Abstract
This essay presents three strategies used to explain and predict judicial decisions. These include: (1) the economic approach, (2) the psychological approach, and (3) the naturalistic approach. The first two of these are teleological explanations or rationalizations while the third strategy is a mechanical explanation or natural causation approach. The mentioned strategies are then compared. The strategies differ in two aspects: (1) they are based on different assumptions and (2) they are based on different theories. They are, however, compatible in four different aspects which also characterize American Legal Realism. These are: (1) causal explanation, (2) ontological and epistemological beliefs, (3) predictive-theoretical objectives and products, and (4) the personality of the judge as the determinant of the judicial decision. According to Brian Leiter, one must choose between either the psychological approach and/or the naturalistic strategy but reject the economic approach. To make this choice, one must; (a) prefer the psychological approach to the economic approach, and (b) prefer the naturalistic approach to the economic approach. An epistemological pragmatic decision, to reject or prefer one approach over the other must be based on the evidence regarding the predictive failures and successes. Failing the availability of such evidence, it is acceptable to recognize all three approaches as realistic, complementary, different, available, and useful strategies.
I have the simplest of tastes. I am always satisfied with the best.
Oscar Wilde
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
With individual experience I refer to the fact that human experience is “limited and fragmentary, for we each perceive only a little of the world, as it now is, and remember only a fraction of the world as it once was”, Blackburn, p. 1.
- 2.
The denomination of the “ampliative” feature of inductive inference is from Charles S. Peirce. Cf. Giovanni Tuzet, La prima inferenza. L’abduzione di C.S. Peirce fra scienza e diritto; see also Jonathan L. Cohen, p. 5.
- 3.
On what we mean when we say that the “x sequence was causal, but y sequence was not”, see Mackie, pp. 29–58.
- 4.
Hume, pp. 134 et seqq.: “[…] the supposition, that the future resembles the past, is not founded on arguments of any kind, but is deriv’d entirely from habit, by which we are determin’d to expect for the future the same train of objects, to which we have been accustome’d.”; on this supposition see Rhees, pp. 73–77. On Hume’s concept of causation see Quine, pp. 156–198: “I do not see what we are further along today than where Hume left us. The Humean predicament is the human predicament.”
- 5.
Here, I limit myself to a generic application of the three strategies, i.e. I apply them to the decisions in general and therefore to the judge decisions in particular. This does not mean that judicial decisions do not have specificities respect to decisions in general. But here it is not my interest to expose such specificities.
- 6.
Like Holmes, pp. 457 et seq., suggests: “Far the most important and pretty nearly the whole meaning of every new effort of legal thought is to make these prophecies more precise, and to generalize them into thoroughly connected system.” That the theoretical discourse about judicial decision of American Legal Realism had been oriented to lawyers, see Brian Leiter, Naturalizing Jurisprudence. Essays on American Legal Realism and Naturalism in Legal Philosophy; id., ‘Holmes, Economics, and Classical Realism’.
- 7.
I will mainly pay attention to Richard Posner ’s work (only as an example of one author, among others, that applies rational decision theory for analysing law).
- 8.
About rationalization as a kind of causal explanation, cf. Davidson , ‘Actions, Reasons, Causes’, pp. 3–21.
- 9.
See infra Sect. “ Different Strategies and Kind of Explanations for Various Theories”.
- 10.
Posner , Economic Analysis, p. 3: “[Rationality] does not assume consciousness (rational decisions are often intuitive). It certainly does not assume omniscience; positive information costs are assumed […] (They are of two kinds – costs of acquiring information and costs of processing and using information intelligently).”
- 11.
Posner , ‘Rational Choice’, p. 1551.
- 12.
Friedman , pp. 4 et seq.
- 13.
Friedman , pp. 25 et seq.: “[Economic theory] is a body of tentatively accepted generalizations about economic phenomena that can be used to predict the consequences of changes in circumstances.” A theory that is totally unrealistic “is clearly unattainable, and the question whether a theory is realistic ‘enough’ can be settled only by seeing whether it yields predictions that are good enough for the purpose in hand or that are better than predictions from alternative theories. Yet the belief that a theory can be tested by the realism of its assumptions independently of the accuracy of its predictions is widespread and the source of much of the perennial criticism of economic theory as unrealistic.”
- 14.
Friedman , pp. 4 et seq.: “Truly important and significant hypotheses will be found to have ‘assumptions’ that are wildly inaccurate descriptive representations of reality, and, in general, the more significant the theory, the more unrealistic the assumptions.” See also Posner , ‘Rational Choice’, p. 1559: “[…] in theory-making, descriptive accuracy is purchased at a price, the price being loss of predictive power.” See also Posner , ‘Institutional Economics’, p. 128: “[…] the purpose of theory, which is not to describe the phenomena being investigated but to add to our useful knowledge, mainly of causal relations. For that purposes an unrealistic theory may be quite serviceable – may in fact be serviceable.”
- 15.
Posner , Economic Analysis, p. 7, note 10: about “sunk costs” Posner says that rational people base their decisions on expectations about the future, not complaints or regrets about the past: “[…] it is not the emotion of regret that is irrational, but acting on the emotion rather than letting bygones be bygones. Regret is a form of self-evaluation and is valuable in improving future conduct (‘I won’t do this again because I know I would regret it’).”
- 16.
Like has been explained supra, EAL is based on rational decision theory (RDT). This theory “is first of all normative, and only secondarily explanatory”. See Elster, p. 14.
- 17.
Completeness: for every two alternatives x and y the agent may prefer x over y, or y over x or x and y are indifferent alternatives for the agent; transitivity: if the agent prefers x over y and y over z, then the agent prefers x to z; Asymmetry: if the agent prefers x over y, she or he cannot prefer y over x; Independence: if the agent prefers x over y, this order of preference does not change if an event occurs that presents a new alternative z; Consistency: if the agent prefers x over y, the agent prefers the probability that x will happen over the probability that y will happen, see Schäfer and Ott, p. 52.
- 18.
Bermudez, pp. 2 et seq., 13.
- 19.
Posner , Economic Analysis, pp. 4 et seq., 7–9: from the assumption that the rational agent responds to incentives there derive the three laws of economics: the law of demand, the law of opportunity costs and the law that resources tend to gravitate to the most valued use (provided voluntary transaction is allowed).
- 20.
Posner , Economic Analysis, p. 3.
- 21.
Bishop, p. 217.
- 22.
Simon, ‘Behavioral Model’, p. 99.
- 23.
Kahneman and Tversky , ‘Prospect Theory’, pp. 263–292.
- 24.
On external (normative)/internal (motivational) reasons see O’Connor, pp. 129–138; see also Williams, pp. 101–113.
- 25.
Simon, ‘Behavioral Model’, pp. 99–118.
- 26.
Simon, ‘Behavioral Model’, pp. 111, 113, 118.
- 27.
Simon, ‘Alternative Visions’, pp. 199, 204.
- 28.
See Jolls, Sunstein and Thaler, pp. 1471–1550; see also Kahneman , pp. 162–168.
- 29.
On these three limitations see Jolls, Sunstein and Thaler, pp. 1471–1550.
- 30.
Leiter, Naturalizing, p. 43.
- 31.
Leiter, ‘Holmes’, pp. 288 et seq.
- 32.
Leiter, Naturalizing, p. 102: “Note that the question is not whether economists produce predictions – all of us, applying common sense psychology, make testable predictions about behavior all the time – but whether economics yields predictions of scientific quality, in terms of their precision and reliability. It is well known to everyone but economists, it seems, that economics does not: hence the omnipresent boundary conditions in economic predictions (i.e. the ‘ceteris paribus’ clauses) and the failure to make any real progress in the last 100 years in specifying the causally relevant parameters of the boundary conditions.” See also Leiter, ‘Holmes’, pp. 302 et seqq.
- 33.
Davidson , ‘Actions, Reasons, Causes’, pp. 13 et seq.
- 34.
von Wright, pp. 10 et seq., 103 et seqq.
- 35.
I borrow from Searle the directions of fit distinction and its correspondent symbolization, Searle, pp. 12, 27–30.
- 36.
The first proposal of EUT is by Bernoulli, pp. 23–36.
- 37.
Lewis, p. 236.
- 38.
Lewis, p. 236.
- 39.
Noll and Krier, p. 327.
- 40.
Sunstein and Ullmann-Margalit, pp. 187–208.
- 41.
On judgments under uncertainty see Kahneman and Tversky, ‘Judgment under Uncertainty’, pp. 1124–1131. See also Kahneman and Tversky , ‘Subjective Probability’, pp. 32–47.
- 42.
Kahneman and Tversky , ‘Prospect Theory’, p. 277.
- 43.
Kahneman and Tversky , ‘Prospect Theory’, pp. 263, 280: “Decision weights are inferred from choices between prospects much as subjective probabilities are inferred from preferences in the Ramsey-Savage approach. However, decision weights are not probabilities: they do not obey the probability axioms and they should not be interpreted as measures of degree or belief […] Decision weights measure the impact of events on the desirability of prospects, and not merely the perceived likelihood of these events.”
- 44.
Cf. Miles and Sunstein, p. 835.
- 45.
However, Leiter (for whom the naturalistic strategy is the most fruitful way to explain and predict judicial decisions) also believes that these studies have failed to produce successful predictions because they do not take into account the “personality of the judge”. With this syntagm, Leiter seems to refer to facts that in order to be identified require a psychoanalytic process, see Leiter, Naturalizing, pp. 56 et seq., 93.
- 46.
Leiter, Naturalizing, p. 43: “If these considerations are correct, then any explanation of the decision solely in terms of reasons, legal or non-legal, will necessarily be incomplete. The Realist goal is to locate and articulate the real cause of the decision, which requires going beyond the domain of reasons.”
- 47.
Leiter, Naturalizing, p. 10.
- 48.
Leiter, Naturalizing, p. 10.
- 49.
I take into account the sophisticated theoretical and philosophical reconstruction of American Legal Realism offered by Leiter, Naturalizing.
- 50.
Davidson , ‘Actions, Reasons, Causes’, pp. 3–21.
- 51.
Leiter, Naturalizing, p. 9.
- 52.
It can be said that extralegal reasons are not based on “legal language”: the set of norms (or meanings ascribed to “legal sources” through interpretation); the methodologies of interpretation and argumentation suggested by both “legal scholarship” (i.e. “usual academic investigation into the law, especially into those normative texts which are regarded as the official sources of law”, see Guastini, ‘Juristenrecht. Inventing Rights, Obligations, and Powers’) and “past judicial decisions”.
- 53.
Davidson , ‘Actions, Reasons, Causes’, pp. 3: “by giving the agent’s reason for doing what he did.”
- 54.
Brian Leiter, ‘Naturalism in Legal Philosophy’; id., Naturalizing, pp. 9–10.
- 55.
Therefore, these three views consider inadequate the ontological belief according to which legal reasons – that is, the ones a judge can legitimately use to justify his or her decision – determine, or are sufficient cause of, a single judicial decision. Leiter, Naturalizing, pp. 9 et seqq.
- 56.
Leiter, Naturalizing, p. 40: “Why not replace, then, the ‘sterile’ foundational program of justifying some one legal outcome on the basis of the applicable legal reasons, with a descriptive/explanatory account of what input (that is, what combination of facts and reasons) produces what output (i.e. what judicial decision)?”.
- 57.
Holmes, p. 457: “For surely one of the most familiar themes in the writings of the Realists is their interest in predicting judicial decisions (or prophesying them, as some Realists put it)”; according to Leiter, this theoretical activity (prediction) is necessary to meet the theoretical and pragmatic interest of American Legal Realism: “to produce a pragmatically valuable theory for lawyers, i.e. one that will enable them to predict what courts will do”; Leiter, Naturalizing, p. 25. See also Llewellyn, Bramble Bush, p. 4; Moore, pp. 609–617; Frank, p. 46; Felix Cohen, pp. 828 et seq., 839.
- 58.
Posner , ‘Rational Choice’, pp. 1559 et seq., 1567.
- 59.
Kahneman , p. 165.
- 60.
Thaler, ‘Psychology and Economics’, pp. S282 et seq.; since the emergence of the cognitive psychological paradigm 30 years ago, the gap between economic and psychological approaches to decision-making seems to have decreased. Such an approach has been stimulated by economists and by psychologists alike: cf. Simon, ‘Behavioral Model’, pp. 99–118; Simon, ‘Alternative Visions’, pp. 189–204. See also Rabin and Thaler, pp. 219–232. See also Sen, pp. 317–344; Kahneman , Knetsch and Thaler, ‘Fairness’, pp. 728–741; Kahneman , Knetsch and Thaler, ‘Endowment Effect’, pp. 1325–1348; Kahneman and Snell, pp. 187–200; Kahenam, Wakker and Sarin, pp. 375–405; Kahneman and Tversky , ‘Prospect Theory’, pp. 263–292.
- 61.
Posner , ‘Rational Choice’, p. 1567; see also Daniel Kahneman , ‘A Psychological Perspective on Economics’.
- 62.
Some exponents of American legal realism insist on the same; cf. Frank, p. 111. See also Llewellyn, ‘Realism’, pp. 1242 et seq.
- 63.
Leiter, ‘Holmes’, p. 312.
- 64.
Pettit, ‘The Virtual Reality of “Homo Economicus”’.
- 65.
Pettit, ‘The Virtual Reality of “Homo Economicus”’.
- 66.
Posner , ‘Judges Maximize?’, p. 110. See also Posner , Economic Analysis, pp. 572 et seqq.: “Similarly, the fact that judicial decisions are sometimes influenced by the race, religion, gender, or other personal characteristics of the judge need not be an effect of agency costs. It may merely reflect the fact that people from different backgrounds are likely to bring different priorities to their resolution of factual issues and to have different policy preferences because of differences in life experiences.” See also Drobak and North, pp. 147–152. See also Miles and Sunstein, p. 843.
- 67.
Posner , ‘Judges Maximize?’, pp. 117 et seqq.
- 68.
Leiter, ‘Holmes’, pp. 306, 312.
- 69.
Point of view that is based on Quine’s philosophical works, see Leiter, Naturalizing, pp. 3, 30–34, especially 36 et seqq.
- 70.
Leiter, Naturalizing, p. 49.
- 71.
Leiter,‘Holmes’, pp. 301, 309, 311.
- 72.
Leiter, ‘Holmes’, p. 309.
- 73.
Thaler, ‘Psychology and Economics’, p. S283: “the following two false statements. 1. Rational models are useless. 2. All behavior is rational: […] If everyone would agree that these statements are false, then no one would have to waste any time repudiating them.”
- 74.
Daniel Kahneman , ‘A Psychological Perspective on Economics’.
- 75.
Cf. Pettit, pp. 308–329, especially pp. 317 et seqq.
- 76.
Cf. Drobak and North, pp. 147, 151: “Although behavioral psychologists and cognitive scientists have studied decision-making for centuries, our knowledge of the brain’s processes is still very primitive […] With brain scanning, chemical testing, and other new techniques, researchers are pushing the frontiers of medical knowledge of the brain’s processes. But there is still a great amount of research to be done. It is important for scholars – from medicine, psychology, cognition, economics, and law – to continue to probe the human decision-making processes. However, until we truly understand much more about how people make decisions, we cannot replace the rationality-based models.”
- 77.
Thaler, ‘Psychology and Economics’, p. S281; Kahneman , p. 163.
- 78.
Kahneman , p. 163.
- 79.
The economic strategy could be considered descriptive of behaviour of (judges) agents only if they meet the axioms of TDR in judicial decision-making -that is, when technical and normative statements of economic strategy are effective in judicial practice. And this is a contingent matter, i.e. something that is not necessary, but only possible (See infra Sect. 5.3.3).
- 80.
Kahneman , pp. 165 et seq.
- 81.
Kahneman , p. 166.
- 82.
Kahneman , p. 163.
- 83.
Kahneman , p. 166. See also Posner , ‘Rational Choice’, pp. 1558–1560: “[…] behavioral economics is the negative of rational-choice economics – the residuum of social phenomena unexplained by it […] they do not have a economic theory to set against rational-choice theory […] If there is any theory in their approach, it is not an economic theory. They take a psychological approach to phenomena that are sociological and psychological as much as they are economic, yet call their approach economic. It is as if they thought economics the only social science, which if true would mean that any social scientific critique of economics must itself be a part of economics.”
- 84.
Kahneman and Tversky , ‘Framing Decisions’, pp. S251–S278, especially S252, S272, S275.
- 85.
Jolls, Sunstein and Thaler, pp. 1500 et seq.; see also Sunstein, p. 9.
- 86.
See, Chiassoni, pp. 271–327. See also, Brian Leiter, ‘In Praise of Realism (And Against “Nonsense” Jurisprudence)’. See also id., Naturalizing, p. 95: “Economic analysis, like Realism, seems predicated on a thoroughgoing skepticism about the adequacy of existing legal categories, and the need for an alternative explanation of the actual course of decisions.”
- 87.
Leiter, ‘Holmes’, p. 310.
- 88.
Leiter, ‘Holmes’, p. 311.
- 89.
Leiter, ‘Holmes’, pp. 307 et seq., 310: “All I have shown is that economic ‘science’ is a failed empirical program.”
- 90.
The EAL teleological-explanatory statements are technical means-to-an-end (with direction of fit of the decision-making process ↑): how to acquire a particular purpose (i.e. the maximization of wealth). In contrast, the mechanical-explanatory statements of the naturalistic view are theoretical (with direction of fit ↓): how judges make decisions (i.e. descriptive statements of judicial decision-making).
- 91.
Kraus, p. 330: “The assumption of rational profit maximization, for example, has a significant power in explaining and predicting the outcome in corporate and commercial law cases.”
- 92.
Leiter, ‘Holmes’, pp. 308, 310: “Scientific laws, to repeat, need not be ‘strict’ in the Davidsonian sense of specifying with precision all of the parameters of the boundary conditions that fall under ceteris paribus clauses. But over the time, genuine scientific research programs are distinguished by their ability to at least approximate or approach strictness, even if they never realize it […] After all, a quantitatively precise science of human affairs does not seem to be on the horizon from any source.” Notwithstanding, Leiter’s recognize that: “[…] a quantitatively precise science of human affairs does not seem to be on the horizon from any source.”
- 93.
Davidson , ‘Actions, Reasons, Causes’, pp. 15 et seq.
- 94.
Davidson , ‘Actions, Reasons, Causes’, p. 15.
- 95.
Davidson , ‘Hempel on Explaining Action’, p. 213: “I have argued that a causal relation implies the existence of strict laws belonging to a closed system of laws and ways of describing events, and that there are no such laws governing the occurrence of events described in psychological terms; we seldom if ever know how to describe actions or their psychological causes in such a way as to allow them to fall under strict laws. It would follow that we can explain actions by reference to reasons without knowing laws that link them.” See also id., ‘Actions, Reasons, Causes’, p. 17.
- 96.
Leiter, ‘Holmes’, p. 310.
- 97.
Leiter, ‘Holmes’, p. 312: “It does remain, then, an open question whether naturalized jurisprudence, in my sense, should supplant the economic theory of judicial decision-making favoured by Posner .” But even if Leiter recognizes that it is an open question, it is also true that he bets on the necessity of replace the former strategy with the latter one: “What is clearer is that the poor empirical record of economics demands that we seek alternatives to the dismal science.”
- 98.
EAL seems to do a good job in predicting, with a useful qualitative level, judicial decisions in commercial disputes: See, Kraus, pp. 329–331: “The predictive failures of economics do not, by themselves, justify the wholesale rejection of economics by anyone […]. Economics lacks the kind of predictive precision that hard science requires because of the complexity of the phenomena it seeks to describe, explain and predict […]. The problem is not the integrity of the kind of accounts it seeks to provide, but the complexity of the real-world macro-phenomena it seeks to explain.”
- 99.
Leiter, Naturalizing, p. 93: “[…] psychoanalytic explanations are, importantly, on a continuum with ordinary folk psychological explanations, and as with folk explanations […] in areas like constitutional law – where the issues engage the personality of the judge in special ways – we need to reconsider the merits of Frank’s approach to psychoanalytic method.”
- 100.
Pettit, p. 320.
- 101.
Friedman , pp. 13 et seq.: “Confidence in the maximization-of-returns hypothesis is justified by evidence of a very different character […] unless the behavior of businessmen in some way or other approximated behavior consistent with the maximization of returns, it seems unlikely that they would remain in business for long. Let the apparent immediate determinant of business behavior be anything at all – habitual reaction, random chance, or whatnot. Whenever this determinant happens to lead to behavior consistent with rational and informed maximization of returns, the business will prosper and acquire resources with which to expand; whenever it does not, the business will tend to lose resources and can be kept in existence only by the addition of resources from outside. The process of ‘natural selection’ thus helps to validate the hypothesis – or, rather, given natural selection, acceptance of the hypothesis can be based largely on the judgment that it summarizes appropriately the conditions for survival.”
- 102.
Pettit, pp. 317–320: “Let the considerations push the agent below the relevant self-regarding level of aspiration and the alarm bells will ring, causing the agent to rethink and probably reshape the project at hand.”
- 103.
Elster, p. 14.
- 104.
Miceli and Cosgel, pp. 31–51; see Posner , ‘Judges Maximize?’, pp. 117 et seqq.
- 105.
As Chiassoni, pp. 294, 299 et seq., recognizes, according to EAL, the reasoning of lawyers and judges ought to be means-to-an-end, such that its legal reasoning remain “exposed to the control of public opinion legally and economically warned, both concerning its value premises [i.e. socially relevant purposes that are intended to promote] and its factual or theoretical assumptions”.
- 106.
Brian Leiter, ‘In Praise of Realism (And Against “Nonsense” Jurisprudence)’.
- 107.
von Wright, p. 50.
- 108.
Based on the criterion of Kaldor-Hicks efficiency, EAL deems that the best means are those that consent to reach the end with the lowest possible cost. For Posner , the conditions of applicability of Kaldor and Hicks criteria (or also known as Potential Pareto Superiority) unlike the conditions of applicability of the Pareto efficiency criterion, do occur in real life, see Posner , Economic Analysis, p. 12.
- 109.
Coleman, Chap. 3, 4; see also Chiassoni, p. 272.
- 110.
Elster, p. 16.
- 111.
Michael E. Bratman, Intention, Plans, and Practical Reason.
- 112.
On the explanatory-predictive aspect of RDT see Bermudez, p. 7.
- 113.
Richard Posner , Economic Analysis of Law.
- 114.
Searle, p. 17.
- 115.
Posner , ‘Coase’, pp. 207 et seq.
- 116.
Richard Posner , Economic Analysis of Law.
- 117.
It could be said that EAL, as the realist, in commercial disputes (Brian Leiter, ‘In Praise of Realism (And Against “Nonsense” Jurisprudence)’; see also id., Naturalizing, p. 30): “advocated using general norms, reflecting the norms that judges actually employ anyway […]. Typically, the Realists argue that what judges decide on the facts in such cases [i.e. commercial disputes] falls into one of two patterns; either (1) judges enforce the norms of the prevailing commercial culture ; or (2) they try to reach the decision that is socio-economically best under the circumstances.” See also Leiter, ‘Holmes’, p. 298: “Although he speaks of the judge’s ‘duty of weighing considerations of social advantage’, he quickly makes clear that as normative advice it does not amount to much, for this is what courts do anyway! ‘The duty is inevitable’ says Holmes, so telling judges that they ‘ought’ to weigh social advantage only amounts to the modest suggestion that they do openly what they do anyway, albeit ‘inarticulate[ly], and often unconscious[ly].’”
- 118.
For example, think about the Hand Rule or Learned Hand formula (i.e. what counts as negligent conduct depends on a cost-benefit analysis: there is liability for negligence where the expected value of damages exceeds the cost of its avoidance) which is used by judges in liability law cases: see Posner , ‘Negligence’, pp. 29–96. See also Mathis, pp. 20 et seqq. Think about “Coase’s theorem” that has a good (even if not infallible) explanatory-predictive power. It is possible to think also on antitrust cases, where efficiency is an effective directive in judicial decision-making.
- 119.
Leiter, Naturalizing, p. 30; see also Brian Leiter, ‘In Praise of Realism (And Against “Nonsense” Jurisprudence)’; see also id., ‘Holmes’, p. 298.
- 120.
It is possible to suppose that judge expects that she maximize her “social reputation utility” by conforming her decision to, for example, the maximization of social wealth. In this case, traditional EAL seems to fit in explaining and predicting the judicial decision at hand. But also it is possible to suppose that judge expects that she maximizes her social reputation by conforming her decision, not to the maximization of the wealth but, for example, to the expectations of a social minority. In this case, traditional EAL has not much to say; but maybe the alternative EAL (the one that looks for the personal preferences of the judge) has something useful to say.
- 121.
See Kraus, pp. 330 et seq.: “[…] the challenge from law-and-economics is to find a theory that accounts for the vast majority of the outcomes in corporate and commercial law cases with the same consistency that this theory does. In my judgment, there are no close contenders. Economics provides an invaluable tool for organizing statutory and case law materials in commercial law and for predicting the likely outcome of cases in this area […] As long as people are capable of acting rationally, even if not consistently, a normative theory that requires or presupposes that individuals act rationally is not futile and thus pointless. If we look again to corporate and commercial law, where the rationality and profit-maximizing assumptions of economics are most at home, the normative force of economics analysis is considerable. Nothing, therefore, would prevent Holmes, the classical realist about law, from embracing economic analysis as a normative theory.”
- 122.
Posner , ‘Judges Maximize?’, pp. 117 et seqq.
Bibliography
Bermudez, J.L. 2009. Decision Theory and Rationality. Oxford/New York: Oxford University Press.
Bernoulli, Daniel. 1954. Exposition of a New Theory on the Measurement of Risk. Econometrica 22(1): 23–36.
Bishop, Robert. 2007. The Philosophy of the Social Sciences. London/New York: Continuum.
Blackburn, Simon. 1973. Reason and Prediction. Cambridge: Cambridge University Press.
Bratman, Michael E. 1999. Intention, Plans, and Practical Reason. Leland: CSLI Publications.
Cartwright, Nancy. 2009. From Causation to Explanation and Back. In The Future for Philosophy, ed. Brian Leiter , 230–245. Oxford: Clarendon Press.
Chiassoni, Pierluigi. 1992. Law and economics. L’analisi economica del diritto negli Stati Uniti. Torino: G Giappichelli.
Cohen, Felix. 1935. Transcendental Nonsense and the Functional Approach. Columbia Law Review 35: 809–849.
Cohen, Jonathan L. 1989. An Introduction to the Philosophy of Induction and Probability. Oxford: Oxford University Press.
Coleman, Jules. 1988. Markets, Morals and the Law. Cambridge: Cambridge University Press.
Cooter, Robert, Ugo Mattei, Pier Giuseppe Monateri, Roberto Pardolessi, and Thomas Ulen. 2006. Il mercato delle regole. Analisi economica del diritto civile. I. Fondamenti. Bologna: Il Mulino.
Davidson , Donald. 1963. Actions, Reasons and Causes. Journal of Philosophy 60: 685–700, now in id. (ed.), Essays on Actions and Events. Columbia University: Oxford University Press. (Oxford, 2001; cited as: ‘Actions, Reasons, Causes’).
Davidson , Donald. 2001. Hempel on Explaining Action. In Essays on Actions and Events, ed. id., 211–223. Oxford: Oxford University Press (cited as: ‘Hempel on Explaining Action’).
Drobak, John N. and Douglas C. North. 2008. Understanding Judicial Decision-Making: The Importance of Constraints on Non-Rational Deliberations. Journal of Law & Policy 26: 131–152.
Elster, Jon. 2009. Reason and Rationality. Princeton: Princeton University Press.
Frank, Jerome. 1930. Law and the Modern Mind. New York: Brentano’s.
Friedman , Milton. 1970/1953. The Methodology of Positive Economics, In Essays of Positive Economics, ed. id., 3–43. Chicago: University of Chicago Press.
Guastini, Riccardo. 2010. Juristenrecht. Inventing Rights, Obligations, and Powers. In: 1st Conference on Philosophy and Law Neutrality and Theory of Law, Girona, 20th, 21th and 22th of May.
Holmes, Oliver W. 1897. The Path of the Law. Harvard Law Review 10: 457–478.
Hume, David. 1978/1888. A Treatise of Human Nature. 2nd ed. Oxford: Oxford University Press.
Jolls, Christine, Cass R. Sunstein, and Richard Thaler. 1998. A Behavioral Approach to Law and Economics. Stanford Law Review 50: 1471–1550.
Kahneman, Daniel. 2003. A Psychological Perspective on Economics. The American Economic Review 93(2): 162–168.
Kahneman , Daniel, Knetsch, Jack, and Richard Thaler. 1990. Experimental Tests of the Endowment Effect and the Coase Theorem. Journal of Political Economy 98: 1325–1348 (cited as: ‘Endowment Effect’).
Kahneman , Daniel, Knetsch, Jack, and Richard Thaler.1986. Fairness as a Constraint on Profit Seeking: Entitlements in the Market. American Economic Review 76: 728–741 (cited as: ‘Fairness’).
Kahenam, Daniel and Jackie Snell. 1992. Predicting a Changing Taste. Journal of Behavioral Decision Making 5: 187–200.
Kahneman , Daniel and Amos Tversky. 1999/1982. Subjective Probability: A Judgment of Representativeness. In Judgment under Uncertainty: Heuristic and Biases, ed. Daniel Kahneman , Paul Slovic and Amos Tversky, 32–47. Cambridge: Cambridge University Press (cited as: ‘Subjective Probability’).
Kahneman , Daniel and Amos Tversky. 1986. Rational Choice and the Framing of Decisions. The Journal of Business 59. Part 2: The behavioral foundations of economic theory. S251–S278 (cited as: ‘Framing Decisions’).
Kahneman , Daniel and Amos Tversky. 1979. Prospect Theory: An Analysis of Decision Under Risk. Econometrica 47: 263–292 (cited as: ‘Prospect Theory’).
Kahneman , Daniel and Amos Tversky. 1974. Judgment Under Uncertainty: Heuristic and Biases. Science, New Series 185: 1124–1131 (cited as: ‘Judgment under Uncertainty’).
Kahneman, Daniel, Peter Wakker, and Rakesh Sarin. 1997. Back to Bentham? Explorations of Experienced Utility. Quarterly Journal of Economics 112: 375–405.
Kraus, Jody S. 2000. Comment on Brian Leiter’s “Holmes, Economics, and Classical Realism”. In The Path of the Law and Its Influence the Legacy of Oliver Wendell Holmes, ed. Steven J. Burton, 326–332. Cambridge: Cambridge University Press.
Leiter, Brian. 2010. In Praise of Realism (And Against “Nonsense” Jurisprudence). http://papers.ssrn.com/sol3/papers.cfm?abstract_id=111346 (cited as: ‘Praise of Realism’).
Leiter, Brian . Naturalism in Legal Philosophy. http://plato.stanford.edu/entries/lawphil-naturalism/ (cited as: ‘Naturalism’).
Leiter, Brian . 2007. Naturalizing Jurisprudence. Essays on American Legal Realism and Naturalism in Legal Philosophy. New York: Oxford University Press (cited as: Naturalizing).
Leiter, Brian . 2000. Holmes, Economics, and Classical Realism. In The Path of the Law and Its Influence. The Legacy of Oliver Wendell Holmes, ed. Steven J. Burton, 285–325. Cambridge: Cambridge University Press (cited as: ‘Holmes’).
Lewis, David. 1981. Causal Decision Theory. Australian Journal of Philosophy 59: 5–30, now in Paul K. Moser (ed.), Rationality in Action. Contemporary approaches (Cambridge, 1990), pp. 236 et seqq.
Llewellyn, Karl. 1931. Some Realism About Realism? Responding to Dean Pound. Harvard Law Review 44: 1242–1243 (cited as: ‘Realism’).
Llewellyn, Karl. 1930. The Bramble Bush. On Our Law and Its Study. New York/London/Rome: Oceana (cited as: Bramble Bush).
Mackie, John L. 1974. The Cement of the Universe. A Study of Causation. Oxford: Clarendon.
Mathis, K. 2011. Consequentialism in Law. In Efficiency, Sustainability, and Justice to Future Generations, ed. K. Mathis, 3–29. Dordrecht/Heidelberg/London/New York: Springer.
Miceli, Thomas, and Metin Cosgel. 1994. Reputation and Judicial Decision-making. Journal of Economic Behavior and Organization 23: 31–51.
Miles, Thomas and Cass Sunstein. 2008. The New Legal Realism. The University of Chicago Law Review 75: 831–851.
Moore, Underhill. 1923. Rational Basis of Legal Institutions. Columbia Law Review 23: 609–617.
Noll, Roger and James Krier. 2000. Some Implications of Cognitive Psychology for Risk Regulation. In Behavioral Law and Economics, ed. Cass Sunstein, 325–354. Cambridge: Cambridge University Press.
O’Connor, Timothy. 2010. Reasons and Causes. In A Companion to the Philosophy of Action, ed. Timothy O’Connor and Constantine Sandis, 129–138. Chichester: Wiley-Blackwell.
Pardolesi, Roberto and Bruno Tassone. 2003. I giudici e l’analisi economica del diritto privato. Bologna: Il Mulino.
Pettit, Philip. 1995. The Virtual Reality of “Homo Economicus”. Monist 78: 308–329.
Posner , Richard. 2007. Economic Analysis of Law. 7th edn. ASPEN: New York (cited as: Economic Analysis).
Posner , Richard. 1998. Rational Choice, Behavioral Economics, and the Law. Stanford Law Review 50: 1551–1575 (cited as: ‘Rational Choice’).
Posner , Richard. 1995. The New Institutional Economics. In Overcoming Law, ed. id., 426–443. Cambridge, MA/London: Cambridge University Press (cited as: ‘Institutional Economics’).
Posner , Richard. 1995. What Do Judges Maximize? In Overcoming Law, ed., id. Cambridge, MA/London: Cambridge University Press (cited as: ‘Judges Maximize?’).
Posner , Richard. 1993. Nobel Laureate: Ronal Coase and Methodology. The Journal of Economic Perspectives 7/4: 195–210 (cited as: ‘Coase’).
Posner , Richard. 1988. The Jurisprudence of Skepticism. Michigan Law Review 86: 827–891 (cited as: ‘Skepticism’).
Posner , Richard. 1972. A Theory of Negligence. The Journal of Legal Studies 1: 29–96 (cited as: ‘Negligence’).
Quine, Willard V. 1969. Epistemology Naturalized. In Ontological Relativity and Other Essays, 156–198. London: Columbia University Press.
Rabin, Matthew and Richard Thaler. 2001. Anomalies-Risk Aversion. Journal of Economic Perspectives 15(1): 219–232.
Rhees, Rush. 2003. Wittgenstein’s on Certainty. There – Like Our Life. Edited by Dewi Zephaniah Phillips. Malden/Oxford, UK/Carlton: Blackwell.
Schäfer, Hans-Bernd and Claus Ott. 1986/2004. The Economic Analysis of Civil Law. Cheltenham: Edward Elgar.
Searle, John R. 2010. Making the Social World. The Structure of Human Civilization. Oxford: Oxford University Press.
Sen, Amartya K. 1977. Rational Fools: A Critique of the Behavioral Foundations of Economic Theory. Philosophy & Public Affairs 6: 317–344.
Simon, Herbert. 1983. Alternative Visions of Rationality. In Reason in Human Affairs, ed. Herbert A. Simon. Stanford, CA. now in Paul K. Moser (ed.), Rationality in Action. Basil Blackwell. (New York, Port Chester, Melbourne and Sidney, 1990), pp. 199–204 (cited as: ‘Alternative Visions’).
Simon, Herbert. 1955. A Behavioral Model of Rational Choice. Quarterly Journal of Economics 99: 99–118 (cited as: ‘Behavioral Model’).
Sunstein, Cass R. and Edna Ullmann-Margalit. 2000. Second-Order Decisions. In Behavioral Law and Economics, ed. Cass R. Sunstein, 187–208. Cambridge: Cambridge University Press.
Sunstein, Cass R. 2000. Introduction. In Behavioral Law and Economics, ed. Cass R. Sunstein, 1–10. Cambridge: Cambridge University Press.
Thaler, Richard. 1986. The Psychology and Economics Conference Handbook: Comments on Simon, on Einhorn and Hogarth, Tversky and Kahneman. The Journal of Business 59/4. Part 2: The behavioral foundations of economic theory. S279–S284 (cited as: ‘Psychology and Economics’).
Thaler, Richard. (1980). Toward a Positive Theory of Consumer Choice. Journal of Economic Behavior and Organization 1: 36–60 (cited as: ‘Theory of Consumer’).
Tuzet, Giovanni. 2006. La prima inferenza. L’abduzione di C.S. Peirce fra scienza e diritto. Torino: G. Giappichelli.
von Wright, Georg Henrik. 1963. Norm and Action. A Logical Enquiry. New York: Humanities.
Williams, Bernard. 1981. Internal and External Reasons. In Moral Luck Philosophical Papers 1973–1980, 101. Cambridge: Cambridge University Press.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2014 Springer Science+Business Media Dordrecht
About this chapter
Cite this chapter
Moreno-Cruz, D. (2014). Three Realistic Strategies for Explaining and Predicting Judicial Decisions. In: Mathis, K. (eds) Law and Economics in Europe. Economic Analysis of Law in European Legal Scholarship, vol 1. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-7110-9_5
Download citation
DOI: https://doi.org/10.1007/978-94-007-7110-9_5
Published:
Publisher Name: Springer, Dordrecht
Print ISBN: 978-94-007-7109-3
Online ISBN: 978-94-007-7110-9
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)