Many-Minds Arguments in Legal Theory
Harvard Law School
January 21, 2009
The Journal of Legal Analysis, Vol. 1, No. 1, pp. 1-45, 2009
Many-minds arguments claim that in some way or another, groups of decision-makers tend to make better decisions than individuals. This essay identifies five general and recurring problems with such arguments, as follows:
(1) Whose minds? The group or population whose minds are at issue is often equivocal or ill-defined.
(2) Many minds, worse minds. The number of minds endogenously influences their quality, often for the worse. More minds can be systematically worse than fewer because of selection effects, incentives for epistemic free-riding, and emotional and social influences.
(3) Epistemic bottlenecks. The epistemic benefits of many minds are often diluted or eliminated because the structure of institutions funnels decisions through an individual decision-maker, or a small group of decision-makers, who occupy an epistemic bottleneck or chokepoint.
(4) Many minds vs. many minds. The institutional comparisons that pervade legal theory are typically many-to-many comparisons rather than one-to-many.
(5) Many minds vs. other values. Epistemic considerations systematically trade off against other goods, such as the costs of decision-making and the expression of moral norms. The epistemic quality of the laws is a good to be optimized, not maximized.
Keywords: many minds, epistemology, legal theory, law, decision-making, morality, groups
JEL Classification: K1, K10, K19, K30, K40Accepted Paper Series
Date posted: February 23, 2009 ; Last revised: April 21, 2009
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