“I would prefer not”HERMAN MELVILLE, BARTLEBY THE SCRIVENER: A STORY OF WALL STREET (1853), reprinted in THE PIAZZA TALES 32, 48 (London, Sampson Low, Son & Co. 1856). Scholars have recently challenged the claim in classical deterrence theory that law influences behavior only through the expected sanction imposed. Some go further and argue that law may also “shape preferences,” changing people’s wants and values. In this Article, we analyze existing claims that criminal and civil law alter preferences and conclude that (...) none suggest that the law shapes preferences. We first clarify this preference-shaping claim by elaborating the structure of rational choice theory generally and “preference” in particular. We then investigate three mechanisms of legal influence suggested by the preference-shaping literature: (1) the “serious harm” mechanism; (2) the “social norm” mechanism; and (3) the “self-improvement” mechanism. We then show that each of these mechanisms operates by changing the agent’s beliefs about the attributes or consequences of her choice options rather than by changing her preferences. (shrink)

Analyses of complex entities such as bureaucracies, courts, legislatures, and firms typically personify them. A strong conception of personification requires that these entities have rational interests, rational beliefs, and rational normative judgments. On one account of personification, such personified rationality should be aggregate rationality : the interests, beliefs, and normative judgments should depend only on the interests, beliefs, and judgments of the individuals who constitute the complex entity. I argue that aggregate rationality is too strong a normative requirement to impose (...) on courts and legislatures. Key Words: collective rationality • personification • adjudication • doctrinal paradox. (shrink)

This essay investigates consequentialist reasoning in law. It begins with a brief exposition of the structure of consequentialist reasoning. It then turns to the role of consequentialist reasoning in two aspects of legal decision-making. Legal officials must reason both about ends and about the choice of means to achieve those ends. Legal instrumentalism, however, takes many forms, and different forms identify different officials to engage in the task of reasoning consequentially to choose means. The essay then considers the difficulties posed (...) by the fact that legal decision-makers choose policies or institutions that structure the outcomes they hope to achieve. Finally, the essay considers the role that consequentialist reasoning may play in choosing ends. (shrink)

This essay disentangles the complex relations between economic logic and legal logic. It distinguishes economic logic as a social process from economic logic as economic reasoning; economic reasoning to explain behavior from economic reasoning to evaluate behavioral outcomes; and legal reasoning in judicial contexts from legal reasoning in other contexts such as legislation and legal enforcement or compliance. It then argues first that economic logic as the logic of social processes deepens our understanding of how law develops and how it (...) influences behavior. But the essay argues second that economic logic plays at best a limited role in the logic of legal reasoning for two reasons. Much legal reasoning seeks to identify the goals we should and do pursue while economic logic takes such goals as given. Further, the instrumental role of economic logic will vary with the institutional context in which legal reasoning occurs. (shrink)

This chapter contains section titled: Introduction A Characterization of Economic Analysis of Law Normativity Preference and Obligation Concluding Remarks Note References.

Constitutional political economy addresses four questions: the causal question: What explains the constitutional institutions we observe? the consequential question: What consequences do constitutional institutional have? the ideal question: What constitutional institutions does justice require? and the design question: What constitutional institutions are best for a polity given the constraints imposed by its current situation? Answers to the ideal and design questions require a theory of behavior that predicts how individuals will behave within constitutional institutions. Analysts usually assume that this theory (...) of behavior corresponds to the explanatory theory developed to answer the second, consequential question. This essay argues that the assumption of rational self-interested behavior as the basis for a behavioral theory is not justified. (shrink)

This handbook offers a deep analysis of the main forms of legal reasoning and argumentation from both a logical-philosophical and legal perspective. These forms are covered in an exhaustive and critical fashion, and the handbook accordingly divides in three parts: the first one introduces and discusses the basic concepts of practical reasoning. The second one discusses the main general forms of reasoning and argumentation relevant for legal discourse. The third one looks at their application in law as well as at (...) the different areas of legal reasoning. The handbook’s division in three parts reflects its conceptual architecture, since legal reasoning and argumentation are considered in relation to the more general types of reasoning. (shrink)

In a recent paper on ‘The Many as One’, Lewis A. Kornhauser and Lawrence G. Sager look at an issue that we take to be of great importance in political theory. How far should groups in public life try to speak with one voice, and act with one mind? How far should public groups try to display what Ronald Dworkin calls integrity? We do not expect the many on the market to be integrated in this sense. But should (...) we expect integration among the many in the legislature, for example, or among the many on the courts? We agree with Kornhauser and Sager about a number of their claims but think that they miss out on important detail and do not achieve a fully general perspective on the issues raised. Our own contribution is in three sections. We address, first, the nature of the integrity challenge; second, the range of cases in which the challenge arises; and third, the question of whether public groups should be designed and required to meet that challenge. (shrink)

Cost-benefit analysis is a widely used governmental evaluation tool, though academics remain skeptical. This volume gathers prominent contributors from law, economics, and philosophy for discussion of cost-benefit analysis, specifically its moral foundations, applications and limitations. This new scholarly debate includes not only economists, but also contributors from philosophy, cognitive psychology, legal studies, and public policy who can further illuminate the justification and moral implications of this method and specify alternative measures. These articles originally appeared in the Journal of Legal Studies. (...) Contributors: - Matthew D. Adler - Gary S. Becker - John Broome - Robert H. Frank - Robert W. Hahn - Lewis A. Kornhauser - Martha C. Nussbaum - Eric A. Posner - Richard A. Posner - Henry S. Richardson - Amartya Sen - Cass R. Sunstein - W. Kip Viscusi. (shrink)

I hear the patter of little feet around the house, I expect Bruce. What I expect is a cat, a particular cat. If I heard such a patter in another house, I might expect a cat but no particular cat. What I expect then seems to be a Meinongian incomplete cat. I expect winter, expect stormy weather, expect to shovel snow, expect fatigue---a season, a phenomenon, an activity, a state. I expect that someday mankind will inhabit at least five planets. (...) This time what I expect is a state of affairs. If we let surface grammar be our guide, the objects of expectation seem quite a miscellany. The same goes for belief, since expectation is one kind of belief. The same goes for desire: I could want Bruce, want a cat but no particular cat, want winter, want stormy weather, want to shovel snow, want fatigue, or want that someday mankind will inhabit at least five planets. The same goes for other attitudes to the extent that they consist partly of beliefs or desires or lacks thereof. But the seeming diversity of objects might be an illusion. Perhaps the objects of attitudes are uniform in category, and it is our ways of speaking elliptically about these uniform objects that are diverse. That indeed is our consensus. We mostly think that the attitudes uniformly have propositions as their objects. That is why we speak habitually of "propositional attitudes.". (shrink)

Many years ago, C.B. Martin drew our attention to the possibility of ‘finkish’ dispositions: dispositions which, if put to the test would not be manifested, but rather would disappear. Thus if x if finkishly disposed to give response r to stimulus s, it is not so that if x were subjected to stimulus r, x would give response z; so finkish dispositions afford a counter‐example to the simplest conditional analysis of dispositions. Martin went on to suggest that finkish dispositions required (...) a theory of primitive causal powers; there, I think, he was mistaken. All that they require is an improved conditional analysis, and this improved analysis can be built upon whatever treatments of properties and of laws we may favour on other grounds. (shrink)

Newcomb's problem and similar cases show the need to incorporate causal distinctions into the theory of rational decision; the usual noncausal decision theory, though simpler, does not always give the right answers. I give my own version of causal decision theory, compare it with versions offered by several other authors, and suggest that the versions have more in common than meets the eye.

is the second-order theory of the part-whole relation. It can express such hypotheses about the size of Reality as that there are inaccessibly many atoms. Take a non-empty class to have exactly its non-empty subclasses as parts; hence, its singleton subclasses as atomic parts. Then standard set theory becomes the theory of the member-singleton function—better, the theory of all singleton functions—within the framework of megethology. Given inaccessibly many atoms and a specification of which atoms are urelements, a singleton function exists, (...) unique up to isomorphism. (This article is partly abridged from my Parts of Classes, partly a sequel.). (shrink)

Inductive methods can be used to estimate the accuracies of inductive methods. Call a method immodest if it estimates that it is at least as accurate as any of its rivals. It would be unreasonable to adopt any but an immodest method. Under certain assumptions, exactly one of Carnap's lambda-methods is immodest. This may seem to solve the problem of choosing among the lambda-methods; but sometimes the immodest lambda-method is λ =0, which it would not be reasonable to adopt. We (...) should therefore reconsider the assumptions that led to this conclusion: for instance, the measure of accuracy. (shrink)

In quantum mechanics it is usually assumed that mutually exclusives states of affairs must be represented by orthogonal vectors. Recent attempts to solve the measurement problem, most notably the GRW theory, require the relaxation of this assumption. It is shown that a consequence of relaxing this assumption is that arithmatic does not apply to ordinary macroscopic objects. It is argued that such a radical move is unwarranted given the current state of understanding of the foundations of quantum mechanics.