Economic Consequences for Lawyers: Beyond the Jurisprudential Preface

This article moves from the premise that a bilateral relationship between law and economics requires the contribution of the theory of legal reasoning and argumentation. The article shows that, to be legally relevant, economic consequences have to be incorporated into interpretive arguments. In this regard, the jurisprudential preface strategy proposed by Craswell goes in the right direction, but begs the question of why the legally relevant consequences have to be assessed in terms of total welfare maximization instead, for example, of consumer welfare maximization. After having identified five points of divergence between total and consumer welfare approaches, the article draws from legal inferentialism to propose an analytical tool for assessing the explanatory power of these two approaches – the explanatory scorekeeping model. The model is then applied to the reasoning in United Brands Company v. Commission.