Do Good Citizens Need Good Laws? Economics and the Expressive Function

26 Pages Posted: 22 Jan 2020

See all articles by Michael D. Gilbert

Michael D. Gilbert

University of Virginia School of Law

Andrew T. Hayashi

University of Virginia School of Law

Date Written: January 21, 2020

Abstract

We explore the conditions under which adding pro-social preferences to the canonical negligence model changes the efficient damages rule or the harm from accidents. For a utilitarian lawmaker, making individuals empathetic with the victim of harm has no effect on either outcome. On the other hand, making individuals averse to harming others reduces the harm from accidents, though it has no effect on efficient damages. For an atomistic lawmaker who excludes pro-social preferences from social welfare, a taste for harm aversion or perfect empathy can reduce efficient damages, though neither has any effect on the harm from accidents. Causing people to act as if they are averse to harm creation, out of habit or moral obligation, reduces both the efficient amount of damages and total harm. In general, cultivating a taste or moral commitment against harm creation is useful while inculcating empathy for victims of harm is not.

Keywords: altruism, social preferences

JEL Classification: K00, D03, D64

Suggested Citation

Gilbert, Michael and Hayashi, Andrew T., Do Good Citizens Need Good Laws? Economics and the Expressive Function (January 21, 2020). Theoretical Inquiries in Law, forthcoming; Virginia Law and Economics Research Paper No. 2020-01; Virginia Public Law and Legal Theory Research Paper No. 2020-09. Available at SSRN: https://ssrn.com/abstract=3523285

Michael Gilbert

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

Andrew T. Hayashi (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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