SOCIETÀ ITALIANA DI DIRITTO ED ECONOMIA
Lucas Víspico (University of São Paulo (Brazil) / Harvard Law School)
Abstract
How is the Law and Economics (L&E) movement influencing judicial decision-making in Brazilian courts? This paper investigates the growing impact of L&E on Brazilian jurisprudence, with a particular focus on whether economic concepts are used to enhance legal reasoning or merely as rhetorical devices. Traditionally associated with common law systems, L&E has seen significant adoption in civil law countries including Brazil, evidenced by the surge in L&E-related academic publications and its integration into judicial discourse. This papers analyses the application of the Coase Theorem, a fundamental yet controversial concept within L&E, in decisions made by Brazilian courts during the COVID-19 pandemic. By analyzing a set of rulings from São Paulo courts that referenced the Coase Theorem, particularly in eviction cases, this research assesses whether judges utilized economic reasoning to substantively address legal disputes or simply to justify pre-existing viewpoints favoring minimal judicial intervention. The findings indicate that judges frequently invoked the Coase Theorem to argue against judicial interference in contractual matters, promoting the idea that market forces and private negotiations would naturally lead to efficient outcomes. This approach often ignored the complexities and socio-economic disparities present in the cases, reflecting a rhetorical use of L&E principles rather than a deep engagement with their theoretical foundations. The study highlights the importance of critically examining the integration of economic theories in legal reasoning, advocating for a more reflective approach that ensures such theories genuinely contribute to fair and balanced judicial outcomes.