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Articles 1 - 3 of 3
Full-Text Articles in Legal Theory
Miscalculating Welfare, Michael B. Dorff, Kimberly Kessler Ferzan
Miscalculating Welfare, Michael B. Dorff, Kimberly Kessler Ferzan
All Faculty Scholarship
In their quest to maximize efficiency, law and economics scholars often produce novel, creative, and counterintuitive legal rules. Indeed, legal economists have argued for baby selling, against anti-discrimination laws in the workplace, and for insider trading. In this essay, we discuss some concerns about this form of legal scholarship that privileges the creative and counterintuitive over the fair, mundane, and intuitive. Drawing on a range of empirical evidence, this essay argues that the failure to include, and to give sufficient weight to, fairness preferences undermines legal economists' policy recommendations. Specifically, after setting forth three examples of this phenomenon, in the …
Liability Insurance, Moral Luck, And Auto Accidents, Tom Baker
Liability Insurance, Moral Luck, And Auto Accidents, Tom Baker
All Faculty Scholarship
Beginning with the seminal work by Williams and Nagel, moral philosophers have used auto accident hypotheticals to illustrate the phenomenon of moral luck. Moral luck occurs in the hypotheticals because (and to the extent that) two equally careless drivers are assessed differently because only one of them caused an accident. This article considers whether these philosophical discussions might contribute to the public policy debate over compensation for auto accidents. Using liability and insurance practices in the United States as an illustrative example, the article explains that auto liability insurance substantially mitigates moral luck and argues that, as a result, the …
Living On The Edge: The Margins Of Legal Personhood, Symposium Foreword, Kimberly Kessler Ferzan
Living On The Edge: The Margins Of Legal Personhood, Symposium Foreword, Kimberly Kessler Ferzan
All Faculty Scholarship
In January 2008, at the Association of American Law Schools' annual meeting, the Jurisprudence Section conducted a panel on "The Margins of Legal Personhood." The goal of this panel was to draw (or sever) connections between and among different "marginal" entities: the psychopath, the animal, and the embryo or fetus. As is perhaps immediately apparent, these entities are not marginalized in a political sense, but rather lie at the margins of our moral and legal communities. Prima facie, they may have some, but lack all, of the capacities necessary for full membership. Because they live on the edge, we must …