Taxing Obesity - Or Perhaps the Opposite

The true subject of this Lecture is the question of why we regulate some things and not others, and then how we might predict future regulation. Let me begin with my conclusion, to be developed at greater length in other work. Its academic novelty will be the notion that a fair amount of regulation is best understood as fostering self-control on behalf of the governed. I will suggest that we add this explanation, or category, of government intervention to the more familiar ones of public goods, coordination, interest group capture, and negative externalities where there are high transaction costs. Its practical or political angle is predicting the future of intervention with respect to our latest perceived crisis, that of American obesity. If we gathered in 1964, my application might have been to the future of tobacco regulation. One question is whether today\u27s obesity is like yesteryear\u27s smoking. ...By taxing obesity - or perhaps its opposite, I meant two things. First, opposite in the sense of earning rewards rather than paying taxes. And second, privately organized and even voluntary penalties and rewards, as opposed to strong-arm government interventions. Much as safer automobiles have developed because of a remarkable array of government interventions, education, private market maneuvers, consumer decisions, false experiments, traffic police, alcohol taxes, gasoline taxes and spending on better roads, so too more healthy bodies are likely to be formed by more than individual decisions regarding tonight\u27s menu or tomorrow\u27s trip to the gym. As law grows, so do private markets and the ingenuity of their makers. I think we will see that obesity brings about such growth in both legal intervention and in private markets

Harmonization, Preferences, and the Calculus of Consent in Commercial and Other Law

The European Union is exploring a move toward harmonization in the form of a common commercial code (CESL), with some mandatory provisions especially with respect to consumer law, but alsoincorporating a large dose of business-to-business law that would be optional at the enterprise, rather than jurisdictional, level. This paper begins with the question of when harmonization is preferable to diversity, and not just with respect to commercial law. It tackles the problem from the perspective of the median voters in jurisdictions, some of which have similar preferences and some not. It introduces the ability of a stable and like-minded group to impose external costs on others, and then also on the ability of like-minded players to benefit by favoring central decisionmaking rather than local authority and local preferences

Fractured Majorities and Their Reasons

The wisdom of crowds correctly exalts majority decision-making on appellate courts as well as on many other settings, including hospitals and committees with multiple doctors or board members. But the same confidence in majorities should be applied to the reasons that are attached to a vote, or opinion, and then to a majority’s rejection of a member’s reasoning. This Article introduces the problems confronted when examining the reasons for opinions, and then the reasons beneath those reasons. It shows that majority decision-making is not as reliable as it first seems and, indeed, that a single decision-maker may at times be more reliable than a 2-1 or even a supermajority vote. One lesson or escape from this paradox is that judges and other decision-makers should reveal their disagreements, if any exist, with other voters’ reasoning, to reveal whether there is such serious disagreement about their reasoning as to question the presence of a true majority

Message from the Dean

Dean Levmore discusses the renovations to D’Angelo Law Library and the fountain, and the new Public Interest Program

Conjunction and Aggregation

This Article begins with the puzzle of why the law avoids the issue of conjunctive probability. Mathematically inclined observers might, for example, employ the product rule, multiplying the probabilities associated with several events or requirements in order to assess a combined likelihood, but judges and lawyers seem otherwise inclined. Courts and statutes might be explicit about the manner in which multiple requirements should be combined, but they are not. Thus, it is often unclear whether a factfinder should assess if condition A was more likely than not to be present - and then go on to see whether condition B satisfied this standard - or whether the factfinder\u27s task is to ascertain if both A and B can together, or at once, satisfy the standard. A mathematically inclined judge or jury that thought a tort defendant .6 likely to have been negligent and .7 likely to have caused plaintiff\u27s harm might conclude that plaintiff had failed to satisfy the preponderance of the evidence standard because the chance of both requirements being met is surely less than either alone and, indeed, less than .5. Yet, the law often instructs the jury to find the defendant liable, or is strangely ambiguous in its instructions. Legal practice seems at odds with scientific logic, or at least with probabilistic reasoning. I will refer to this puzzle as the math-law divide. Although this divide is encountered frequently in law, its puzzling character is unfamiliar to most lawyers and (even) legal scholars, and it is missed entirely by most litigants and judges. This Article seeks to explain or rationalize law\u27s suppression of the product rule, or indeed any explicit alternative strategy for dealing with the conjunction issue. Part I discusses in greater detail the nature of the math-law divide and a number of traditional reactions to the puzzle. The Article then advances the idea that the process of aggregating multiple jurors\u27 assessments hides valuable information. First, Part H.B. posits that the Condorcet Jury Theorem indicates that agreement among multiple jurors might raise our level of confidence in a particular determination beyond what the jurors themselves individually report. Second, Part 11.C. urges that a supermajority\u27s mean or median voter is likely to have a different assessment from that gained from the marginal juror. As such, a supermajority (or unanimity) rule may take the place of the product rule where there are multiple requirements for liability or guilt. An attempt to extract this inframarginal information more directly would likely generate strategic behavior problems in juries. Part III extends this analysis to panels of judges, for whom outcome voting may (somewhat similarly) substitute for the product rule