|
WalkerNewellThirdPaper 7 - 20 Sep 2009 - Main.EbenMoglen
|
|
<
< |
| META TOPICPARENT | name="TWikiGuestThirdPaper" |
|---|
| >
> |
| META TOPICPARENT | name="JonathanGuerraThirdPaper" |
|---|
| | | After reading Daniel Margolskee's first paper a week ago, I realized that my third paper covers almost the exact same ground. Therefore, I've written a new one to replace it, on a totally different topic.
Bribery and Human Rights |
|
|
WalkerNewellThirdPaper 6 - 07 Jul 2009 - Main.WalkerNewell
|
| |
| META TOPICPARENT | name="TWikiGuestThirdPaper" |
|---|
After reading Daniel Margolskee's first paper a week ago, I realized that my third paper covers almost the exact same ground. Therefore, I've written a new one to replace it, on a totally different topic. | | | There are a few potential answers to this question. The most obvious is that bribery is illegal and especially hypocritical if employed as a strategy by an organization seeking to maintain the moral high ground. An argument could also be made that, even if an organization was willing to take this tenuous step, their donors would never support these tactics. But while these contentions have some merit, they don’t refute the fact that offering legal financial support or illegal bribes to politicians is an effective way to foment change. Non-profits in the US, such as the ACLU, are barred as corporations from making campaign contributions. The influence that powerful organizations can wield over governments is well known. | |
<
< | These problems with my proposed strategy raise broader questions. Is it possible to do the wrong thing for the right reason? Certainly, unless one believes that there are no shades of gray between the blacks and whites of this world. Would the negative externalities caused by buying politicians outweigh the benefits of increased protections of human rights? Possibly, but governments influence the politics and laws of foreign countries all the time and let the dust settle wherever it chooses. Perhaps international human rights organizations have a moral duty to stay aloof from these unsavory practices. Or perhaps they should see their duty differently. Maybe the individuals responsible for setting the policies of these organizations should be obliged to spend their donors’ money in the most effective way possible. When I’ve proposed this idea to individuals in the field of human rights, they’ve dismissed it as preposterous, but I doubt that the head of company seeking to influence a government would view the strategy so dismissively. | >
> | These problems with my proposed strategy raise broader questions. Is it possible to do the wrong thing for the right reason? Certainly, unless one believes that there are no shades of gray between the blacks and whites of this world. Would the negative externalities caused by buying politicians outweigh the benefits of increased protections of human rights? Possibly, but governments influence the politics and laws of foreign countries all the time and let the dust settle wherever it chooses. Perhaps international human rights organizations have a moral duty to stay aloof from these unsavory practices. Or perhaps they should see their duty differently. Maybe the individuals responsible for setting the policies of these organizations should be obliged to spend their donors’ money in the most effective way possible. When I’ve proposed this idea to individuals in the field of human rights, they’ve dismissed it as preposterous. But I doubt that the head of a corporation seeking to influence a government would disregard the strategy. | | |
Response from another perspective |
|
|
WalkerNewellThirdPaper 5 - 06 Jul 2009 - Main.WalkerNewell
|
| |
| META TOPICPARENT | name="TWikiGuestThirdPaper" |
|---|
After reading Daniel Margolskee's first paper a week ago, I realized that my third paper covers almost the exact same ground. Therefore, I've written a new one to replace it, on a totally different topic. | | | I hope your experiences this summer do not turn you off from international human rights work. At the very least, I hope your paper generates more responses and some creative thought on what we can do, not only to find greater satisfaction in our own work, but in the broader scheme of helping those less fortunate.
-- DianaSidakis - 05 Jul 2009
\ No newline at end of file | |
>
> | *Diana - I hope my essay doesn't read as fatalistic or condescending toward those who do international human rights work. Like I said at the beginning, a lot of my dissatisfaction stems from personal shortcomings - lack of patience, lack of professional work experience (which would probably demonstrate to me that any type of work in any context will be ineffective and frustrating at times). I recognize that real change can't happen overnight. I enjoyed reading your response, especially its explanation of a function of advocacy of which I wasn't fully aware.
However, I still believe that it is valuable to challenge and criticize the institutions and methods that are currently the dominant forces in the international human rights community. This is not to condemn them. It is to say that perhaps we can find other ways to effect change. Maybe bribery isn't an acceptable or sustainable way to create change, but maybe buying influence through legal channels would be. Every movement or organization, however noble its purposes, has room for improvement. I'm sure that if you continue in the field of international human rights, your career will lead you to create new strategies and solutions, and challenge the practices that are ineffective.
* | | | \ No newline at end of file |
|
|
WalkerNewellThirdPaper 4 - 05 Jul 2009 - Main.DianaSidakis
|
| |
| META TOPICPARENT | name="TWikiGuestThirdPaper" |
|---|
After reading Daniel Margolskee's first paper a week ago, I realized that my third paper covers almost the exact same ground. Therefore, I've written a new one to replace it, on a totally different topic. | | | There are a few potential answers to this question. The most obvious is that bribery is illegal and especially hypocritical if employed as a strategy by an organization seeking to maintain the moral high ground. An argument could also be made that, even if an organization was willing to take this tenuous step, their donors would never support these tactics. But while these contentions have some merit, they don’t refute the fact that offering legal financial support or illegal bribes to politicians is an effective way to foment change. Non-profits in the US, such as the ACLU, are barred as corporations from making campaign contributions. The influence that powerful organizations can wield over governments is well known.
These problems with my proposed strategy raise broader questions. Is it possible to do the wrong thing for the right reason? Certainly, unless one believes that there are no shades of gray between the blacks and whites of this world. Would the negative externalities caused by buying politicians outweigh the benefits of increased protections of human rights? Possibly, but governments influence the politics and laws of foreign countries all the time and let the dust settle wherever it chooses. Perhaps international human rights organizations have a moral duty to stay aloof from these unsavory practices. Or perhaps they should see their duty differently. Maybe the individuals responsible for setting the policies of these organizations should be obliged to spend their donors’ money in the most effective way possible. When I’ve proposed this idea to individuals in the field of human rights, they’ve dismissed it as preposterous, but I doubt that the head of company seeking to influence a government would view the strategy so dismissively. | |
>
> |
Response from another perspective
I enjoyed your essay. I came to law school because I want to do human rights work. After getting a Master’s degree in anthropology and interning at a few NGOs I realized that unless I wanted a career in research, activism, or administration, a law degree would be necessary to stay in the field. I have had similar frustrations to you on the inefficiencies of NGOs. However, I have come to different conclusions from these frustrations.
Before this summer, I had a similar view of the advocacy reports published by the likes of Amnesty and Human Rights Watch. I wasn’t sure what purpose these well-researched reports served beyond a moral tug at the sleeve of an unresponsive government.
This summer I have seen these reports put to a different use: to corroborate the claims of refugees. Refugee determinations are made by the UNHCR or the evaluating government on the basis of country of origin information. The work of NGOs (like AI, HRW, International Crisis Group, or domestic organizations) can make or break an application.
If a Sudanese refugee can point to an Amnesty appeal publicizing the arrest of protestors on a certain date, and match his arrest to that date, his application will almost certainly be granted. In more tenuous cases, if a Kurdish Iranian woman can cite a Human Rights Watch report about honor killings in the north west of Iran and the lack of state protection against these killings, her application is more likely to be granted. For the asylum claims I have seen, there is often very little in the way of evidence besides the applicant’s testimony and whatever relevant NGO or government reports exist. The credibility of the applicant often determines the claim. If I can find a report from an NGO that supports a claim, it is not overdramatic to say it could change a life. For this, my view of these reports has dramatically changed. If your report to the Nepalese government is published or made available online in a source like RefWorld? (http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain), your report may be cited by someone preparing a refugee claim. A Nepali who says he has been tortured can cite a report like yours to demonstrate that the Nepalese government has failed to conform to the UN treaty it signed and the UNHCR will be more sympathetic to his claim.
Of course, even this defense of NGO-advocacy eventually hits a wall. I think about something Prof. Moglen said during class that pissed me off at the time. I will paraphrase because I forget the details. We were talking about how many people we could help if we tried, or how many people we should help if possible. One hundred? One thousand? One hundred thousand? What number would be sufficient? No number seemed high enough to balance the moral inequality.
Naively, I thought the answer was simple: one. If I could help one person, that has meaning and is sufficient. But after working on half a dozen claims this summer, I have a different answer. The number is not the point: it is the system. The six people I might have helped are irrelevant. The legal aid office I am working at is fighting an avalanche with a handful of broken shovels. There is no way they could adequately assist all the refugees who need legal help, let alone all the illegal migrants who face a miserable life in Turkey and in their countries of origin and yet have no valid claims as refugees. At a certain point, the work becomes more than helping individual refugee applicants, but creating pressure within and outside the system for change.
How can change be created? Well, advocacy reports again are a start. UNICEF was not aware of the treatment of minor refugees in Turkey until an NGO’s report brought it to their attention. On the other hand, like you say, money has the last word, especially in places like Turkey where bribery and corruption are more prevalent. A human rights professor at LSE told us to quit his class and study arbitration instead. If we really cared about changing the world, he said, we were better off making a lot of money and then using it to create the change we wished.
He said it ironically (I hope), but I still disagree with the premise and hate that view of human nature. Like buying off a politician, creating the ends you wish by disregarding the means only perpetuates the inequality of that system. So the question becomes changing the system… and I do not YET know how that can be done as a citizen, a human, or a lawyer. For now, I want to learn how these systems work and help in whatever limited way I can with an eye towards the future.
I hope your experiences this summer do not turn you off from international human rights work. At the very least, I hope your paper generates more responses and some creative thought on what we can do, not only to find greater satisfaction in our own work, but in the broader scheme of helping those less fortunate.
-- DianaSidakis - 05 Jul 2009 | | | \ No newline at end of file |
|
|
WalkerNewellThirdPaper 3 - 01 Jul 2009 - Main.WalkerNewell
|
| |
| META TOPICPARENT | name="TWikiGuestThirdPaper" |
|---|
| |
>
> | After reading Daniel Margolskee's first paper a week ago, I realized that my third paper covers almost the exact same ground. Therefore, I've written a new one to replace it, on a totally different topic. | | | | |
>
> | Bribery and Human Rights | | | | |
<
< | Law and Economics Isn't Special | >
> | International human rights law sounded very attractive to me. Throughout the 1L year, I viewed the field as a chance to work in exotic locales and challenge exploitive and unjust governments. It has therefore come as a surprise that my uninformed desire to pursue this type of career has been almost completely eliminated in the course of a little more than a month working for a foreign NGO. I can attribute much of this sudden disillusionment to my own impatience and pessimism, and I’m still inspired by the value of the work and the dedication of many of those in the field. But the system, whereby international organizations advocate and exert pressure on governments, seems deeply flawed. The vast amounts of resources that pour into the international human rights movement could be used more efficiently. | | | | |
<
< | In torts with John Fabian Witt, Esq., my first semester, I was introduced to law and economics as a kind of rosetta stone for evaluating the effectiveness of judicial decisions. Since costs are reciprocal, we learned, it is worthless to say that, on the basis of fairness, a homeowner should win his nuisance claim against a polluting factory. The homeowner’s inability to cope with pollution can just as easily be seen as causing harm to the factory, especially if the courts rule in his favor. | >
> | Ineffective Advocacy from Abroad | | | | |
<
< | There really isn’t any way to directly attack this proposition, unless the argument is that efficiency concerns should be wholly removed from the theory of law in favor of “natural rights”. Indeed, the Coase Theorem is just an overly complicated way of saying what Holmes had years before: that we need to look at the results of a decision rather than follow the impulse to say that justice requires a particular ruling. Justice and fairness, I’ve been taught, have no normative value whatsoever. | >
> | My month of June was spent writing a report encouraging the Nepalese legislature to pass a bill criminalizing torture; presently, victims of torture in Nepal can only file civil suits. The report closely followed the framework and technique of past lobbying efforts by international organizations, specifically the UN institutions that focus on torture. Its basic premise was to point out to the government and media that since Nepal has ratified the Convention Against Torture, domestic law must conform to that instrument. I made the argument to the best of my ability, but I felt throughout that it was an impotent effort. I began to think of my report as the equivalent of saying to a hardened businessman: “We have a contract that is unenforceable. You need to abide by its terms, or else you will be a bad person.” | | | | |
<
< | Empirical Evidence?
Using this framework to evaluate cases in my property class, my fellow students and I were able to wildly conjecture about the effects of adopting a particular rule. “Property values will go down if…maybe forcing the government to compensate for this taking will…” and so on. However, while such discourse might be valuable for developing legal minds, it doesn’t really illuminate the consequences of a legal rule. Perhaps professors are able, through extensive research, to get empirical data that actually tends to prove or disprove hypotheses about the social welfare implications of particular doctrines. However, I never saw these conclusions presented in a casebook. In the few instances that any evidence of the effects of a given rule was presented, the casebook qualified it as cutting in either direction. | >
> | Of course, no one was expecting that my report, one in a long line of appeals to the government, would magically persuade the legislature. Also, the costs of writing and translating the report were relatively low. But my output was very similar to work consistently produced by UN bodies and international organizations such as Human Rights Watch. Their reports will note the many problems with the legal and political system of a country and recommend solutions based on their expertise. The effectiveness of this type of advocacy – demanding that a government change its ways based on treaty obligations or appeals to natural rights – is very questionable. | | | | |
<
< | It seems, therefore, that the law and economics model is attractive and stimulating on paper but difficult to implement in practice. This holds especially true if we expect judges to employ the analysis. It’s hard to imagine a judge with a full docket to have the time, desire, or ability to actively pursue evidence of the social welfare implications of his decision. Even if he relies on the statistical analysis of professors, he has to choose which conclusions to believe and policy goals to emphasize. | | | | |
<
< | Better Than Justice?
The law and economics approach, then, is plagued with many of the same problems associated with a legal theory that gives weight to intangible concepts of natural rights and justice. Whether or not a legal outcome is just depends on the subjective perspective of each observer. Therefore, as the argument goes, a doctrine cannot be justified on the basis that some judges believe it achieves just results. But how is it any better to say the doctrine is justified because some academics believe that it achieves efficient results? Their stances are based on conflicting data, and the data itself is based on presumptions in favor of eliminating or causing certain effects. | >
> | Not Worthless, but Not Enough | | | | |
<
< | Consider, for example, the law of nuisance, the poster child for the law and economics approach in torts and property. The Second Restatement of Property incorporates this approach, encouraging judges to rule an activity a nuisance when the “gravity of the harm outweighs the utility of the actor’s conduct.” The Restatement then proceeds to give criteria to be considered, including the value the law places on the conflicting activities, the suitability of the activities to the locality, and the extent and character of the harm. Why are these the chosen categories for evaluating the social welfare implications of a nuisance case? Presumably the esteemed academics who drafted the Restatement believed that, by considering these factors, judges could make decisions with wealth-maximizing results. However, there are many omitted considerations which, it can be argued, must be evaluated in order to adequately determine the efficient outcome in a given case. Law and economics is by no means an objective way of studying the law. | >
> | One might argue that these publications promote transparency and bring abuses of power to light. But domestic organizations, with their connections and knowledge of the local media, are already well equipped to achieve these ends (except in countries where the government silences all dissent - in such places, international organizations are of the most value). It seems unlikely that many Nepalese citizens are poring through the latest Human Rights Watch report to get their news about their own country. International exposure is a more likely result of such advocacy, but what does this actually achieve? Despite the many organizations and individuals who have raised their voices against the genocide in Sudan, the dynamics of international relations have allowed that tragedy to proceed. The lobbying for legal change conducted by international organizations cannot succeed without the consent of the local government or, on rare occasions, massive pressure exerted by influential countries throughout the world. | | | | |
<
< | Perhaps this point is obvious: there can be no purely objective analysis of the law. However, the dominance of law and economics in legal study (at least in my limited experience) suggests that the approach is more highly valued than others. Some of my classmates would roll their eyes when our property professor encouraged us to make “fairness arguments” in addition to efficiency arguments. True, it may not be as intellectually stimulating to say “This decision is unfair” as it is to speculate about the possible implications of the decision. But there isn’t any inherent difference between saying “Running a cement factory is a socially valuable activity” and saying “Homeowners have a right to be free from cement pollution.” Pointing to jobs created by the cement factory,attempting to show clear benefits accruing from the activity and arguing that this demonstrates the objectivity of the efficiency approach is not an adequate response. Another commentator could just as easily say that a cement factory is extremely harmful, progress must be halted, and our society should return to agrarian values. | >
> | It will always be very important for domestic human rights organizations to protest and attempt to influence the actions of their governments. It is also desirable that experienced and well-funded international organizations aid this process and draw worldwide attention to grave abuses. However, organizations with budgets of tens of millions of dollars might be able to achieve more tangible results if they focused more on giving direct incentives to governments. Their current way of operating is by no means totally ineffective. It just has a limited capacity for success. | | | | |
<
< | Conclusion
The greatest harm that a focus on law and economics causes is the exclusion of other approaches. Any one theory of the law has limited descriptive value. We cannot hope to use every conceivable perspective in studying the law, but the more that we do employ, the more accurate the analysis becomes. Knowing and using multiple disciplines, as advocated by the consilient approach, is important. Additionally, within the legal discourse I’ve encountered, there are a number of means of analysis that are systematically underemphasized. In particular, the law school curriculum would benefit from a deeper concern with distributive justice considerations. In a country where there are extreme disparities between the rich and the poor, it makes sense to craft legal rules aimed, at least in part, at lessening this divide. My belief in the importance of this focus is, of course, purely personal and subjective. Just like Professor Witt’s belief that efficiency should win the day. | | | \ No newline at end of file | |
>
> | Throw Money at the Problem
Money is the root of all evil, but it can also be used as a tool to achieve positive transformations in the world. When a group of people believes that certain legal reforms are needed in the US, for example, they start a movement, find a group of like-minded donors, and then buy the politicians whose votes are necessary for any change to take place. The international human rights movement appears to implement the first two steps of this process while neglecting the third. Why would an organization like Human Rights Watch (which has an excellent understanding of the realities of politics in countries throughout the world) fail to use its funds to directly influence politicians?
There are a few potential answers to this question. The most obvious is that bribery is illegal and especially hypocritical if employed as a strategy by an organization seeking to maintain the moral high ground. An argument could also be made that, even if an organization was willing to take this tenuous step, their donors would never support these tactics. But while these contentions have some merit, they don’t refute the fact that offering legal financial support or illegal bribes to politicians is an effective way to foment change. Non-profits in the US, such as the ACLU, are barred as corporations from making campaign contributions. The influence that powerful organizations can wield over governments is well known.
These problems with my proposed strategy raise broader questions. Is it possible to do the wrong thing for the right reason? Certainly, unless one believes that there are no shades of gray between the blacks and whites of this world. Would the negative externalities caused by buying politicians outweigh the benefits of increased protections of human rights? Possibly, but governments influence the politics and laws of foreign countries all the time and let the dust settle wherever it chooses. Perhaps international human rights organizations have a moral duty to stay aloof from these unsavory practices. Or perhaps they should see their duty differently. Maybe the individuals responsible for setting the policies of these organizations should be obliged to spend their donors’ money in the most effective way possible. When I’ve proposed this idea to individuals in the field of human rights, they’ve dismissed it as preposterous, but I doubt that the head of company seeking to influence a government would view the strategy so dismissively. |
|
|
WalkerNewellThirdPaper 2 - 29 Jun 2009 - Main.WalkerNewell
|
| |
| META TOPICPARENT | name="TWikiGuestThirdPaper" |
|---|
| | | There really isn’t any way to directly attack this proposition, unless the argument is that efficiency concerns should be wholly removed from the theory of law in favor of “natural rights”. Indeed, the Coase Theorem is just an overly complicated way of saying what Holmes had years before: that we need to look at the results of a decision rather than follow the impulse to say that justice requires a particular ruling. Justice and fairness, I’ve been taught, have no normative value whatsoever.
Empirical Evidence? | |
<
< | Using this framework to evaluate cases in my property class, my fellow students and I were able to wildly conjecture about the effects of adopting a particular rule. “Property values will go down if…maybe forcing the government to compensate for this taking will…” and so on. However, while such discourse might be valuable for developing legal minds, it certainly doesn’t provide the substantive results of a legal rule. Perhaps professors are able, through extensive research, to get empirical data that actually tends to prove or disprove hypotheses about the social welfare implications of particular doctrines. However, I never saw these conclusions presented in a casebook. In the few instances that any evidence of the effects of a given rule was presented, the casebook qualified it as cutting in either direction. | >
> | Using this framework to evaluate cases in my property class, my fellow students and I were able to wildly conjecture about the effects of adopting a particular rule. “Property values will go down if…maybe forcing the government to compensate for this taking will…” and so on. However, while such discourse might be valuable for developing legal minds, it doesn’t really illuminate the consequences of a legal rule. Perhaps professors are able, through extensive research, to get empirical data that actually tends to prove or disprove hypotheses about the social welfare implications of particular doctrines. However, I never saw these conclusions presented in a casebook. In the few instances that any evidence of the effects of a given rule was presented, the casebook qualified it as cutting in either direction. | | | It seems, therefore, that the law and economics model is attractive and stimulating on paper but difficult to implement in practice. This holds especially true if we expect judges to employ the analysis. It’s hard to imagine a judge with a full docket to have the time, desire, or ability to actively pursue evidence of the social welfare implications of his decision. Even if he relies on the statistical analysis of professors, he has to choose which conclusions to believe and policy goals to emphasize. | | | Consider, for example, the law of nuisance, the poster child for the law and economics approach in torts and property. The Second Restatement of Property incorporates this approach, encouraging judges to rule an activity a nuisance when the “gravity of the harm outweighs the utility of the actor’s conduct.” The Restatement then proceeds to give criteria to be considered, including the value the law places on the conflicting activities, the suitability of the activities to the locality, and the extent and character of the harm. Why are these the chosen categories for evaluating the social welfare implications of a nuisance case? Presumably the esteemed academics who drafted the Restatement believed that, by considering these factors, judges could make decisions with wealth-maximizing results. However, there are many omitted considerations which, it can be argued, must be evaluated in order to adequately determine the efficient outcome in a given case. Law and economics is by no means an objective way of studying the law. | |
<
< | Perhaps this point is obvious: there can be no purely objective analysis of the law. However, the dominance of law and economics in legal study (at least in my limited experience) suggests that the approach is more highly valued than others. Some of my classmates would roll their eyes when our property professor encouraged us to make “fairness arguments” in addition to efficiency arguments. True, it may not be as intellectually stimulating to say “This decision is unfair” as it is to speculate about the possible implications of the decision. But there isn’t any inherent difference between saying “Running a cement factory is a socially valuable activity” and saying “Homeowners have a right to be free from cement pollution.” Pointing to jobs created by the cement factory is not an adequate response, attempting to show clear benefits accruing from the activity and thus demonstrating the objectivity of the efficiency approach. Another commentator could just as easily say that a cement factory is extremely harmful, progress must be halted, and our society should return to agrarian values. | >
> | Perhaps this point is obvious: there can be no purely objective analysis of the law. However, the dominance of law and economics in legal study (at least in my limited experience) suggests that the approach is more highly valued than others. Some of my classmates would roll their eyes when our property professor encouraged us to make “fairness arguments” in addition to efficiency arguments. True, it may not be as intellectually stimulating to say “This decision is unfair” as it is to speculate about the possible implications of the decision. But there isn’t any inherent difference between saying “Running a cement factory is a socially valuable activity” and saying “Homeowners have a right to be free from cement pollution.” Pointing to jobs created by the cement factory,attempting to show clear benefits accruing from the activity and arguing that this demonstrates the objectivity of the efficiency approach is not an adequate response. Another commentator could just as easily say that a cement factory is extremely harmful, progress must be halted, and our society should return to agrarian values. | | | Conclusion
The greatest harm that a focus on law and economics causes is the exclusion of other approaches. Any one theory of the law has limited descriptive value. We cannot hope to use every conceivable perspective in studying the law, but the more that we do employ, the more accurate the analysis becomes. Knowing and using multiple disciplines, as advocated by the consilient approach, is important. Additionally, within the legal discourse I’ve encountered, there are a number of means of analysis that are systematically underemphasized. In particular, the law school curriculum would benefit from a deeper concern with distributive justice considerations. In a country where there are extreme disparities between the rich and the poor, it makes sense to craft legal rules aimed, at least in part, at lessening this divide. My belief in the importance of this focus is, of course, purely personal and subjective. Just like Professor Witt’s belief that efficiency should win the day. |
|
|
WalkerNewellThirdPaper 1 - 26 May 2009 - Main.WalkerNewell
|
|
>
> |
| META TOPICPARENT | name="TWikiGuestThirdPaper" |
|---|
Law and Economics Isn't Special
In torts with John Fabian Witt, Esq., my first semester, I was introduced to law and economics as a kind of rosetta stone for evaluating the effectiveness of judicial decisions. Since costs are reciprocal, we learned, it is worthless to say that, on the basis of fairness, a homeowner should win his nuisance claim against a polluting factory. The homeowner’s inability to cope with pollution can just as easily be seen as causing harm to the factory, especially if the courts rule in his favor.
There really isn’t any way to directly attack this proposition, unless the argument is that efficiency concerns should be wholly removed from the theory of law in favor of “natural rights”. Indeed, the Coase Theorem is just an overly complicated way of saying what Holmes had years before: that we need to look at the results of a decision rather than follow the impulse to say that justice requires a particular ruling. Justice and fairness, I’ve been taught, have no normative value whatsoever.
Empirical Evidence?
Using this framework to evaluate cases in my property class, my fellow students and I were able to wildly conjecture about the effects of adopting a particular rule. “Property values will go down if…maybe forcing the government to compensate for this taking will…” and so on. However, while such discourse might be valuable for developing legal minds, it certainly doesn’t provide the substantive results of a legal rule. Perhaps professors are able, through extensive research, to get empirical data that actually tends to prove or disprove hypotheses about the social welfare implications of particular doctrines. However, I never saw these conclusions presented in a casebook. In the few instances that any evidence of the effects of a given rule was presented, the casebook qualified it as cutting in either direction.
It seems, therefore, that the law and economics model is attractive and stimulating on paper but difficult to implement in practice. This holds especially true if we expect judges to employ the analysis. It’s hard to imagine a judge with a full docket to have the time, desire, or ability to actively pursue evidence of the social welfare implications of his decision. Even if he relies on the statistical analysis of professors, he has to choose which conclusions to believe and policy goals to emphasize.
Better Than Justice?
The law and economics approach, then, is plagued with many of the same problems associated with a legal theory that gives weight to intangible concepts of natural rights and justice. Whether or not a legal outcome is just depends on the subjective perspective of each observer. Therefore, as the argument goes, a doctrine cannot be justified on the basis that some judges believe it achieves just results. But how is it any better to say the doctrine is justified because some academics believe that it achieves efficient results? Their stances are based on conflicting data, and the data itself is based on presumptions in favor of eliminating or causing certain effects.
Consider, for example, the law of nuisance, the poster child for the law and economics approach in torts and property. The Second Restatement of Property incorporates this approach, encouraging judges to rule an activity a nuisance when the “gravity of the harm outweighs the utility of the actor’s conduct.” The Restatement then proceeds to give criteria to be considered, including the value the law places on the conflicting activities, the suitability of the activities to the locality, and the extent and character of the harm. Why are these the chosen categories for evaluating the social welfare implications of a nuisance case? Presumably the esteemed academics who drafted the Restatement believed that, by considering these factors, judges could make decisions with wealth-maximizing results. However, there are many omitted considerations which, it can be argued, must be evaluated in order to adequately determine the efficient outcome in a given case. Law and economics is by no means an objective way of studying the law.
Perhaps this point is obvious: there can be no purely objective analysis of the law. However, the dominance of law and economics in legal study (at least in my limited experience) suggests that the approach is more highly valued than others. Some of my classmates would roll their eyes when our property professor encouraged us to make “fairness arguments” in addition to efficiency arguments. True, it may not be as intellectually stimulating to say “This decision is unfair” as it is to speculate about the possible implications of the decision. But there isn’t any inherent difference between saying “Running a cement factory is a socially valuable activity” and saying “Homeowners have a right to be free from cement pollution.” Pointing to jobs created by the cement factory is not an adequate response, attempting to show clear benefits accruing from the activity and thus demonstrating the objectivity of the efficiency approach. Another commentator could just as easily say that a cement factory is extremely harmful, progress must be halted, and our society should return to agrarian values.
Conclusion
The greatest harm that a focus on law and economics causes is the exclusion of other approaches. Any one theory of the law has limited descriptive value. We cannot hope to use every conceivable perspective in studying the law, but the more that we do employ, the more accurate the analysis becomes. Knowing and using multiple disciplines, as advocated by the consilient approach, is important. Additionally, within the legal discourse I’ve encountered, there are a number of means of analysis that are systematically underemphasized. In particular, the law school curriculum would benefit from a deeper concern with distributive justice considerations. In a country where there are extreme disparities between the rich and the poor, it makes sense to craft legal rules aimed, at least in part, at lessening this divide. My belief in the importance of this focus is, of course, purely personal and subjective. Just like Professor Witt’s belief that efficiency should win the day. |
|
|