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  1. Do Good Citizens Need Good Laws? Economics and the Expressive Function.Andrew T. Hayashi & Michael D. Gilbert - 2021 - Theoretical Inquiries in Law 22 (2):153-174.
    We explore how adding prosocial preferences to the canonical precaution model of accidents changes either the efficient damages rule or the harm from accidents. For a utilitarian lawmaker, making the potential injurer sympathetic to the victim of harm has no effect on either outcome. On the other hand, making injurers averse to harming others reduces the harm from accidents but has no effect on efficient damages. For an atomistic lawmaker — one who excludes prosocial preferences from social welfare — cultivating (...)
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  2. Preference Change and Behavioral Ethics: Can States Create Ethical People?Yotam Kaplan & Yuval Feldman - 2021 - Theoretical Inquiries in Law 22 (2):85-110.
    Law and economics scholarship suggests that, in appropriate cases, the law can improve people’s behavior by changing their preferences. For example, the law can curb discriminatory hiring practices by providing employers with information that might change their discriminatory preference. Supposedly, if employers no longer prefer one class of employees to another, they will simply stop discriminating, with no need for further legal intervention. The current Article aims to add some depth to this familiar analysis by introducing the insights of behavioral (...)
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  3.  2
    Does the Law Change Preferences?Lewis A. Kornhauser & Jennifer Arlen - 2021 - Theoretical Inquiries in Law 22 (2):175-213.
    “I would prefer not”HERMAN MELVILLE, BARTLEBY THE SCRIVENER: A STORY OF WALL STREET, reprinted in THE PIAZZA TALES 32, 48. 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 (...)
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  4. Anti-Preferences.Roy Kreitner - 2021 - Theoretical Inquiries in Law 22 (2):299-328.
    This Article offers a critical evaluation of preference satisfaction as a frame for normative thinking. It begins with an internal critique of the way preferences work in normative economics, distinguishing among three elements: welfare; preferences; and choices. For preference satisfaction to work well, it must be able to bridge two gaps, one between choice and preferences, and another between preferences and welfare. In contexts where both those gaps are bridged, preference satisfaction offers a workable normative framework; where at least one (...)
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  5. Framed by the Law: Experimental Evidence for the Effects of the Salience of the Law on Preferences.Tamar Kricheli-Katz - 2021 - Theoretical Inquiries in Law 22 (2):21-34.
    This Article takes an experimental approach to test whether the salience of the law as a system that governs an interaction affects people’s preferences. I find that when the law is made salient in an interaction people’s preferences are altered: they express more future-oriented preferences and donate less money to charity, as compared to when the law is not salient in an otherwise identical interaction. When the law is salient in an interaction people also prefer ‘products’ over experiences, but this (...)
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  6. Addictive Law.Saul Levmore - 2021 - Theoretical Inquiries in Law 22 (2):1-20.
    Law, broadly defined to include group-directed rulemaking and coercion, has plainly grown over time. There are many explanations for this growth, and the evolution from self-help to law. This Article develops the idea that an important contributor to the growth of law has been the fact that law begets law, and it seeks to combine this new explanation with both traditional and more intuitive explanations for law’s expansion. That law brings on more law in an addictive way means that a (...)
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  7.  6
    Preferences and Compliance with International Law.Katerina Linos & Adam Chilton - 2021 - Theoretical Inquiries in Law 22 (2):247-298.
    International law lacks many of the standard features of domestic law. There are few legislative or judicial bodies with exclusive authority over particular jurisdictions or subject matters, the subjects regulated by international law typically must affirmatively consent to be bound by it, and supranational authorities with the power to coerce states to comply with international obligations are rare. How can a legal system with these features generate changes in state behavior? For many theories, the ability of international law to inform (...)
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  8. Moral Norms, Adaptive Preferences, and Hedonic Psychology.Jonathan S. Masur - 2021 - Theoretical Inquiries in Law 22 (2):35-54.
    In a series of important papers published roughly twenty years ago, Professor Robert Cooter developed a comprehensive economic theory of moral norms. He explained the value of those norms, described the process by which norms are adopted, and offered a set of predictions regarding the circumstances under which an individual will choose to adopt a particular moral norm. This brief Article applies behavioral law and economics and hedonic psychology to expand upon Professor Cooter’s path-breaking theory. In particular, understanding welfare in (...)
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  9. Changing People’s Preferences by the State and the Law.Ariel Porat - 2021 - Theoretical Inquiries in Law 22 (2):215-246.
    In standard economic models, two basic assumptions are made: the first, that actors are rational, and the second, that actors’ preferences are a given and exogenously determined. Behavioral economics — followed by behavioral law and economics — has questioned the first assumption. This Article challenges the second one, arguing that in many instances, social welfare should be enhanced not by maximizing satisfaction of existing preferences but by changing the preferences themselves. The Article identifies seven categories of cases where the traditional (...)
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  10. The Data Privacy Law of Brexit: Theories of Preference Change.Paul M. Schwartz - 2021 - Theoretical Inquiries in Law 22 (2):111-152.
    Upon Brexit, the United Kingdom chose to follow the path of EU data protection and remain tied to the requirements of the General Data Protection Regulation. It even enacted the GDPR into its domestic law. This Article evaluates five models relating to preference change, demonstrating how they identify different dimensions of Brexit while providing a rich explanation of why a legal system may or may not reject an established transnational legal order. While market forces and a “Brussels Effect” played the (...)
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  11.  1
    What’s So Special About General Verdicts? Questioning the Preferred Verdict Format in American Criminal Jury Trials.Avani Mehta Sood - 2021 - Theoretical Inquiries in Law 22 (2):55-84.
    Criminal juries in the United States typically deliver their decisions through a “general verdict,” expressing only their ultimate conclusion of “guilty” or “not guilty,” rather than through a “special verdict” that identifies whether each element of the charged crime has been proven beyond a reasonable doubt. American courts have broadly favored the use of general verdicts in criminal cases due to concerns that the special verdict will curtail the jury’s decision-making autonomy, including its power to nullify the law in favor (...)
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  12. Influencing the Preferences of Children Through Legal Impacts on Parenting Style.Stephen D. Sugarman - 2021 - Theoretical Inquiries in Law 22 (2):329-343.
    The overriding theme of the conference honoring Bob Cooter and his work is the question whether law and policy can change people’s preferences. The conventional “law and economics” answer is “no.” People have preferences that are fixed. What changes in law and policy do is to change how people behave by altering the costs and benefits people face in pursuit of their preferences. Put simply, the assumption of the “law and economics” model is that people respond to financial incentives by (...)
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  13.  1
    Discontinuities in Criminal Law.Avlana K. Eisenberg - 2021 - Theoretical Inquiries in Law 22 (1):137-157.
    The law values fairness, proportionality, and predictability. Accordingly, in the context of criminal law, punishments should be carefully calibrated to reflect the harm caused by an offense and the culpability of the offender. Yet, while this would suggest the dominance of “smooth” input/output relationships—for example, such that a minuscule increase in culpability would result in a correspondingly small increase in punishment—in fact, the law is laden with “bumpy” input/output relationships. Indeed, a minuscule change in input may result in a drastic (...)
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  14.  2
    Sizing Up Categories.Lee Anne Fennell - 2021 - Theoretical Inquiries in Law 22 (1):1-30.
    Categories intentionally create discontinuities. By breaking the world up into cognizable chunks, they simplify the information environment. But the signals they provide may be inaccurate or scrambled by strategic behavior. This Article considers how law might approach the problem of optimal categorization, given the role of categories in managing and transmitting information. It proceeds from the observation that high categorization costs can be addressed through two opposite strategies—making classifications more fine-grained, and making classifications more encompassing. Although continuizing and other forms (...)
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  15.  3
    Half the Guilt.Talia Fisher - 2021 - Theoretical Inquiries in Law 22 (1):87-109.
    Criminal law conceptualizes guilt and the finding of guilt as purely categorical phenomena. At the end of trial, the defendant is pronounced either “guilty” or “not guilty” of the charges made against her, excluding the possibility of judgment of degree. Judges or juries cannot calibrate findings of guilt to various degrees of epistemic certainty by pronouncing the defendant “probably guilty,” “most certainly guilty,” or “guilty by preponderance of the evidence.” Nor can decision makers qualify the verdict to reflect normative or (...)
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  16.  1
    The Charitable Continuum.Eric Kades - 2021 - Theoretical Inquiries in Law 22 (1):285-334.
    There are powerful fairness and efficiency arguments for making charitable donations to soup kitchens 100% deductible. These arguments have no purchase for donations to fund opulent church organs, yet these too are 100% deductible under the current tax code. This stark dichotomy is only the tip of the iceberg. Looking at a wider sampling of charitable gifts reveals a charitable continuum. Based on sliding scales for efficiency, multiple theories of fairness, pluralism, institutional competence and social welfare dictate that charitable deductions (...)
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  17.  3
    Line Drawing in the Dark.Adam J. Kolber - 2021 - Theoretical Inquiries in Law 22 (1):111-136.
    The law inevitably draws lines. These lines distinguish, for example, whether certain conduct reflects ordinary recklessness constituting manslaughter or more extreme recklessness constituting murder. There is no way to meaningfully draw such lines, however, absent shared ways of representing amounts of recklessness or at least knowledge of the consequences of drawing lines in particular places. Yet legal actors frequently draw lines in the dark, establishing cutoffs along a spectrum with little or none of the information required to do so in (...)
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  18.  4
    Probabilistic Disclosures for Corporate and Other Law.Saul Levmore - 2021 - Theoretical Inquiries in Law 22 (1):263-284.
    This Article explores the costs and benefits of one subset of continuous and discontinuous rules. These expressions are shown to be distinct from the familiar dichotomy expressed as standards versus rules, but they share the difficulty of dividing the world of law in two. Still, regulatory approaches that focus on discontinuities can often be made more continuous, and vice versa. A speed limit is discontinuous in the sense that one drives above or below the announced limit. But it is often (...)
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  19.  3
    All-or-Nothing, or Something – Proportional Liability in Private Law.Omer Y. Pelled - 2021 - Theoretical Inquiries in Law 22 (1):159-199.
    Judges and juries often make factual decisions even if the facts are disputed and there is no clear-cut evidence available. Despite this common state of uncertainty, verdicts are thought of as having clear winners and losers––either the plaintiff wins and receives a full remedy, or the defendant wins and the plaintiff gets nothing. In private disputes, factfinders base their binary factual determinations on the preponderance of the evidence. There are, however, several doctrines that allow for partial remedy, discounted by the (...)
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  20.  1
    Changing Places, Changing Taxes: Exploiting Tax Discontinuities.Julie Roin - 2021 - Theoretical Inquiries in Law 22 (1):335-379.
    President Trump’s decision to move his official state of residence from high-tax New York to no -tax Florida has brought public attention to an issue that has long troubled scholars, designers and administrators of income tax systems: how the interaction of tax rules deferring the taxation of income and tax rules based on residency allows taxpayers to reduce and even avoid taxation of their deferred income. These discontinuities in tax treatment may lead to excessive migration, as well as reductions in (...)
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  21.  3
    Disorder and Discontinuity in Law and Morality.Alvaro Sandroni & Leo Katz - 2021 - Theoretical Inquiries in Law 22 (1):31-44.
    For every legal concept X, there are clear instances exemplifying an X and clear instances exemplifying a non-X. The cases that come before courts are those that seem to lie in between, being neither clearly an X nor clearly a non-X. It is tempting to think that, being in-between, they should receive an in-between treatment, that is, to the extent that they are an X they should be treated as an X. If they are sixty percent toward being an X, (...)
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  22.  92
    Continuity in Morality and Law.Re’em Segev - 2021 - Theoretical Inquiries in Law 22 (1):45-85.
    According to an influential and intuitively appealing argument, morality is usually continuous, namely, a gradual change in one morally significant factor triggers a gradual change in another; the law should usually track morality; therefore, the law should often be continuous. This argument is illustrated by cases such as the following example: since the moral difference between a defensive action that is reasonable and one that is just short of being reasonable is small, the law should not impose a severe punishment (...)
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  23. Proof Discontinuities and Civil Settlements.Mark Spottswood - 2021 - Theoretical Inquiries in Law 22 (1):201-262.
    This Article explores settlement incentives under three different burden of proof rules. The conventional burden of proof is a discontinuous step-function, jumping from no damages to full damages at the 0.5 jury confidence level. Continuous burdens of proof, by contrast, would permit sanctions to steadily increase as juror confidence rises from 0 to 1, with no discontinuity. Linear burdens, which have received extensive attention in prior literature, escalate sanctions steadily across the whole range of confidence levels, while the logistic burden (...)
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