A Situationist Critique of Legal Theory – Abstract

Situationist contributor David Yosifon has recently posted his excellent article, “Legal Theoretic Inadequacy and Obesity Epidemic Analysis” (forthcoming 15 George Mason Law Review (2008)) on SSRN.  Here’s the abstract.

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This Article explores crucial analytic and normative limitations in presently dominant and ascendant approaches to legal theory. The approaches’ failure to provide a satisfying framework for analyzing the obesity epidemic presently raging undeterred in American society reveals these limitations. Conventional law and economics scholars writing on the subject have deployed familiar frameworks to reach predictable conclusions that are neither intellectually nor morally justifiable. This Article argues that recent theoretical innovations promulgated within the burgeoning law and behavioralism movement have thus far provided no more reliable a framework for legal analysis of the obesity epidemic than has conventional law and economics. This Article critiques in particular the behavioral law and economics concepts of “libertarian paternalism” and “asymmetric paternalism,” as well as the concept of “expressive overdeterminism,” recently developed by proponents of “cultural cognition theory.” This project is undertaken as part of a broader effort to develop an alternative approach to legal theory that previous co-authors and I call “critical realism.” The theoretical arguments herein are broad, but this Article aims to also advance obesity epidemic analysis in particular. Part V briefly discusses specific public policy implications of my assessment, with special reference to a policy innovation based in the reform of corporate law.

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To download a copy of Professor Yosifon’s paper for free, click here.

For those interested, here is a list of related Situationist posts to date: “Big Calories Come in Small Packages,” “The Situation of Eating – Part II,” “The Situation of Eating,” “The Situation of the Dreaded ‘Freshman 15′,” “Our Situation Is What We Eat,” “Social Networks,” “Common Cause: Combating the Epidemics of Obesity and Evil,” “The Situation of Fatness = Our ‘Obesogenic’ Society,” “Innovative Policy: Zoning for Health,” “Situational Obesity, or, Friends Don’t Let Friends Eat and Veg,” “McDonalds tastes better than McDonalds, if it’s packaged right,” “The Science of Addiction, The Myth of Choice,” “The Situation of our Food – Part I,” “The Situation of Our Food – Part II,” “The Situation of Our Food – Part III,” and “The Situation of our Food – Part IV.”