Law Commons^™

A Third Theory Of Paternalism, Nicolas Cornell

Michigan Law Review

This Article examines the normative significance of paternalism. That an action, a law, or a policy is paternalistic generally counts against it. This Article considers three reasons why this might be so—that is, three theories about what gives paternalism its normative character. This Article’s claim is that the two most common explanations for paternalism’s negative character are mistaken. The first view, which underlies the recent work by Professors Thaler and Sunstein, maintains that paternalism is negatively charged because it involves coercive interference with people’s choices. This approach proves inadequate, however, because more coercive actions can be a less objectionable form …

The Logic Of Reciprocity: Trust, Collective Action, And Law, Dan M. Kahan

Michigan Law Review

The Logic of Collective Action has for decades supplied the logic of public-policy analysis. In this pioneering application of public choice theory, Mancur Olson elegantly punctured the premise - shared by a variety of political theories - that individuals can be expected to act consistently with the interest of the groups to which they belong. Absent externally imposed incentives, wealth-maximizing individuals, he argued, will rarely find it in their interest to contribute to goods that benefit the group as a whole, but rather will "free ride" on the contributions that other group members make. As a result, too few individuals …

The Origin, Development, And Regulation Of Norms, Richard H. Mcadams

Michigan Law Review

For decades, sociologists have employed the concept of social norms to explain how society shapes individual behavior. In recent years, economists and rational choice theorists in philosophy and political science have started to use individual behavior to explain the origin and function of norms. For many in this group, the focus of study is the interaction of law and norms, of formal and informal rules. Exemplified by Robert Ellickson's Order Without Law, this literature uses norms to develop more robust explanations of behavior and to predict more accurately the effect of legal rules. Norms turn out to matter in legal …

Beyond Candor, Scott Altman

Michigan Law Review

In Part I, I consider whether judges might hold inaccurate beliefs that make them more candid and constrained. I suggest that even if theories of neutral decisionmaking are incomplete and inaccurate, a legal system in which judges hold these beliefs about their own behavior could have advantages. If many judges believe that they can, should, and do decide almost all cases by following the law, they might behave differently than they would if they held more accurate beliefs. They might behave so as to facilitate repression and denial, because their self-esteem depends on maintaining the belief that they decide as …

Antitrust Policy After Chicago, Herbert Hovenkamp

Michigan Law Review

This article begins with the premise that nothing - not even an intellectual structure as imposing as the Chicago School - lasts forever. In fact, a certain amount of stagnation is already apparent. Most of the creative intellectual work of the Chicago School has already been done - done very well, to be sure. The new work too often reveals the signs of excessive self-acceptance, particularly of quiet acquiescence in premises that ought to be controversial.

Today the cutting edge of antitrust scholarship is coming, not from protagonists of the Chicago School, but rather from its critics. The critics began …

Schur: Crimes Without Victims: Deviant Behavior And Public Policy, Mauris M. Platkin M.D.

Michigan Law Review

A Review of Crimes Without Victims: Deviant Behavior and Public Policy by Edwin M. Schur