Commensurability and agency: Two yet-to-be-met challenges for law and economics

Cornell Law Review

Volumn 96, Issue 4, 2011, Pages 749-787

  Harel, Alon ^a,b   Porat, Ariel ^c,d  

^a HEBREW UNIVERSITY OF JERUSALEM   (Israel)

^b BOSTON UNIVERSITY   (United States)

^c TEL AVIV UNIVERSITY   (Israel)

^d UNIVERSITY OF CHICAGO   (United States)

Author keywords

[No Author keywords available]

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EID: 79959387919     PISSN: 00108847     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (271)

1. We are aware of the distinction between commensurability and comparability. In this Essay, however, the inability to compare certain values inevitably questions their commensurability. On the distinction between the two
2. see EYAL ZAMIR & BARAK MEDINA, LAW, ECONOMICS, AND MORALITY 112-16 (2010);
3. Ruth Chang, Introduction to INCOMMENSURABILITY, INCOMPARABILITY, AND PRACTICAL REASON 1-2 (Ruth Chang ed., 1997).
4. See Martha C. Nussbaum, Flawed Foundations: The Philosophical Critique of (a Particular Type of) Economics, 64 U. CHI. L. REV. 1197, 1199 (1997) (arguing that "[a] commitment to the commensurability of all an agent's ends runs very deep in the Law and Economics movement" but that it fails to describe the real world); (Pubitemid 127445778)
5. see also ELIZABETH ANDERSON, VALUE IN ETHICS AND ECONOMICS 1-16 (1993) (arguing for a pluralist approach to the valuation of goods, based on the idea that goods differ in kind or quality from one another and cannot always be measured by a common criterion);
6. Amartya Sen, Plural Utility, 81 PROC. ARISTOTELIAN SOC'Y 193, 193-210 (1981) (arguing that welfare economics should understand utility "primarily as a vector (with several distinct components), and only secondarily as some homogeneous magnitude").
7. See United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947).
8. See ROBERT COOTER & THOMAS ULEN, LAW AND ECONOMICS 350-51 (2008) (defining the efficient level of care as an equality between the marginal social cost and the marginal social benefit);
9. WILLIAM M. LANDES & RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF TORT LAW 87, 99-100, 102 (1987) (clarifying that the correct economic standard of care requires a consideration of marginal rather than total values of costs and benefits and concluding that courts also use marginal terms when applying the Hand formula).
10. See COOTER & ULEN, supra note 4, at 326-28.
11. Cf. id. at 351 ("Eventually a case will reach the adjudicators in which further precaution is not cost-justified.").
12. See Philip E. Tedock, Thinking the Unthinkable: Sacred Values and Taboo Cognitions, 7 TRENDS COGNITIVE SCI. 320, 320-23 (2003) (describing lay people's emotional reactions to trade-offs made between sacred values, such as life and limb, and money).
13. See, e.g., Robert Cooter, Hand Rule Damages for Incompensable Losses, 40 SAN DIEGO L. REV. 1097, 1098 (2003) ("In general, the need to buy costly precaution in daily life forces people to trade off money and risk.").
14. But see GUIDO CALABRESI, THE COSTS OF ACCIDENTS 18-19 (1970) (indicating that virtually all societies refrain in some cases from explicidy balancing the monetary value of lives against monetary costs).
15. See Guido Calabresi, The Decision For Accidents: An Approach to Nonfault Allocation of Costs, 78 HARV. L. REV. 713, 716 (1965) (comparing society's willingness to spend much more than what a person's life is conceivably worth to save an identified individual from certain death with its refusal to bear the same costs where death is almost statistically certain, but the individual in question is unknown).
16. We should distinguish that latter scenario from a risk to statistical life: a small risk to many individuals that will almost certainly cause the deaths of some of them in the long run.
17. See generally Matthew D. Adler, Risk, Death and Harm: The Normative Foundations of Risk Regulation, 87 MINN. L. REV. 1293 (2003) (discussing various theories for assessing risks to life and statistical life). Sometimes public sentiment avoids creating very high risk to statistical life with almost the same intensity as creating a very high risk to a specific person's life.
18. A typical case that illustrates this latter point is Grimshaw v. Ford Motor Co., 174 Cal. Rptr. 348 (Ct. App. 1981), known as the "Ford Pinto case", where the court upheld large punitive damages against Ford Motor Company in part because "[u]nlike malicious conduct directed toward a single specific individual, Ford's tortious conduct [in failing to make inexpensive corrections to the Pinto design] endangered the lives of thousands of Pinto purchasers."
19. Grimshaw, 74 Cal. Rptr. at 388. Even though design alterations would result in 180 fewer deaths per year, Ford thought it would not be cost-justified because the new design would have cost an additional $11 per car.
20. See Gary T. Schwartz, The Myth of the Ford Pinto Case, 43 RUTGERS L. REV. 1013, 1020 (1991).
21. Cf. SHAI J. LAVI, THE MODERN ART OF DYING: A HISTORY OF EUTHANASIA IN THE UNITED STATES 134-37 (2005) (discussing lethal dosing - a practice doctors ostensibly use to help relieve patients' pain and that also hastens death - and indicating that doctors were very rarely prosecuted for using those practices).
22. With very high risk to property, courts tend to impose liability on the injurer regardless of whether his behavior was reasonable or not
23. See Vincent v. Lake Erie Transp. Co., 124 N. W. 221, 221-22 (Minn. 1910) (imposing liability on a shipowner for failing to untie his ship from the dock during a storm in order to save the ship, thereby inflicting harm on the dock);
24. Richard A. Epstein, A Theory of Strict Liability, 2 J. LEGAL STUD. 151, 168-69 (1973) (demonstrating the prevalence of strict liability in those tort cases characterized as A hit B).
25. There are some exceptional cases, where the risk to the patient was very high and the court was willing, in principle, to make some cost-benefit analysis.
26. In Canada, in Law Estate v. Simice (1994), 21 C. C. L. T. 2d 228 (Can. B. C.), the Supreme Court of British Columbia found a physician negligent for denying a potentially life-saving CT scan to a patient for financial reasons. The court reasoned that "[t]he severity of the harm mat may occur to the patient who is permitted to go undiagnosed is far greater than the financial harm that will occur to the medicare system if one more CT scan procedure only shows the patient is not suffering from a serious medical condition".
27. Simice, 21 C. C. L. T. 2d at para. 28. For a similar approach in the English context
28. see Bali v. Wirral Health Authority, (2003) 73 B. M. L. R. 31 (Eng.). There, the court dismissed a negligence suit against a hospital for lacking the adequate facilities to care for premature babies, which allegedly resulted in the plaintiffs brain damage. The court held: "In the field of medicine where resources are limited and the demands on those resources are many, it may be necessary to make difficult decisions as to how resources are to be allocated.... The fact that an area of medicine may be under-funded... or that a particular hospital may not have the facilities that another hospital has, may give rise to a concern among the general public and experts in the field;
29. but it does not necessarily provide the basis of a claim in negligence by a patient who may suffer from the effects of the under-funding or the lack of facilities."
30. Ball, 73 B. M. L. R. at para. 32. For another argument along these lines
31. see also PATRICIA M. DANZON, MEDICAL MALPRACTICE: THEORY, EVIDENCE, AND PUBLIC POLICY 143 (1985) (arguing that "the fact that social costs exceed expected benefits should be recognized as a defense against failure to take costly precautionary measures").
32. This is not a puzzle for corrective justice theorists who argue that negligence should be determined by the risks rather than by the precautions that, if taken, would have mitigated them.
33. See Ernest J. Weinrib, Correlativity, Personality, and the Emerging Consensus on Corrective Justice, 2 THEORETICAL INQUIRIES L. 107, 116-17, 130-31 (2001).
34. WTP will be limited to the individual's wealth.
35. See, e.g., Eric A. Posner & Cass R. Sunstein, Dollars and Death, 72 U. CHI. L. REV. 537, 589 & n. 159 (2005) (noting income constraints applicable to WTP and that, as the probability of risk nears 100%, WTP approaches 100% of income).
36. Notice that this conclusion seems to hold even if the victim is unidentified; as long as the victim herself knows about the risk of certain death that she is subject to, her WTA will be infinite and her WTP will be equal to her entire wealth.
37. Cf. Matthew D. Adler, Against "Individual Risk": A Sympathetic Critique of Risk Assessment, 153 U. PA. L. REV. 1121, 1198 (2005) (noting that WTP "to avoid certain death" will correspond to individual wealth, while WTA certain death "may well be infinite");
38. Adler, supra note 10, at 1400 (arguing that values of statistical life calculations "produce [] a dollar sum very different from the sum of willingness to pay/accept among those actually aware of, or afraid of, the hazard").
39. Cf. Posner & Sunstein, supra note 13, at 589 (discussing nonlinear increases in WTP and WTA as risk probability approaches 100%).
40. Although some would argue that this is not absurd, even they would agree that there exists a number above which trading would not make sense.
41. See ZAMIR & MEDINA, supra note 1, at 90-91, 95-96, for the argument that deontological constraints would sometimes require ascribing a higher social cost to high risks to life and limb than to low risks, more so than what the proportion between the high and low risks requires. Those authors admit, however, that at a certain point the low risks could be considered more socially costly than high risks.
42. Id. at 90-91, 95-96 & n. 37. Note that the authors discuss situations of deliberate killing, which could differ in many respects from the cases that we discuss in this Essay.
43. See John W. Pratt & Richard J. Zeckhauser, Willingness to Pay and the Distribution of Risk and Wealth, 104 J. POL. ECON. 747, 748 n. 2, 752-55 (1996).
44. Ariel Porat and Avraham Tabbach recently argued that a correct understanding of WTP (and WTA) would yield that only the magnitude of the risk reduced (or increased) should count for social welfare, not the pre-existing risk or the magnitude of the risk after it was reduced (or increased).
45. See Ariel Porat & Avraham Tabbach, Willingness to Pay, Death, Wealth and Damages, 13 AM. L. & ECON. REV. (forthcoming 2011) (manuscript at 9-10, 20-25) (on file with authors). It follows from their argument that, from a social perspective, it is better to eliminate a risk of 25% for ten individuals (or, even for five individuals) than a 100% risk for one individual, assuming the individuals are not identified in advance.
46. See id. For an earlier exposition of the discounting effect on WTP
47. see Pratt & Zeckhauser, supra note 17. The analysis could change if victims are identified because not saving an identified person who is under risk of certain death typically creates other social costs that are not present to the same extent when risks are lower.
48. Id. at 747-48.
49. See Porat & Tabbach, supra note 18, at 23 n. 26.
50. Cf. Jules L. Coleman, Efficiency, Utility, and Wealth Maximization, 8 HOFSTRA L. REV. 509, 11 1980) mentioning the interpersonal utility comparison problem as one basis for criticizing utilitarianism).
51. See DAN B. DOBBS, THE LAW OF TORTS 1048-49 (2000);
52. Lloyd Cohen, Toward an Economic Theory of the Measurement of Damages in a Wrongful Death Action, 34 EMORY LJ. 295, 299-300 (1985) ("All states give great weight to the earning capacity of the decedent in calculating damages.").
53. See Erin A. O'Hara, Note, Hedonic Damages for Wrongful Death: Are Tortfeasors Getting Away with Murder? 78 GEO. LJ. 1687, 1695 (1990) (criticizing the human capital approach, which measures the value of an individual's life based on lost future income discounted to present value but agreeing that "an individual's future income may be a proxy for the value that society placed upon that individual's productive capacity"). For more criticism on the human capital approach
54. see Andrew Jay McClurg, It's a Wonderful Life: The Case for Hedonic Damages in Wrongful Death Cases, 66 NOTRE DAME L. REV. 57, 100-02 (1990) (arguing that the human capital approach "undervalues life [as it disregards] variables such as the pleasure of living" and fails to take into account the social and cultural contribution of artists and other influential figures who do not increase the gross national product).
55. For a distributive justice approach on the matter
56. see Tsachi Keren-Paz, An Inquiry into the Merits of Redistribution Through Tort Law: Rejecting the Claim of Randomness, 16 CAN. J. L. & JURISPRUDENCE 91, 95 n. 20 (2003) ("Of course, the courts do not explicitly admit that the rich deserve greater protection, but perhaps they do not do so consciously. However, to the extent that courts intuitively follow the Learned Hand formula, a finding of negligence is more likely to be found where potential defendants are rich, given constant prevention costs. Moreover, if it could be proven, empirically, that courts do not apply the Hand formula in a way that affords better protection to the rich, this would be a deviation from the economic model of negligence, due to distributive considerations.").
57. The reluctance to compare lives led some philosophers to even more radical conclusions. For instance, John Taurek argued that we ought not to prefer the lives of the many over the lives of the few because we ought not to aggregate the value of different lives.
58. See John M. Taurek, Should the Numbers Count?, 6 PHIL. & PUB. AFF. 293, 293-94, 303-09 (1977). In 2006, the Federal Constitutional Court of Germany issued a similarly motivated judgment by voiding the German Aviation Security Act, which authorized the air force to shoot down a civil aircraft if " 'in the circumstances, it can be assumed' that the aircraft was to be used against human life."
59. Felix Müller & Tobias Richter, Report on the Bundesverfassungsgericht's (Federal Constitutional Court) Jurisprudence in 2005/2006, 9 GER. L. J. 161, 186 (2008). The court ruled that killing innocent people in order to save others violates basic human rights to life and human dignity.
60. See id. at 185-92;
61. see also Alon Harel & Assaf Sharon, "Necessity Knows No Law": On Extreme Cases and Un-Codifiable Necessities U. TORONTO L. J. (forthcoming) (manuscript at 1-5) (on file with authors).
62. Cf. Tsachi Keren-Paz, Private Law Redistribution, Predictability, and Liberty, 50 MCGILL LJ. 327, 336 (2005) (contrasting the restitutio in integrum principle with a redistributive rule).
63. Imagine that courts apply a standard of care tailored to the average victim's income, regardless of the actual victim's characteristics. In the absence of any errors on the part of courts and injurers, the actual level of care that injurers take towards the highincome victims would be equal to the standard of care that courts apply (because injurers will meet the standard of care, be absolved of any liability, and therefore will not invest any more in care). Toward the low-income victims, injurers would take a lower level of care than the standard that courts would apply (because injurers will not invest in care beyond the point where the costs of precaution equal the marginal reduction in the expected harm and since they would reach that point before satisfying the standard of care). Although accounting for courts' and injurers' errors complicates the analysis, the gap between the levels of care that injurers take toward the high-income and the low-income victims still remains. For further analysis
64. see Ariel Porat, Misalignments in Tort Law, 121 YALE LJ. (forthcoming 2011) (manuscript at Part II) (on file with author).
65. See supra note 23.
66. Cf. Posner & Sunstein, supra note 13, at 594-95 (arguing that the value of statistical lives, based on WTP, should be less for the poor than the rich but acknowledging the "intense controversy over valuing the lives of the rich more than the lives of the poor").
67. For a more detailed explanation of why wealth should not be a factor in valuing people's lives
68. see Porat & Tabbach, supra note 18, at 20-31.
69. Or should employers be able to purchase the right to harass their employees by paying higher wages to those employees who agree to sell their right not to be harassed?
70. See supra Part LA.
71. See DOBBS, supra note 21, at 1108 (asserting that direct sexual harassment by an employer, as well as an employer's failure to deal with sexual harassment by coemployees, creates "a strong claim for tort liability based on intentional infliction of emotional distress or the like").
72. A small number of states have criminalized sexual harassment.
73. See, e.g., DEL. CODE ANN. tit. 11, § 763 (2007) (determining that a person is guilty of sexual harassment if he "threatens to engage in conduct likely to result in the commission of a sexual offense against any person" and defining sexual harassment as an "unclassified misdemeanor");
74. see also TEX. PENAL CODE ANN. § 39.03 (West 1974) (imposing criminal liability on a public servant who "intentionally subjects another to sexual harassment" and defining sexual harassment as "unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature"). Certain forms of sexual harassment are recognized as a violation of Title VII of the Civil Rights Act of 1964, which forbids employers from discriminating against employees, inter alia, on the basis of sex.
75. See Meritor Sav. Bank v. Vinson, 477 U. S. 57, 65-66 (1986) (ruling that sexual harassment leading to noneconomic injury can be classified as sex discrimination prohibited by Tide VII and that "a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment");
76. see also Harris v. Forklift Sys., Inc., 510 U. S. 17, 21-22 (1993) (emphasizing that sexual harassment on the basis of a hostile work environment is a violation of Title VII).
77. See John J. Donohue, Antidiscrimination Law, in 2 HANDBOOK OF LAW AND ECONOMICS 1387, 1455 (A. Mitchell Polinsky & Steven Shavell eds., 2007) (noting the increase in sexual harassment claims brought by men).
78. See id. ("[I]f hiring a woman has some chance of imposing an erroneous large monetary penalty plus the stigma of sex harassment liability, that prospect will serve as another burden associated with hiring American workers in general and women in particular.");
79. Richard A. Posner, Employment Discrimination: Age Discrimination and Sexual Harassment, 19 INT'L REV. L. & ECON. 421, 443 (1999) ("[A] law forbidding sexual harassment may not on balance benefit the protected group. It may make employers more reluctant to hire women in jobs in which sexual harassment is likely....");
80. see also Alex Kozinski, Foreword to BARBARA LINDEMANN & DAVID D. KADUE, SEXUAL HARASSMENT IN EMPLOYMENT LAW, at v, x (1992) ("[A]s sexual harassment litigation becomes more common, male managers may end up presupposing that every time they appoint a woman to a position that brings her into close personal contact, they hand her a loaded gun with which she can blow away their careers.");
81. Justin P. Smith, Letting the Master Answer Employer Liability For Sexual Harassment in the Workplace After Faragher and Burlington Industries, 74 N. Y. U. L. REV. 1786, 1823 (1999) ("[E]mployers may prefer to hire those who are at less risk of harassment or who have a greater tolerance for it. The result may well be socially unacceptable employment segregation by sex - the very result that Title VII was meant to remedy.");
82. Margaret Y. K. Woo, Biology and Equality: Challenge for Feminism in the Socialist and the Liberal State, 42 EMORY L. J. 143, 175 (1993) ("[A]s demonstrated by the history of American legislation on women and work, protective legislation may also diminish equality of opportunity for women. Indeed, the regulations do not sufficiently address the problems of discriminatory hiring and occupational segregation, and may actually aggravate these problems." (footnote omitted)).
83. Cf. Eyal Zamir & Barak Medina, Law, Morality, and Economics: Integrating Moral Constraints with Economic Analysis of Law, 96 CALIF. L. REV. 323, 368 (2008) ("The moral constraint against discrimination dictates that prohibiting discrimination can be justified even if the prohibition imposes a social cost that exceeds its benefit"). For a more detailed discussion of discrimination and the conditions under which it could be justified
84. see ZAMIR & MEDINA, supra note 1, at 225-56.
85. See, e.g., Byrd v. Richardson-Greenshields Sec., Inc., 552 So. 2d 1099, 1104 (Fla. 1989) ("While workplace injuries rob a person of resources, sexual harassment robs the person of dignity and self esteem. Workers' compensation addresses purely economic injury;
86. sexual harassment laws are concerned with a much more intangible injury to personal rights.");
87. *1 (Cal. Super. Ct. Nov. 28, 1994) ("Sexual harassment strips the victim of dignity and self-respect. Such harassment is degrading and dehumanizing. It cannot be tolerated, and the law does not do so.").
88. Cf Adrian Vermeule, Libertarian Panics, 36 RUTGERS LJ. 871, 885 (2005) (relating the conflict between security and liberty and stressing that "[t]he problem from the social point of view is one of optimization: it is to choose the point along the frontier that maximizes the joint benefits of security and liberty... Neither security nor liberty is lexically prior; no claims of the type 'liberty is priceless' or 'security at all costs' will be admitted.");
89. Jonathan Wolff, Fairness, Respect, and the Egalitarian Ethos, 27 PHIL. & PUB. AFF. 97, 120-22 (1998) (arguing from an egalitarian perspective that when tension is created between two equally important values, society should generate a "dynamic balance" between them and refrain from treating either one with lexical priority).
90. Cf. Richard A. Posner, An Economic Analysis of Sex Discrimination Laws, 56 U. CHI. L. REV. 1311, 1335 (1989) ("It is possible that the economic costs of sex discrimination law are offset by gains not measured in an economic analysis - gains in self-esteem, for example.").
91. However, Judge Posner comments, "it is not clear that, if the canvass is broadened in this fashion, the picture brightens."
92. Id.
93. see also John J. Donohue III, Prohibiting Sex Discrimination in the Workplace: An Economic Perspective, 56 U. CHI. L. REV. 81337, 1349 (1989) ("[T]he societal pronouncement that women are equal to men, as well as legislated protections against harassment and other indignities, may elevate women's self-esteem and improve life on the job to such a degree that both the demand and the supply curves for female labor shift.").
94. See Kozinski, supra note 35, at xi-xii (discussing means other than litigation for combating sexual harassment, such as "moral suasion", employee training, and effective grievance procedures).
95. For a deontological approach that strictly rejects torture regardless of the circumstances
96. see Thomas Nagel, War and Massacre, 1 PHIL. & PUB. AFF. 123 (1972)
97. reprinted in WAR AND MORAL RESPONSIBILITY 3, 22-23 (Marshall Cohen, Thomas Nagel & Thomas Scan-Ion eds., 1974) (stating that "the most serious of the prohibited acts, like murder and torture... are supposed never to be done, because no quantity of resulting benefit is thought capable of justifying such treatment of a person");
98. Jeremy Waldron, Torture and Positive Law: Jurisprudence for the White House, 105 COLUM. L. REV. 1681, 1726-39 (2005) (arguing that the prohibition on torture functions as an "archetype" in the legal system, embodying a core principle of nonbrutality);
99. see also Rosa Ehrenreich Brooks, The New Imperialism: Violence, Norms, and the "Rule of Law", 101 MICH. L. REV. 2275, 2316-18 (2003) (arguing that human rights law prohibits torture without exception because "[i]t is trying to make a statement about the moral meaning of human action" and that "[i]t is not in fact terribly interested in anyone's death or suffering" but is instead "[m]osdy... concerned with how we live our lives")). A different deontological approach supports strict prohibition on torture, with an exception for "catastrophic harms" cases.
100. See Oren Gross, Are Torture Warrants Warranted? Pragmatic Absolutism and Official Disobedience, 88 MINN. L. REV. 1481, 1487 (2004) (arguing that torture must be strictly prohibited but may also be morally defensible ex post in "truly exceptional cases" when public officials act extralegally in order to prevent catastrophic harms;
101. see also Sanford Levinson, "Precommitment" and "Postcommitment": The Ban on Torture in The Wake of September 11, 81 EX. L. REV. 2013, 2052 (2003) ("Given the gravity of the terrorist threat, vigorous questioning short of torture - prolonged interrogation, mild sleep deprivation, perhaps the use of truth serum - might be justified in some cases.")
102. (quoting Editorial, Is Torture Ever Justified?, THE ECONOMIST, Jan. 11, 2003, at 11).
103. See, e.g., ALAN M. DERSHOWITZ, WHY TERRORISM WORKS 142-63 (2002) (discussing different arguments in favor of and opposing the use of torture "as a last resort to prevent a ticking bomb from exploding");
104. Eric A. Posner & Adrian Vermeule, Should Coercive Interrogation Be Legal? 104 MICH. L. REV. 671, 681 (2006) (arguing that "the legal system should authorize interrogation in some narrow range of circumstances, suitably defined and regulated ex ante").
105. See also generally Symposium on the Report of the Commission of Inquiry into the Methods of Investigation of the General Security Service Regarding Hostile Terrorist Activity, 23 ISR. L. REV. 141 (1989) (collecting comments and reviews by, among others, Alan M. Dershowitz, Sanford H. Kadish, Michael S. Moore, and Paul H. Robinson concluding torture could be permissible in a narrow, limited range of circumstances).
106. See John T. Parry & Welsh S. White, Interrogating Suspected Terrorists: Should Torture Be an Option?, 63 U. PITT. L. REV. 743, 761-62 (2002) (acknowledging that "under extreme 'ticking time bomb' circumstances, torture may be the least worse choice", but arguing that "legalizing torture would create administrative difficulties that would raise further moral issues");
107. Cass R. Sunstein, Fear and Liberty, 71 SOC. RES. 967, 989-90 (2004) ("[A] flat prohibition on torture, one that forbids balancing in individual cases, might be justified on the basis of a kind of second-order balancing. It might be concluded not that torture is never justified in principle, but that unless torture is entirely outlawed, government will engage in torture in cases in which it is not justified, that the benefits of torture are rarely significant, and that the permission to torture in extraordinary cases will lead, on balance, to more harm than good.");
108. see also Marcy Strauss, Torture, 48 N. Y. L. SCH. L. REV. 201, 271-74 (2003) ("If rules are promulgated permitting torture in a 'ticking bomb scenario', torture will become the norm rather than the exception, particularly when dealing with anyone suspected of terrorist ties.... Only an absolute ban on torture without exception will enable this nation to resist the impulse to ignore critical core values in favor of an elusive security."). For negating second-order considerations that support a flat ban on coercive interrogation
109. see Posner & Vermeule, supra note 42, at 683-93.
110. Cf. Meir Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 HARV. L. REV. 625, 630-34 (1984) (discussing "acoustic separation" - having courts apply decision rules whose contents are not first communicated to the citizens - and the advantages of such a hypothetical system in minimizing conflicts between decision rules and conduct rules).
111. For a discussion on lexical priority of rights as opposed to utilitarian commensurability
112. see Jeremy Waldron, Rights in Conflict, 99 ETHICS 503, 509-15 (1989). The idea of "lexical order"
113. is explained in JOHN RAWLS, A THEORY OF JUSTICE 42-44 (1971). By analogy, Eyal Zamir and Barak Medina's recent book defends the idea of "threshold deontology", which grants deontological constraints priority over law and economics cost-benefit analysis but gives the latter priority over the former when the costs of not following the cost-benefit analysis reaches a certain threshold.
114. See ZAMIR & MEDINA, supra note 1, at 1-8, 79-104. The authors apply their theory to several fields of the law.
115. See id. at 127-311 (applying threshold deontology to the fight against terrorism, freedom of speech, antidiscrimination law, and contract law).
116. See supra Part I. A.
117. See RESTATEMENT (SECOND) OF TORTS § 519 & cmt. d (1977). Nevertheless, recognition of contributory or comparative fault results in the need to estimate the injurer's fault.
118. See, e.g., Nat'l Marine Serv., Inc. v. Petroleum Serv. Corp., 736 F.2d 272, 276 (5th Cir. 1984) (noting that in applying comparative fault in federal maritime products cases, "the plaintiffs fault must be compared with the fault of a strictly liable defendant").
119. DOBBS, supra note 21, at 950.
120. See supra Part I. B.
121. See supra notes 23-29 and accompanying text.
122. See supra Part I. C.
123. Cf. supra note 45 (discussing Zamir and Medina's threshold deontology theory).
124. See Sunstein, supra note 43, at 983 ("Courts are not, to say the least, in a good position to know whether restrictions on civil liberty are defensible. They lack the factfinding competence that would enable them to make accurate assessments of the dangers.... [U]nder the pressure of the moment, courts are likely to... favor[] the government, even when [they should] not").
125. See id. at 977 ("In the context of threats to national security, it is predictable that governments will infringe on civil liberties without adequate justification. ").
126. Adrian Vermeule discusses the view, often associated with Sunstein, that "decisionmakers who are subject to security panics ought not engage directly in balancing that attempts to strike the optimal tradeoff between liberty and security."
127. Vermeule, supra note 38, at 885. According to Vermeule, "[t]he institutional solution, on this view, is to deny front-line decisionmakers the authority to engage in direct or first-order balancing of liberty and security" in favor of "'second-order balancing', under which civil liberties are overprotected through second-best rules that mitigate the risk of error in the first-order calculus."
128. Id. Vermeule then continues: "[T]he argument for second-order balancing goes beyond an abstract claim that rules may correct for the errors that decisionmakers commit under first-order balancing. In this setting, the argument for second-order balancing is an argument not only for rules, but for rules with a distinctly libertarian slant - a kind of second-best libertarianism. The idea is to build into the second-order rules a skew in favor of liberty that will compensate for predictable pressures towards overweighting security - pressures such as security panics."
129. Id. at 886.
130. See Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175, 1179 (1989) (arguing that establishing a "clear, general principle of decision" promotes uniformity injudicial decisions and advances predictability);
131. Frederick Schauer, Formalism, 97 YALE L. J. 509, 543 (1988) ("[I]t is clearly true that rules get in the way, but this need not always be considered a bad tiling.... [I]t may be an asset to restrict misguided, incompetent, wicked, power-hungry, or simply mistaken decisionmakers whose own sense of the good might diverge from that of the system they serve.").
132. Cf. Barak Medina, Shlomo Naeh & Uzi Segal, Ranking Ranking Rules 6-17 (June 20, 2010) (unpublished manuscript) (on file with authors) (discussing nontransitivity both in the Talmud and modern law and its goals).
133. See supra note 42 and accompanying text.
134. This amount is below regulatory agencies' valuations of human life, which typically range between $5 million and $6.5 million per life.
135. See Posner & Sunstein, supra note 13, at 549-51.
136. Our argument resembles a similar argument that others use to justify inalienability rules. That argument explains that society should sometimes avoid commodifications of certain values.
137. See Margaret Jane Radin, Market-Inalienability, 100 HARV. L. REV. 1849, 1884-85 (1987). However, although Radin's argument is motivated by the harm done by markets
138. see id. at 1877-87, our argument is motivated by the harm done by the law when it incorporates some types of comparisons
139. compare Tsilly Dagan, Commodification Without Money, 11 THEORETICAL INQ. L. F. 9, 10-14 (2010), available at http://services.bepress. com/tilforum/vol11/iss1/ (explaining how the commodification objection, which is
140. see ANDERSON, supra note 2, at 190-216.
141. See Tedock, supra note 7, at 322 (describing experiments which show that lay people are more tolerant to trade-offs between two sacred resources - life of one patient in a hospital versus the life of another patient in the same hospital - than to trade-offs between sacred resources and money, such as the life of a patient in a hospital versus $1 million dollars).
142. But notice that refraining the allocation of resources problem in the hospital could mitigate the commodification concern at the outset.
143. An alternative explanation for the nontransitivity challenge with respect to the torture example is that there is a qualitative difference between "torturing for saving life" and "torturing for saving money" - in other words, that the two "bads" have different intrinsic (negative) values. This alternative explanation is inconsistent with the commensurability premise.
144. See supra text accompanying note 43.
145. See A. Mitchell Polinsky, Private Versus Public Enforcement of Fines, 9 J. LEGAL STUD. 105, 107-08 (1980) (comparing monopolistic, competitive, and public methods of enforcement and concluding that "any of the methods of enforcement may be socially preferable, depending on the costs of each method as well as on the magnitude of the external damage").
146. See John J. DiIulio, Jr., What's Wrong with Private Prisons, 92 PUB. INT. 66, 68 (1988) (stressing that "soaring inmate populations and caseloads!,] escalating costs", and public enforcement's inefficiency are the main problems that privatization of prisons can address);
147. Polinsky, supra note 63, at 105, 107-08;
148. see also Steven Shavell, The Optimal Structure of Law Enforcement, 36 J. L. & ECON. 255, 268-69 (1993) (examining criminal enforcement from an economic perspective and finding that public enforcement may be justified in cases where the identity or location of the criminal is not known to any private party and will require effort and expense to determine). (Pubitemid 24757382)
149. See Michael N. Schmitt, Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees, 5 CHI. J. INT'L L. 511, 513-18 (2005) (elaborating on the advantages of outsourcing military security projects to private contractors, which normally reduces costs and increases efficiency);
150. see also Mark Calaguas, Military Privatization: Efficiency or Anarchy?, 6 CHI.-KENT J. INT'L & COMP. L. 58, 67 (2006) ("Proponents of private military contracting usually cite cost reduction and efficiency as reasons to outsource a growing number of activities to independent companies."). Calaguas, however, comments that "[n]o definitive study has shown that the practice actually saves the military any money, "
151. id. at 69 & n. 73 (citing Interview by FRONTLINE with Steven Schooner, Law Professor, George Washington Sch. of Law and former Assoc. Adm'r for Procurement Law and Legislation, Office of Federal Procurement Pol'y (May 19, 2005; air date June 21, 2005), available at http://www.pbs.org/wgbh/pages/ frontline/shows/warriors/interviews/schooner.html) (last visited March 11, 2010), but then suggests that war is about effectiveness, and that "[n]evertheless, the lines between economy, efficiency, and effectiveness oftentimes are blurry, "
152. id. at 69. Efficiency in this context ought to be understood broadly to include flexibility and speediness.
153. See Interview with Steven Schooner, supra.) ("Many people think about outsourcing primarily as a tool to save money. The other way to think about it is sometimes the government pays more money for greater flexibility or greater capacity or better services or services that could be provided more quickly.").
154. See, e.g., Alon Harel, Why Only the State May Inflict Criminal Sanctions: The Argument from Moral Burdens, 28 CARDOZO L. REV. 2629, 2634 (2007) ("If state-inflicted sanctions are justified simply on the grounds that the state is better in calibrating the sanctions or inflicting them, it follows that when circumstances change and private individuals are shown to be able to inflict the sanction as well as the state, the agent who ought to be in charge of inflicting sanctions ought to be changed accordingly.");
155. cf. sources cited supra notes 63-65 (discussing suitability of public and private entities to carry out respective tasks).
156. See U. S. CONST, art. I, §§ 1, 8.
157. But see Talia Fisher, Nomos Without Narrative, 9 THEORETICAL INQ. L. 473, 474-86, 501-02 (2008) (presenting arguments in favor of privatization of the law, including the "law production power", and comparing privatization of the law and multiculturalism as two decentralization paradigms that challenge the monopolist concentration of law production power in the hands of the state).
158. Cf. U. S. CONST, art. III, §§ 1, 2 (vesting judicial power of the United States in the courts);
159. Mistretta v. United States, 488 U. S. 361, 396 (1989) (noting that the "substantive judgment in the field of sentencing has been and remains appropriate to the Judicial Branch").
160. See THOMAS HOBBES, LEVIATHAN 183 (Michael Oakeshott ed., Collier Books 1962) (1651) ("Public ministers are also all those, that have authority from the sovereign, to procure the execution of judgments given; to publish the sovereign's commands; to suppress tumults; to apprehend, and imprison malefactors; and other acts tending to the conservation of the peace. For every act they do by such authority, is the act of the commonwealth; and their service, answerable to that of the hands, in a body natural.").
161. For a more recent perspective, see John J. DiIulio, Jr., The Duty to Govern: A Critical Perspective on the Private Management of Prisons and Jails, in PRIVATE PRISONS AND THE PUBLIC INTEREST 155, 175 (Douglas C. McDonald ed., 1990) ("At a minimum, it can be said that, both in theory and in practice, the formulation and administration of criminal laws by recognized public authorities is one of the liberal state's most central and historic functions; indeed, in some formulations it is the liberal state's reason for being.").
162. See supra notes 67-68 and infra Part II. B.
163. See, e.g., PAUL R. VERKUIL, OUTSOURCING SOVEREIGNTY 26-30 (2007) (discussing outsourcing of traditional military functions to private contractors).
164. There are two evident manifestations of the privatization of punishment: the rise in the use of shaming penalties (which are ultimately private sanctions because they are in effect inflicted by individuals) and the rise of private prisons. With respect to the first
165. see Dan M. Kahan & Eric A. Posner, Shaming White-Collar Criminals: A Proposal for Reform of the Federal Sentencing Guidelines, 42 J. L. & ECON. 365, 368-80 (1999)
166. and Dan M. Kahan, What Do Alternative Sanctions Mean?, 63 U. CHI. L. REV. 591, 631-49 (1996). For a discussion of private prisons (Pubitemid 126408719)
167. see CHARLES H. LOGAN, PRIVATE PRISONS: CONS AND PROS 4 (1990).
168. For a discussion of the rise in private militarized firms and their greater role in wars
169. see generally P. W. Singer, Corporate Warriors: The Rise of the Privatized Military Industry and Its Ramifications for International Security, 26 INT'L SECURITY 186 (2001) (discussing the rise and implications of privatized military firms);
170. P. W. Singer, Wars, Profits, and the Vacuum of Lam: Privatized Military Firms and International Law, 42 COLUM. J. TRANSNAT'L L. 521 (2004) (discussing the limited applicability of international law to privatized military firms).
171. See Laura A. Dickinson, Public Law Values in a Privatized World, 31 YALE J. INT'L L. 383, 384 (2006) ("While advocates of privatization have generally argued for the practice on efficiency grounds, critics have worried that, even if privatization may cut financial costs, it can threaten important public law values." (footnote omitted)).
172. JOHN LOCKE, TWO TREATISES OF GOVERNMENT § 13, at 293-94 (Peter Laslett ed., Cambridge Univ. Press 1960) (1690).
173. See Alon Harel, Outsourcing Violence 8-9 (June 2, 2010) unpublished manuscript) (on file with author);
174. cf. DiIulio, supra note 64, at 71-75 (recounting history of private corrections facilities in the United States and objections to privatization based on historical experience).
175. The Israeli Supreme Court adopted these concerns in Academic Center of Law & Business v. Minister of Finance [2009] (Isr.) (Nov. 19, 2009), available at http://elyonl.court.gov. il/files-eng/05/050/026/n39/05026050.n39. htm. There, the court declared unconstitutional the law authorizing the establishment of a private prison because the establishment of such a prison would be incompatible with human dignity.
176. HCJ 2605/05 Academic Ctr. of Law & Bus. v. Minister of Fin. para. 34-39 [2009] (Isr.), available at http://elyonl.court.gov. il/files-eng/05/050/ 026/n39/05026050.n39.htm.
177. See sources cited supra note 76.
178. See Harel, supra note 76, at 8;
179. see also supra note 74.
180. Harel, supra note 76, at 8;
181. See VERKUIL, supra note 71, at 1, 40-41 ("A government appointment creates a public servant who, whether through the oath, the security clearance, the desire to achieve public goals, or the psychic income of service, is different from those in the private sector.").
182. See SARAH PERCY, MERCENARIES: THE HISTORY OF A NORM IN INTERNATIONAL RELATIONS 1-2 (2007) (surveying the norm against the use of mercenaries and the privatization of wars). In the contemporary legal context, Paul Verkuil voices such noninstrumental concerns to privatization.
183. See generally Paul R. Verkuil, Public Law Limitations on Privatization of Government Functions, 84 N. C. L. REV. 397 (2006) (discussing limitations and concerns regarding privatization).
184. We leave for another occasion the task of establishing that sometimes there are nonconsequentialist considerations supporting the selection of a private agent over a public one.
185. U. S. CONST, art I, §§ 1, 8.
186. Id. art II, §§ 1, 2.
187. Cf. LOCKE, supra note 75, at § 141, 380-81 (asserting that the legislative power is a delegated power from the people and cannot be transferred).
188. Federal Activities Inventory Reform Act of 1998, 31 U. S. C. § 501 note (2006).
189. Id. Somewhat different wording can be found in the Office of Management and Budget (OMB) Circular No. A-76, which defines an inherently governmental activity (as opposed to function) as "an activity that is so intimately related to the public interest as to mandate performance by government personnel." OFFICE OF MGMT. & BUDGET, CIRCULAR NO. A-76 REVISED, PERFORMANCE OF COMMERCIAL ACTIVITIES, at B-1 (a) (May 29, 2003). Although the FAIR Act provides that the term encompasses activities requiring "the exercise of discretion in applying Federal Government authority, "
190. U. S. C. § 501 note, sec. 5 (2) (B), OMB Circular A-76's formulation of the term only includes requiring "the exercise of substantial discretion, "
191. OMB CIRCULAR A-76, supra ax. B-1 (b) (emphasis added). Noting this divergence, in 2010 the OMB's Office of Federal Procurement Policy proposed a policy letter that would adopt the FAIR Act formulation "as the single, government-wide definition" of an inherently governmental function.
192. Work Reserved for Performance by Federal Government Employees, 75 Fed. Reg. 16, 188, 16, 190 (Mar. 31, 2010).
193. Presidential Memorandum of March 4, 2009: Government Contracting, Memorandum for the Heads of Executive Department and Agencies
194. Fed. Reg. 9, 755, 9, 755-56 (Mar. 6, 2009).
195. FAIR Act § 5 (2) (B)
196. U. S. C. § 501 note. Furthermore, the next paragraph - section (C) - describes the "functions excluded" from the definition of inherently governmental functions.
197. See Nat'l Air Traffic Controllers Ass'n v. Lahood, No. 1:99-CV-1152, 2009
198. z.ast; 5 (N. D. Ohio Dec. 11, 2009) (noting that "[i]n 2005, this court held that 'Level IATC [air traffic control] is not an inherently governmental function'");
199. see also Nat'l Air Traffic Controllers Ass'n v. Pena, No. 95-3016, 1996
200. z.ast;; 12-15 (6th Cir. Mar. 7, 1996) (holding that air traffic controllers had standing to challenge FAA's privatization of services because the controllers' interest in ensuring that the FAA did not privatize inherently governmental functions was in zone of interests protected by the Office of Federal Procurement Policy Act Amendments of 1979 and reflected in OMB Circular A-76);
201. Nat'l Air Traffic Controllers Ass'n v. Slater, No. 1:99-CV-01152, 2006
202. z.ast; 8-12 (N. D. Ohio Feb. 23, 2006) (concluding that the FAA failed to comply with OMB Circular A-76 because the record lacked any explanation for its determination that all ATC work was not inherently governmental, but noting that "it is not the place of the court to make that determination [of inherently governmental or not] in the first instance").
203. In a different context, the courts frequently make determinations as to whether something is or is not a governmental function when deciding whether a defendant is entitled to some sort of official immunity.
204. See Martin v. Halliburton, 618 F.3d 476, 484 (5th Cir. 2010) (concluding that the court lacked jurisdiction to review the trial court's denial of defendant's official immunity defense because the immunity defense is applicable only in the performance of official duties that are discretionary, and the relevant regulations barred the defendants, private contractors, from performing inherently governmental functions, which are by their nature discretionary);
205. Takle v. Univ. of Wis. Hosp. & Clinics Auth., 402 F.3d 768, 770-72 (7th Cir. 2005) (determining that "[t]here is nothing inherently governmental about a hospital" and thus that the hospital was not entitled to sovereign immunity).
206. The FAIR Act and OMB Circular A-76, however, only provide limited bases for judicial review of agency decisions as to whether to privatize certain activities and whether such activities are inherendy governmental or commercial.
207. See Verkuil, supra note 80, at 452-54. Of course, "[g]eneralized judicial review provisions of the APA [Administrative Procedure Act] are available."
208. Id. at 452 (footnote omitted).
209. See id. at 455 ("[Whether to privatize inherently governmental functions] is a political question that implicates the doctrine of separation of powers.").
210. CI. Ct. 703, 706 (1985).
211. See Arrowhead Metals, 8 CI. Ct. at 706 ("Article 1, Section 8, clause 5 of the United States Constitution confers on Congress the power 'To coin money.' Thus, it is not unreasonable to view broadly the coining of money to be a government function. ").
212. See id. at 714 (holding that "it was rational and within the Mint's discretion to determine that [the] issue [of whether blanking was an inherently governmental function] deserved further study").
213. See id. (deferring to the Mint's classification).
214. See Verkuil, supra note 80, at 421 ("[T]he constitutional theories that might be employed to secure against this threat, such as the nondelegation doctrine, have been around for a long time. In addition, statutory provisions, such as the Subdelegation Act and judicial review provisions of the APA, can also play a role in controlling delegations to private hands.").
215. See supra notes 67, 82 and accompanying text
216. But see Fisher, supra note 67, at 474-83 (describing three theoretical law models opposing a state monopoly on law production);
217. Verkuil, supra note 80, at 433 n. 194 ("The nondelegation doctrine has been concerned with the transfer of legislative power to the executive branch, more than with the transfer of legislative power to private hands." (internal citation omitted)).
218. For the roots of this approach
219. see LOCKE, supra note 75, § 141, at 380-81 (asserting that "[t]he Legislative cannot transfer the Power of Making Laws to any other hands. For it being but a delegated Power from the People, they, who have it, cannot pass it over to others.... And when the People have said, We will submit to rules, and be govern'd by Laws made by such Men, and in such Forms, no Body else can say other Men shall make Laws for them; nor can the people be bound by any Laws but such as are Enacted by those, whom they have Chosen, and Authorised to make Laws for them"). For a more recent treatment
220. see David Lanham, Delegation of Governmental Power to Private Parties, 6 OTAGO L. REV. 50, 52 (1985) ("One aspect of the rule against delegation is that a rule-making power may not be delegated."). Several Supreme Court decisions in the 1930s endorsed the nondelegation doctrine in the context of private bothes.
221. In Carter v. Carter Coal Co., 298 U. S. 238, 311 (1936), the Supreme Court struck down the Bituminous Coal Conservation Act (also known as the Guffey-Snyder Coal Act). The Act established a commission composed of miners, coal producers, and the public to regulate fair competition, production standards, minimum wages, work hours, and labor relations in the coal industry.
222. Id. at 281-83, 310. In finding the act unconstitutional, the Court held that "[t]he power conferred upon the majority is, in effect, the power to regulate the affairs of an unwilling minority. This is legislative delegation in its most obnoxious form; for it is not even delegation to an official or an official body, presumptively disinterested, but to private persons whose interests may be and often are adverse to the interests of others in the same business.... And a statute which attempts to confer such power undertakes an intolerable and unconstitutional interference with personal liberty and private property."
223. Id. at 311.
224. In A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495, 537-42 (1935), the Court unanimously held that the National Industrial Recovery Act, a main component of President Roosevelt's New Deal, which allowed private trade and industrial groups to write local codes for trade, was unconstitutional. In delivering the Court's opinion, Chief Justice Hughes wrote: "The Government urges that the codes will 'consist of rules of competition deemed fair for each industry by representative members of that industry - by the persons most vitally concerned and most familiar with its problems.'... But would it be seriously contended that Congress could delegate its legislative authority to trade or industrial associations or groups so as to empower them to enact the laws they deem to be wise and beneficent for the rehabilitation and expansion of their trade or industries?... The answer is obvious. Such a delegation of legislative power is unknown to our law and is utterly inconsistent with the constitutional prerogatives and duties of Congress."
225. Id. at 537;
226. see also Lisa Schultz Bressman, Schechter Poultry at the Millennium: A Delegation Doctrine for the Administrative State, 109 YALE L. J. 1399, 1427-28 (2000) ("[T]he new delegation doctrine... prevents private parties from effectively assuming lawmaking authority.... [P]rivate lawmaking has a tendency to produce regulation that both interferes with individual liberty for suspect public purposes and inadequately reflects a broad public purpose to justify such interference. In this regard, private lawmaking is undemocratic even if it can be said to be efficient or rational on some other grounds.").
227. See generally Verkuil, supra note 80, at 425-26 & n. 52 (discussing nondelegable duties, including the legislature's duty to vote on bills).
228. See id. at 425-26, 449;
229. see also U. S. CONST, art. I, § 8;
230. art. II, § 2.
231. Of course, this decision is made in conjunction with the legislature, which has sole authority to define criminal offenses and prescribe punishment
232. See Whalen v. United States, 445 U. S. 684, 689 (1980).
233. We do not deny that legitimacy-based considerations are sometimes parasitic on the efficacy of the institution to make the right decisions. Yet we think that at least some legitimacy-based considerations are not parasitic. In particular, we establish the existence of nonparasitic legitimacy-based considerations in the context of the infliction of criminal sanctions.
234. See James Q. Whitman, What is Wrong with Inflicting Shame Sanctions?, 107 YALE L. J. 1055, 1087-92 (1998).
235. See supra notes 74-80, 96-99;
236. see also HCJ 2605/05 Academic Ctr. of Law & Bus. v. Minister of Fin. [2009] (Isr.), available at http://elyonl.court.gov. il/files-eng/05/050/026/ n39/05026050.n39.htm ("[W]hen the power to deny the liberty of the individual is given to a private corporation, the legitimacy of the sanction of imprisonment is undermined, since the sanction is enforced by a party that is motivated first and foremost by economic considerations - considerations that are irrelevant to the realization of the purposes of the sentence, which are public purposes.");
237. DiIulio, Jr., supra note 64, at 79 ("In my judgment, to remain legitimate and morally significant, the authority to govern behind bars, to deprive citizens of their liberty, to coerce (and even kill) them, must remain in the hands of government authorities.... [T]he message that 'those who abuse liberty shall live without it' is the philosophical brick and mortar of every correctional facility. That message ought to be conveyed by the offended community of law-abiding citizens, through its public agents, to the incarcerated individual.").
238. See Eyal Benvenisti & Ariel Porat, Implementing the Law by Impartial Agents: An Exercise in Tort Law and International Law, 6 THEORETICAL INQ. L. 1, 4-8 (2005) (discussing the characteristics of an instrumentally good agent).
239. We borrow this example from Alon Harel, Why Only the State May Inflict Criminal Sanctions: The Case Against Privately Inflicted Sanctions, 14 LEGAL THEORY 113, 121 (2008) [hereinafter Harel, Privately Inflicted Sanctions].
240. See PAMELA BARMASH, HOMICIDE IN THE BIBLICAL WORLD 24 (2005).
241. Harel, Privately Inflicted Sanctions, supra note 106, at 121;
242. see William Ian Miller,. Choosing the Avenger: Some Aspects of the Bloodfeud in Metheval Iceland and England, 1 LAW and HIST. REV. 159, 162-68 (1983) (stressing that in medieval England and Iceland, "[t]he duty to take up the feud or the liability to suffer its consequences was largely a function of kinship", and elaborating on the kinship conditions which constitute a right to perform the killing).
243. z.ast; 452-53.
244. Anne McGillivray, 'He'll Learn It on His Body': Disciplining Childhood in Canadian Law, 5 INT'L J. CHILD. RTS. 193, 202 (1997). For a short description of the common law rules concerning physical disciplining of children
245. see id. at 201-06.
246. Justice Wilson stressed a similar point in her concurring opinion in the leading Canadian case on necessity.
247. See Perka v. The Queen, [1984] 2 S. C. R. 232, 276 (Can.) (Wilson, J., concurring). Justice Wilson argued that justified necessity can apply in cases in which "it is necessary to rescue someone to whom one owes a positive duty of rescue."
248. Id. (Wilson, J., concurring). In Justice Wilson's view, such a justification would not apply to strangers to whom one does not owe such a duty.
249. Id. (Wilson, J., concurring). It is unclear from the decision, however, whether the reason for not allowing strangers to invoke the defense of necessity is grounded, according to the Justice's view, in instrumental or noninstrumental grounds.
250. Cf. Ingraham v. Wright, 430 U. S. 651, 662 (1977) ("Although the early cases viewed the authority of the teacher as deriving from the parents, the concept of parental delegation has been replaced by the view - more consonant with compulsory education laws - that the State itself may impose such corporal punishment as is reasonably necessary for the proper education of the child and for the maintenance of group discipline." (footnote and internal quotation marks omitted));
251. Johnson v. Dep't of Soc. Servs., 177 Cal. Rptr. 49, 53 (Ct. App. 1981) (acknowledging the right of parents to discipline children but distinguishing it from "the delegation by the parents to third parties... of the rights of discipline by corporal punishment" in upholding a regulation prohibiting corporal punishment by daycare centers).
252. Joel Feinberg, The Expressive Function of Punishment, in A READER ON PUNISHMENT 73, 74 (R. A. Duff &: David Garland eds., 1994).
253. See id. at 76.
254. See Harel, Privately Inflicted Sanctions, supra note 106, at 121.
255. See HCJ 2605/05 Academic Ctr. of Law & Bus. v. Minister of Fin. [2009] (Isr.), available at http://elyonl.courtgov. il/files-eng/05/050/026/n39/ 05026050.n39.htm.
256. See SYD DERNLY WITH DAVID NEWMAN, THE HANGMAN'S TALE: MEMOIRS OF A PUBLIC EXECUTIONER 48-51 (1989).
257. Cf. Jennifer Gonnerman, The Last Executioner, VILLAGE VOICE (Jan. 18, 2005), http://www.villagevoice.com/content/printVersion/188926/ (noting that although he was an employee of New York State, "[i]t had become common practice for Sing Sing's executioner to freelance elsewhere" and to oversee executions in other states requesting his services);
258. see also Eric Berger, Lethal Injection and the Problem of Constitutional Remethes, 27 YALE L. & POL'Y REV. 259, 304-05 (2009) (discussing Missouri's former lethal injection protocol, whereby neither politicians nor Department of Corrections officials designed the lethal injection procedure and instead delegated the responsibility to "an independent contractor... [who] had complete discretion to change the procedure at a moment's notice" (internal quotation marks omitted)).
259. On the methods of payment of executioners in England
260. see Gerald D. Robin, The Executioner: His Place in English Society, 15 BRIT. J. SOC. 234, 238-40 (1964).
261. ARTHUR ISAK APPLBAUM, ETHICS FOR ADVERSARIES: THE MORALITY OF ROLES IN PUBLIC AND PROFESSIONAL LIFE 40 (1999).
262. John Rawls, Two Concepts of Rules, 64 PHIL. REV. 3, 3 (1955) (footnote omitted).
263. See id. at 6-7, 10-13.
264. APPLBAUM, supra note 118, at 39-41.
265. Id. at 41.
266. See JEAN-JACQUES ROUSSEAU, DISCOURSE ON POLITICAL ECONOMY AND THE SOCIAL CONTRACT 71 (Christopher Betts trans., Oxford Univ. Press 1994) (1762) ("The purpose of the social treaty is the preservation of the contracting parties. He who wills an end wills the means to that end: and the means in this case necessarily involves some risk, and even some loss. He who wills that his life may be preserved at the expense of others must also, when necessary, give his life for their sake.... [A]nd when the ruler has said: 'It is in the state's interest that you should die', he must the, because it is only on this condition that he has hitherto lived in safety, his life being no longer only a benefit due to nature, but a conditional gift of the state.").
267. Cf. JOSEPH RAZ, THE MORALITY OF FREEDOM 154 (1986) ("A person who forces another to act in a certain way, and therefore one who coerces another, makes him act against his will. He subjects the will of another to his own and thereby invades that person's autonomy.").
268. This is the general rule in international law.
269. See YORAM DINSTEIN, WAR, AGGRESSION AND SELF-DEFENCE 5 (Cambridge Univ. Press 3d ed. 2001) (1988).
270. Among the doctrinal implications of this view is the hostile attitude towards mercenaries.
271. See L. C. GREEN, THE CONTEMPORARY LAW OF ARMED CONFLICT 111-14 (1993).