Sessions Information

  • January 6, 2011
    2:30 pm - 3:30 pm
    Session Type: Section Programs
    Session Capacity: N/A
    Hotel: Hilton San Francisco Union Square
    Room: Golden Gate 2
    Floor: Lobby Level

    According to The General Theory of Second Best, because in general imperfections are as likely to counteract as to compound each other, one cannot assume that a choice that will reduce the number or magnitude of the imperfections in a system without eliminating all such imperfections will even tend on that account to improve outcomes. Although those economists who pay attention to Second-Best Theory use it exclusively to analyze the economic efficiency of private behaviors or public policies, the theory, its negative conclusion, and its positive corollaries are equally applicable to the evaluation of choices (including law-related choices) whose desirability does not depend exclusively on their economic efficiency. When the latter type of choices are at issue, Second-Best Theory can still provide a service by revealing the need to (1) specify the applicable maximand (goal) or contestable maximands, (2) identify the relevant types of “imperfections”—i.e., types of features of the real world whose individual exemplars would cause sub-optimal outcomes in an otherwise-perfect environment, and (3) examine the way in which multiple exemplars of the same type of imperfection and/or one or more exemplars of two or more types of imperfections interact to cause non-optimal outcomes. Second-Best Theory can also provide a service by revealing the structure and content of the optimal protocol for analyzing the desirability of the relevant choice-options, inter alia the optimal protocol for determining how much data to collect on the determinants of the extent to which outcomes will be non-optimal. This session will explore the implications of Second-Best Theory for the analysis of the following law-related issues whose optimal resolution does not depend exclusively on the resolution’s economic efficiency: the analysis of (1) corrective justice, non-corrective distributive justice, distributive desirability from the perspective of various conceptions of the good, (2) the legal appropriateness of judges’ rejecting first-best decision protocols (the protocols that would be optimal if perfect conceptual and empirical analyses could be executed costlessly by actual judges) to reflect the fact that the relevant first-best conditions are not fulfilled, (3) election law, (4) the desirability of eliminating individual features of our constitutional governmental structure that constitute imperfections from a defensible normative perspective, (5) the desirability of “free speech” law that maximizes the quantity and diversity of political speech, and (6) the desirability of the zealous advocacy “norm” for legal representation.

Session Speakers

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