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First year lawstudents study basic common law courses such as tort and contract;upper year courses address subjects such as antitrust, businessorganizations, and administrative law. The menuoffers two main courses: beef and tofu. This core project ofeconomic analysis of law complements traditional legal theory with itsemphasis on the nature of law and its normative claims. But italso excludes a variety of other first-order reasons for action fromthe plant’s consideration. The questions posed above haverarely been addressed clearly and explicitly by economic analysts oflaw. The current structure ofadjudication does not provide any information that would help adecision maker assess these differences across potential legalrules.Economic analysis of law applies the tools of microeconomic theory tothe analysis of legal rules and institutions. In each situation, she facesa different set of reasons for action and she must adjust her rankingof her options to reflect these different reasons.The economic model of behavior, however, is extremely flexible. One slice is small, one medium,and one large. Or should we understand the claim asasserting that efficiency is the appropriate criterion against whichto assess judicial performance? This project thustransforms the project of legal theory as currently understood whilenonetheless leaving past legal theory both comprehensible and fertile.Traditional legal theory suggests how we might articulate both theconcept of governance and the concept of legality that economicanalysis seeks to develop and elaborate.Since Dworkin’s initial challenge to Hart’s positivism inthe mid-1960s, a robust but unresolved debate over the concept of lawhas riven the philosophy of law. This demand implies,when individual preferences satisfy the axioms of subjective expectedutility theory, that each component of the representation ofcollective preference be responsive to the corresponding component ofthe representations.
First, for eachindividual, it identifies a particular representation of theindividual’s ordinal ranking of the options open to the policymaker. For Hart, law required that a core set of publicofficials had to accept the rule of recognition as an authoritativeguide to action.Cost-benefit analysis proceeds in two steps. Politicalphilosophers have examined this issue in their study of distributivejustice. Afterall the decision at issue depends on a mass of technical data that isnot easily assimbilable or manipulable. A legal rule would then be justified, in a mannerconsistent with Raz’s [1979, 1986] account of authority, whenadherence to the rule improved the decision making of the agent.A third way that obligation might be reduced to self-interest relieson repeated interaction. Richard Allen Posner was a federal judge on the United States Court of Appeals for the 7th Circuit.He joined the court in 1981 after being nominated by President Ronald Reagan and served on the court until his retirement from judicial service on September 2, 2017. For many other legal rulespromulgated by legislatures and courts, however, the argument may notapply.To understand the first question, recall that, in the projects ofpolicy analysis and political economy, micro-economic theory serves asa positive theory of behavior. Most doctrinal analyses take the“legal materials” as given.

These theories focus on the rules not thedispositions.Adjudication plays a central role in legal institutions and in legalphilosophy. Posner had claimed generally that the commonlaw was and ought to be efficient. She might choose tofu becauseshe prefers healthy meals to unhealthy meals and she believes thattofu is healthier than meat. We might similarly consider responsibilitythe ethical correlate of liberty within the conceptual framework ofautonomy. As a consequence, no efficient and envy-freeequilibrium exists.The arguments in section 5.21 were directed against cost-benefitanalysis, a specific and concrete form of welfarism developed toimplement the more abstract evaluative ideas underlying welfarism.Objections to this specific instantiation of welfarism do notnecessarily run against the more general class of evaluative criteria.Similarly, the argument in section 5.22 focused on the institutionalstructure of adjudication; we argued that this structure was hostileto an implementation of a welfarist theory of adjudication.Nevertheless, intuitively one might expect greater compliance toemissions standards regulated through a criminal penalty than toemissions standards regulated by a tax, even if the expected paymentfor each available action were identical under the two regimes. One can interpretthe agent’s preferences as her all things considered ranking ofall possible outcomes.

We mayinterpret Arrow’s initial result as demonstrating, for directdemocracy, a complex incompatibility between the Pareto criterion andseveral other axioms including non-dictatorship, the axiom of minimalself-governance.