An Inquiry for My Favorite Reverend

[Res Ipsa]

Reverend Kishkumen,

I hope you and yours enjoyed the happiest of holidays. In our last conversation, you said something that confused and intrigued me. I hope you are willing to elaborate:

I think in terms of not having idle discussions your Law and Econ bent, which I encountered first roughly a decade ago, which is all about molding behaviors through shaping choices, is useful, but I also always found it somewhat creepy.

I was confused by your use of the term “Law and Econ,” as I’ve always associated that term with the legal theory purported primarily by folks associated with the University of Chicago. https://en.m.wikipedia.org/wiki/Law_and_economics

Although I think economics are included in the important factors to be considered in proposing and evaluating the effect of laws, I definitely do not subscribe to the the theories of law and economics. I am not persuaded that economics explains, let alone predicts, the outcome of cases. And I strongly reject the principles of normative law and economics. To the extent I have something resembling a coherent legal philosophy, I think it’s something like Rawls. https://en.m.wikipedia.org/wiki/A_Theory_of_Justice

While I think microeconomic theory is useful, maybe necessary, for understanding how market forces affect society, including the real world effect of laws, the theory of the free market is completely dependent on a number of assumptions that simply do not obtain in the real world. And the point at which an economy will equilibrium is completely dependent on the property rights regime that society chooses to adopt. So, to focus on economic efficiency as the goal of a legal system fails to take account of how manipulate the market is.

So, either I’ve either miscommunicated some of my fundamental views (entirely plausible) or you meant something different by “Law and Econ.” Further enlightenment would be quite helpful to me.

The intriguing part is use of the term “creepy.” Given my profession and proclivity to babble, I’ve heard lots of adjectives used to describe both me and my views. But “creepy” Is a new one for me. My first guess was the fact that I tend to focus on the real world effects of laws as opposed to reasoning from abstract moral values as a foundation for laws in general. But it’s just a guess, and I’d find it valuable to learn more about how the way I talk about law and economics (lowercase) strikes you as creepy.

Many thanks.

[Kishkumen]

I hope you and yours enjoyed the happiest of holidays.

Likewise, counselor.

In our last conversation, you said something that confused and intrigued me. I hope you are willing to elaborate:

I think in terms of not having idle discussions your Law and Econ bent, which I encountered first roughly a decade ago, which is all about molding behaviors through shaping choices, is useful, but I also always found it somewhat creepy.

I think we can cut this relatively short, not that I am eager to avoid engaging with you, by admitting that my encounter was entirely secondhand through my spouse's description of research her colleagues were doing. When I wrote this, I had not even read the wiki entry, although this did catch my eye:

Approaches to the same issues from Marxist and critical theory/Frankfurt School perspectives usually do not identify themselves as "law and economics". For example, research by members of the critical legal studies movement and the sociology of law considers many of the same fundamental issues as does work labeled "law and economics", though from a vastly different perspective. The law and political economy movement also analyzes similar concepts using an entirely different approach.

So maybe I was not completely off base in intuiting some sort of resemblance.

While I think microeconomic theory is useful, maybe necessary, for understanding how market forces affect society, including the real world effect of laws, the theory of the free market is completely dependent on a number of assumptions that simply do not obtain in the real world. And the point at which an economy will equilibrium is completely dependent on the property rights regime that society chooses to adopt. So, to focus on economic efficiency as the goal of a legal system fails to take account of how manipulate the market is.

The particular work that I was vaguely recalling did not even sound "free market" in its orientation, unless free market means manipulating people into doing what you think is right for them.

The intriguing part is use of the term “creepy.” Given my profession and proclivity to babble, I’ve heard lots of adjectives used to describe both me and my views. But “creepy” Is a new one for me. My first guess was the fact that I tend to focus on the real world effects of laws as opposed to reasoning from abstract moral values as a foundation for laws in general. But it’s just a guess, and I’d find it valuable to learn more about how the way I talk about law and economics (lowercase) strikes you as creepy.

First of all, I did not intend to call you creepy. The sense of creepiness comes from my brief encounter with certain Law and Econ discussions that struck me as manipulative in that they were all about guiding people to the choices one wants them to make on the assumption that one's views are superior.

I struggle with the tension between my sense of what is right and my ideas of what government should do. On the one hand, I personally want to participate in communities where just about everyone, except the dangerous criminals (another can of worms), is free to associate and participate on an equal basis. On the other hand, I worry about the overreach of government in making others choose between their values and their ability to associate with others. In short, I do not like the fact that there are Neo-Nazis, but is it prudent to infringe on the beliefs, speech, and ability to associate that such people have?

The idea that we can tweak policy in just the right way to reach the right outcomes is something I am skeptical of, and it does make me wonder what others may be pushed into giving up in favor of what people who feel they have the greater good in hand have dictated. I guess there is a fundamental mistrust and even a slight paranoia in my current state of mind on these topics, but then the best plans and the plans undertaken with the best intentions can lead to unforeseen, negative outcomes.

[Res Ipsa]

I hope you and yours enjoyed the happiest of holidays.

Likewise, counselor.

In our last conversation, you said something that confused and intrigued me. I hope you are willing to elaborate:

I think we can cut this relatively short, not that I am eager to avoid engaging with you, by admitting that my encounter was entirely secondhand through my spouse's description of research her colleagues were doing. When I wrote this, I had not even read the wiki entry, although this did catch my eye:

Approaches to the same issues from Marxist and critical theory/Frankfurt School perspectives usually do not identify themselves as "law and economics". For example, research by members of the critical legal studies movement and the sociology of law considers many of the same fundamental issues as does work labeled "law and economics", though from a vastly different perspective. The law and political economy movement also analyzes similar concepts using an entirely different approach.

So maybe I was not completely off base in intuiting some sort of resemblance.

I hadn't encountered that comparison before, and it is true that Law and Economics and Critical Legal Studies address similar issues. But the approaches are diametrically opposed. Law and Economics purports to be able to predict the effect of laws on the behavior of the citizenry and, on that basis, constructs a normative theory that tells us how to enact laws that will generate the greatest good for the greatest number (based on market principles and utility maximization). Critical Legal Studies uses post-modern deconstruction to argue that the ability to predict is illusory. The best that can be done is trying to solve specific problems through almost trial and error, recognizing the need to monitor and assess the results and change if necessary.

While I think microeconomic theory is useful, maybe necessary, for understanding how market forces affect society, including the real world effect of laws, the theory of the free market is completely dependent on a number of assumptions that simply do not obtain in the real world. And the point at which an economy will equilibrium is completely dependent on the property rights regime that society chooses to adopt. So, to focus on economic efficiency as the goal of a legal system fails to take account of how manipulate the market is.

The particular work that I was vaguely recalling did not even sound "free market" in its orientation, unless free market means manipulating people into doing what you think is right for them.

I wouldn't say that free market means manipulating people, but one can use market theory as a means of manipulating people. I could fairly describe the entire theory of Law and Economics as using law to manipulate people into doing what Law and Economics proponents think is best for society as a whole. The whole notion of "right for them" is so complex that I think we could spend days unpacking what it means -- at least if we reject the circular definition of "whatever a person chooses." If the general subject area was Law and Economics, the free market was lurking somewhere, perhaps as an unstated premise.

The intriguing part is use of the term “creepy.” Given my profession and proclivity to babble, I’ve heard lots of adjectives used to describe both me and my views. But “creepy” Is a new one for me. My first guess was the fact that I tend to focus on the real world effects of laws as opposed to reasoning from abstract moral values as a foundation for laws in general. But it’s just a guess, and I’d find it valuable to learn more about how the way I talk about law and economics (lowercase) strikes you as creepy.

First of all, I did not intend to call you creepy. The sense of creepiness comes from my brief encounter with certain Law and Econ discussions that struck me as manipulative in that they were all about guiding people to the choices one wants them to make on the assumption that one's views are superior.

Thanks, I didn't think you were calling me creepy. I referred to things I had been called because it included a broader range of colorful adjectives than I have seen applied to things I've said or written. Occupational hazard. The sense of creepiness you describe makes perfect sense to me given the way Law and Economics issues are often discussed. I think being familiar with the underlying theory reduces the sense of creepiness, so the people involved in these types of discussions don't think about the creepy factor.

I struggle with the tension between my sense of what is right and my ideas of what government should do. On the one hand, I personally want to participate in communities where just about everyone, except the dangerous criminals (another can of worms), is free to associate and participate on an equal basis. On the other hand, I worry about the overreach of government in making others choose between their values and their ability to associate with others. In short, I do not like the fact that there are Neo-Nazis, but is it prudent to infringe on the beliefs, speech, and ability to associate that such people have?

I struggle with the same tension. I would worry about any policy maker that didn't struggle with it. I'll go a step farther and say that I think the world would be a better place if no one were a neo-Nazi. But I would be loathe to use the coercive power of the state to infringe on the rights to believe, speak and associate that we all have, including neo-Nazis. Given technological changes that allow rapid dissemination of both false and incendiary speech in the context of a heavily armed society, it may be appropriate to rethink the "immediacy" requirement of incitement to violence. However, even if a change were warranted, a sensible place to start might be civil tort remedies as opposed to jail sentences.

The idea that we can tweak policy in just the right way to reach the right outcomes is something I am skeptical of, and it does make me wonder what others may be pushed into giving up in favor of what people who feel they have the greater good in hand have dictated. I guess there is a fundamental mistrust and even a slight paranoia in my current state of mind on these topics, but then the best plans and the plans undertaken with the best intentions can lead to unforeseen, negative outcomes.

I'd say something similar, but with what I think is an important modification: I am highly skeptical of the notions that we can determine what is the "right" outcome and that we can, with any level of certainty, predict the results of changing laws. But I also view both making a change and not making a change as a choice of the same magnitude. When presented with a problem, doing nothing about it is as much a choice as doing something. That gives me personal responsibility with respect to the rules that we choose as a society to enact. And it takes away what I think is an illusory notion that inaction isn't a choice.

What I'm not skeptical of is the notion that some choices are more likely to produce better outcomes than others (intentionally leaving open the definition of better). As we cannot predict with certainty, that requires being expressly aware of the law of unintended consequences, a commitment to evaluate the results of any give change to the best of our abilities, and the willingness to try something different. Paradoxically, the ultimate consequence of applying postmodernism to law is both a sense of powerlessness and a sense of empowerment, depending on one's choice.

Thanks for the clarifications, and all the best for the new year.

[Kishkumen]

I hadn't encountered that comparison before, and it is true that Law and Economics and Critical Legal Studies address similar issues. But the approaches are diametrically opposed. Law and Economics purports to be able to predict the effect of laws on the behavior of the citizenry and, on that basis, constructs a normative theory that tells us how to enact laws that will generate the greatest good for the greatest number (based on market principles and utility maximization). Critical Legal Studies uses post-modern deconstruction to argue that the ability to predict is illusory. The best that can be done is trying to solve specific problems through almost trial and error, recognizing the need to monitor and assess the results and change if necessary.

Thanks for that illuminating contrast.

I wouldn't say that free market means manipulating people, but one can use market theory as a means of manipulating people. I could fairly describe the entire theory of Law and Economics as using law to manipulate people into doing what Law and Economics proponents think is best for society as a whole. The whole notion of "right for them" is so complex that I think we could spend days unpacking what it means -- at least if we reject the circular definition of "whatever a person chooses." If the general subject area was Law and Economics, the free market was lurking somewhere, perhaps as an unstated premise.

Yes, I don't equate free market principles with manipulation either. I was trying to express how the manipulative aspect of this particular L&E discussion seemed incongruous with such principles. And I think we may be on the same page here.

Thanks, I didn't think you were calling me creepy. I referred to things I had been called because it included a broader range of colorful adjectives than I have seen applied to things I've said or written. Occupational hazard. The sense of creepiness you describe makes perfect sense to me given the way Law and Economics issues are often discussed. I think being familiar with the underlying theory reduces the sense of creepiness, so the people involved in these types of discussions don't think about the creepy factor.

Reduces, but should it? I mean . . . .

I struggle with the same tension. I would worry about any policy maker that didn't struggle with it. I'll go a step farther and say that I think the world would be a better place if no one were a neo-Nazi. But I would be loathe to use the coercive power of the state to infringe on the rights to believe, speak and associate that we all have, including neo-Nazis. Given technological changes that allow rapid dissemination of both false and incendiary speech in the context of a heavily armed society, it may be appropriate to rethink the "immediacy" requirement of incitement to violence. However, even if a change were warranted, a sensible place to start might be civil tort remedies as opposed to jail sentences.

Yes, the world might be a better place if there were no evil, but I am not holding my breath, and I worry about anyone who declares a war on evil or promises to rid evil from our midst.

I'd say something similar, but with what I think is an important modification: I am highly skeptical of the notions that we can determine what is the "right" outcome and that we can, with any level of certainty, predict the results of changing laws. But I also view both making a change and not making a change as a choice of the same magnitude. When presented with a problem, doing nothing about it is as much a choice as doing something. That gives me personal responsibility with respect to the rules that we choose as a society to enact. And it takes away what I think is an illusory notion that inaction isn't a choice.

What I'm not skeptical of is the notion that some choices are more likely to produce better outcomes than others (intentionally leaving open the definition of better). As we cannot predict with certainty, that requires being expressly aware of the law of unintended consequences, a commitment to evaluate the results of any give change to the best of our abilities, and the willingness to try something different. Paradoxically, the ultimate consequence of applying postmodernism to law is both a sense of powerlessness and a sense of empowerment, depending on one's choice.

Thanks for the clarifications, and all the best for the new year.

Thanks for dilating your explanation of your position, and I wish you the best for the new year too.

[Res Ipsa]

As to reducing the creepiness, no, it probably shouldn't.