Bruce Chapman

Law Games: Defeasible Rules and Revisable Rationality

In this paper I try to argue that the special sort of structure that links legal rules to their exceptions, namely, the structure of defeasibility, provides an account of rule-based decision making which is not exactly equivalent to rule-bound decision making, that is, to invariably following the rules. While defeasibility provides conceptual space for the categorical guidance of rules, it also allows for their non-absolute character, or their revision in the face of countervailing factors.I have also argued that something like a defeasible conception of rationality is what is required for the theory of games. What is needed there is a conception of rationality that, like rules, is sufficiently strong to provide some prima facie guidance for conduct at various points of choice, while at the same time not so strong as to preclude (empirically or logically) the possibility of being at those points of choice at all.Both legal rules and the rules of rationality are neither wholly descriptive nor wholly prescriptive in nature. In this they are quite different from both scientific laws, which are taken to provide descriptions of what `is`, and moral laws, which are thought to provide prescriptions for what `ought` to be. Both legal rules and the rules of rationality seem to bridge this is-ought divide. It should not be surprising, therefore, that legal rules and the rules of rationality might have a common structure, and that this structure, a structure that needs to accommodate both regularity and (an independent) particularity, might be provided by the concept of defeasibility.

Rational Choice and Categorical Reason

Recently, the positive theory of rational choice has come under attack from experimental psychologists and economists. Their experimental results, gathered together under the banner of behavioral analysis, show that the maximizing model of rational choice often does not provide a very accurate account of how agents actually choose. Moreover, the departures from the model appear systematic rather than random, suggesting that something other than maximization is going on. However, the general tenor of these studies is not to question the normative ideal of maximization. Rather, the departures from the standard account of rational choice are typically characterized, and criticized, as failures to be rational. Agents are only human beings, after all, and human beings are subject to the limitations that must, inevitably and systematically, arise out of personal bias, limits on the salience and availability of important information, and the distorting effects of how a given problem is framed. Thus, real world agents are only, it is said, capable of a bounded rationality, using rules of thumb and various heuristics (sometimes helpful, sometimes not) rather than the fully fledged maximizing rationality that is still largely accepted as the ideal for rational choice. This paper argues that, for many decision-making problems, the normative account of rationality that animates rational choice theory, and not just the positive account that is criticized by the behaviorists, is deficient, even as a theory of ideally rational behavior, and that an alternative account of rational choice is required. Rationality, it is suggested, provides for an ordered particularity, including particular decisions, but the notion of an ordering that informs this alternative account of ideally rational behavior, and which is more appropriate in some decision-making contexts, including many legal ones, is very different from the idea of an ordering that informs the standard account within rational choice theory. The latter, which is closely allied to the idea of maximization, remains largely quantitative and single-minded in its orientation, this despite the pluralism of motivations that it appears to be willing and able to accommodate within its seemingly minimalist structure. The alternative account is more qualitative, or categorical (although not absolute), offering a conception of a rational ordering of particularity that is more allied to the idea of an understanding or interpretation (under rules or principles) than it is to maximization. In this paper this alternative conception of rationality is referred to as categorical reason. The real challenge for the paper, however, is not so much to articulate two alternative accounts of rationality, but to begin to make each accessible to the other within some common intellectual framework. While rational choice theory provides a useful and precise set of tools for beginning this process of achieving mutual understanding, the paper argues that some quite fundamental postulates of rational choice theory (including the most basic choice consistency axiom and the strong independence assumption) will have to be relaxed if the contributions of categorical reason are properly to be accommodated within it. However, the paper shows that there is much advantage in this, even for what the rational choice theorist hopes to achieve, and illustrates the point by reference to some systematic difficulties that the rational choice theorist faces in the theory of social choice and game theory.

PREFERENCE, PLURALISM, AND PROPORTIONALITY

Inspired by Michael Trebilcocks commitment to pluralism, this essay analyses the balancing and accommodating of competing values, often a central task in the making of legal judgments. Part I shows why it is so difficult to resist being utilitarian in ones approach to this problem. Using the methods of social choice theory, the author shows that some seemingly reasonable conditions ineluctably lead to the utilitarian result where the different values are suitably weighted and summed. However, Part II demonstrates that the utilitarian approach is less compelling than it appears. An alternative method for the aggregation of values, namely, the product rule proposed by John Nash, is also available. The product rule recommends different results than the utilitarian summation rule, and does so in a way that does less violence to the genuine pluralism of very different values. Part III relates these different results to the laws commitment to proportionality and to sequenced and bilateral processes of adjudication.

Pensions, sex discrimination, and the value of life after death

In the recent case of Arizona Governing Committee, etc. V. Norris,’ the U.S. Supreme Court decided that it was discriminatory and, therefore, contrary to Title VII of the Civil Rights Act of 1964 for an employer to offer lower periodic pension benefits to women than to men if they had made the same total pension contributions.2 The practice that Norris declared discriminatory was based on the statistical truth that the average woman lives longer than the average man; thus, it was felt, until Norris declared otherwise, that it was reasonable that her equal total contributions should mean lower periodic pension benefits spread out over that longer expected life.3 The Norris decision was only the logical extension of an earlier Supreme Court decision, City of Los Angeles, etc. v. Manhart,“ which held that it was discriminatory under Title VII to require women to make higher total contributions than men to fund an equal periodic pension benefit. This practice was based on the same statistical truth about a woman’s greater expected longevity. Not surprisingly, there has been vigorous academic debate about the merits of these two Supreme Court decisions.5 One presupposition, however, is common to both sides of the exchange, which is that the pension case highlighted in Manhart and Norris is only one example of a more general problem in insurance. This debate suggests, for example, that the respective arguments for or against sex discrimination in pensions and life insurance stand or fall together. If sex discrimination is tolerable in one case, perhaps for good actuarial reasons, then it must be tolerable in the other. Alternatively, if intolerable in one, then equally intolerable in both, or so the arguments go.6 In this paper. it will be suggested that sex discrimination in pensions is a special case. In particular, it will be argued that there should be a social discount applied to individual private market decisions about pensions that is not applicable in other insurance contexts, even in those contexts, such as life insurance, that turn on the same mortality probabilities. This social discount, already recognized to some extent in the economic literature on the valuation of life, supports the Supreme Court decisions to mandate equal periodic pension benefits for individuals regardless of sex. It has no implications, however, for comparable holdings in other insurance contexts. Thus, the analysis of this paper, while supporting the

Ethical Issues in the Law of Tort

This paper surveys some leading issues in the extant law of tort with a view to exposing some of its assumed values. Three different ethical theories provide the basis for discussion, namely the theories of compensation, retribution and deterrence. While no one of these three theories can fully explain or justify existing tort law, it is suggested that the deterrence theorist provides the best rationale of the three for the harm requirement and for certain doctrines of proximate cause. On the other hand, the compensation theorist, once he is supported with retribution-like concerns for the relative innocence of the affected parties, does better in explaining the legal approach to problems of multiple causation. Finally, it is suggested that the difficulty with all three of the theories is that, unlike a theory of corrective justice, they encourage us to give separate consideration to the fortunes of plaintiff and defendant.

Rational Association and Corporate Responsibility

It is a widely held view that limited liability, where the personal assets of shareholders in a corporation are insulated from any claims made by creditors against the corporation, is a kind of special ‘concession’ made to these investors. Apparently, the default position against which this concession operates is that, more normally, these investors, as owners, would be personally responsible for the conduct that they effect through the corporate form.1 However, either for what some might cynically think are political reasons (for example, large and powerful investors have managed to lobby for favorable legislation exempting them from personal responsibility), or for what others would argue are good economic reasons (for example, it would be difficult to amass large amounts of capital and have an active market for shares without limited liability), virtually all western economies have adopted a rule limiting the personal liability of investors in corporations. Any thought that liability should cease at the boundary of the corporation, because it is the corporation that has acted, and not the investors, plays no serious role in these arguments.

Justice, Rights, and Tort Law

Ethical Issues in the Law of Tort.- Moral Theories of Torts: Their Scope and Limits (Parts 1 and 2).- The Search for Synthesis in Tort Theory.- Toward a Moral Theory of Negligence Law.- Tort Liability for Breach of Statute.- Putting Fault Back into Products Liability.- Liability for Failing to Rescue.- Rights, Goals, and Hard Cases.

Allocating the Risk of Subjectivity: Intention, Consent, and Insurance

It is certainly tempting to think that there should be no liability insurance for intentional wrongs. Two sorts of reasons come to mind. The first is a public-policy concern: intentional wrongs are the worst kind of wrong, worse than recklessly committed wrongs and much worse than merely negligent or strict liability wrongs. It is inappropriate, or contrary to public policy, it might be said, that those who are found liable for these more serious wrongs should be allowed to escape their sanction by simply shifting the costs of the sanction to another by way of some insurance contract. The problem with this argument, at least in the private law context, is that tort law is already a very poor device for respecting any such fault hierarchy. The defendant in tort is obliged to pay for the costs of his wrong, but these costs, which vary with the suffering of the plaintiff, will not typically vary with the culpability of the defendant’s state of mind. Further, what counts as an intentional tort often seems to bear no relation to a higher level of fault. Indeed, some of the paradigmatic cases of intentional torts, such as trespass to land or chattels, are better characterized as examples of liability without fault, at least as fault is understood within the idea of a fault hierarchy. You are entitled to sue the trespasser, for example, simply for the fact of trespass, and even though she might be on your land, or have taken your property, quite by accident or under an otherwise perfectly innocent misunderstanding. The second sort of reason why there should be no liability insurance for intentional wrongs is more promising: insurance for such wrongs is not consistent with the reasonable expectations of the two contracting parties, the insurer and the insured. One would expect these parties explicitly to exclude such coverage, and, where the exclusion is less than perfectly explicit, one would naturally interpret the contract as attempting to effect that exclusion. Insurers, because they hold a portfolio of uncorrelated risks across different individuals, can better predict and bear a

Responsibility and Fault as Legal Concepts

(2001). Responsibility and Fault as Legal Concepts. Kings Law Journal: Vol. 12, No. 2, pp. 212-220.

Rationally Transparent Social Interactions

In his book Playing Fair, Ken Binmore (1994, 173) argues that any attempt to rationalise the choice of the cooperative strategy in the one-shot prisoners’ dilemma (PD) game is intellectually analogous to attempting to square the circle; it simply cannot be done. Cooperation, of course, is a strongly dominated strategy in the one-shot PD game, and Binmore’s point is essentially the tautological one that it is irrational (i.e., part of what irrationality means) to choose a dominated strategy.