Academic

Goodenough on Emotions, Law, and Mechanism Design

By Lawrence Solum

Oliver R. Goodenough (Vermont Law School) has posted Institutions, Emotions and Law: A Goldilocks Problem for Mechanism Design on SSRN.  Here is the abstract:

This essay lays out a framework for thinking about institutions, emotions, and law. It combines work that links our emotions with internal, psychological commitments, and an understanding of institutions as mechanisms that re-frame the strategic landscape in a world of potential cooperation and conflict between social actors. This combination suggests a positive theory of moral sentiments, a clearer way to understand the role of emotion in law, and a reframing of the old is/ought distinction, sometimes called the naturalistic fallacy. The internal institutions created through our moral sentiments are important but limited. Our intuitive tool kit for structuring cooperative institutions, and for reacting punitively to transgressions against these institutions provides some reframing solutions. Institutions, however, can originate in many ways and can be located many media - psychology, culture, even the physical world. Law is an institution built across many of these layers, a composite that can create a more nuanced and capable set of structures and responses, leading to a better set of outcomes than would be available in an emotion-only world. The problem for the composite is getting the mix right - both too much emotion and too little can prevent us from fully capturing the expanded solution space which a rule of law can open to its adherents.

Full post as published by Legal Theory Blog on December 10, 2008 (boomark / email).