Posted by The Situationist Staff on January 16, 2010
Situationist Contributor Jon Hanson, Kathleen Hanson, and Melissa Hart, have recently posted their outstanding introduction to law and economics (to be published in Dennis Patterson’s forthcoming volume, “Compantion to Philosophy of Law and Legal Theory) on SSRN. The chapter includes a brief discussion of the emergence of economic behavioralism and situationism, and it is now available to download for free here. Here’s the abstract.
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This chapter provides an introduction to the history, uses, methods, strengths, and limits of law and economics. It begins by examining the role of positive and normative approaches to law and economics. To examine the positivist thesis – that the law does in fact tend toward efficiency – the chapter discussed and analyzes the famous Hand Formula developed by Judge Learned Hand in United States v. Carroll Towing. As one of the only traditional cases in which a judge arguably made efficiency his explicit goal, the case presents an excellent opportunity to assess whether, even an efficiency-oriented judge will or can identify the efficient result. The chapter reviews the possible liability rules that might have been applied in Carroll Towing, and uses that review to introduce many of the core concepts and methods of law and economics, including game theory. Ultimately, the chapter concludes that, although the Hand Formula may have led to one of the possible efficient results, there is little reason to be confident, and some reason to doubt, that Judge Hand reached the most efficient outcome. The difficulties inherent in selecting the efficient rule through litigation present a significant challenge to the positivist case for legal economics.
The second part of the chapter considers both the normative support for efficiency and the range of challenges to, and refinements of, the normative position that have developed in recent years. The chapter highlights some of the trade-offs inherent in the law and economics approach and concludes that law and economics has, like any legal theory, both costs and benefits.
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Again, you can download the paper for free here. For a sample of related Situationist posts, see “Tushnet on Teles and The Situation of Ideas – Abstract,” “Deep Capture – Part X,” “Behavioral Economics and Policy,” and “Emotional Reactions to Law & Economics – Abstract.”
Posted in Abstracts, Distribution, Legal Theory, Situationist Contributors | Tagged: Carroll Towing, Distribution, economic behavioralism, efficicency, Hand Formula, law and economics, legal history, Richard Posner, situationism | 1 Comment »
Posted by The Situationist Staff on November 5, 2008
John Mikhail’s recently posted his forthcoming chapter, “Moral Grammar and Intuitive Jurisprudence: A Formal Model of Unconscious Moral and Legal Knowledge” (forthcoming in The Psychology of Learning and Motiation: Moral Cognition and Decision Making (D. Medin, L. Skitka, C. W. Bauman, D. Bartels, eds., 2009) on SSRN. Here’s the abstract.
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Could a computer be programmed to make moral judgments about cases of intentional harm and unreasonable risk that match those judgments people already make intuitively? If the human moral sense is an unconscious computational mechanism of some sort, as many cognitive scientists have suggested, then the answer should be yes. So too if the search for reflective equilibrium is a sound enterprise, since achieving this state of affairs requires demarcating a set of considered judgments, stating them as explanandum sentences, and formulating a set of algorithms from which they can be derived. The same is true for theories that emphasize the role of emotions or heuristics in moral cognition, since they ultimately depend on intuitive appraisals of the stimulus that accomplish essentially the same tasks. Drawing on deontic logic, action theory, moral philosophy, and the common law of crime and tort, particularly Terry’s five-variable calculus of risk, I outline a formal model of moral grammar and intuitive jurisprudence along the foregoing lines, which defines the abstract properties of the relevant mapping and demonstrates their descriptive adequacy with respect to a range of common moral intuitions, which experimental studies have suggested may be universal or nearly so. Framing effects, protected values, and implications for the neuroscience of moral intuition are also discussed.
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For related Situationist posts, see “Moral Cognitions – Abstract” and “Moral Psychology Primer.”
Posted in Abstracts, Law, Legal Theory, Morality | Tagged: appraisal theory, battery, calculus of risk, cognitive science, deontic logic, Hand Formula, intuitive jurisprudence, legal formalism, legal realism, moral grammar, moral heuristics, negligence, tort, unconscious inference | Leave a Comment »