Law, Economics, and Morality by Eyal ZamirLaw, Economics, and Morality by Eyal Zamir

Law, Economics, and Morality

byEyal Zamir, Barak Medina

Hardcover | March 10, 2010

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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 purelyconsequentialist 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, andpromise-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 lackingin 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 choicesinvolved 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, analyzestheir 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.
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...
Title:Law, Economics, and MoralityFormat:HardcoverDimensions:376 pages, 9.25 × 6.13 × 0.98 inPublished:March 10, 2010Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0195372166

ISBN - 13:9780195372168

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Table of Contents

IntroductionPart One: Theory1. The Consequentialist Nature of Economics AnalysisA. GeneralB. Normative EconomicsC. Consequentialism and Its CritiqueD. Responses to the Lack-of-Constraints Critique1. Long-Term and Indirect Effects2. Rule-Consequentialism3. 'Preferences for Constraints'4. Feelings of Virtue and Remorse5. An Improved Theory of the Good: Ideal Preferences6. SummaryE. Responses to the Demandingness ObjectionF. Conclusion2. Threshold Deontology and Its CritiqueA. DeontologyB. Critique of Deontology in GeneralC. Critique of Threshold DeontologyD. Concluding Remarks3. Private and Public MoralityA. GeneralB. The Private/Public DistinctionC. Doing and AllowingD. Intending and ForeseeingE. Acting and EnactingF. Concluding Remarks4. Constructing Threshold FunctionsA. Introductory RemarksB. General Structure of a Threshold FunctionC. Relevant Types of Benefits and CostsD. Shape and Size of the ThresholdE. Other ConcernsF. Threshold OptionsG. Concluding Remarks5. Addressing Possible ObjectionsA. Undermining the Normative Neutrality of Economic AnalysisB. Quantification and Monetization Difficulties1. General2. Anti-Commodification3. Incomparability4. IncommensurabilityC. Setting Constraints Too LowD. Incompatibility with the Expressive Role of LawE. ConclusionPart Two: Applications6. The Fight Against TerrorismA. IntroductionB. Economic Analysis of the Fight Against TerrorismC. The Constraint Against Harming Persons and the Fight Against Terrorism1. General Considerations2. Harming Aggressors as a Constraint InfringementD. Constrained Economic Analysis of Intended Harm1. General2. Goals of Anti-Terrorist Measures: Preemption, Retribution, Deterrence, and Pressure3. Basic Elements of the Threshold Function4. The Net Benefit(a) The Relevant Variables(b) Marginal Net Benefit and Alternative Courses of Action5. The Threshold(a) General(b) Probability of the Terrorist Attack(c) The Aggressor's Culpability(d) Summary6. TortureE. Constrained Economic Analysis of Unintended Harm1. General2. Constructing the Threshold Function3. Killing Persons Who Are Doomed4. Victims' Moral Responsibility and NationalityF. Measures Involving Both Intended and Unintended HarmG. Conclusion7. Freedom of SpeechA. GeneralB. Doctrinal BackgroundC. Cost-Benefit Analysis of Free Speech and Its CritiqueD. The Constraint Against Suppressing Free SpeechE. Constrained Cost-Benefit Analysis1. 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 Excluders2. 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) Summary3. Choosing Among Permissible Courses of ActionF. Conclusion8. Antidiscrimination LawA. IntroductionB. Current Legal NormsC. Motivations for DiscriminationD. Standard Normative Economic AnalysisE. Integrating Deontological Constraints with Economic Analysis1. The Constraint Against Discrimination and Its Incidence2. Moral Constraints and Redistributive Goals3. Integrating Threshold Constraints with Economic AnalysisF. Conclusion9. Contract LawA. IntroductionB. Economic Analysis of Contract LawC. Deontological Constraints and Contract Law1. The Pertinent Constraints : An Overview2. The Economic Response and Its CritiqueD. Constrained Economic Analysis of Mistake and Misrepresentation1. A Brief Doctrinal Background2. Standard Economic Analysis3. Deontology and Deception4. Constrained Economic Analysis(a) Integrating Constraints(b) Integrating OptionsE. Remedies for Breach of Contract1. A Brief Doctrinal Background2. Standard Economic Analysis3. Deontology: Promises, Harms, and Contractual Obligations4. Deontological Features of Contract Remedy Rules5. Challenges Facing Constrained Economic Analysis of Remedy RulesF. Conclusion10. Legal PaternalismA. GeneralB. Paternalism: Classifications and PrevalenceC. Normative Economic Analysis of Paternalism1. The Compatibility of Efficiency and Paternalism2. Possible Objections3. A Simple ModelD. Incorporating Deontological Constraints1. Deontological Perspectives on Paternalism2. Size of the Threshold3. Relevant Types of Benefits and Costs4. Marginal Net Benefit and Alternative MeasuresE. ConclusionConclusion