Law, Economics, and Morality

by Eyal Zamir, Barak Medina

Overview

Law, Economics, and Morality examines the possibility of combining economic methodology and deontological morality through explicit and direct incorporation of moral constraints into economic models. Economic analysis of law is a powerful analytical methodology. However, as a purely consequentialist approach, which determines the desirability of acts and rules solely by assessing the goodness of their outcomes, standard cost-benefit analysis (CBA) is normatively objectionable. Moderate deontology prioritizes such values as autonomy, basic liberties, truth-telling, and promise-keeping over the promotion of good outcomes. It holds that there are constraints on promoting the good. Such constraints may be overridden only if enough good (or bad) is at stake. While moderate deontology conforms to prevailing moral intuitions and legal doctrines, it is arguably lacking in methodological rigor and precision.

Eyal Zamir and Barak Medina argue that the normative flaws of economic analysis can be rectified without relinquishing its methodological advantages and that moral constraints can be formalized so as to make their analysis more rigorous. They discuss various substantive and methodological choices involved in modeling deontological constraints. Zamir and Medina propose to determine the permissibility of any act or rule infringing a deontological constraint by means of mathematical threshold functions. Law, Economics, and Morality presents the general structure of threshold functions, analyzes their elements and addresses possible objections to this proposal. It then illustrates the implementation of constrained CBA in several legal fields, including contract law, freedom of speech, antidiscrimination law, the fight against terrorism, and legal paternalism.

Product Details

ISBN-13:	9780195372168
Publisher:	Oxford University Press
Publication date:	02/24/2010
Pages:	376
Product dimensions:	6.30(w) x 9.30(h) x 1.20(d)

About the Author

Eyal Zamir holds an LL.B. (1982) and Dr.Jur. (1989) from the Hebrew University of Jerusalem. He is an Augusto Levi Professor of Commercial Law at the Hebrew University, where he served as Dean of the Faculty of Law from 2002 to 2005. Professor Zamir was a visiting researcher at Harvard Law School (1990-1991), a visiting scholar at Yale Law School (1996-1997), a Senior Global Research Fellow at New York University School of Law (2005-2006), and a visiting professor at Georgetown University Law Center (2008, 2009). Professor Zamir's research interests include contract and commercial law and theory; economic and behavioral analysis of law; law and normative ethics; and proprietary aspects of the Arab-Israeli conflict. He authored or edited ten books and published more than thirty articles in Israeli and American law reviews. Professor Zamir has been awarded numerous fellowships and prizes, including the Fulbright Researcher Award (1990-1991); the Rothschild Fellowship (1990-1991), and the Hebrew University President's Prize for Excellent Young Scholar named after Y. Ben Porat (1994, first recipient).

Barak Medina is Lawrence D. Biele associate professor at the Hebrew University of Jerusalem, and currently serves as the Dean of the Faculty of Law. He holds an LL.B. (1991) from Tel-Aviv University and LL.M. (1996) from Harvard Law School; he also holds a B.A. (1990) and M.A. (1992) in economics from Tel-Aviv University and Ph.D. in economics (1999) from the Hebrew University of Jerusalem. Professor Medina was a visiting professor at Columbia Law School (2006-2007). He served as Co-Editor of the Israel Law Review from 2003 to 2007. He also served as an adviser to the Constitution and Legal Affairs Committee, the Knesset (Israeli Parliament), on drafting a new Constitution for Israel, 2004-2005. Professor Medina's research interests include constitutional law and intolerant democracy, administrative law, economic analysis of law, and game theory and the law. He authored five books, including the latest editions of the most authoritative textbook on Israeli constitutional law, and published more than thirty articles in Israeli and American law journals.

Table of Contents

Table of Contents
Introduction
Part One: Theory
Chapter 1. The Consequentialist Nature of Economics Analysis
A. General
B. Normative Economics
C. Consequentialism and Its Critique
D. Responses to the Lack-of-Constraints Critique
1. Long-Term and Indirect Effects
2. Rule-Consequentialism
3. 'Preferences for Constraints'
4. Feelings of Virtue and Remorse
5. An Improved Theory of the Good: Ideal Preferences
6. Summary
E. Responses to the Demandingness Objection
F. Conclusion

Chapter 2. Threshold Deontology and Its Critique
A. Deontology
B. Critique of Deontology in General
C. Critique of Threshold Deontology
D. Concluding Remarks

Chapter 3. Private and Public Morality
A. General
B. The Private/Public Distinction
C. Doing and Allowing
D. Intending and Foreseeing
E. Acting and Enacting
F. Concluding Remarks

Chapter 4. Constructing Threshold Functions
A. Introductory Remarks
B. General Structure of a Threshold Function
C. Relevant Types of Benefits and Costs
D. Shape and Size of the Threshold
E. Other Concerns
F. Threshold Options
G. Concluding Remarks

Chapter 5. Addressing Possible Objections
A. Undermining the Normative Neutrality of Economic Analysis
B. Quantification and Monetization Difficulties
1. General
2. Anti-Commodification
3. Incomparability
4. Incommensurability
C. Setting Constraints Too Low
D. Incompatibility with the Expressive Role of Law
E. Conclusion

Part Two: Applications
Chapter 6. The Fight Against Terrorism
A. Introduction
B. Economic Analysis of the Fight Against Terrorism
C. The Constraint Against Harming Persons and the Fight Against Terrorism
1. General Considerations
2. Harming Aggressors as a Constraint Infringement
D. Constrained Economic Analysis of Intended Harm
1. General
2. Goals of Anti-Terrorist Measures: Preemption, Retribution, Deterrence, and Pressure
3. Basic Elements of the Threshold Function
4. The Net Benefit
(a) The Relevant Variables
(b) Marginal Net Benefit and Alternative Courses of Action
5. The Threshold
(a) General
(b) Probability of the Terrorist Attack
(c) The Aggressor's Culpability
(d) Summary
6. Torture
E. Constrained Economic Analysis of Unintended Harm
1. General
2. Constructing the Threshold Function
3. Killing Persons Who Are Doomed
4. Victims' Moral Responsibility and Nationality
F. Measures Involving Both Intended and Unintended Harm
G. Conclusion

Chapter 7. Freedom of Speech
A. General
B. Doctrinal Background
C. Cost-Benefit Analysis of Free Speech and Its Critique
D. The Constraint Against Suppressing Free Speech
E. Constrained Cost-Benefit Analysis
1. The Regulation's Net Benefit
(a) General
(b) Chronologically-Remote Harms
(c) Low-Probability Harms
(d) Small Harms
(e) Harms Brought About Through Rational Persuasion
(f) Offensiveness
(g) Combining Excluders
2. The Threshold
(a) General
(b) The Threshold's Shape
(c) Different Thresholds for Different Bases of Regulation
(d) Different Thresholds for Different Categories of Speech
(e) Summary
3. Choosing Among Permissible Courses of Action
F. Conclusion

Chapter 8. Antidiscrimination Law
A. Introduction
B. Current Legal Norms
C. Motivations for Discrimination
D. Standard Normative Economic Analysis
E. Integrating Deontological Constraints with Economic Analysis
1. The Constraint Against Discrimination and Its Incidence
2. Moral Constraints and Redistributive Goals
3. Integrating Threshold Constraints with Economic Analysis
F. Conclusion

Chapter 9. Contract Law
A. Introduction
B. Economic Analysis of Contract Law
C. Deontological Constraints and Contract Law
1. The Pertinent Constraints : An Overview
2. The Economic Response and Its Critique
D. Constrained Economic Analysis of Mistake and Misrepresentation
1. A Brief Doctrinal Background
2. Standard Economic Analysis
3. Deontology and Deception
4. Constrained Economic Analysis
(a) Integrating Constraints
(b) Integrating Options
E. Remedies for Breach of Contract
1. A Brief Doctrinal Background
2. Standard Economic Analysis
3. Deontology: Promises, Harms, and Contractual Obligations
4. Deontological Features of Contract Remedy Rules
5. Challenges Facing Constrained Economic Analysis of Remedy Rules
F. Conclusion

Chapter 10. Legal Paternalism
A. General
B. Paternalism: Classifications and Prevalence
C. Normative Economic Analysis of Paternalism
1. The Compatibility of Efficiency and Paternalism
2. Possible Objections
3. A Simple Model
D. Incorporating Deontological Constraints
1. Deontological Perspectives on Paternalism
2. Size of the Threshold
3. Relevant Types of Benefits and Costs
4. Marginal Net Benefit and Alternative Measures
E. Conclusion

Conclusion

Editorial Reviews

"For far too long, normative legal theory has been unable to move beyond unproductive debates. Eyal Zamir and Barak Medina have been at work on another way-an approach to cost benefit analysis that is sensitive to moral constraints and permissions but preserves the rigor and formalization that are among the chief virtues of the economic analysis of law. Transcending the fairness-versus-welfare debate, the authors have written an erudite, careful, and truly original book that must be read by legal economists and their critics."
—Lawrence B. Solum
Associate Dean for Faculty and Research, John E. Cribbet Professor, University of Illinois College of Law

"This book proposes a rigorous decision procedure for evaluating government projects on the basis of both their impact on public well-being and their consistency with deontological commitments. The authors make their case with meticulous care, and offer the best hope for bridging the divide between cost-benefit analysts and their foes. Everyone interested in that debate should read this book."
—Eric Posner
Kirkland & Ellis Professor of Law, The University of Chicago Law School

"This is a clear, sophisticated, and illuminating defense of threshold deontology, a moral stance as important in practice as it is in theory. The authors manage to be both rigorous and reasonable, itself an unusual feat. Their work deserves to be, and will be, highly influential in legal theory and elsewhere."
— Adrian Vermeule
John H. Watson, Jr. Professor of Law, Harvard Law School

"Economists and moral philosophers have long been talking mostly at each other about vital issues of law and public policy. Enter Zamir and Medina, who elegantly integrate philosophical insight with the economists' rigor to create a unified discourse that promises to invigorate and deepen the academic discussion of law and policy in the years to come."
— Meir Dan-Cohen
Milo Reese Robbins Professor of Law, UC Berkeley School of Law

From the Publisher