Fawn Hall must not have been reading her Dworkin.
Her name has dissolved into history, but Fawn Hall was front-page news in 1987. Until 1986, she had served as personal secretary to Colonel Oliver North, the man at the center of the Iran-Contra scandal and its unlawful sale of arms to Iran and equally unlawful use of the proceeds to aid the Contra guerillas in Nicaragua. When the scandal broke, Hall was granted immunity and called before a congressional committee to testify about her role in the transactions and the ensuing cover-up. After it became apparent that Hall fully supported Colonel North and more than willingly participated in the alteration and shredding of incriminating documents, Representative Thomas Foley pointedly asked her how she felt about the multiple illegalities in which she and North had been involved. “[S]ometimes you have to go above the written law, I believe,” she answered. And with those eleven words, Hall became a historical footnote and target for the mockery and wrath of countless pundits and political opponents.
Most lawsuits settle, but some settle later than they should. Too many compromises occur only after protracted discovery and expensive motion practice. Sometimes the delay precludes settlement altogether. Why does this happen? Several possibilities—such as the alleged greed of lawyers paid on an hourly basis—have been suggested, but they are insufficient to explain why so many cases do not settle until the eve of trial. We offer a novel account of the phenomenon of settling on the courthouse steps that is based upon empirical research concerning judgment and choice. Several cognitive illusions—the framing effect, the confirmation bias, nonconsequentialist reasoning, and the sunk-cost fallacy—produce intuitions in lawyers that can induce them to postpone serious settlement negotiations or to reject settlement proposals that should be accepted. Lawyers’ tendency to rely excessively on intuition exacerbate the impact of those cognitive illusions. The experiments presented in this Article indicate that the vulnerability of experienced lawyers to these cognitive errors can prolong litigation.
All of law depends on vast concepts that stretch across time, space, causation, and agency. Far-reaching concepts make law possible from legislation and interpretation to enforcement and adjudication; from weighing evidence to establishing motive and intent; and from imposing fines or sentences to awarding compensation. But all of human thought and memory is just here and now. The vast dependencies of time, space, causation, and agency must exist in individual brains. How we manage to use here-and-now mental processes to produce legal concepts that stretch very broadly over vast expanses of our lives, institutions, and worlds is the point of this Article. We will discuss how human beings transform vast dependencies that stretch across time, space, causation, and agency into tractable, much smaller, and more compact concepts that we can hold onto, manipulate, and develop. We will explain how these compact concepts are “blends” for thinking about much larger mental webs of ideas that are too large to hold in mind themselves. We will also suggest a research agenda that may allow us to better understand what sorts of blends work, and which ones we discard and when. Examples of blends are everywhere in law. A “decedent” in law, for example, is a kind of agent who exists (but does not live) in the present, who is imbued with some of the intentionality of a person who once existed, and for whom there are documentary records expressing this past intentionality.
In both legal and political settings there has been a push toward adopting institutions that encourage consensus. The key feature of these institutions is that they bring interested parties together to communicate with each other. Existing research about the success or failure of particular institutions is ambiguous. Therefore, we turn our attention to understanding the general conditions when consensus is achievable, and we test experimentally three crucial factors that affect a group’s ability to achieve consensus: (1) the difficulty of the problem, (2) the costs of communication, and (3) the structure of communication. Using multiple experimental approaches, we find that difficult problems impede consensus, costs make consensus less likely (even relatively very small costs), and the structure of communication has significant effects and interacts with both problem difficulty and costs. In particular, the structure of communication can reduce the negative effect of costs and facilitate consensus. Together these results imply that consensus is only likely to occur if problems are easy, costs to communicate are low, or the communication structure helps overcome the other two problems. These findings can provide insight about the institutional designs that can be utilized to promote consensual outcomes.
In Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, Jürgen Habermas describes a challenge to modern democracies and a procedure for adapting to this challenge. The challenge is that in the absence of natural law, or any other universally accepted moral or ethical code, no common framework informs people about what kinds of laws are, and are not, legitimate. Hence, if laws are to be accepted by, and hence binding on, the populations for whom they are intended to apply, an alternate legitimating mechanism is required.
Habermas describes communicative procedures that have the potential to provide legitimacy to collective decisions. In this ideal discourse (“ID”), as we describe it, all citizens have an equal right to speak and an obligation to listen. If deliberations culminate in agreement on the validity of socially relevant moral, ethical, or technical propositions, then the propositions serve as substantive foundations for subsequent legislative decisions and bureaucratic actions.
Strategic actors often require a great deal of informational and computational resources to calculate game-theoretic equilibria, and scholars need a precise accounting of incentives in order to model the decisions faced by these actors. Rarely are both of these conditions—player rationality and payoff quantifiability—met when scholars attempt to model the behavior of individual actors in the law (especially the behavior of lay people such as jurors, litigants, or criminals). Behavioral economists have proposed posthoc adjustments to account for the failure of player rationality, but these adjustments—if they are indeed correct—make the pursuit of equilibrium impossible for any actor with realistic informational and cognitive resources. This Article discusses the necessary conditions for the emergence of equilibrium strategies, and identifies examples of legal scholarship in which the use of equilibrium solution concepts is problematic because of the improbability that these conditions are met.
A “hybrid” or “mixed” country can be defined as having substantial common and civil elements in its legal system. Hybrid countries have been an overlooked aspect of legal origins literature. This study’s comparative analysis finds that most hybrids have experienced moderate to high economic growth rates, began as civil law countries, and maintained predominantly civil law–based property and contract law, while uniformly adopting common law–based corporate and securities law.
In reviewing a game theory text almost twenty years ago, Ian Ayres complained that “countless” law review articles “rearticulate the Prisoner’s Dilemma, but few even proceed” to the simplest of other games. Several years later, in what is still the most significant book treatment of game theory for law, Douglas Baird, Robert Gertner, and Randal Picker began by lamenting how legal scholars had neglected game theory up to that point “other than to invoke a simple game such as the prisoner’s dilemma as a metaphor for a collective action problem.” All of these scholars asserted the great value of game theory to legal analysis and the hope that it would transform legal theory as it has transformed economic theory.
This Article grapples with the complexities of law in a world of hybrid legal spaces, where a single act or actor is potentially regulated by multiple legal or quasi-legal regimes. In order to conceptualize this world, I introduce literature on legal pluralism, and I suggest that, following its insights, we need to realize that normative conflict among multiple, overlapping legal systems is unavoidable and might even sometimes be desirable, both as a source of alternative ideas and as a site for discourse among multiple community affiliations. Thus, instead of trying to stifle conflict either through an imposition of sovereigntist, territorially-based prerogative or through universalist harmonization schemes, communities might sometimes seek (and increasingly are creating) a wide variety of procedural mechanisms, institutions, and practices for managing, without eliminating, hybridity. Such mechanisms, institutions, and practices can help mediate conflicts by recognizing that multiple communities may legitimately wish to assert their norms over a given act or actor, by seeking ways of reconciling competing norms, and by deferring to other approaches if possible. Moreover, when deference is impossible (because some instances of legal pluralism are repressive, violent, and/or profoundly illiberal), procedures for managing hybridity can at least require an explanation of why a decision maker cannot defer. In sum, pluralism offers not only a more comprehensive descriptive account of the world we live in, but also suggests a potentially useful alternative approach to the design of procedural mechanisms, institutions, and practices.
Use of the phrase “ownership society” to designate an end state toward which one believes that American policy should strive entails certain commitments. The usage cannot mean merely that public policy ought to seek to bring about a society in which some people own some things; we have lived in that society, without interruption, since the first days of our republic. Nor can use of the phrase contemplate merely a society whose law recognizes, vindicates, and protects property rights; again, that has been a central feature of our polity since its first days under our present constitution. To what, then, can the notion of an “ownership society” refer? It must refer to a society whose members are publicly conscious of the individual and the societal value of ownership, and who work systematically to propagate that value among themselves. The “ownership society” (“OS”), that is, not only recognizes, preserves, and protects ownership, but also it celebrates, fosters it, and spreads it. It is, in short, a latter-day rendition of that venerable American ideal, the Jeffersonian “yeoman republic.”
But making a society-shaping and enduring public commitment to ownership promotion raises several antecedent practical tasks that must be addressed both sensibly and sensitively if the project is to put down roots, flourish, and endure. First, the project must be conceived, articulated, and implemented in a manner consistent with the core values and political self-understandings of those who comprise the society that wills to be an OS. Where the society has featured multiple such valuational and political traditions over time, this task further requires that some synthesis of, or overlapping consensus among, these traditions be derived and articulated: an ideologically neutral yet nonetheless value-expressive language must be wrought.