Moreover, thepolicymaker might in fact choose among these forms on the basis ofthese different incentives and on the relative importance of errorsthat impose sanctions on those that in fact complied relative toerrors that fail to impose sanctions on norm violators.A tax on sulfur dioxide emissions above 75 parts per billion per hour,by contrast, provides the firm with only a first-order reason foraction.
It recognizes, however, that a legal rule may eitherprovide the agent with relevant information (and hence changer herbeliefs) or place a price on certain actions. cu "Faux Originalism," 20 Green Bag 109 (2016) (with Eric Segall). Posner [1973] was organizeddoctrinally. Indeed, Henry II arguably introduced the common lawcourts to exert his power more broadly within England. Everyone might be “better off”under a regime of slavery but that regime would nevertheless remainworse than a free society.The first understanding of doctrinal analysis suggests a connection tothe behavioral claim (claim (IV)). Second,individuals with identical characteristics for which they are notresponsible should receive identical compensation for their losses.The first condition addresses option luck; the second brute luck.Third, and related, judges usually face severe constraints in the setof legal rules they may consider in any adjudication. Policy analysis offers a normative theory ofadjudication that addresses the judge; it specifies that she shoulddecide cases to maximize social welfare. Hart considered two extremes: a simple society with nodifferentiation of governance from other institutions and modern,municipal legal systems that have distinct institutions foradaptation, policing, adjudication, and sanctioning. A comparative study of tort law, for instance, mustbe able to identify which norms in country X are legal norms governingaccidents between strangers in order to compare them to the legalnorms governing accident between strangers in country Y.These legal forms, of course, differ not only in their expressivecontent but also in their substantive features.
Further, the forain which violations are adjudicated may differ not only in the burdensand standard of proof but also in the identify of the fact-finder thatmight be an administrator, a judge or a jury (with varying decisionrules from majority to unanimity). There is a sense in which each of thedeterminants of the structure of the social welfare function is goodfor us without necessarily being good for anyone. In some instances we might understand political economysimply as the application of the behavioral claim to theconstitutional and legal rules and practices that structurelegislation, administrative action, and adjudication.The prudential account of authority outlined above primarily addressesprivate individuals. Alegal rule may publicly announce an equilibrium to play and thatannouncement may coordinate the agents’ actions.These arguments apply to the more abstract concerns of distributivejustice and responsibility.
Again the Pareto criterion conflicts witha (minimal) requirement of communal self-governance or autonomy.Within economics, the study of responsibility has emerged from theliterature initiated by Duncan Foley [1967] and Hal Varian [1974] onfairness.
On Raz’s account, the firmshould not act on, for instance, the fact that emitting more than 75parts per billion of sulfur dioxide per hour would increase itsprofits (or lower its costs).
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