Can the Law Change Preferences?

37 Pages Posted: 21 Jul 2020

See all articles by Jennifer Arlen

Jennifer Arlen

New York University School of Law; European Corporate Governance Institute (ECGI)

Lewis A. Kornhauser

New York University School of Law

Multiple version iconThere are 2 versions of this paper

Date Written: July 20, 2020

Abstract

In this article, we analyze whether, as some have claimed, the criminal and civil law alters fundamental preferences and conclude that it does not. Scholars have recently challenged the claim in classical deterrence theory that law influences behavior only through the expected sanction imposed. Some go farther and argue that law may also “shape preferences,” changing people’s fundamental wants and values. We first clarify this preference-shaping claim by elaborating the structure of rational choice theory generally and “preference” in particular. We then investigate three mechanisms of legal influence suggested by the preference-shaping literature: (1) the “serious harm” mechanism; (2) the “social norm” mechanism; and (3) the “self-improvement” mechanism. We then argue that each of these mechanisms operates by changing the agent’s beliefs about the attributes or consequences of her choice options rather than by changing her preferences.

Suggested Citation

Arlen, Jennifer and Kornhauser, Lewis A., Can the Law Change Preferences? (July 20, 2020). NYU Law and Economics Research Paper No. 20-46, Available at SSRN: https://ssrn.com/abstract=3656434 or http://dx.doi.org/10.2139/ssrn.3656434

Jennifer Arlen (Contact Author)

New York University School of Law ( email )

40 Washington Square South
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United States

HOME PAGE: http://https://its.law.nyu.edu/facultyprofiles/profile.cfm?personID=20658

European Corporate Governance Institute (ECGI) ( email )

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Belgium

Lewis A. Kornhauser

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States
(212) 998-6175 (Phone)
(212) 995-4341 (Fax)

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