Jurisprudence Commons^™

Collective Choice, Justin Schwartz

Justin Schwartz

This short nontechnical article reviews the Arrow Impossibility Theorem and its implications for rational democratic decisionmaking. In the 1950s, economist Kenneth J. Arrow proved that no method for producing a unique social choice involving at least three choices and three actors could satisfy four seemingly obvious constraints that are practically constitutive of democratic decisionmaking. Any such method must violate such a constraint and risks leading to disturbingly irrational results such and Condorcet cycling. I explain the theorem in plain, nonmathematical language, and discuss the history, range, and prospects of avoiding what seems like a fundamental theoretical challenge to the possibility …

Firms As Social Actors, Richard Adelstein

Richard Adelstein

A close look at what firms are and how they act.

When Users Are Authors: Authorship In The Age Of Digital Media, Alina Ng

Alina Ng

This Article explores what authorship and creative production means in the digital age. Notions of the author as the creator of the work provided a point of reference for recognizing ownership rights in literary and artistic works in conventional copyright jurisprudence. The role of the author, as the creator and producer of a work, has been seen as distinct and separate from that of the publisher and user. Copyright laws and customary norms protect the author’s rights in his creation to provide the incentive to create and allow him to appropriate the social value generated by his creativity as recognition …

Organizations And Economics, Richard Adelstein

Richard Adelstein

A contribution to a symposium on a paper by Richard Posner.

Introducción Al Análisis Económico Del Derecho Administrativo / Introduction To Administrative Law And Economics, Andres Palacios Lleras

Andrés Palacios Lleras

El estudio y la enseñanza del derecho administrativo colombiano dejan mucho que desear, especialmente en lo que respecta al estudio del derecho como fenómeno social. Éste tiende a ser presentado como un cuerpo de normas políticamente neutrales, construido a partir de categorías conceptuales muy abstractas, y coherente. Como resultado de ello, asume una posición “normativista” que ignora el contexto social en el que lleva a la producción e interpretación de las normas jurídicas. Este artículo sugiere que un cambio conceptual puede ser muy útil para “curar” al análisis del derecho administrativo de los males que lo aquejan. Sugiere que el …

Much Ado About Pluralities: Pride And Precedent Amidst The Cacophy Of Concurrences, And Re-Percolation After Rapanos, Donald J. Kochan, Melissa M. Berry, Matthew J. Parlow

Donald J. Kochan

Conflicts created by concurrences and pluralities in court decisions create confusion in law and lower court interpretation. Rule of law values require that individuals be able to identify controlling legal principles. That task is complicated when pluralities and concurrences contribute to the vagueness or uncertainty that leaves us wondering what the controlling rule is or attempting to predict what it will evolve to become. The rule of law is at least handicapped when continuity or confidence or confusion infuse our understanding of the applicable rules. This Article uses the recent U.S. Supreme Court decision in Rapanos v. United States to …

The Dao Of Jurisprudence: The Art And Science Of Optimal Justice, Daniel J. Boyle

Daniel J Boyle

The law intersects with reality in order to influence or control behavior in an evolutionary process that filters or mediates society through the voices and influences of the actors affected. By modeling this system at the highest levels of generalization, we can explore notions of optimality.

Economics Of Plea Bargaining, Richard Adelstein

Richard Adelstein

A short summary of earlier work for a sociological audience.

The Policy-Making Process Of Supreme People Court: Power Strategy And Information Selection（最高法院公共政策的运作：权力策略与信息选择）, Meng Hou

Hou Meng

No abstract provided.

An Economic Model Of Fair Use (With Thomas Miceli), Richard Adelstein

Richard Adelstein

A formal model of the law of fair use.

Boyakasha, Fist To Fist: Respect And The Philosophical Link With Reciprocity In International Law And Human Rights, Donald J. Kochan

Donald J. Kochan

Empirical Research On The Capacity Of Regulating Economy Of The Supreme Court: From The Overhead Expenses In The Court（最高法院规制经济的实证研究──以法院内部管理费用为分析视角）, Meng Hou

Hou Meng

No abstract provided.

Judicial Knowledge System’S Reproduction Of Supreme Court：To The Judicial Process Of Economic Regulation,For Example（最高法院司法知识体制再生产──以最高法院规制经济的司法过程为例）, Meng Hou

Hou Meng

No abstract provided.

Knowledge And Power In The Mechanical Firm: Planning For Profit In Austrian Perspective, Richard Adelstein

Richard Adelstein

A theory of central planning employing Austrian themes and applied to private firms and Taylorism.

The Function Of The Supreme People’S Court Of Regulating Economy——Re-Evaluation Of The Zhongfu Industry Guarantee Case(最高法院规制经济的功能──再评“中福实业公司担保案”), Meng Hou

Hou Meng

No abstract provided.

How The Supreme Court Regulates Economy: Review On Exterior Coordination Cost（最高人民法院如何规制经济──外部协调成本的考察）, Meng Hou

Hou Meng

No abstract provided.

Equity And Efficiency In Markets For Ideas, Richard Adelstein

Richard Adelstein

Intellectual property and patent protection in light of the AIDS crisis in Africa.

Toward A Comparative Economics Of Plea Bargaining (With Thomas Miceli), Richard Adelstein

Richard Adelstein

A comparison of adversarial and inquisitorial approaches to criminal adjudication and its implications for plea bargaining.

Victims As Cost Bearers, Richard Adelstein

Richard Adelstein

A brief recasting of the price exaction model.

Four Entries, Richard Adelstein

Richard Adelstein

Four entries: "American Institutional Economics and the Legal System" (I: 61-66); "John Rogers Commons" (I: 324-327); Richard Theodore Ely" (II: 28-29); and "Plea Bargaining: A Comparative Approach"

Relativism, Reflective Equilibrium, And Justice, Justin Schwartz

Justin Schwartz

THIS PAPER IS THE CO-WINNER OF THE FRED BERGER PRIZE IN PHILOSOPHY OF LAW FOR THE 1999 AMERICAN PHILOSOPHICAL ASSOCIATION FOR THE BEST PUBLISHED PAPER IN THE PREVIOUS TWO YEARS.

The conflict between liberal legal theory and critical legal studies (CLS) is often framed as a matter of whether there is a theory of justice that the law should embody which all rational people could or must accept. In a divided society, the CLS critique of this view is overwhelming: there is no such justice that can command universal assent. But the liberal critique of CLS, that it degenerates into …

What's Wrong With Exploitation?, Justin Schwartz

Justin Schwartz

Abstract: Marx thinks that capitalism is exploitative, and that is a major basis for his objections to it. But what's wrong with exploitation, as Marx sees it? (The paper is exegetical in character: my object is to understand what Marx believed,) The received view, held by Norman Geras, G.A. Cohen, and others, is that Marx thought that capitalism was unjust, because in the crudest sense, capitalists robbed labor of property that was rightfully the workers' because the workers and not the capitalists produced it. This view depends on a Labor Theory of Property (LTP), that property rights are based ultimately …

In Defence Of Exploitation, Justin Schwartz

Justin Schwartz

The concept of exploitation is thought to be central to Marx's Critique of capitalism. John Roemer, an analytical (then-) Marxist economist now at Yale, attacked this idea in a series of papers and books in the 1970s-1990s, arguing that Marxists should be concerned with inequality rather than exploitation -- with distribution rather than production, precisely the opposite of what Marx urged in The Critique of the Gotha Progam.

This paper expounds and criticizes Roemer's objections and his alternative inequality based theory of exploitation, while accepting some of his criticisms. It may be viewed as a companion paper to my What's …

The Paradox Of Ideology, Justin Schwartz

Justin Schwartz

A standard problem with the objectivity of social scientific theory in particular is that it is either self-referential, in which case it seems to undermine itself as ideology, or self-excepting, which seem pragmatically self-refuting. Using the example of Marx and his theory of ideology, I show how self-referential theories that include themselves in their scope of explanation can be objective. Ideology may be roughly defined as belief distorted by class interest. I show how Marx thought that natural science was informed by class interest but not therefore necessarily ideology. Capitalists have an interest in understanding the natural world (to a …

From Libertarianism To Egalitarianism, Justin Schwartz

Justin Schwartz

A standard natural rights argument for libertarianism is based on the labor theory of property: the idea that I own my self and my labor, and so if I "mix" my own labor with something previously unowned or to which I have a have a right, I come to own the thing with which I have mixed by labor. This initially intuitively attractive idea is at the basis of the theories of property and the role of government of John Locke and Robert Nozick. Locke saw and Nozick agreed that fairness to others requires a proviso: that I leave "enough …

Deciding For Bigness, Richard Adelstein

Richard Adelstein

Antitrust as a constitutional constraint on the growth of firms.

The Competition Of Technologies In Markets For Ideas: Copyright And Fair Use In Evolutionary Perspective (With Steven Peretz), Richard Adelstein

Richard Adelstein

A theory of intellectual goods as distinct from public or private goods, and the rationale for copyright that flows from it.

The Plea Bargain In England And America: A Comparative Institutional Approach, Richard Adelstein

Richard Adelstein

A comparative view of adjudication by guilty plea in the US and the UK.

Institutional Function And Evolution In The Criminal Process, Richard Adelstein

Richard Adelstein

An extended development of the foundations of the price exaction model of the criminal process.

The Moral Costs Of Crime: Prices, Information And Organization, Richard Adelstein

Richard Adelstein

More on price exaction, and punishments as conveyors of cost information in the criminal process.