Showing papers in "Columbia Law Review in 1985"

Criminal Law and the Optimal Use of Nonmonetary Sanctions as a Deterrent

Abstract: A theoretical model of deterrence is studied in which the imposition of nonmonetary (as opposed to monetary) sanctions is socially costly. It is therefore desirable that the system of sanctions be designed so that sanctions are imposed infrequently. If courts possess perfect information, the optimal system is such that sanctions are never imposed-all who can be deterred will be--but, realistically, courts' information will be imperfect and sanctions will be imposed. Copyright 1987 by American Economic Association.

The Evolutionary Tradition in Jurisprudence

Abstract: The government of the United States was constructed upon the Whig theory of political dynamics, which was a sort of unconscious copy of the Newtonian theory of the universe. In our own day, whenever we discuss the structure or development of anything, whether in nature or in society, we consciously or unconsciously follow Mr. Darwin . . . Woodrow Wilson (1908).' Law is a scavenger. It grows by feeding on ideas from outside, not by inventing new ones of its own. How borrowed ideas-not political and social theories, but abstract ideas borrowed from other disciplines-affect the law is a topic scholars have overlooked. This Article begins to fill that void by considering how the most influential idea of the last century, Charles Darwin's theory of biological evolution, has affected the way lawyers think about law. Today the idea that law \"evolves\" is so deeply ingrained in AngloAmerican legal thought that most lawyers are no longer even conscious of it as a metaphor.2 We speak of the law \"adapting\" to its social, cultural, and technological environment without the slightest awareness of the jurisprudential tradition we are invoking. The central purpose of this Article is to bring to light the evolutionary tradition in AngloAmerican jurisprudence, which underlies many of our assumptions about law. The first step will be to trace the metaphor of biological evolution as used by legal writers who have influenced American law. Reviewing evolutionary theories of law has several purposes. The first is essentially archival: to reclaim from obscurity and to evaluate several evolutionary theories of law which have either been forgotten or misunderstood. But there is also a second, more subtle goal: to define-and thereby to create-an evolutionary tradition in jurisprudence with a cumulative power that transcends the individual works.

Why Restrain Alienation

Abstract: In her informative article, Inalienability and the Theory of Property Rights,' Susan Rose-Ackerman raises anew one persistent question that has worked itself into the fabric of our general law: Why should there be any restraints on the alienation of property? As stated the question is an extremely broad one. The right of alienation, as part of the bundle of property rights, is set in opposition to the rights of possession and use. The types of property to which it can extend are real and personal, tangible and intangible. Each type of property may be alienated in a number of different ways, such as by sale, hire, mortgage, lease, bail, or pledge. These various forms of alienation in turn may be restrained in many ways. The restraints may be whole or partial; they may be by common law rule or by public regulation; alienation may be subject to an absolute prohibition, or it may be exercisable only upon the payment of money. As the possible range of restraints on alienation is very broad, it is important to order the inquiry so as to exhibit its essential features. This Article first seeks to explain why the right of alienation is a normal incident of private ownership. Thereafter it seeks to examine the principled reasons for limiting the right. These justifications in turn fall into two main groups. The first set is concerned with the practical control of externalities. These may take the form of aggression against third parties, the overexploitation of the common pool, or the exploitation of infants and insane persons. Alternatively, restraints on alienation may be used to redress some asserted distributional weakness within the present allocation of rights. My central thesis is that the first justification is sound, but that the second is not. The proper office for restraints on alienation is to provide indirect control over external harms when direct means of control are ineffective to the task. In working through this analysis I start from the assumption that the core function of the law is to protect all persons and their property against the force and fraud of another. There is no doubt in my view that this simple view of entitlements between persons lies at the heart of most of our legal system, both as it developed at common law, and as it has come to be modified by statute. It is simply inconceivable to ac-

Econometrics in the Courtroom

Abstract: The use of statistical methods for resolving disputes has found increasing acceptance within the adversary system.' This greater acceptance of statistics has opened the door to law-related econometric studies, particularly in connection with the use of multiple regression models. 2 While the most frequent uses of multiple regression have been in cases of sex and race discrimination 3 and antitrust violation, 4

Paradoxes in Legal Thought

Abstract: Traditional legal thought has generated few anomalies, antinomies, and paradoxes. These factual and logical tensions arise only when theorists press for a complete and comprehensive body of thought. Discrete, unconnected solutions to problems and particularized precedents spare us the logical tensions that have troubled scientific inquiry. Anomalies arise from data that do not fit the prevailing scientific theory.' Paradoxes and antinomies, on the other hand, reflect problems of logical rather than factual consistency. To follow Quine's definitions,2 paradoxes are contradictions that result from overlooking an accepted canon of consistent thought. They are resolved by pointing to the fallacy3 that generates them. When we confront the special form of paradox called an antinomy,4 however, we have no such easy way out. The resolution of these more troubling contradictions requires reexamination of our fundamental premises. The solution typically represents a conceptual innovation,5 a new way of looking at the field of life that generates the contradiction. For these factual and logical puzzles to become significant in a body of thought, theorists must be committed both to the completeness and to the consistency of their theoretical accounts. The impulse toward completeness renders anomalies disturbing. Confronted by data not explainable by the prevailing theory, theorists must either confess the incompleteness and inadequacy of their system or revise their tools

Legal Theory and The Economic Analysis of Torts and Crimes

Abstract: One has to be impressed by the volume of research produced in the last fifteen years that has applied economics to analyze legal issues-in particular, the subjects of torts and crimes. The nature of the inquiry has been diverse. It has included normative analysis of the implications that economics has for the design of a particular rule of law' as well as positive analysis, using economic arguments, of why the common law has taken the form it has.2 The economic approach has featured both theoretical analysis3 and empirical work4 on legal issues. The literature has developed not only in publications explicitly devoted to law and economics5 but in law reviews and leading economics journals as well. Volumes have been produced that provide comprehensive

Bureaucratic Organizations and the Theory of Adjudication

Abstract: One of the manifold jurisprudential ramifications of the \"organization revolution\" 1 is its effect on the nature of adjudication. Adjudication is fundamentally changed when large-scale bureaucratic organizations are involved. By paying attention to the increasing role played by such organizations in litigation it is possible to throw some new light on a number of controversies regarding the main tasks of adjudication and its appropriate forms. These controversies often assume the form of a competition between opposing models of adjudication. My thesis, generally stated, is that the choice of an adequate model largely depends on the nature of the litigants, that is on whether one thinks of litigation between individual or organizational parties. This thesis is stated more fully-in terms of two specific models of adjudication-in Part I. It is then elaborated and defended in the remainder of the Article.