Should property scholars embrace virtue ethics? a skeptical comment

Cornell Law Review

Volumn 94, Issue 4, 2009, Pages 991-1007

  Wyman, Katrina M ^a  

^a NEW YORK UNIVERSITY   (United States)

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EID: 68949109753     PISSN: 00108847     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (108)

1. Eduardo M. Pen̄alver, Land Virtues, 94 CORNELL L. REV. 821 (2009).
2. See, e.g., Edmund L. Andrews & Mark Landler, U.S. May Take Ownership Stake in Banks to Ease Credit Crisis, N.Y. TIMES, Oct. 9, 2008, at Al;
3. Mark Landler & Edmund L. Andrews, Bailout Plan Wins Appoval; Democrats Vow Tighter Rules, N.Y. TIMES, Oct. 4, 2008, at Al.
4. See, e.g., Edmund L. Andrews et al., Fed in an $85 Billion Rescue of an Insurer Near Failure, N.Y. TIMES, Sept. 17, 2008, at Al;
5. Eric Dash & Andrew Ross Sorkin, In Largest Bank Failure, U.S. Seizes, Then Sells, N.Y. TIMES, Sept. 26, 2008, at Al;
6. Joe Nocera, 36 Hours of Alarm and Action as Crisis Spiraled, N.Y. TIMES, Oct. 2, 2008, at Al.
7. See, e.g., Tim Arango & Julie Creswell, Goodbye to All That, N.Y. TIMES, Oct. 5, 2008, at BU1;
8. Alex Berenson, Power Plays: How Free Should a Free Market Be?, N.Y. TIMES, Oct. 5, 2008, at WK1 ("Whoever becomes president in January, lawmakers will be under pressure to strengthen financial regulation and give more resources to agencies like the Food and Drug Administration, which have appeared overwhelmed in recent years.");
9. Bob Davis et al., Unraveling Reagan: Amid Turmoil, U.S. Turns Away from Decades of Deregulation, WALL ST. J., July 25, 2008, at Al;
10. Peter S. Goodman, Taking Hard New Look at a Greenspan Legacy, N.Y. TIMES, Oct. 9, 2008, at A1.
11. The reference is to THOMAS S. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS (3d ed. 1996).
12. I use "property" to refer principally to land and therefore use the terms "property law" and "land law" synonymously. As the title Land Virtues implies, Pen̄alver's article is concerned mainly with the paradigm for land law, and when he uses die term "property" he seems to have land in mind. However, it seems to me that Peñalver's concerns with economic analysis apply beyond its application to land (or property) law and encompass its use in public policy generally. In theory, virtue ethics could be used to guide policy in many fields in addition to land (or property) law.
13. In Kuhn's terms, paradigms "provide models from which spring particular coherent traditions of scientific research." KUHN, supra note 5, at 10.
14. Peñalver, supra note 1, at 841.
15. Id. at 860.
16. Id. at 863.
17. Id.
18. Id. at 868.
19. See id. at 872-73 ("It bears emphasizing that rejecting welfare-maximizing theories of landowner obligation in favor of a virtue-based approach does not lead to an embrace of unrelentingly collective or statist decision making about land use. Even where we reach the conclusion that landowners' self-interested calculations should give way to overriding moral considerations, the question whether to enforce coercively the demands of virtue through the force of law will turn, as virtue theorists have long understood, on a number of considerations." (footnote omitted)).
20. Pen̄alver suggests that virtue ethics is compatible "with a range of models of human behavior." Id. at 867-68.
21. See id. at 823-25, 833.
22. See id. at 832, 834-35, 837-38, 840.
23. See id. at 824 ("[A] number of contemporary legal economists, most prominently Louis Kaplow and Steven Shavell, have constructed their legal theories around the maximization of 'welfare,' a category of value that they understand to be significantly broader than 'wealth' and, indeed, to encompass anything and everything that people might desire.").
24. Sometimes when Pen̄alver recognizes that economic analysts define the value being maximized in broader terms, he introduces a new critique, namely that economic analysis is less useful when it assumes that owners seek to maximize something abstract like welfare. See id. at 835 n.54 (referring to "[t]he difficulties of measuring such an open-ended conception of value (or welfare or utility)"). This is a version of the well-known indeterminacy critique of economic analysis.
25. See Russell B. Korobkin & Thomas S. Ulen, Law and Behavioral Science: Removing the Rationality Assumption from Law and Economics, 88 CAL. L. REV. 1051, 1067-68 (2000) (discussing the inadequacy of thin versions of rational-choice theory). This critique makes the valid point that since values such as utility or welfare are often unknowable by outsiders, economic claims that individuals seek to maximize values such as utility or welfare are difficult to test and hence to falsify.
26. See id.; see also Robert C. Ellickson, Bringing Culture and Human Frailty to Rational Actors: A Critique of Classical Law and Economics, 65 CHI.-KENT L. REV. 23, 23 (1989) (discussing Ardiur Leff's argument in his 1974 review of Richard Posner's Economic Analysis of Law that "because a person's received utility is unobservable, the assumption of rational utility-maximization is strictly nonfalsifiable").
27. Korobkin and Ulen make the same suggestion with regard to the economic analysis of law generally. See Korobkin & Ulen, supra note 17, at 1075 ("The answer, we believe, is to . . . develop [ ] a more subtle, textured understanding of how actors make decisions in various situations, relying extensively on empirical data.").
28. Journal of Empirical Legal Studies, http://www.wiley.com/bw/aims.asp?ref= 17401453&site=l (last visited Mar. 10, 2009).
29. Journal of Empirical Legal Studies, http://www.blackwellpublishing.com/ society. asp?ref=1740-1453&site=l (last visited Mar. 10, 2009).
30. Indeed, Pen̄alver is careful to underscore that his critique that economic analysis presumes an overly simplified model of human motivation would not apply to analyses that draw on behavioral economics or new institutional economics. Pen̄alver, supra note 1, at 824-25.
31. See id. at 826, Part II.B.2.
32. See, e.g., id. at 848 (referring to "the normative dimension of the Demsetzian view of the incentives created by land's market value").
33. Pen̄alver offers two reasons for doubting that private decision makers will necessarily make decisions that will maximize land values. In analyzing their options, private decision makers may not value goods that are not commonly traded in the market, "such as the health of wetlands and ecosystems, the extinction of species, or housing for the homeless." Id. at 850.
34. In addition, private landowners may not consider the impacts of their decisions on future generations or heavily discount die future if they do consider it. See id. at 854.
35. See id. at 857-58.
36. RICHARD L. REVESZ & MICHAEL A. LIVERMORE, RETAKING RATIONALITY: HOW COSTBENEFIT ANALYSIS CAN BETTER PROTECT THE ENVIRONMENT AND OUR HEALTH 18 (2008).
37. See id. at 10 ("This book challenges the liberal camp to rethink its position on costbenefit analysis .... [B]iases [against regulation] are not inherent to the methodology [of cost-benefit analysis]. If those biases were identified and eliminated, cost-benefit analysis would become a powerful tool for neutral policy analysis.").
38. See Pen̄alver, supra note 1, at 823 & n.5 (noting that " [t] he literature critiquing law and economics is vast and rich" and citing "a few prominent examples").
39. See, e.g., id. at 827-28, 872, 873-74.
40. For example, Richard Posner's early classic, Economic Analysis of Law, intermixed normative and positive analysis. RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW §1.2 (1972). More recently, Louis Kaplow and Steven Shavell attracted considerable attention among legal academics with their normative claim that the law should be designed to maximize individual well-being.
41. See, e.g., Louis Kaplow & Steven Shavell, Fairness Versus Welfare, 114 HARV. L. REV. 961, 967 (2001) ("Our central claim is that the welfare-based normative approach should be exclusively employed in evaluating legal rules. That is, legal rules should be selected entirely with respect to their effects on the well-being of individuals in society.").
42. See, e.g., Pen̄alver, supa note 1, at 827-28, 872, 873-74.
43. In three sentences that I already have quoted in part, Pen̄alver states: The challenge for property and land-use theorists is to find a way to put the valuable tools of economic analysis to use [within land-use discussions] while restricting the normative ambition of those tools to their proper domain. Meeting this challenge calls for resort to a broader moral framework, one that is sufficiently capacious to encompass the value of personhood, the demands of liberty, and the important goal of enhanced social welfare. A theory of owner obligation rooted in the Aristotelian tradition provides such an inclusive vision.
44. Id. at 863.
45. Id. at 882.
46. Id. at 876-77.
47. Id. at 877.
48. See Id.
49. Id. at 880.
50. Id.
51. Id. at 884.
52. See id. at 885.
53. David Lametti, The Objects of Virtue (2008) (unpublished manuscript, on file with author).
54. Id. at 11.
55. See id. at 14 ("The virtue in the city is founded on the virtue of individuals and virtue of individuals is based on the virtue of the city. Each forms the other through laws and education, and the actions of virtuous individuals leading to a virtuous state of character aimed at the good.").
56. On the meaning of eudaimonia, see Eric R. Claeys, Virtue and Rights in American Property Law, 94 CORNELL L. REV. 889, 902 (2009).
57. See Lametti, supra note 41, at 38.
58. Id.
59. Id. See also id. (arguing that for Aquinas, "private property is an instrumental good (analogous to utility) but in the service of human development (dignity, development) within a Christian framework").
60. Pen̄alver describes his purpose as "to reintroduce the Aristotelian ethical tradition into discussions of property and land-use as an approach with much to offer." Pen̄alver, supra note 1, at 864.
61. Id. at 867.
62. Kaplow & Shavell, supra note 30, at 967.
63. Id. at 980 n.35.
64. See id. at 983-85, 1339-42 (arguing that the "moral force and appeal of welfare economics" comes from the fact that it promotes a person's actual well-being instead of "some hypothetical notion of satisfaction") ;
65. id. at 1346 ("Under a welfare economic analysis, any actual preference is given weight because it reflects an individual's actual wellbeing; there is no a priori basis under welfare economics for ignoring certain preferences."). However, Kaplow and Shavell do not support giving weight to individual preferences based on imperfect information.
66. See id. at 1331.
67. Pen̄alver, supra note 1, at 866 ("[Vjirtue ethicists typically derive the content of their accounts of the virtues from an objective conception of what it means to live well or flourish in a distinctively human way.");
68. id. ("Depending on the theorist, the conceptions of the well-lived human life underlying virtue ethics will have varying degrees of thickness and content. Virtue theories agree, however, in this focus on flourishing and in refusing to assign value to some state of affairs merely because an individual happens subjectively to desire or prefer it." (footnote omitted));
69. see also Martha C. Nussbaum, TAe Supeme Court, 2006 Term-Forward: Constitutions and Capabilities: "Perceptions" Against Lofty Formalism, 121 HARV. L. REV. 5, 14 (2007) ("The [capabilities approach] focuses on what people are actually able to do and be, not on whether their desires are satisfied. Desire is a malleable and inconstant element of people's lives.").
70. Daphna Lewinsohn-Zamir is the leading exponent of a welfarist approach to property law that relies on an objective, rather than a subjective, definition of well-being. See Daphna Lewinsohn-Zamir, TAe Objectivity of Weil-Being and the Objectives of Property Law, 78 N.Y.U. L. REV. 1669, 1673 (2003) ("[A]ny adequate criterion of welfare must consist of strong objective components.").
71. See, e.g., Nussbaum, supra note 52, at 10 n.7 (listing sources explaining Nussbaum's and Sen's capabilities approaches and the differences between their approaches). Nussbaum provides a useful overview of her capabilities approach.
72. See id. at 10-16. Gregory Alexander's article TAe Social-Obligation Norm in American Property Law argues that property law does and should embody a commitment to promoting human flourishing as capability theorists such as Sen and Nussbaum define the concept. 94 CORNELL L. REV. 745, 751 (2009).
73. Another article applying Sen's capability theory to property law, with a different goal than Alexander's, is Jedediah Purdy's A Freedom-Promoting Appoach to Property: A Renewed Tradition for New Debates, 72 U. CHI. L. REV. 1237, 1242-44 (2005).
74. Nussbaum, supra note 52, at 11 (arguing that under the capabilities approach, "government is charged with securing for citizens a comprehensive set of necessary conditions for a life worthy of human dignity");
75. id. at 12 ("Government ought to give people a full and meaningful choice; at that point, the decision whether to take up a given opportunity must be their own.").
76. See, e.g., id. at 10 (arguing that the end point of the capabilities approach is to support "human beings in the development and exercise of some central human abilities").
77. Pen̄alver, supra note 1, at 864.
78. KWAME ANTHONY APPIAH, EXPERIMENTS IN ETHICS 38-39 (2008). Rob Howse drew my attention to the chapter in the book on virtue ethics.
79. Id. at 38 (describing the reality that "most people simply [don't] display such multitrack, context-independent dispositions");
80. Pen̄alver, supra note 1, at 864.
81. APPIAH, supra note 58, at 39.
82. Id. (second ellipsis in original) (footnote omitted).
83. Id. at 41.
84. Id. (referring to Alice M. Isen & Paula F. Levin, The Effect of Feeling Good on Helping: Cookies and Kindness, 21 J. PERSONALITY & SOC. PSYCHOL. 384 (1972)).
85. Id. (citing Robert A. Baron Sc Jill Thormley, A Whiff of Reality: Positive Affect as a Potential Mediator of the Effects of Pleasant Fragrances on Task Performance and Helping, 26 ENV'T & BEHAV. 766 (1994)).
86. Id. at 46 ("There are some philosophers . . . who take the social-science literature about character and conduct to pose a serious and perhaps lethal challenge to the virtue ethicist's worldview. Talk all you like about virtuous dispositions, the challenge goes: we're just not built that way.").
87. Id. at 71 (suggesting that in light of the situation's importance the best solution is to "promulgate the circumstances in which our excellences can be elicited").
88. John Sabini & Maury Silver, Lack of Character? Situationism Critiqued, 115 ETHICS 535 (2005);
89. Gopal Sreenivasan, Errors About Errors: Virtue Theory and Trait Attribution, 111 MIND 441 (2002).
90. Thanks to Lisa Austin for highlighting for me the possibility that law may not be compatible with promoting virtue as virtue ethicists understand the concept.
91. Pen̄alver, supra note 1, at 864-65 (providing the example of a person who saves a drowning child solely for the purpose of the acclaim and publicity that the act brings).
92. Id. at 865.
93. Id. (citing ROSALIND HURSTHOUSE, ON VIRTUE ETHICS (1999)).
94. Id. at 871.
95. See also id. 871 n.207 (citing sources discussing the role of law in promoting virtue).
96. Id. at 871.
97. In his response in this issue, Eric Claeys rejects the concern that "when politics legislates on virtue, it makes it impossible for actors to act virtuously." Claeys, supra note 43, at 921. Later, though, Claeys seems to acknowledge that some virtues probably cannot be achieved through law, referring specifically to charity. Quoting Robert George, Claeys states that "legally coerced charity is in an important sense not really charity at all: 'compelling the expressing of gratitude, or the giving of gifts . . . where people ought to express gratitude [or] give gifts . . . would have the effect of robbing these important practices of their meaning and value in social life.'"
98. Id. at 944 (quoting ROBERT P. GEORGE, MAKING MEN MORAL: CIVIL LIBERTIES AND PUBLIC: MORALITY 44 (1993)).
99. Pen̄alver, supra note 1, at 866.
100. Pen̄alver acknowledges that "[a] complete virtue theory of property would obviously include (or endorse) a fully elaborated and fully defended account of human flourishing," among other things, and that his article does not include such an account. Id. at 869.
101. Lewinsohn-Zamir, supra note 53, at 1688.
102. There are, of course, downsides to structuring law to promote individual preference satisfaction. For example, an individual's preferences may not be in her interests if her preferences arise from a lack of information or societal inequalities. For an overview of the problems often identified with preference theories of well-being, see id. at 1677-86.
103. In his response in this issue, Professor Claeys eloquently discusses the dangers of a politics focused on virtue, warning that "[w]hen politics is about legislating virtue and not about securing rights, it tempts sectarian believers to gain political power to compel subjects to be virtuous as defined by the teachings of their particular sect." Claeys, supra note 43, at 926.
104. Nussbaum, supra note 52, at 14 n.13.
105. Id.; see also id. at 20 ("The [capabilities approach] ... is quite abstemious: it identifies a very short list of core entidements that should be secured to all citizens as the basic entidements of a just society. Beyond that short list, the [capabilities approach] does not make sweeping claims about the overall good. It allows people to make their own choices based on their different views of the good life.").
106. The only concrete implication Pen̄alver mentions is that using land law to promote "justice" might require more "redistribution of land rights via in-kind transfers of ownership or occupancy." Pen̄alver, supra note 1, at 882.
107. Id. at 878.
108. See, e.g., Sheryl Gay Stolberg & Edmund L. Andrews, $275 Billion Plan Seeks to Address Crisis in Housing, N.Y. TIMES, Feb. 19, 2009, at Al.