at our annual symposium, and the other issues feature peer-reviewed scholarly articles. The Journal focuses on the legal side of law and economics, an approach that de-emphasizes technical mathematics, while providing readers with greater access to economic insights about legal and policy issues. Submissions: The Journal invites authors to submit manuscripts for inclusion in our peer-reviewed issues. Authors should only submit articles that have not been previously published and are not under consideration for publication elsewhere. Consistent with the Journal’s stylistic goals, submitted articles should be clear and concise. Preference is given to submissions that are thirty pages or less, double-spaced, including footnotes. Citations must conform to the latest edition of The Bluebook: A Uniform System of Citation. Authors may submit manuscripts in electronic or hard copy format. Electronic submissions should be sent to [email protected] in Microsoft Word or other compatible formats. For paper submissions, please mail in a hard copy, along with an electronic copy on a CD-ROM. Subscriptions: Subscriptions are available at the following rates: Students: $25 per volume (Domestic addresses only – U.S. & Canada) Domestic (U.S. & Canada): $40 per volume, $20 per issue International: $60 per volume, $25 per issue For subscription information, please contact the Journal by mail or e-mail. All articles copyright © 2015 by the Journal of Law, Economics & Policy, except where otherwise expressly indicated. For any article to which the Journal holds the copyright, permission is granted to reprint or copy any portion of such article for classroom or other educational use, provided that: (1) proper notice of such copyright is affixed to each copy; (2) the author and the Journal of Law, Economics & Policy are clearly identified; (3) in the case of copies distributed in class, students are charged no more than the cost of duplication; and (4) the Journal is notified in writing of the use. Copyright © 2015 by The Journal of Law, Economics & Policy JOURNAL OF LAW, ECONOMICS & POLICY VOLUME 10 FALL 2014 NUMBER 3 EDITORIAL BOARD 2014-2015 Daniel Russell Editor-in-Chief Karen Schroeder Daniel Schneider Jacob Hamburger Executive Editor Publications Editor Managing Editor James Beaty Jeff Kuhlman Daniel McCain Senior Articles Editor Senior Notes Editor Jenny Min Senior Research Editors Daniel Schneider Tamta Zhorzholiani Jacob Hamburger Articles Selection Editor Notes Editor Symposium Editor MEMBERS Ian Baldwin Jason Langford Ian Rothfuss Sam Banks Samantha Morelli Rebecca Schumm Roger Gibboni Temitope Odusami David Scott CANDIDATE MEMBERS Elif Aksoy Matt Devendorf Justin Hillman Gwen Ball Manmeet Dhindsa Jesse Hong Liz Dalton Sammy Grunberg Geoff Moody Christopher Harris BOARD OF ADVISORS Lisa E. Bernstein Henry N. Butler Judge Guido Calabresi Lloyd R. Cohen Robert D. Cooter Robert C. Ellickson Richard A. Epstein Judge Douglas H. Ginsburg Mark F. Grady Michael S. Greve Bruce H. Kobayashi Henry G. Manne A. Douglas Melamed Francesco Parisi Eric Posner Judge Richard A. Posner Roberta Romano Hans-Bernd Schafer Steven M. Shavell Henry E. Smith Vernon L. Smith Gordon Tullock Thomas S. Ulen W. Kip Viscusi Todd J. Zywicki i Dedicated to Henry G. Manne ii JOURNAL OF LAW, ECONOMICS & POLICY VOLUME 10 FALL 2014 NUMBER 3 CONTENTS TENTH ANNIVERSARY SYMPOSIUM: THE UNIQUE CONTRIBUTIONS OF ARMEN ALCHIAN, ROBERT BORK, AND JAMES BUCHANAN KEYNOTE ADDRESS 543 IS THERE A GEORGE MASON SCHOOL OF LAW AND ECONOMICS? Todd J. Zywicki PANEL 1: ARMEN A. ALCHIAN 555 UNCERTAINTY, EVOLUTION AND BEHAVIORAL ECONOMIC THEORY Geoffrey A. Manne & Todd J. Zywicki 581 SOME REFLECTIONS ON ARMEN ALCHIAN’S CONTRIBUTIONS TO GEORGE MASON UNIVERSITY SCHOOL OF LAW AND THE FEDERAL JUDICIARY Joshua D. Wright 589 MAGNUS MAGISTER: AN AFFECTIONATE APPRECIATION OF ARMEN ALCHIAN Fred S. McChesney PANEL 2: ROBERT H. BORK 599 SINCE BORK Douglas H. Ginsburg & Taylor M. Owings 615 ROBERT BORK & COMMERCIAL SPEECH Jonathan H. Adler 633 PUBLIC CHOICE AND JUDICIAL VIRTUE John Harrison PANEL 3: JAMES M. BUCHANAN 649 JAMES BUCHANAN’S CONTRIBUTIONS TO CONSTITUTIONAL POLITICAL ECONOMY, INSTITUTIONAL ANALYSIS, AND SELF-GOVERNANCE Peter Boettke & Liya Palagashvili 669 PUBLIC CHOICE ORIGINALISM: BORK, BUCHANAN, AND THE ESCAPE FROM THE PROGRESSIVE PARADIGM John O. McGinnis 689 THE RELEVANT THEORY OF IRRELEVANT EXTERNALITIES: BUCHANAN, COASE, AND PIGOU David D. Haddock iii iv 2014] 543 KEYNOTE ADDRESS: IS THERE A GEORGE MASON SCHOOL OF LAW AND ECONOMICS? Todd J. Zywicki* Well thank you Henry Butler, and thank you everyone for coming out on this great occasion—which in everyone’s book is a very happy occasion, and in some sense a little bit of a sad occasion. It is a happy occasion be- cause we are here to celebrate the fortieth anniversary of the founding of the Law and Economics Center (LEC), founded by Henry Manne at the University of Miami; it is also the tenth anniversary of the Journal of Law, Economics & Policy (JLEP).1 I’ve been the faculty advisor since the jour- nal was started up, and I remember the moment when that first happened. I do remember the founding of JLEP—I was eight when the LEC was found- ed, so I don’t remember that one, but I do remember the founding of JLEP—when one of my students came to me and said, “Professor Zywicki, this is the law and economics law school, isn’t it ridiculous that we don’t have a student run journal on law and economics?”2 And I said, “You know what, you’re right—that is ridiculous, go do something about it!” And sure enough he did; the journal has prospered in the intervening period and I think it has been an extraordinary addition to the George Mason Uni- versity School of Law (GMUSL), and it is my privilege to be associated with it. One of the reasons why that incident was so significant to me was that it showed the way in which law and economics has become so embedded in the culture at George Mason; so much so that its students have come to embrace its place in the law school, and I think that the story of this jour- nal’s founding is a really good symbol of that. Although of course it is also a little bit of a mixed occasion, because when they came and asked me for an idea for a symposium, I had just been looking through the masthead of the Supreme Court Economic Review (SCER). A lot of people on the facul- ty have been the editors of the SCER: today it’s Michael Greve and Thomas Hazlett, before that it was Josh Wright and Ilya Somin, and before that it was a variety of George Mason University (GMU) professors, most notably Lloyd Cohen, Bruce Kobayashi, Dean Dan Polsby, and others. I was look- * George Mason University Foundation Professor of Law; Senior Scholar, Mercatus Center at George Mason University; Editor, Supreme Court Economic Review, Faculty Adviser to the Journal of Law, Economics & Policy. I would like to thank Henry Butler and Henry Manne for many helpful comments and Chaim Mandelbaum for research assistance. 1 For a useful scholarly history of the Law and Economics Center, see STEVEN M. TELES, THE RISE OF THE CONSERVATIVE LEGAL MOVEMENT: THE BATTLE FOR CONTROL OF THE LAW (2008). 2 That student was Erik Newton who has fittingly gone onto a career as a serial entrepreneur. 544 JOURNAL OF LAW, ECONOMICS & POLICY [VOL. 10:3 ing, and we lost these three titans of law and of law and economics, all of whom were on the board of advisors of the SCER. Bork, Alchian, and James Buchanan were all members of the SCER editorial board, and of course all three of them, as you heard this morning and will hear again this afternoon, made quite significant contributions to the GMUSL in their time. Alchian, of course, was the workhorse of the judicial education pro- gram. Judge Bork taught here in the 1980s—and I was trying to pin down the exact dates, so I asked Max Stearns, “do you know when Bork worked here?” And he said, “Yes, I do, because I was hired to replace him.” So, he was here for a few years, and for many people the first time they ever heard of GMU was at the Supreme Court hearing in which he was occasionally identified as a GMUSL Professor. And of course, Jim Buchanan, as Henry Manne suggested this morning, was very instrumental, first bringing the public choice center here to George Mason, and then in bringing Henry Manne himself to George Mason. The great combination and synergies we’ve had with the economics department and the Center for the Study of Public Choice are obviously part of the reason why the university has pros- pered. So I think, in looking forward and at where we are today, it’s im- portant to look back at this. It might also be useful in framing my remarks, perhaps, to talk a little bit about myself and how I ended up here, because I think in many ways I might represent the second generation of GMUSL. How I ended up here is an example of how Henry Manne, as the Johnny Appleseed of law and eco- nomics, planted trees of law and economics around the country that have come to fruition in the current generation of law and economics scholars, which include myself, Josh Wright, Geoffrey Manne, Max Stearns, and many others.
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