Legal Theoretic Inadequacy and Obesity Epidemic Analysis

61 Pages Posted: 20 Aug 2008 Last revised: 20 Jan 2014

See all articles by David G. Yosifon

David G. Yosifon

Santa Clara University - School of Law

Date Written: August 19, 2008

Abstract

This Article explores crucial analytic and normative limitations in presently dominant and ascendant approaches to legal theory. The approaches' failure to provide a satisfying framework for analyzing the obesity epidemic presently raging undeterred in American society reveals these limitations. Conventional law and economics scholars writing on the subject have deployed familiar frameworks to reach predictable conclusions that are neither intellectually nor morally justifiable. This Article argues that recent theoretical innovations promulgated within the burgeoning law and behavioralism movement have thus far provided no more reliable a framework for legal analysis of the obesity epidemic than has conventional law and economics. This Article critiques in particular the behavioral law and economics concepts of "libertarian paternalism" and "asymmetric paternalism," as well as the concept of "expressive overdeterminism," recently developed by proponents of "cultural cognition theory." This project is undertaken as part of a broader effort to develop an alternative approach to legal theory that previous co-authors and I call "critical realism." The theoretical arguments herein are broad, but this Article aims to also advance obesity epidemic analysis in particular. Part V briefly discusses specific public policy implications of my assessment, with special reference to a policy innovation based in the reform of corporate law.

Suggested Citation

Yosifon, David G., Legal Theoretic Inadequacy and Obesity Epidemic Analysis (August 19, 2008). George Mason Law Review, Vol. 15, No. 681, 2008; Santa Clara Univ. Legal Studies Research Working Paper No. 08-60. Available at SSRN: https://ssrn.com/abstract=1238143

David G. Yosifon (Contact Author)

Santa Clara University - School of Law ( email )

500 El Camino Real
Santa Clara, CA 95053
United States

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