The Law and Economics of Animus
62 Pages Posted: 14 Oct 2019 Last revised: 15 Mar 2021
Date Written: March 15, 2021
People sometimes want to harm other people. This truism points to a blind spot in law and economics scholarship, which generally assumes that people are indifferent to the effects of their actions on other people. Residing in this blind spot are diverse areas of the law, including hate crime legislation and constitutional Equal Protection doctrine, which are premised on the existence of animus. I argue that the assumption of indifference unnecessarily limits law and economics analysis and that it is both possible and fruitful to incorporate animus into law and economics. I show that doing so leads to new insights on criminal deterrence, including the underappreciated benefits of damages as a deterrent for hate crimes and the promise of community-based “solidarity” deterrence schemes. I also show that incorporating animus can extend law and economics into areas of constitutional law that it has neglected. I argue for an economic approach to Equal Protection analysis that is grounded in the motivations of government actors but that addresses some of the longstanding concerns with intent-based tests. The examples of criminal deterrence and Equal Protection analysis are illustrative of an agenda for law and economics analysis that more incorporates other-regarding motives more generally.
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