行为法学与经济学:再分配法律规则的行为经济学分析

IF 2.4 3区 社会学 Q1 LAW Vanderbilt Law Review Pub Date : 1998-11-01 DOI:10.1017/CBO9781139175197.012
Christine Jolls
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引用次数: 91

摘要

“行为法律与经济学”是本次研讨会的主题,旨在将“行为”和“法律与经济学”结合起来。法律和经济学(没有修饰语)当然已经是关于行为的了。但它通常是关于一种特定类型的行为:高度“理性”(在这个术语的特定意义上),优化行为。有时候,假设人们以这种方式行事是合理的;其他时候则不然。l“行为法律和经济学”中的“行为”是指当需要这些见解来确保对法律的合理预测或处方时,将对实际(而不是假设)人类行为的见解注入法律和经济学。行为法学和经济学并不是对法学和经济学的批判。它与法律研究方法一样,认为人类行为是由可预测的模式组织起来的,这使得分析人员能够生成关于法律规则效果的模型(通常是正式的)和可测试的假设。它认为,这种分析是一种重要而有价值的追求,是最值得法律学者关注的。它与传统法律和经济学的不一致之处在于人类行为的可预测模式。它的目标是在改进对人们实际行为的描述的基础上,对法律提供更好的预测和处方。本文对再分配法律规则进行了行为经济学分析。再分配法律规则是根据其将财富从高收入个人转移到低收入个人(累进再分配)的效果而选择的规则。这些规则是否可取一直是法律界激烈辩论的主题。许多法律和经济学学者敦促,法律规则的选择完全要考虑到卡尔多-希克斯效率(在本文的其余部分,我将简称其为“效率”);这些学者经常敦促,分配问题应该完全通过税收和福利制度来解决(如果要解决的话)根据这种观点,分配目标并不为选择一种效率低下的法律规则提供依据——尽管它们似乎可能为在两种效率高的规则之间进行选择提供依据其他法律学者认为,法律规则的选择应考虑到分配问题,即使以牺牲效率为代价如果一项规则在分配目标和效率之间做出了这样的权衡,我将称其为“再分配”规则。在关于再分配法律规则的辩论中,一个反复出现的主题是通过法律规则(定义为与税收和福利制度直接相关的规则以外的规则)重新分配财富和通过税收和福利制度(在本文的其余部分,我将简称其为“税收制度”或“税收”)重新分配财富的相对成本。在新古典经济学的假设下,任何期望的再分配水平都可以通过税收制度而不是通过法律规则以更低的成本实现这并不是因为税收制度可以毫无成本地重新分配财富;律师和经济学家对税收方案的分析最令人振奋的特点是,它们有可能扭曲人们的工作动机。对富人增税往往会使人们不愿赚取高收入。但从新古典经济学的角度来看,再分配的法律规则也是如此:“[U]使用法律规则来再分配收入扭曲的工作激励与所得税制度完全一样,因为这种扭曲是由再分配本身引起的……因此,举例来说,30%的边际税率加上将高收入者平均1%的收入再分配给穷人的低效法律规则,与31%的边际税率加上有效的、非再分配的法律规则在工作激励方面造成的扭曲是一样的然而,由于法律规则的效率低下,前政权也需要付出代价。...
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Behavioral Law and Economics: Behavioral Economic Analysis of Redistributive Legal Rules
I. INTRODUCTION "Behavioral law and economics"-the general topic of this Symposium-seeks to bring together "behavior" and "law and economics." Law and economics (without the modifier) is of course already about behavior. But it is typically about behavior of a particular sort: highly "rational" (in a particular sense of that term), optimizing behavior. Sometimes it is reasonable to assume that people behave in this manner; other times it is not.l The "behavioral" in "behavioral law and economics" is about infusing law and economics with insights into actual (rather than hypothesized) human behavior when such insights are needed to insure sound predictions or prescriptions about law. Behavioral law and economics is not a critique of law and economics. It shares with that approach to the law the view that human behavior is organized by predictable patterns, which enable the analyst to generate models (often formal ones) and testable hypotheses about the effects of legal rules. And it shares the view that such analysis is an important and valuable pursuit, one most worthy of legal scholars' attention. Where it disagrees with conventional law and economics is about the shape of the predictable patterns of human behavior. Its goal is to offer better predictions and prescriptions about law based on improved accounts of how people actually behave. This Essay offers a behavioral economic analysis of redistributive legal rules. Redistributive legal rules are rules chosen for their effects in shifting wealth from high-income to low-income individuals (progressive redistribution). The desirability of such rules has been the subject of intense debate within the legal community. Many law and economics scholars have urged that legal rules be chosen solely with an eye towards Kaldor-Hicks efficiency (which I will call simply "efficiency" for the remainder of this Essay); these scholars often urge that distributional considerations be addressed (if they are to be addressed at all) exclusively through the tax and welfare systems.2 On this view, distributive goals do not provide a basis for choosing an inefficient legal rule-although they might, it seems, provide a basis for choosing between two efficient rules.3 Other legal scholars have argued that the selection of legal rules should be informed by distributional considerations even at the expense of efficiency.4 I will call a rule "redistributive" if it makes such a trade-off between distributive objectives and efficiency. A recurring theme in the debate over redistributive legal rules has been the relative cost of redistributing wealth through legal rules (defined to mean rules other than those that directly relate to the tax and welfare systems) and redistributing wealth through the tax and welfare systems (which I will call simply "the tax system" or "taxes" for the remainder of this Essay). Under the assumptions of neoclassical economics, any desired level of redistribution can be achieved at lower cost through the tax system than through legal rules.5 This is not because the tax system can redistribute wealth costlessly; the animating feature of both lawyers' and economists' analyses of tax schemes is their potential to distort people's work incentives. Higher taxes on the wealthy will tend to discourage people from earning high incomes. But from the perspective of neoclassical economics, precisely the same is true of redistributive legal rules: "[U]sing legal rules to redistribute income distorts work incentives fully as much as the income tax system-because the distortion is caused by the redistribution itself...'6 Thus, for example, a thirty percent marginal tax rate, together with an inefficient legal rule that redistributes an average of one percent of high earners' income to the poor, creates the same distortion in work incentives as a thirty-one percent marginal tax rate coupled with an efficient, non-redistributive legal rule.7 However, the former regime also entails costs due to the inefficient legal rule. …
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