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The Optimal Complexity of Legal Rules (2004)
BibTeX
@MISC{Law04theoptimal,
author = {John M. Olin Law and Economics Working and Paper No and Richard A. Epstein and Richard A. Epstein and James Parker and Hall Distinguished and Service Professor and Of Law and Peter and Kirsten Senior Fellow and Richard A. Epstein},
title = {The Optimal Complexity of Legal Rules},
year = {2004}
}
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Abstract
Legal systems must deal not only with the cognitive limitations of ordinary individuals, but must also seek to curb the excesses of individual self-interest without conferring excessive powers on state individuals whose motives and cognitive powers are themselves not above question. Much modern law sees administrative expertise as the solution to these problems. But in fact the traditional and simpler rules of thumb that dominated natural law thinking often do a better job in overcoming these cognitive and motivational weaknesses. The optimal strategy involves the fragmentation of government power, and the limitation of public discretion. Three types of rules that help achieve this result are rules of absolute priority, rules that judge conduct by outcomes not inputs, and rules that use simple proration formulas to allocate benefits and burdens. COGNITION AND MOTIVATION There is both an evident disjunction and a strong relationship between the disciplines of psychology and law. Psychology seeks to isolate the mainsprings of human behavior. Thus, it requires a detailed understanding of both the emotions, positive and
Keyphrases
legal rule optimal complexity individual self-interest judge conduct cognitive power human behavior legal system strong relationship natural law thinking evident disjunction motivational weakness excessive power cognitive limitation public discretion ordinary individual absolute priority government power simple proration formula simpler rule state individual detailed understanding optimal strategy
