Skip to main content

A Life-Cycle Theory of Legal Theories II

To continue with the thoughts I was discussing last week under this heading:

Under the  view I'm discussing, a variety of prescriptive legal theories have "worked themselves impure" in the words of Kessler and Pozen. These theories have begun as a purist account of how the law ought to work given one central idea. But they then have encountered difficult facts, contending interpretations, etc. and have gradually incorporated impurities, until it becomes clear that they weren't the revolution or New Paradigm they were first sold as.

An example, cost-benefit analysis. In the incarnation that concerns the authors of this life-cycle view, CBA got a bold start in the early 1980s, but encountered difficulties before the end of that decade, in part because of an atmosphere of scandal that came to surround some of the administrative offices that had to take the point on this march.

Also, on the academic front, CBA came under criticism for being a mere pretext for a political push to deregulate for the sake of deregulation. Robert Percival would write in 1991 that the program focused "almost exclusively on reducing costs to industry."

The Clinton administration (the "first Clinton administration," as history will eventually record it) gave a bipartisan cast to CBA by announcing its own initiatives under that name in 1993. Yet the theory was by this time considerably more "impure" than it had been and became more so through the next turn of the partisan cycle -- another Bush, and Obama. People began to talk about weighing "qualitative" as well as "quantitative" elements as costs and as benefits.

Over time, by the lights of people such as Judge Posner who had advocated the earlier purer sort of CBA, this was no longer CBA at all. The whole point was to treat both sides as quantitative. Otherwise, the whole concept of the balance between them seems senseless.

Such then is the life cycle.


Popular posts from this blog

England as a Raft?

In a lecture delivered in 1880, William James asked rhetorically, "Would England ... be the drifting raft she is now in European affairs if a Frederic the Great had inherited her throne instead of a Victoria, and if Messrs Bentham, Mill, Cobden, and Bright had all been born in Prussia?"

Beneath that, in a collection of such lectures later published under James' direction, was placed the footnote, "The reader will remember when this was written."

The suggestion of the bit about Bentham, Mill, etc. is that the utilitarians as a school helped render England ineffective as a European power, a drifting raft.

The footnote was added in 1897. So either James is suggesting that the baleful influence of Bentham, Mill etc wore off in the meantime or that he had over-estimated it.

Let's unpack this a bit.  What was happening in the period before 1880 that made England seem a drifting raft in European affairs, to a friendly though foreign observer (to the older brother…

Cancer Breakthrough

Hopeful news in recent days about an old and dear desideratum: a cure for cancer. Or at least for a cancer, and a nasty one at that.

The news comes about because investors in GlaxoSmithKline are greedy for profits, and has already inspired a bit of deregulation to boot. 

The FDA has paved the road for a speedy review of a new BCMA drug for multiple myeloma, essentially cancer of the bone marrow. This means that the US govt has removed some of the hurdles that would otherwise (by decision of the same govt) face a company trying to proceed with these trials expeditiously. 

This has been done because the Phase I clinical trial results have been very promising. The report I've seen indicates that details of these results will be shared with the world on Dec. 11 at the annual meeting of the American Society of Hematology. 

The European Medicines Agency has also given priority treatment to the drug in question. 

GSK's website identifies the drug at issue as "GSK2857916," althou…

Francesco Orsi

I thought briefly that I had found a contemporary philosopher whose views on ethics and meta-ethics checked all four key boxes. An ally all down the line.

The four, as regular readers of this blog may remember, are: cognitivism, intuitionism, consequentialism, pluralism. These represent the views that, respectively: some ethical judgments constitute knowledge; one important source for this knowledge consists of quasi-sensory non-inferential primary recognitions ("intuitions"); the right is logically dependent upon the good; and there exists an irreducible plurality of good.

Francesco Orsi seemed to believe all of these propositions. Here's his website and a link to one relevant paper:

What was better: Orsi is a young man. Born in 1980. A damned child! Has no memories of the age of disco!

So I emailed him asking if I was right that he believed all of those things. His answer: three out of …