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Does the Law Change Preferences?

  • Jennifer Arlen and Lewis A. Kornhauser
Published/Copyright: August 23, 2021
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Theoretical Inquiries in Law
From the journal Theoretical Inquiries in Law Volume 22 Issue 2

Abstract

“I would prefer not”[1]

Scholars have recently challenged the claim in classical deterrence theory that law influences behavior only through the expected sanction imposed. Some go further and argue that law may also “shape preferences,” changing people’s wants and values. In this Article, we analyze existing claims that criminal and civil law alter preferences and conclude that none suggest that the law shapes preferences. We first clarify this preference-shaping claim by elaborating the structure of rational choice theory generally and “preference” in particular. We then investigate three mechanisms of legal influence suggested by the preference-shaping literature: (1) the “serious harm” mechanism; (2) the “social norm” mechanism; and (3) the “self-improvement” mechanism. We then show that each of these mechanisms operates by changing the agent’s beliefs about the attributes or consequences of her choice options rather than by changing her preferences.

* The authors are, respectively, the Norma Z. Paige Professor of Law and the Frank Henry Sommer Professor of Law, at New York University School of Law. We would like to thank the journal’s editors, Oren Bar-Gill, Louis Kaplow, Shari Diamond, Kathy Spier, and participants at the Harvard Law and Economics Workshop, the Northwestern Faculty Workshop, the Stanford Law School Law and Economics Workshop and the Conference on How Law Changes What You Want: Positive and Normative Effects of Law on Values and Preferences, which was held at the University of California at Berkeley School of Law.

Published Online: 2021-08-23
Published in Print: 2021-07-27

© 2021 by Theoretical Inquiries in Law

Articles in the same Issue

  1. Frontmatter
  2. Introduction
  3. Addictive Law
  4. Framed by the Law: Experimental Evidence for the Effects of the Salience of the Law on Preferences
  5. Moral Norms, Adaptive Preferences, and Hedonic Psychology
  6. What’s So Special About General Verdicts? Questioning the Preferred Verdict Format in American Criminal Jury Trials
  7. Preference Change and Behavioral Ethics: Can States Create Ethical People?
  8. The Data Privacy Law of Brexit: Theories of Preference Change
  9. Do Good Citizens Need Good Laws? Economics and the Expressive Function
  10. Does the Law Change Preferences?
  11. Changing People’s Preferences by the State and the Law
  12. Preferences and Compliance with International Law
  13. Anti-preferences
  14. Influencing the Preferences of Children through Legal Impacts on Parenting Style
https://doi.org/10.1515/til-2021-0021

Articles in the same Issue

  1. Frontmatter
  2. Introduction
  3. Addictive Law
  4. Framed by the Law: Experimental Evidence for the Effects of the Salience of the Law on Preferences
  5. Moral Norms, Adaptive Preferences, and Hedonic Psychology
  6. What’s So Special About General Verdicts? Questioning the Preferred Verdict Format in American Criminal Jury Trials
  7. Preference Change and Behavioral Ethics: Can States Create Ethical People?
  8. The Data Privacy Law of Brexit: Theories of Preference Change
  9. Do Good Citizens Need Good Laws? Economics and the Expressive Function
  10. Does the Law Change Preferences?
  11. Changing People’s Preferences by the State and the Law
  12. Preferences and Compliance with International Law
  13. Anti-preferences
  14. Influencing the Preferences of Children through Legal Impacts on Parenting Style
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