Wednesday, March 30, 2005

Trapped in the Web of Values

So having told Chris yesterday that I was going to read his posting, but then I realized it was really long, I felt the need to respond.

I think, in fact hope, that on the whole Chris is right: each of our legal conventions reflect a value or set of values and that the values embodied in different conventions, or indeed sometimes in the same convention, are often competing. I would make two thoughts, with which I think Chris would agree, but I won't put words in his mouth.

First, it is not exactly correct to say that the law is a web of values. Instead, I think, the law is a common language in which "our" values are authoritatively articulated. What is the difference? Imagine Terry Schiavo's parents went to the federal judge last week and said "You're honor, unless you order the feeding tube reinstated, Terry will die within the next week or so. We rest." That might be a very powerful value argument on the street, but in law it is a dead loser just as would arguments by Michael's attorney that "if you reinestate the tube, Terry will have to linger in a persistent vegitative state. We rest." When authority is at stake, you have to speak in the language in which that value can be interpreted into the language of law.

This may be incomplete, because the substantive issue at stake is still not whether we think she should be allowed to live or be allowed to die, but what she wanted. For sure, choosing how values can be interpreted is itself a value judgment. Still, everyone knows the stakes and values at issue and even as they talk in the language of the law, those values undergird the discussion. The law, however, forces them to be articulated in the common language that "we" have chosen.

Second, I started to think about what his idea of a "web of values" does to the Chicago School's thesis. Freedom of contract and efficiency are certainly values we hold as a society, but they are not the only ones. After all, the Coase Theorem does not really help us with the Schiavo case. These parties really cannot bargain around the legal rules, and it is not a matter of transaction costs. Imagine that the parties returned to court, hand-in-hand, and said "your honor, we have reached an agreement. The Schindlers will pay Mr. Schiavo $500,000,000 and he has agreed to stop asserting what he still believes to be Terry's wishes." The Coase Theorem really has no answer here (I think, though, you should read Judge Posner's discussion of rape law in An Economic Theory of the Criminal Law, 85 Columbia Law Review 1193 (1985), to see just how far they are willing to take this).

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November 6, 2005 at 9:38 PM  

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