Rational Decision Making - Economic Laws - Coursework Example

Law Coursework Name: Tutor: Course: Date: Rational decision making: Economic laws In economics, the basic concept of rational decision making posits that individuals act rationally (a) so as to maximize their personal welfare (b). This assumption is implicit, and assumes that individuals have perfect information to the extent that they are capable of calculating and weighing up the consequences of choices available to them. The second (b) assumption is justified while the first (a) is not. This is because as individuals make decisions intended to maximize their welfare, they more than often irrational in their choices. Under rational choice theory, neoclassical economists studied human rational actions and found that all humans are modeled to derive maximum satisfaction out of their actions1. Individuals make choices based on choice sets they face and on own preferences. This theory is more applicable in generalized settings and may not apply to costs and benefits. For example, an individual may chose to buy a drinking mug for a certain price which is equal to the price that he/she can be paid to part with it. In reality, the price paid to part with it is often higher and violates the theory of standard preferences. Many individuals care about the outcomes of certain actions and care less about the nature of decisions taken to reach the outcome. Where benefits outweigh costs, it does not matter the rationality of decisions taken and in the mug case, the individual will buy the mug regardless of the price2. Indeed, this proposition continues to inform the general economic laws that also mirror the rigorous methods that physics use. A point of dissent is the view of classical economics that rational behavior results in marginal utility which is price. This implies that, in equilibrium, prices are determined by people’s preferences derived from the prices of labor and goods. However, utility functions are practical and not theoretical. Just as there are no estimates for cardinal values, individuals do not have complete utility functions. The argument of classical economists is that, for all their preferences, consumers act rationally to maximize their welfare3. They believe that individuals keep spending to a point that the last units of the commodity do not satisfy any more when compared to the last unit of another item bought. The continued criticism of assumptions of classical and neo-classical economists shows that the philosophy of economics is dynamic and economic analysis of law is a pointless pursuit. This is because the neoclassical assumptions on rationality of decisions have been objected by the capability approach that emphasizes functional capabilities and happiness economics. They argue that individuals more often make irrational decision that violate the rational-utility maximizing decisions because not all people get all the information needed to make rational decisions. This irrationality is also supported by limited cognitive ability where alternatives available to an individual may require much mental capacity, time and effort. When individuals recognize these cognitive limitations, they tend to embrace theories of bounded rationality4. Although reason defines the decision-making process, bounded rationality is psychologically plausible and does the theories of human decision making. Individuals maximize their welfare to the extent defined by the socioeconomic environment and that levels of decision making are affected by determination, institutions and uncertainty. 1. Diversity in legal profession: The UK Judiciary Section 159, Equality Act 2010 is a legislative framework aimed at advancing equality of opportunity and protecting the rights of all individuals. The Act revisits and simplifies existing discriminatory laws as the Equality Act 2006 and the Sex Discrimination Act 1975. The Act offers guidance on practice to solicitors who are employers to read and eliminate discrimination in employment whether caused by lack of awareness or unintentional. The requirement under SRA Code and SRA Handbook is that solicitors must take respect to equality and diversity issues so as to encourage equality of opportunity. The requirement in the SRA Code (Chapter 2) prevails upon individuals and firms to not unlawfully discriminate or harass or victimize anyone during professional dealings. In (outcome 2.4), individuals and firms are also required to approach employment and recruitment in a manner that it encourages respect of diversity and equality of opportunity. Regarding employment of trainee solicitors, women have been discriminated against in many disciplines which has necessitated legal and political framework such as affirmative action. Yet, it does not imply that this historical injustice should tip over employment scales. Nonetheless, women have dominated the field of solicitors for decades with their statistics showing that they have always outnumbered men. As pointed in (outcome 2.4) and asserted in section 159 of the Equality Act, men have similar rights as women to be appointed as trainee solicitors. Therefore, industrial courts should exercise their powers according to the Act and prevail on employers to accord men equal opportunities of entry into employment. Law firms should consider all individuals as equal before the law and have equal access to employment opportunities. The solicitor profession is slowly becoming feminine, at the lower levels, after the 2015 statistics show that over 60 percent of new solicitor trainees are women. Shockingly, female solicitors are edging towards proportionality and parity at the lower levels but continue to be underrepresented at high levels, associates and partners. According to some survey, female trainees comprise 57.1% of incoming intakes and 57.2% at associate level but at partner level, the figure drops to 24%5. This shows that women, just like men, should be able to progress to higher roles within the legal profession. It is true from the survey that there is gender imbalance in recruitment of trainee solicitors. The few men selected at entry level always find their way up the legal profession very easily than women. This indicates that the statistics are deceiving and only meant to blanket the gains of women who have joined the profession. There is need for a healthy gender balance at all levels of the legal profession because female lawyers are still no progressing to the higher roles despite making up over 50 percent of new entrants for decades6. Equality in law and gender diversity should not only focus on the trainee level but associate and partner levels as well. 2. Judicial diversity and democratic legitimacy Diversity in the judiciary matter in many countries as it affects decisions. While it does not guarantee specific outcomes, gender and race continue to define the multiple faces of diversity of judges. In the UK, judiciary is dominated by white men with few women and minorities. In heterogeneous populations, a more diverse judiciary is one that is socially representative. The presence of minority and women judges, sometimes, bring in divergent perspectives from those of white male judges, and as a result, may consider favorably the nuances of some cases that involve race and gender. Almost 20 years ago, it was officially acknowledged in England and Wales that its judiciary is seriously underrepresented by ethnic minorities and women on the bench. Staggering statistics show that the UK Supreme Court and Court of Appeal have 92% white men and 8% women and no ethnic minorities for each court. The Heads of Divisions is 100% white males. The data shows that ethnic minority and women have no or little representation at higher levels ‘prestige’ of the judiciary. Furthermore, women continue to be underrepresented in the Queens’ Bench or Chancery Division with their numbers substantial in the family division. On the other hand, women are fully represented in the magistrate courts as it is traditions with lay magistrates being legally considered ‘not qualified’. Minority groups are highly represented in judicial tribunals but primarily among lay members. Differences within the minority ethnic groups also exist. About 17% of Asian sit in the Mental Health Review Tribunals while the lay members sitting in the Immigration tribunals have 7% black representation7. This shows that judiciary in the UK is not diverse. Judiciary is an institution of the state in a democracy and not a group of individuals. The judges who are non-elected officials have significant roles in law-making within the UK. In this non-democratic role, they rely on public acceptance which is the belief in judicial fairness in decision-making. In the modern state, the legitimacy of the judiciary strengthens public acceptance through judicial diversity. The argument here is that diversity will increase both actual fairness and the appearance of fairness. The UK judiciary is a powerful arm of government that restrains executive power and protects the rights of individuals and minorities8. However, significant issues arise where at the core of the unwritten British constitution is the ‘legitimacy’ that underpins the rule of law. This legitimacy is premised in a mature democracy that for those wielding power and the in some way, the power should not only be legitimate but also representative and accountable. The central principle of judicial independence is often undermined by lack of legitimacy when dealing with the diverse make-up of the society. The fundamental exercise and distribution of power in a democracy is inclusivity and appropriate systems that appoints and promotes senior judges. As shown in the statistics, senior judicial appointments in the UK is not fit for purpose and rebalancing the three guiding constitutional principles of diversity, accountability and independence is required. Such a process will not only enhance the authority of judges and their roles but also the democratic legitimacy. Current appointments in the UK senior judiciary are inappropriate and that high and eminent individuals involved should recognize that no branch of government is self-perpetuating in a democracy9. Elected officials have a stake in ensuring democratic legitimacy in appointments of those adjudicating laws they pass. Democratic legitimacy is more desirable in increasing the numbers of women and ethnic minorities within the UK judiciary. A branch of government that is democratically legitimate is one with direct links with the society they serve. Increasing recognition of democratic legitimacy has led to initiatives among parties to short-list all female candidates to become members of parliament. On the contrary, the reflective representativeness within the concept of institutional legitimacy is irrelevant in the judicial branch despite office holders being cleared and vetted by elected representatives. An independent judiciary, at the heart of legitimacy’ purports to deliver ‘fairness’ in a lopsided and less diverse arrangement. In a democracy, it is ridiculous that a judiciary exercises power while in itself it faces the possibility of undermining its own authority. This illustrates that the ‘key’ touchstones for judicial appointments are interconnected. The collective moral code of society is constituted in the law of the land and for the courts to make substantive decisions, it is important that they apply laws that draw the decision makers from a wide spectrum of society10. As a result, it will carry with them experiences and broad array of perspectives. In this age of judicial power, there is a relentless search for elusive balance between independence, diversity and accountability in democratic jurisdictions. The recent judicial appointments as decreed by the House of Lords Constitutional Committee lack balances, is inappropriate and requires change. Fortunately, there are consultations by the Ministry of Justice on the pending Judicial Reform Bill. Lord Chancellor Jack Straw admitted that the mutual confidence lacking between parliament and the senior judiciary is inevitably political. In suggesting resolution to the diversity issue, Lord Justice Etherton observes that there is need for intense focus on the processes of appointments in the higher courts to justify a constitutional legitimacy within a democratic society. Fortunately, the UK bench constitutes some of the most progressive and liberal judges the world over. Yet, this should not be ‘a given’ as was the case in the dreadful and coercive public law decision under the Conor Gearty that emerged in the English courts in the 1980s and 90s11. A robust constitutional structure is one that can withstand less ideal conditions and has structured checks and balances. To crown it all, the current senior judiciary is eminently positive and capable of providing the much needed checks and balances on the executive. In a constitutional appropriate process, judicial power and diversity should be buttressed in senior judicial appointments to enhance democratic legitimacy and the authority of judges. With high attrition rate of women judges in the UK appointing judges from diverse backgrounds into the legal systems will serve to improve its democratic legitimacy. When lawyers confront the existence of discrimination and sexism, then institutional sexism and discrimination will change. 4(a) Structural damage to access to justice: The UK legal aid cuts Is justice in the UK is becoming more expensive? Probably, Yes. Legal aid has been a safe haven and solace for the poorest people in the UK society whose access to justice is limited. The most affected are victims of domestic violence and those facing deportation. The Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) have severely restricted funding after it came into effect in 2013. This statistic explains it all. In 2012, legal aid was granted to 925,000 cases but when Act was introduced, the assistance was given to 497,000 cases when was a whopping drop of 46 percent. While it grants entitlement to the children regardless of the issue, teenagers are at risk especially on deportation cases at the immigration department. Free legal advice is quickly waning in Northern England, Midlands and South-West. Worse still, the alternative case funding system, the Legal Aid Agency, is flawed and inadequate. Slashing the legal aid has not only slowed the court processes but has also spiral the number of litigants appearing in person. Previously, legal aid was available to victims of domestic violence in family courts and for separating couples, and now, there is uneven representation. How can I be good enough against a barrister when I am subjected to cross-examine my ex-husband? This is a dilemma that the complainant in a family court faces when she cannot afford the high legal fees. Legal aid in the family courts is no longer available unless one can prove that they were victims of domestic violence. Furthermore, children who are separated or unaccompanied by their parents are exposed because legal aid for immigration cases has been slashed. Children will now be unrepresented as they choose to make applications on their own to stay in the UK. According to the Ministry of Justice, an estimated 2,500 children in their own right are claimants in such cases annually. Laws and processes governing children are complex, and under these circumstances, they are at an automatic disadvantage. Children require specialist advisors working with them and have broader understanding of the immigration law. Together with teenagers, children are a vulnerable group and cannot represent themselves in court. They have no idea on how to fills the forms, who to consults, and where to send the filled papers. In 2015, one teenage immigrant said “I have no access to legal aid despite having a good case. I can only tell the story to the judge but I cannot argue the case law”. From the testimony of the teenager, the governments’ decision to cut legal aid has left thousands vulnerable and decimated access to justice. With no legal support and advice, the justice system is closing in on those who need protection, the poorest in society. Theresa May, the UK Prime Minister must act immediately to salvage the failing system to protect the most vulnerable. Although the government is spending about £1.5billion in legal aid annually, justice should not only be seen but done for the most vulnerable in our society. 4(b) Explanation to the examiner Legal aid cuts have been in the news in the recent past and still attract a lot of attention in the media. There is a unified concern that there is need for fairness in the justice system. I selected the topic on legal aid cuts because it is a political and economic issue that affects litigants and their ability to get justice in the UK courts. Many people in this country who do not afford to hire barristers rely on free judicial advice from lawyers who are paid their legal aid fees from the Ministry of Justice. With massive cuts, I was concerned about the plight of the vulnerable; especially children, women and minority groups would not get justice. I structured my article to begin with a question and went ahead to respond to it. I then mentioned LASPO as the body concerned with the legal aid cuts to let readers know whom we are dealing with. Similarly, it was important to provide the statistics for readers to know the scale of the cuts. I preferred to mention the areas and demographic groups of those who will be affected. Later, I provided insights on the consequences of such cuts on families and children and what this would mean in upholding the rights of vulnerable groups. I took to a conceptual perspective on laws governing children and I was categorical that cutting legal aid would create a catastrophe of social and cultural nature. In this article, I was keen to provide reasons as to why victims of domestic violence, children and teenagers facing deportation cannot represent themselves in court. Unless arguments are based in law, what ordinary complainants and the accused will narrate and just stories. I also provided a testimony from one of the litigants facing deportation to highlight the reality of the issue at hand. Moreover, I made direct appeal to the Prime Minister, Theresa May, to intervene and reinstate legal aid so as to ensure that all people access justice as is required in the constitution. References Anleu, S.R. (2010). Women in the legal profession: Theory and research. Flinders University. Bicchieri, C. (2003). Rationality and Game Theory. Oxford University Press. Chambers Student (2014). 2014 Gender in the Law Survey. Available at: http://www.chambersstudent.com/where-to-start/newsletter/2014-gender-in-the-law-survey Gearty, C. (2005). Can Human Rights Survive?, The Hamlyn Lectures, Cambridge University Press. Markovits, H. (2013). The development psychology of reasoning and decision-making. Psychology Press. Malleson, K. (2008). Introduction, in K Malleson and P Russell (eds.), Appointing Judges in an Age of Judicial Power: Critical Perspectives from around the World, Canadian Public Administration, 51(1): 34-47. Paterson, A. & Paterson, C. (2012). Guarding the guardians? Towards an independent, accountable and diverse judiciary. Centre Forum. Thomas, C. (2009). Understanding judicial diversity. Research report for the Advisory Panel on Judicial Diversity. UCL Faculty of Laws. Read More