Abstract

http://ssrn.com/abstract=990042
 
 

Citations (6)



 
 

Footnotes (110)



 


 



Transparency and Determinacy in Common Law Adjudication: A Philosophical Defense of Explanatory Economic Analysis


Jody S. Kraus


University of Pennsylvania Law School


Virginia Law Review, Vol. 93, No. 287, 2007

Abstract:     
Explanatory economic analysis of the common law has long been subject to deep philosophical skepticism for two reasons. First, common law decisions appear to be cast in the language of deontic morality, not the consequentialist language of efficiency. For this reason, philosophers have claimed that explanatory economic analysis cannot satisfy the transparency criterion, which holds that a legal theory's explanation must provide a plausible account of the relationship between the reasoning it claims judges actually use to decide cases and the express reasoning judges provide in their opinions. Philosophers have doubted that the economic analysis has a plausible account of why judges would use deontic moral terms to explain cases they decide using consequentialist economic reasoning, arguing instead that only a deontic moral account of judicial reasoning can be squared with the judicial use of deontic moral language. Second, the common law has a bilateral structure, in which a plaintiff's right to recover and a defendant's duty to compensate are treated as correlative. Philosophers have observed that this structure seems custom tailored to retrospective moral rights adjudication and ill suited to prospective efficient regulation.

Recently, two philosophers, Jules L. Coleman and Stephen A. Smith, have developed these ideas into a full-scale assault on the explanatory credentials of the economic analysis. I defend the economic analysis by arguing that the bilateral structure of the common law either constitutes a "second best" approach to providing incentives for efficient behavior, as economic analysts have maintained, or that it is the vestigial remnant of the common law's originally deontic conception. I also claim that the economic analysis satisfies the transparency criterion by arguing that terms with a deontic plain meaning have acquired a consequentialist contextual meaning within the common law. Although this "contextualist convergence" thesis is counterintuitive, I build on Coleman's semantic theory to explain how it is possible. To demonstrate that it is plausible as well, I argue that evolutionary forces would have naturally led to this result over the course of the common law's development. In particular, I claim that the substantial indeterminacy of deontic moral theory, and the superior determinacy of the economic analysis, explains why judges would be intuitively attracted to reasoning that is best reconstructed in economic terms, notwithstanding the superior normative force of deontic moral theory. Thus, the core of my defense of explanatory economic analysis is that its critics overlook the central theoretical and practical role determinacy plays in explanation and justification generally, and in the explanation of judicial reasoning in particular, where determinacy is prized, if not above all else, no less than any other virtue.

Number of Pages in PDF File: 73

Keywords: contract theory, economic analysis, contract law, philosophy of law, jurisprudence, legal explanation, legal theory, transparency, determinacy, common law, interpretation

JEL Classification: A12, A23, K12, K13, K00, K10

Accepted Paper Series





Download This Paper

Date posted: June 3, 2007  

Suggested Citation

Kraus, Jody S., Transparency and Determinacy in Common Law Adjudication: A Philosophical Defense of Explanatory Economic Analysis. Virginia Law Review, Vol. 93, No. 287, 2007. Available at SSRN: http://ssrn.com/abstract=990042

Contact Information

Jody S. Kraus (Contact Author)
University of Pennsylvania Law School ( email )
3501 Sansom Street
Philadelphia, PA 19104
United States
Feedback to SSRN


Paper statistics
Abstract Views: 1,178
Downloads: 240
Download Rank: 74,854
Citations:  6
Footnotes:  110

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo4 in 0.297 seconds