Legal Theory Workshop: Rebecca Stone

LEGAL THEORY WORKSHOP SERIES

presents 

Rebecca Stone
UCLA School of Law

Legal Design for the “Good Man”

Friday, January 15, 2016
12:30 - 2:00
Solarium (room FA2), Falconer Hall
84 Queen's Park 

Consequentialist analysts of legal rules tend to focus their attention on Holmes’ “bad man” who conforms legal rules only out of fear out of legal sanctions. On this view, legal rules should be designed to give self-interested agents sufficient reason to choose optimal actions. But many people simply conform to legal rules because they are the rules, even when their self-interest may dictate doing otherwise.  So why the focus on the bad man? A plausible justification for bad man analysis of law is that lawmakers don’t have to worry about the “good man” when designing legal rules because he will do what they want him to do anyway by conforming to the law. In other words, “good man” analysis of law is simple and so can be safely ignored.  In this paper, I argue that this justification is incorrect. The behavior of the “good man” is much more complex than first appears. Agents are motivated to comply with legal rules for a variety of reasons, and this variety matters for their behavior by affecting both their short-run responses to legal rules and their long-run attitudes towards the law.  Part I of the paper develops a typology of compliant agents. In particular, I distinguish between three types: intrinsic internalizers, deferential epistemic internalizers, and proxy epistemic internalizers. Part II argues that a compliant agent’s type matters for his behavior in a number of important ways. For example, it affects the way in which he chooses among actions that conform to legal norms, and the way in which he responds to various kinds of uncertainty that the legal system exposes him to. Part III discusses some prescriptive implications, including some new implications for the debate about the relative merits of rules and standards, and addresses the converse worry that “good man” analysis of law is too complex. The overall aim of the paper is to provide a framework for thinking about legal design that recognizes the heterogeneity of motivations in the subject population. 

A light lunch will be served.

For more information about this workshop, please contact Nadia Gulezko at n.gulezko@utoronto.ca.