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Legal Commentary: Prawfs
Creeping consequentialism and insidious economics, part I
By Dan Markel, Ethan Leib, Rick Garnett, Matt Bodie, Paul Horwitz , Steve Vladeck, and Orly Lobel
OK, the title is hyperbolic. But here is what troubles me.
You are teaching or analyzing legal rule A. Suppose rule A seems to express an underlying standard of undesirable or impermissible conduct C. For example, the legal rule is: "D must pay compensatory damages to P when D's unreasonably risky conduct harms P." The underlined phrase expresses a norm of impermissible conduct.
Unthinking consequentialism can creep in at both levels of this analysis--in your analysis of what counts as creating an unreasonable risk to others, and in your analysis of whether a legal rule expressing this standard of conduct is normatively desirable. This danger is especially pronounced in analyzing tort doctrine, but it arises elsewhere, too.
Consider first the standard of conduct. How do we decide what risks are unreasonable? (For example, whether it is unreasonable for D to speed to the hospital to obtain care for his sick child.) Here is an answer, and one that appears so self-evidently correct that any alternative analysis seems irrational.
1. Consider all the bad consequences of D's taking the risk.
2. Consider all the good consequences of D's taking the risk.
3. If the good outweighs the bad, it is permissible to take the risk. If not, not.
(The famous Learned Hand test is often viewed as expressing this approach: you are negligent if but only if the burden of taking a precaution against the risk is less than the benefits of taking the precaution, in the form of reduced risks of harm to those exposed to the risk.)
If you don't like this approach, what is wrong with you? Don't you care about consequences? Don't you prefer good to bad? (Or, under marginal versions of this approach, don't you prefer more good to less good, and less bad to more bad?) Are you fanatically opposed to balancing? Even though, in your own life, you routinely balance the advantages and disadvantages when deciding between option A and option B?
Consider next the desirability of the corresponding legal rule: if an actor fails to act as specified by this standard of reasonable conduct, he must pay compensatory damages to the victim. How do we decide the desirability of this rule? Why, in exactly the same manner. This is a matter of basic rationality, after all.
1. Consider all the bad consequences of enforcing this legal rule of negligence liability.
2. Consider all the good consequences of enforcing the rule.
3. If the good outweighs the bad, this is a desirable legal rule. If not, not.
Again, the logic appears to be inexorable.
This approach is enormously attractive for a number of reasons. It appears to be thorough, empirically grounded, pragmatic, rational, and focused on human welfare. It gives us a rigorous method, quite unlike the fuzzy soft-headed intuitions of those who defend rights-based and other nonconsequentialist approaches. (A colleague in the philosophy department recently remarked to me that many of her undergraduates, when first introduced to philosophy, are seduced by the simplicity and apparent inevitability of utilitarian thinking.)
I do believe that economic and utilitarian analysis have value, both descriptively and normatively. But the account I have just given greatly understates the difficulties with these forms of analysis, and overstates their ability to describe the world accurately and to prescribe norms that we should live by. (To be continued...)
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