Barak Medina

Law, Economics, and Morality

Law, Economics, and Morality examines the possibility of combining economic methodology and deontological morality through explicit and direct incorporation of moral constraints into economic models. Economic analysis of law is a powerful analytical methodology. However, as a purely consequentialist approach, which determines the desirability of acts and rules solely by assessing the goodness of their outcomes, standard cost-benefit analysis (CBA) is normatively objectionable. Moderate deontology prioritizes such values as autonomy, basic liberties, truth-telling, and promise-keeping over the promotion of good outcomes. It holds that there are constraints on promoting the good. Such constraints may be overridden only if enough good (or bad) is at stake. While moderate deontology conforms to prevailing moral intuitions and legal doctrines, it is arguably lacking in methodological rigor and precision. Eyal Zamir and Barak Medina argue that the normative flaws of economic analysis can be rectified without relinquishing its methodological advantages and that moral constraints can be formalized so as to make their analysis more rigorous. They discuss various substantive and methodological choices involved in modeling deontological constraints. Zamir and Medina propose to determine the permissibility of any act or rule infringing a deontological constraint by means of mathematical threshold functions. Law, Economics, and Morality presents the general structure of threshold functions, analyzes their elements and addresses possible objections to this proposal. It then illustrates the implementation of constrained CBA in several legal fields, including contract law, freedom of speech, antidiscrimination law, the fight against terrorism, and legal paternalism. Available in OSO: http://www.oxfordscholarship.com/oso/public/content/law/9780195372168/toc.html

Law, Morality, and Economics: Integrating Moral Constraints With Economic Analysis of Law

Economic analysis of law is a powerful analytical methodology. However, as a purely consequentialist approach, which determines the desirability of acts and rules solely by assessing the goodness of their outcomes, standard cost-benefit analysis (CBA) is normatively objectionable. Thus, for example, it presumably approves the deliberate killing of one innocent person to save the lives of two, and the breaking of a promise whenever it would produce slightly more net benefit than keeping it. Moderate deontology prioritizes such things as autonomy, basic liberties, truth telling, and promise keeping over the promotion of good outcomes. It holds that there are constraints on promoting the good. Such constraints may be overridden only if enough good (or bad) is at stake. Thus, it may justify killing an innocent person only for the sake of saving many more (perhaps hundreds or thousands) people, and breaking a promise only to avoid considerable losses. Moderate deontology conforms to prevailing moral intuitions. At the same time, it is arguably lacking in methodological rigor and precision. Can the normative flaws of economic analysis be rectified without relinquishing its methodological advantages? Can deontological moral constraints be formalized and modeled so as to make their analysis more rigorous? This Article examines the possibility of combining economic methodology and deontological morality through explicit and direct incorporation of moral constraints into economic models. It discusses various substantive and methodological choices involved in modeling deontological constraints. It proposes to determine the permissibility of any act or rule infringing a deontological constraint by means of mathematical threshold functions. The Article presents the general structure of threshold functions and analyzes their elements. It then illustrates the implementation of constrained CBA in several contexts, including discrimination in the marketplace, legal paternalism, and risking innocent people while fighting terrorism. It then addresses possible objections to our proposal. Deontologically constrained CBA is more complex than standard CBA. Yet, we maintain that it is superior to its alternatives. It rectifies the normative flaws of conventional CBA without significantly compromising its methodological rigor. Concomitantly, it improves deontology by making the analysis of threshold constraints more precise and its policy implications potentially more determinate. Constrained CBA also better explains peoples behavior and prevailing legal doctrines.

Political Disobedience in the IDF: The Scope of the Legal Right of Soldiers to be Excused from Taking Part in Military Activities in the Occupied Territories

At issue is the appropriate legal reaction to so-called selective conscientious objections in the current Israeli context, accounting for both consequential considerations and deontological ones. It is argued that a relevant distinction in this respect is between objections committed by members of a permanent minority, which are based on views that are practically excluded from the political discourse, and objections which are guided by what Rawls calls political principles, that is, the principles of justice which regulate the constitution. This distinction can explain and justify the current policy of the Israel Defense Forces (IDF) of granting exemptions to Ultra-Orthodox Jews and to Arabs (even if not all these cases reflect so-called full conscientious objection) while denying an exemption to those who refuse to serve based on their opposition to the IDFs activities in the Occupied Territories. However, it is argued that the important expressive role of such refusals requires a more measured approach, by either legitimizing a limited number of such acts or imposing only minimal sanctions (while formally de-legitimizing such acts). These arguments are preceded by an assessment of an alternative possible justification of legitimizing refusals, to prevent the implementation of unlawful activities by the IDF. It is argued that this purpose does not justify legitimization of refusals except in particular instances that are specified.

Enhancing Freedom of Religion Through Public Provision of Religious Services: The Israeli Experience.

This Article challenges the premise that the separation of state and religion is a necessary predicate for religious free exercise. The state’s duty to treat people as equals requires it to ensure that all citizens enjoy reasonable access to religious services. Public supply of religious services thus enhances the exercise of freedom of religion. The extent of public involvement in the provision of a religious service is not by itself a sufficient justification for the regulation of the relevant activity. In certain cases, the intervention is justified by reasons that are unrelated to the scope of government involvement. A prominent example is the case of competition between different religious congregations over limited resources, such as space and time at a holy site. Regulation of activity is then required in order to ensure reasonable access. In other cases, the government enhances the powers of religious bodies, and thus generates a concern of religious coercion. In these cases the governmental role may well result in an infringement of religious freedom. However, such a conclusion is not self-evident, and a detailed assessment of the over all effect of the government involvement is required in order to determine whether the involvement—and what type of involvement—is desirable.

Ranking Ranking Rules

Abstract Transitivity is a fundamental requirement for consistency. Legal systems, especially when composed over time and by different agencies, may encounter non-transitive cycles, in which by one rule the law prefers one outcome a over another outcome b, by another rule b trumps some third result c, but a third rule ranks c higher than a. This paper discusses a new solution to such cycles in which the relevant rules of preferences are ranked and then applied until a transitive order of the options is obtained. The paper provides a formal generalization of this solution, and demonstrates its possible implementation to some legal issues. It is also shown that this solution can be traced to the Rabbinic literature, starting with the Mishnah and the Talmud (1st–5th c CE).

Does the Establishment of Religion Justify Regulating Religious Activities? - The Israeli Experience

The extent of public sector involvement in providing religious services is an important factor in determining the scope of legitimate regulation of relevant religious activities. However, I argue that the existence of a government role is not a sufficient justification for such regulation. Participation in the supply of religious services does not exempt the government from the constraints of its duty to respect freedom of religion. I point to two main considerations in this respect. First, in certain cases, accomplishing the purpose of government involvement — securing reasonable access to religious services — entails government intervention in religious activities. Second, more extensive regulation can be justified when involvement of the public authority intensifies the harm that the relevant religious practice imposes on other interests. These and related arguments are illustrated through a case-study — the Israeli experience of almost six decades of intensive involvement of a democratic state in supplying religious services.

Domestic Human Rights Adjudication in the Shadow of International Law: The Status of Human Rights Conventions in Israel

The quarter-century anniversary of Israels ratification of the major United Nations (UN) human rights treaties is an opportunity to revisit the formal and informal interaction between domestic and international Bills of Rights in Israel. This study reveals that the human rights conventions lack almost entirely a formal domestic legal status. The study identifies a minor shift in the scope of the Israeli Supreme Courts reference to international law, as the Court now cites international human rights law to justify decisions that a state action is unlawful, and not only to support findings that an action is valid. This shift may be the result of other reasons, for instance, a ‘radiation’ of the Courts relatively extensive use of international humanitarian law in reviewing state actions taken in the Occupied Territories. However, it may also reflect a perception of enhanced legitimacy of referring to international human rights law as a point of reference in human rights adjudication following ratification of the treaties. At the same time, the Court continues to avoid acknowledging incompatibility between domestic law and international law. It refers to the latter only to support its interpretation of Israeli constitutional law, as it did before the ratification. This article critically evaluates this practice. While international human rights law should not be binding at the domestic level, because of its lack of sufficient democratic legitimacy in Israel, it should serve as an essential benchmark. The Court may legitimise a human rights infringement that is unjustified according to international law, but such incompatibility requires an explicit justification. The Court, together with the legislature and the government, are required to engage critically with the non-binding norms set by the ratified UN human rights treaties.

Who Benefits from the Uniformity of Contingent Fee Rates

Abstract Lawyers’ contingent fee (CF) rates are rather uniform, often one-third of the recovery. Arguably, this uniformity is a type of anti-competitive price-fixing, which results in clients paying supra-competitive fees. This paper challenges this argument. It shows that uniform CF rates provide clients with an important advantage, as such rates enable them to make a de facto “take-it-or-leave-it” offer. Consequently, lawyers cannot exploit their private information, and clients retain the transaction’s entire surplus and may hire the best lawyer among those who find it profitable to handle the case. The paper also addresses the effect of uniformity of CF rates when lawyers refer cases to other lawyers. It shows that uniformity facilitates matching of clients and lawyers through the referral system. It also demonstrates that the fact that both direct clients and those obtained through paid-for referrals pay the same CF rate does not attest to cross-subsidization. The clients whose cases are transferred for a referral fee (paid by the handling lawyer) “pay” for the referral service by obtaining a less highly ranked lawyer.

Incorporating Moral Constraints into Economic Analysis

Economic analysis of law is a powerful analytical methodology. At the same time, as a purely consequentialist approach, which determines the desirability of acts and rules solely by assessing the goodness of their outcomes, standard cost-benefit analysis (CBA) is normatively objectionable. This Article proposes to overcome this deficiency by incorporating moral constraints into CBA. Threshold deontology differs from welfare economics and other consequentialist moral theories in recognizing the priority of such things as autonomy, human dignity, basic liberties, truth telling, and keeping ones promises over the promotion of good outcomes. It holds that there are constraints to promoting the good, such as the constraints against harming other people and lying. Unlike absolutist deontology, however, threshold deontology holds that such constraints may be overridden if enough good (or, more commonly, enough bad) is at stake. For instance, while standard CBA is likely to justify the killing of one person to save the lives of two, or the coercive harvesting of ones kidney to save the life of another person, threshold deontology would find killing a person or harvesting her organs against her will impermissible unless much more good (e.g., the lives of many more people) is at stake. The analysis demonstrates that not only foundational deontology, but also the more sophisticated defenses of consequentialism, endorse such constraints. While conceding that the incorporation of threshold constraints into economic analysis raises principled and methodological concerns (particularly with respect to the monetization of constraints), the Article demonstrates that these concerns can all be met. The Article discusses various substantive and methodological choices involved in modeling deontological constraints. It proposes to determine the permissibility of any act or rule infringing a deontological constraint by means of mathematical threshold functions. The Article presents the general structure of threshold functions, and analyzes their elements. It then illustrates the implementation of constrained CBA in several contexts, including discrimination in the marketplace, legal paternalism, and risking innocent people while fighting terrorism. The Article argues that adding threshold constraints to economic analysis would make it not only normatively more acceptable, but also descriptively more valid, without significantly compromising its methodological rigor. Such incorporation can contribute to bridging the gap between economic analysis of law and the prevailing moral and legal norms, as well as to narrowing the increasing gulf between economic analysis and other approaches to law and legal theory.