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MODELS OF MORALITY IN LAW AND ECONOMICS: SELF-CONTROL AND SELF- IMPROVEMENT FOR THE "BAD MAN" OF HOLMES

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MODELS OF MORALITY IN LAW AND ECONOMICS: SELF-CONTROL AND SELF- IMPROVEMENT FOR THE "BAD MAN" OF HOLMES Berkeley Law From the SelectedWorks of Robert Cooter September 1997 MODELS OF MORALITY IN LAW AND ECONOMICS: SELF-CONTROL AND SELF- IMPROVEMENT FOR THE "BAD MAN" OF HOLMES Contact Author Start Your Own SelectedWorks Notify Me of New Work Available at: http://works.bepress.com/robert_cooter/68 - 1 - MODELS OF MORALITY IN LAW AND ECONOMICS: SELF-CONTROL AND SELF- IMPROVEMENT FOR THE "BAD MAN" OF HOLMES Robert Cooter* Introduction....................................................1 I. A Brief Review of the Literature.............................5 II. Sanctions as Prices........................................20 III. Self-control..............................................23 A. Graphing Wrong and Right...............................24 B. Variable Discounting...................................26 IV. Self-improvement...........................................29 A. Regret.................................................31 B. When Preferences Influence Opportunities...............33 C. Example: Work Ethic as Pareto Self-improvement.........36 D. How Law Prompts Self-improvement.......................37 E. Advantages of the Concept of Pareto Self-improvement...42 Conclusion.....................................................45 INTRODUCTION Holmes commended scholars to analyze law from the viewpoint of a "bad man."1 Who is he? In Milton's Paradise Lost, Satan says * Herman F. Selvin Professor of Law, Boalt Hall School of Law, University of California at Berkeley. 1 See Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457, 459 (1897). The full passage reads as follows: If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of

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