Addictive Law

Abstract

Apart from all the good it has done, law also has an addictive quality, as it alters preferences and makes self-help, personal involvement, and teamwork less enticing. When a neighbor is noisy or pollutes, we begin to prefer lawsuits or other legal interventions rather than private discussion with the neighbor, and this is so especially when there is a collective-action problem associated with private confrontation. The availability of legal intervention creates preferences that feed back to a support for more law, even when law is the inefficient alternative to other means of coping with negative externalities and other problems. Law creates a preference for law, even when this is inefficient – which is to say a preference for expansion of law that rational citizens would have, earlier in time, wished they could avoid.

Where money and constitutional wrongs are involved, law has developed a means of coordinating solutions through class actions, common-fund recoveries and other means. These may facilitate the efficient expansion of law. But the private inclination to appeal to law is often inefficient, and this Article suggests that law might reverse its excessive influence on preferences for law itself, by allowing recoveries or offering rewards for private solutions to social problems that would otherwise encourage a growing addiction to law. A simpler change would be to encourage one another to get involved rather than to shy away from confrontation, but this is a cultural change beyond the reach of this Article and outside of law.

Keywords: preferences, inefficient law

JEL Classification: K30