Legal Theory Blog

Harrison on Happiness, Decisional Equity, and Normative Legal Theory

Jeffrey Lynch Harrison (University of Florida - Fredric G. Levin College of Law) has posted Happiness, Efficiency, and the Promise of Decisional Equity: From Output to Process on SSRN. Here is the abstract:

Those who resist the teachings of law and economics are rightfully concerned that economic efficiency is largely based on the predictions of relatively acquisitive people about what will make them feel or be better off. Due to a variety of factors, these predictions often turn out to be wrong The explosion in happiness research would appear to have the potential to close the link between choices and actual outcomes and, consequently, make the concept of efficiency more meaningful. This Article explores this promising advance. It concludes that direct focus on one concept or another of happiness or "better-off-ness" does not fully address the limitations of law and economics and may raise additional issues. For example, which is more important, feeling better off or being better off? In addition, when does happiness count? Is it at the time of the activity or as one remembers it? The Article explains why outcome-oriented goals like efficiency, happiness, or well-being are ultimately of limited use as goals for law. It then makes the case that law would be more usefully applied to the process of decision-making. To this end, it examines the extent to which law can be devoted to a decision-making idea or "decisional equity." The ideal of decisional equity requires addressing three areas - information imbalances, psychic biases, and adaptations to social conditions.

Edmundson on Embodiment & the Future of Humanity

William A. Edmundson (Georgia State University) has posted Posterity and Embodiment on SSRN.  Here is the abstract:

Our concern for the future and our conception of human nature have both a philosophical dimension and a public policy dimension. Which would be the better way to spend our next dollar: on life-extension or on artificial intelligence? Manned space-exploration or robotic space-exploration? Answering such public-policy questions involves confronting some deep philosophical mysteries. If you were only concerned for your own survival, would you prefer to have your brain transplanted into another body, or have your brain scanned and its information realized in the hardware of a durable, Turing-testable robot? Would it be better to live one long life without offspring, or a short life leaving generations of descendants? If personal superlongevity and normal fertility would lead to overcrowding, which should we choose? Does considering "existential threats" change how we should answer? This article explores the conceptual and empirical interdependencies of these seemingly disjoint questions.

A deep and deeply interesting paper from Edmundson.  Highly recommended.  Plus it is short and fun to read!

Is & Ought and Legal Theory

There is a nice (but introductory) discussion of the Is-Ought distinction at Prawfs, with contributions from Jeff Lipshaw & Rick Hills.  For a slightly deeper discussion, see Legal Theory Lexicon 014: Fact and Value.  And here are four relevant entries from the Stanford Encyclopedia of Philosophy: Rachel Cohon, Hume's Moral Philosphy, Richard Joyce, Moral Anti-Realism, Michael Ridge, Moral Non-Naturalism, & Mark van Roojen, Cognitivism vs. Non-Cognitivism.

Singer on Normative Methods for Lawyers

Joseph Singer posted Normative Methods for Lawyers back in February, but I missed it.  Here is the abstract:

How can we defend arguments about what the law should be based on considerations of morality, justice, fairness, liberty, rights, or human values? Are such arguments anything more than assertions of personal preferences? In this article, I argue that normative arguments are crucial for the rule of law and that both lawyers (and law students) need to know how to make and defend claims of morality and justice. In recent years, cost/benefit and efficiency analysis appear to have taken over most legal scholarship and many law school classroom discussions. Such analysis suggests that the sole goal of the legal system should be to maximize human welfare and that we can best accomplish this goal by deferring to individual preferences, whatever they happen to be, valuing the relative strength of those preferences by reference to market values, and then choosing results whose social benefits outweigh their social costs. In contrast, I argue that such analysis is wholly without any normative weight unless it occurs within a framework of institutions, laws, and practices that are consistent with minimum standards for social and economic relationships in a free and democratic society. Normative arguments are designed to define that legitimate framework. Moreover, such arguments are not merely expressions of personal preference but are evaluative assertions and moral demands we are entitled to make of each other. Moral and political theory provide resources to help lawyers make evaluative assertions about human values that the legal system should respect. At the same time, lawyers possess substantial expertise in analyzing, shaping, and defending normative claims and the methods used by lawyers should be of interest to moral and political theorists.

Because there are better and worse ways of making normative arguments and because both lawyers and law students need to know how to make such arguments, this article explains four basic tasks of normative argument and outlines a number of different ways lawyers accomplish those tasks. It then applies these various normative methods to a basic property law case. Bringing to consciousness these methods will help lawyers improve them and develop the skills needed to use them. Articulating and exploring the contours of the methods used by lawyers to make and defend normative arguments will help all participants in the legal system to articulate normative reasons that can justify legal rights and institutions in a manner appropriate to a free and democratic society.

And from the paper:

Normative methods structure human judgment but they also are constructed by human beings, who are fallible, who have a partial perspective on the world, who easily misunderstand, but who (hopefully) are also eager to do the right thing. Our best practices combine plural considerations and multiple methods; in particular, they combine impartial procedures with fundamental values, narrative elaboration, and situational contextualization. Our best practices in making normative arguments to resolve hard cases make assertions that express evaluative judgments about why certain values outweigh other values in particular contexts in light of the appropriate way to understand the meaning of the situation, the events that led up to it, the relations among the parties, and the contours of our way of life. The goal is to show respect for all persons affected by the dispute. Although there may not be a unique, mechanically derivable "right answer," the decision maker is still obligated to come up with her best formulation of the right answer.181 At some point, the decision maker actually has to decide, and then has to justify the decision by the best reasons the decision maker can offer which show respect to the loser and which affirm the attempt to treat the loser with equal concern and respect.

Highly recommended.  It will come as no surprise to those familiar with Singer's work, the he sees ineliminable contradictions at the hear of normative argument, and no surprise to readers of LTB that I disagree.  Marvelous essay!

Legal Theory Lexicon: Procedural Justice

Introduction Recently, the Legal Theory Lexicon provided a very general entry on the the topic of justice. The notion of justice can be analyzed in many ways, but one good place to start is with Aristotle. Aristotle divides the topic of justice into two main parts, corrective justice and distributive justice. Distributive justice concerns the division of shares in social benefits and burdens; thus, many questions of tax policy are questions of distributive justice. Corrective justice involves the rectification of injustice, and thus includes a variety of topics from criminal law, torts, and contracts, among many others. Supplementing Aristotle's account, let us say that "procedural justice" is concerned with the means by which social groups (including governments, private institutions, and families) institutionalize the application of requirements of corrective and distributive justice to particular cases. This entry in the Lexicon provides an introduction to the idea of procedural justice for law students (especially first years) with an interest in legal theory.

Slicing a Cake Our approach to the idea of procedural justice may be made easier by using a simple example. Consider the familiar procedure for dividing a cake: the person who slices the cake picks last. What makes this a fair procedure? One answer to this question might be the following: there is an independent criterion of what constitutes a fair outcome, equal slices for all, and the slicer-picks-last rule assures that we will get to this outcome. Slicer-picks-last is fair because guarantees accuracy. Or does it? If we really wanted to assure perfectly equal slices, then we could use a compass and the principles of plane geometry, with equal shares as a more reliable result. But this strikes us as an undue amount of fuss to go through when slicing a cake. Perhaps, the reason we believe that the slicer-picks-last rule is a fair procedure is that it strikes a fair balance between the importance of the outcome and the cost of getting there: the rule gets us close to equal shares most of the time at a reasonable price. Slicer-picks last might be considered fair, because does a good job of balancing. Or is there something more to the idea that the slicer-picks-last rule is fair? Maybe the reason we believe that the slicer gets a fair share is because the slicer was the one who did the cutting; the slicer's participation in the cutting validates the outcome, even if the slicer ends up with a smaller slice (or among the calorie conscious, a bigger slice). Slicer-picks-last could be a fair rule, because of process independently of outcome.

Perfect, Imperfect, and Pure Procedural Justice These questions about the fairness of procedures for slicing a cake can be generalized by setting out a framework for analyzing the idea of procedural justice. In A Theory of Justice, John Rawls distinguishes three very general and abstract kinds of procedural justice: (1) perfect procedural justice, (2) imperfect procedural justice, and (3) pure procedural justice. Consider perfect procedural justice first. There are, he writes,

two characteristic features of perfect procedural justice. First, there is an independent criterion of what is a fair division, a criterion defined separately from and prior to the procedure which is to be followed. And second, it is possible to devise a procedure that is sure to give that desired outcome.

Rawls argues that our rule for the slicing of cakes is an example of perfect procedural justice. The person who slices picks last; Rawls believes that this procedure insures the equal division of shares. "Equal shares for each" is the independent criterion of a fair division; the slicer-picks-last rule is the procedure that reliably produces that outcome.
In the case of imperfect procedural justice, the first characteristic, an independent criterion for fairness of outcome, is present, but the second, a procedure that guarantees that outcome, is not. Rawls contends:

Imperfect procedural justice is exemplified by a criminal trial. The desired outcome is that the defendant should be declared guilty if and only if he has committed the offense with which he is charged. The trial procedure is framed to search for and to establish the truth in this regard. But it seems impossible to design the legal rules so that they always lead to the correct result. The theory of trials examines which procedures and rules of evidence, and the like, are best calculated to achieve this purpose consistent with the other ends of the law. Different arrangements for hearing cases may reasonably be expected in different circumstances to yield the right results, not always but at least most of the time.

Thus, imperfect procedural justice incorporates the notion of an independent criterion for accuracy but adds the notion of "other ends of the law," e.g., considerations of cost that may be balanced against accuracy. The final notion is "pure procedural justice." Rawls writes:

[P]ure procedural justice obtains when there is no independent criterion for the right result: instead there is a correct or fair procedure such that the outcome is likewise correct or fair, whatever it is, provided that the procedure has been properly followed. This situation is illustrated by gambling. If a number of persons engage in a series of fair bets, the distribution of cash after the last bet is fair, or at least not unfair, whatever this distribution is.

Pure procedural justice rejects an underlying assumption of both perfect and imperfect procedural justice--the assumption that there is an independent criterion for what constitutes the correct outcome. There are not criteria for the correct outcome except for an ideal (or actual) set of procedures.

Three Models of Procedural Justice: Accuracy, Balancing, and Participation Rawls's theory provides an abstract framework that can be used to categorize theories of procedural justice, but it doesn't tell us what the content of a theory of procedural justice might be. Three approaches have been characteristic of thinking about procedural justice--one emphasizes accuracy, the second cost, and the third participation. Each of these three approaches can be expressed as simply model of procedural justice:

The Accuracy Model We can begin with the utopian hypothesis that the current doctrine is structured by an implicit conception of perfect procedural justice?the accuracy model?corresponding to the idea of perfect procedural justice. The core idea of this model is that the aim of procedure is a search for truth?e.g. conclusions of law that are correct and findings of fact that are true.

But there are severe problems with the accuracy model. Given that civil procedure imposes real costs on litigants and society at large, it is difficult to argue that the smallest marginal gain in accuracy is worth the largest investment of resources. Justice has a price, and there is a point at which that price is not worth paying. Moreover, we have every reason to believe that accuracy is subject to the law of diminishing returns. If we were to make perfect accuracy our highest commitment, we would find that as we got closer and closer to our goal, the cost of reducing the marginal rate of error would become higher and higher. We will reach a point where society would be required to invest enormous resources for the most infinitesimal gain in accuracy.

The Balancing Model The second model "the balancing model" corresponds to the idea of imperfect procedural justice. The consequentialist version of imperfect procedural justice finds substantial support in the decisions of the Supreme Court that interpret the Due Process Clauses of the United States Constitution. The most striking example is provided by the balancing test announced in Mathews v. Eldridge:

[O]ur prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Beginning with the emphasis on balancing in doctrine, we could construct a utilitarian conception of imperfect procedural justice. This effort is complicated, however, because there are many forms of utilitarianism; for our purposes, we might consider ideal rule utilitarianism, in which an act is right if and only if it is conformity with the system of rules, which if universally followed would produce the best consequences. Let us make a further simplifying assumption: that all of the relevant costs can be expressed as prices. The resultant approach will be roughly similar to some law and economics approaches.

Consider for example, Richard Posner's economic analysis of procedure. He writes, "The objective of a procedural system, viewed economically, is to minimize the sum of two costs. The first is "the cost of erroneous judicial decisions." The second type of cost is "the cost of operating the procedural system." Operating costs are borne by the public, in the form of subsidies to the judicial system and by the parties in the form of court fees, attorneys' fees, and litigation costs.

The Participation Model The third model--the participation model?corresponds to the idea of pure procedural justice. The key notion is that it is it is participation in the process and not outcome that defines procedural justice. The second interpretation of the participation model connects the independent value of process with the dignity of those who are affected by legal proceedings. One way of articulating this central notion is that everyone is entitled to their day in court. This right to participation is justified by a background right of political morality, i.e. the right of persons (or citizens) to be treated with dignity and respect. A procedure which ensures parties an opportunity to participate in the process of making decisions that affect them might be counted as a just procedure for this reason, independently of the correctness of the outcome that results from the procedures.

On influential version of the participation model has been developed by Jerry Mashaw. Mashaw states the intuitive idea as follows:

At an intuitive level, a dignity approach is appealing. We all feel that process matters to us irrespective of result. This intuition may be a delusion. We may be so accustomed to rationalizing demands for improvement in our personal prospects, in the purportedly neutral terms of process fairness, that we can no longer distinguish between outcome-oriented motives and process-oriented arguments. * * * Yet there seems to be something to the intuition that process itself matters. We do distinguish between losing and being treated unfairly. And, however fuzzy our articulation of the process characteristics that yield a sense of unfairness, it is commonplace for us to describe process affronts as somehow related to disrespect for our individuality, to our not being taken seriously as persons.

In recent years, the question whether participation has value that is independent of outcomes has been enormously controversial. The participation model reflects the view that participation matters for reasons other than cost and accuracy. Most advocates of the balancing model deny that participation has independent value--other than a subjective taste for participation which can be weighed in a cost-benefit analysis.

Conclusion Of course, procedural justice is a very large topic, and we have only begun to scratch the surface. Law students encounter ideas about procedural justice in a variety of courses: Civil Procedure, Criminal Procedure, and Administrative Law are among the classes in which procedural justice may become an important focus of discussion. I hope this Lexicon post gives you a lively sense of the basic structure of legal thinking about procedural justice.

Online Resource

Lawrence Solum, Procedural Justice (PDF)

Bibliography

• Robert Bone, Agreeing to Fair Process: The Problem with Contractarian Theories of Procedural Fairness, 83 B.U. L. REV. 485, 488-89 (2003).
• Mathews v. Eldrige, 424 U.S. 319 (1976).
• Jerry L. Mashaw, Due Process In The Administrative State (1985).
• Richard Posner, Economic Analysis Of Law (1992).
• John Rawls, A Theory Of Justice (1971)

(This entry was last revised on April 13, 2004.)

Hockett on Distributive Justice in Normative Legal Theory

Robert C. Hockett (Cornell University - School of Law) has posted Taking Distribution Seriously on SSRN. Here is the abstract:

It is common for legal theorists and policy analysts to think and communicate mainly in maximizing terms. What is less common is for them to notice that each time we speak explicitly of socially maximizing one thing, we speak implicitly of distributing another thing and equalizing yet another thing. We also, moreover, effectively define ourselves and our fellow citizens by reference to that which we equalize; for it is in virtue of the latter that our social welfare formulations treat us as "counting" for purposes of socially aggregating and maximizing.

To attend systematically to the inter-translatability of maximization language on the one hand, equalization and identification language on the other, is to "take distribution seriously." It is to recognize explicitly, and to trace the important normative consequences that stem from, the fact that all law and policy are as distributive and citizen-defining as they are aggregative. It is also to recognize therefore that all law and policy treat us as equals in some respects - respects in terms of which they identify and "count" us as politically relevant - and as non-equals in other respects. Attending explicitly to these "respects" brings transparency about the degrees to which our laws and policies identify, "count," and treat us as equals in the right respects.

This Article accordingly seeks to lay out with care how to take distribution seriously in legal and policy analysis. It does so by two means, keyed to the principal guises in which distribution is typically implicated in legal and policy analysis: First, by careful attention to the internal structures of the social welfare functions favored by most present-day legal theorists and policy analysts. And second, by systematic reference to what linguists call the "cognitive grammar" of non-formal distributive language, a structure that mirrors the structure of distribution itself. The payoffs include both a workable method by which systematically to test proposed maximization norms for their normative propriety, and an attractive distributive ethic that can serve as an ethically intelligible normative touchstone for legal and policy analysis.

Lot's of interesting stuff in this paper, which is recommended.  Because this paper covers so much ground, I have a number of questions that Hockett may intend to address in subsequent work.  For example, Hockett moves quickly through the major options for answering the "equality of what?" question, and leaves some positions off the table: especially noteworthy is his omission of the Sen-Nussbaum capacities approach--which is, in my opinion, the most promising theoretical line on the fundamental question of the proper shape of political equality.

Here is another passage to which I reacted.  Hockett is discussing Rawls's theory, justice as fairness, and he argues:

Rawls allows even the matter of “first bests” to remain undetectedly underspecified. We are left wondering whether there’s any “here” here. The theory so underdetermines its own implementation that we don’t know what to make of the theory itself – or, perhaps better put, what to make with it. How much is it actually telling us if it is equally realizable in any number of possible polities with radically divergent property, tort, contract, and other legal arrangements? Put differently, how do we recognize a Rawlsian society upon seeing one?

There is a lot of hand waving going on in this passage.  If Hockett means to assert that there are no criteria by which compliance with the two principles could be judged, then his claim is surely false.  It is indisputable that a wide variety of actual historical socities and imaginable forms of social organization would not comply with the two principles.  Perhaps what Hockett means to claim is that the two principles do not determine even the details of private and public law: if that were his claim it would be true of Rawls's theory, but it would also surely be true of Hockett's own view and every other general theory of distributive justice.

My own understanding of how Rawls stands with respect to private law is as follows.  The two principles of justice apply to the basic structure--to the constitutional essentials and other institutions such as the choice of the basic economic structure (socialism, welfare-capitalism, etc.).  So long as the basic structure satisfies the two principles, the details of these institutions can vary within broad limits.  For example, the institution of tort law would have to be designed so that they were consistent with the two principles.  Tort systems that would result in violations of the basic liberties or that would undermine the ability of the basic structure to satisfy the difference principle would be out of bounds, but this would allow for a wide range of variation on matters of detail.  The reason such variations are permitted is that the society has satisfied the requirements of justice as fairness: this means that other values, including decisions made through democratic processes and choices made by individuals and communities of voluntary association, take the stage.

So, "how do we recognize a Rawlsian society upon seeing one?"  The answer is that we would examine the operation of the basic structure in light of the two principles.  Our specific inquiries would include questions like: (1) does the constitution contain all of the consitutional essentials such as procedural due process, liberty of conscience, and an equal franchise? (2) does the basic form of economic organization satisfy the difference principle?  If we are satisfied on this score, then the work of justice as fairness has been done.  Of course, many important moral and political questions remain, but if Rawls's arguments for the basic structure as subject is correct, then these questions are not questions of distributive justice.  Or to put it different, the society is distributively justice however it answers the additional questions.

Read Hockett.

Marmor on the Ideal of the Rule of Law

Andrei Marmor (University of Southern California - Law School) has posted The Ideal of the Rule of Law (BLACKWELL COMPANION TO THE PHILOSOPHY OF LAW AND LEGAL THEORY, Blackwell Publishing, Forthcoming) on SSRN. Here is the abstract:

In this short essay I argue that the ideal of the rule of law is based on the thesis that it is good, morally speaking, to be governed by law. I present a structured argument in support of this thesis, which is not based on any controversial assumptions about the nature of law. Finally, I propose a reply to Raz's argument that the values of the rule are basically functional, and to the extent that there is any moral worth associated with these functional values they are only negative values.

Highly recommended.

Rappaport on a Really Really Bad Clerkship

Mike Rappaport has some personal observations about a clerkship from hell.  Read it!

Ruhl on the Hierarchy of Legal Scholarship

J.B. Ruhl has a really great post on Jurisdynamics entitled The Hierarchy of Legal Scholarship.  He ranks categories of scholarship from 0 (least significant) to 10 (most significant).  Here are his categories:

0 – Blog posts

1 – Publication of what are essentially blog posts with footnotes:

2 – Doctrinal review of the state of the law:

3 – Doctrinal study of interesting questions of law:

4 – Doctrinal synthesis of developments in law:

5 – Normative policy analysis of law:

6 – Normative policy analysis of law with substantial reform proposals:

7 – Legal theory:

8 – “Law and” interdisciplinary studies:

9 – Empirical study of legal institutions:

10 – Empirical study of law’s impact on society:

Good clean fun.  It won't surprise regular readers of LTB that I wouldn't quite agree.  Initially, the whole idea of such a list, while amusing, assumes that there is a meaningful hierarchy.  Moreover, Ruhl's categories are conceptually odd.  Some of the distinctions are explicitly normative.  Categories 0 and 1 are differentiated by quality, as are categories 2 and 3.  Other categories go the methodology, e.g. the distinction between 6 and 8.  And then one methodology, empirical study of law is elevated to the top two rungs of the hierarchy, 9 and 10.

If we really want to rank importance or quality of legal scholarship, the criteria will be multidimensional and at least partially incommensurable.  At the very top will be research projects that fundamentally transform the way we we study law--the clearest example in the history of modern legal thought is Bentham's project, which reconceptualized the nature of law along postivist lines and reworked normative legal theory into utilitarianism.  Indeed, Ruhl's hierarchy is actually a legacy of Bentham's project--with Ruhl implicitly relying on a Benthamite conception of the purpose of legal theory in constructing his categories and his rankings. 

Here are some additional examples of transformative legal scholarship.  Coase's work --on mutliple problems but especially on transaction costs and the theory of the firm--would be another example of transformative scholarship.  So would Hohfeld's work on the structure of legal norms, Holmes's protorealist theorizing, and Dworkin's normative theorizing (distinguished from his work on the nature of law).  Even doctrinal work can be transformative--McKinnon's work on sexual harassment and hostile workplace environment in antidiscrimination law is an example.

It is rare for empirical work to have this kind of influence--empirical studies of law can only be transformative if they are integrated into a normative paradigm.  I'm a big fan of empirical legal studies, but their significance is derivative of theoretical work on legal instrumentalism and normative work on consequentialism in normative legal theory.  And even within the domain of empirical work, creativity and generative potential are important in assessing importance.  Many empirical studies add very little useful knowledge, while the best empirical work changes the way we investigate legal institutions or their consequences.

My apologies to Ruhl--blindly following Dale Carpenter I attributed his post to Jim Chen!  But I wonder what Jim thinks.  And thanks to Dale for the link!

Cox Critiques Susntein

Over at Opinion Work Product, Justin Cox has a nice post entitled A Critique of Cass Sunstein on Risk.  Here's a taste:

The short form of Sunstein's argument is that risk and regulation evaluations ought to be handed to technocrats insulated from political and public pressure because the public is bad at making accurate risk assessments. Kahan et all argue that the public must brought into these conversations, and insists that consensus can be built by crafting policy and rhetorical appeals that reaffirm the various worldviews that come into conflict over such things as gun control and the death penalty.

Sunstein seems to think that these various worldviews don’t have any role to play in risk assessments. He insists that a straight cost-benefit analysis is most appropriate, and that technocrats are the most appropriate people to make those judgments.

My question for Sunstein, then, is what values are to guide the technocrats? He seems to argue that values have no role to play and that our decisions ought to be guided by mere cost-benefit analysis. What he seems to ignore or sidestep, I think, is that a cost-benefit analysis is itself value-laden.