The Legal Process from a Behavioral Perspective

By Stuart S. Nagel | Go to book overview

CHAPTER 25
Optimizing Legal Policy

Various scholars have written in recent years about the quantitative optimization of managerial decisions,1 and a few have dealt with social decisions?2 It is the purpose of this chapter to offer an alternative quantitative method to the approaches given in those materials. This alternative method is designed to be particularly applicable to proposed legislation and, to a lesser extent, to judge-made law. It emphasizes estimated correlation coefficients to determine the relation of policies to goals and paired comparisons to weight goals, and to determine the likelihood that a policy will be adopted. In order to make the method simpler for the reader to perceive, elementary algebraic symbols and dichotomous variables will be used throughout the chapter. No knowledge beyond high school algebra will be presumed. Two previous studies provide lengthy specific applications of many of the broader methods and concepts presented here.3

____________________
The author gratefully acknowledges the perceptive critique of this chapter, which was offered by Mary Ellen Caldwell, Layman Allen, and Myres McDougal of the Yale Law School and Thomas Cowan of the Rutgers Law School.
1
See, e.g., CURCHMAN, ACKOFF, & ARNOFF, INTRODUCTION TO OPERATIONS RESEARCH ( 1957); MILLER & STARR, EXECUTIVE DECISIONS AND OPERATIONS RESEARCH ( 1960); SCIENTIFIC DECISION MAKING IN BUSINESS -- READINGS IN OPERATIONS RESEARCH FOR NON-MATHEMATICIANS ( SHUCHMAN ed. 1963). Thomas Cowan has recently called the attention of legal theorists to operations research materials. Cowan, "Decision Theory in Law, Science, and Technology," 17 RUTGERS L. REV.499 ( 1963).
2
ARROW, SOCIAL CHOICE AND INDIVIDUAL VALUES ( 2d ed. 1963); BRAITHWAITE, THEORY OF GAMES AS A TOOL FOR THE MORAL PHILOSOPHER ( 1955); BRAYBROOKE & LINDBLOM, A STRATEGY OF DECISION -- POLICY EVALUATION AS A SOCIAL PROCESS ( 1963). Although the Braybrooke & Lindblom book is not quantitative, the authors do recognize "the boundary between problems that can be solved by calculation and those that must be treated by a strategy of multiple adjustment has thus shifted. With the development of more and more sophisticated computer techniques, the boundary may be expected to go on shifting."Id. at 247. The policymaking scheme of this article mainly involves policies that promote a medium degree of change and are based on a medium degree of understanding. Id. at 78.
3
Nagel, "Testing the Effects of Excluding Illegally Seized Evidence," 1965 WIS. L. REV.283 (particularly Figure 1) (chap. 23 supra); Nagel, "Simplified Bipartisan Computer Redistricting," 17 STAN L. REV.863 ( 1965) (chap. 24 supra).

-360-

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