An Interpretation of Max Weber's Theory of Law: Metaphysics, Economics, and the Iron Cage of Constitutional Law

Among legal scholars, Anthony T. Kronman and David M. Trubek have provided the leading interpretations of Weber's theory of law. Kronman and Trubek agree on two important points: Weber's theory is fundamentally contradictory, and Weber's theory relates primarily to private law subjects such as contracts. This article contests both of these points. Building on a foundation of Weber's neo-Kantian metaphysics and his sociological categories of economic action, this article shows that Weber's theory of law is not fundamentally inconsistent; rather it explores the inconsistencies that are inherent within Western society itself, including its legal systems. Furthermore, Weber's insights can be applied to modern constitutional jurisprudence. Weberian theory reveals that modern constitutional law is riddled with irreconcilable tensions between process and substance—between formal and substantive rationality. In the context of racial discrimination cases involving equal protection and the Fifteenth Amendment, the Supreme Court's acceptance of John Hart Ely's theory of representation-reinforcement demonstrates the Court's resolute pursuit of formal rationality, which insures that the substantive values and needs of minorities will remain unsatisfied.     

The Hand Rule and United States v. Carroll Towing Co. Reconsidered

Judge Learned Hand’s opinion in United States v. CarrollTowing Co. (1947) is canonized in the law-and-economics literatureas the first use of cost-benefit analysis for determining negligenceand assigning liability. This article revisits the case in whichthe Hand formula was born and examines whether Judge Hand’sruling in that case would provide correct incentives for efficientlevels of precaution. We argue that the negligence test as usedby Judge Hand is somewhat different from the Hand test as usedby modern law-and-economics theorists. With a game theoreticanalysis of the case, we show that Judge Hand’s negligencetest could in fact produce games with inefficient equilibria,or with liability determinations opposite Judge Hand’s.     

The value of interpersonal skills in lawyering

Noting the historical negative public perception held of attorneys, a 2×2 factorial design was created to assess the relative roles of legal competence and relational skill in the formation of client attitudes toward attorneys. Ninety-three subjects viewed a simulated, video-taped attorney-client interview in which the attorney possessed either (a) high legal competence and high relational skill, or (b) low legal competence and high relational skill, or (c) high legal competence and low relational skill, or (d) low legal competence and low relational skill. Analysis of questionnaires completed by the subjects after viewing the tapes revealed the attorney having high legal competence and high relational skill to be viewed as most expert, attractive, trustworthy. probable of satisfying the client, and being recommended and used in the future. The attorney having low legal competence and high relational skill was rated second on sixteen of the seventeen measures employed, indicating that relational skill contributes more to the formation of a client's perception of his or her attorney than does the attorney's level of legal competence. Implications of the results for the training of future attorneys are discussed.The first thing we do, let's kill all the lawyers.     

Legalism and English Administrative Law: Comment on Sterett

In a recent issue of this journal (Volume 15, Number 4, Fall 1990), Susan Sterett examined the role of the Law Commission in the development of English administrative law. She suggested that the Commission mimicked a "peak association" and adopted an "idiom of legalism" in order to justify its reform proposals. This comment disagrees with Sterett on three grounds. First, the role and constitutional position of the Commission is far more complex than Sterett suggests, and this affects the way in which the Commission works. Second, judges and academic lawyers were central to the reform of substantive principles of judicial review in the 1960s and 1970s, making it unnecessary for the Law Commission to act in this field. Finally, it is wrong to ignore the fact that much administrative law occurs outside the judicial review procedure.     

Economic self-interest and the vote: Evidence and meaning

The issue of personal economic self-interest — people responding politically to changes in their financial well-being — has been a central focus in the economic voting literature. In a recent article, Kramer (1983) contended that people may be acting in a personally self-interested manner despite findings to the contrary from survey research analyses. In another article, Sears and Lau (1983) argued that findings of economic self-interest from survey data may be artifactual and that self-interested behavior may be even weaker than previously thought. In this paper I review the literature on economic self-interest and attempt to determine to what extent people do act on the basis of their financial well-being and under what conditions this is most likely.     

Broadening the peace dividend

He has served as Senior Fellow at the National Commission for Economic Conversion and Disarmament.     

A view from the tower: approaches to urban studies

Reform, Planning, and City Politics: Montreal, Winnipeg, Toronto . By Harold Kaplan . The Urban Kaleidoscope: Canadian Perspectives . By Leslie W. Kennedy . Planning The Urban Region: A Comparative Study of Policies and Organizations . By Peter Self .     

Health economics: a report on the field

This study documents who health economists are, what they do, and what they think about professional and policy issues. Using primary data obtained through a mail survey of 518 health economists, we found that health economists are well trained by the standards of their profession. Most are employed in noneconomics departments in universities, where they spend their time very differently from their cousins in economics departments. There is a clear dichotomy in policy views among health economists. The characterization of the field as composed of "narrow" neoclassicists and "broad" eclecticists is supported by our data.