The We Are What We Read series is, in part, about what defines the field of law & economics. The field’s natural home lies in applications that are, well, economic. Hence its longstanding—and now standard—role in contracts, corporations, antitrust, torts, and other areas. For this selection, I wanted to show how law & economics can illuminate something less obviously tied to economic activity: deliberation. The article also illustrates what I think defines law & economics: a set of methodological tools, rather than a collection of substantive or value commitments—or a movement.
“Deliberation as Self-Discovery and Institutions for Political Speech,” by Catherine Hafer and Dimitri Landa, is, if anything, more timely now than when it was written. The public, both in the United States and elsewhere, is deeply divided, and polarization has become a defining feature of our political moment. The article also brings together two bodies of scholarship that seldom speak to each other: deliberative democracy and formal theory, which uses mathematical models to study political behavior.
Elementary, My Dear Deliberator
Economics has a well-developed literature on communication. Standard treatments often use signaling models, in which someone has valuable private information they may want to communicate. This approach connects to principal-agent models, which examine relationships in which one person acts on another’s behalf. One of the main reasons to empower an agent is to take advantage of that person’s expertise—and to induce the agent to develop it.
The prime legal example is an attorney (the agent) working on behalf of a client (the principal) and providing advice based on knowledge of the law. But corporate directors and shareholders, administrative agencies and the executive and legislative branches, and representatives and voters all fit this general model. Each relationship interests—and is heavily mediated by—law.
Hafer and Landa take a different approach, one that is both distinctive and, to my mind, especially well-suited to deliberation among equals. Think of discussions between citizens or senators, rather than an expert reporting to a less-informed boss. Inspired by research into how people develop political opinions and value judgments, Hafer and Landa propose the idea of deliberation as self-discovery.
The agents in their model are not logically omniscient—a plausible assumption. Specifically, they do not automatically recognize all the implications of what they know. The aim of deliberation, then, is not to persuade someone by presenting new information, but to trace the implications of beliefs they already hold. It is less “Actually, that happens only about 2% of the time” and more “You believe A, which entails B, so you should also believe B.”
Crucially, Hafer and Landa’s agents may not be perfectly rational, but they are not irrational. They respond to arguments of this sort. They are flawed—human—but trying their best.
The evocative example is the good Dr. Watson. Sherlock Holmes immediately and completely grasps the implications of every scrap of knowledge. To Holmes’ repeated frustration—though Holmes is endlessly frustrating in his own ways—Watson needs someone to point out the connections. He is not the “indisputable Bayesian hero” that Holmes is, always updating his beliefs in response to new evidence. Once someone shows Watson the connections, though, everything falls into place.
Hafer and Landa’s idea reminds me of Socrates, though perhaps more in the Platonic dialogues than in the classroom. Hence the notion of self-discovery: The speaker does not impart new information. Neither the detective nor the philosopher presents new facts about the world. Rather, the listener realizes what they already, in some sense, believed. As Hafer and Landa put it:
Our basic ontology of learning is, then, that of recognizing latent reasons—reasons that agents are endowed with and would be able to embrace as “their own” after recognizing their fit with other held beliefs, but which are not actively available to them prior to deliberation either for developing the corresponding policy position or for attempting to influence others.
The Extremists Have the Floor
On its own, this idea of deliberation as self-discovery is interesting. Hafer and Landa also demonstrate the flexibility of economic methods by, for example, relaxing Bayes’ rule—the standard formula for updating beliefs in light of new evidence—in a formal model. But they go further because they are interested in institutions. What arrangements best foster deliberation as self-discovery?
The deliberative-democracy literature offers an appealing baseline answer for how to structure discussion: equal and extensive participation. Hafer and Landa reach a surprising alternative conclusion. The institutions that promote the most informationally efficient deliberation as self-discovery do not give everyone equal speaking time. Instead, they encourage participants with relatively extreme positions to speak.
To explore these institutional implications, Hafer and Landa set up an economy of deliberation. Participants divide their deliberative resources between speaking and listening. Their goal is to identify—or at least confirm—their own ideal point, meaning the course of action each considers best. In other words, participants use deliberation to figure out what they believe. This is a pretty attractive view of deliberation.
In Hafer and Landa’s model, the institution that produces the best information gives the floor to proponents of more extreme positions. Listeners benefit from hearing those arguments because they want to determine whether they believe them. Inducing relatively extreme participants to devote their resources to speaking rather than listening therefore improves the informational quality of deliberation. Moderates learn more by listening to them than by advancing their own positions.
These results depend on other conditions, including the reasonable assumption that agents cannot make arguments they do not already believe. If an argument is “latent”—if it follows logically from an agent’s beliefs, but the agent has not yet discovered it—the agent cannot advocate it. That follows directly from the structure of deliberation as self-discovery. Another condition is “connectedness,” roughly a requirement that reasons and policy preferences move together in a consistent way.
There is also a natural limit to this “extremism premium” (my term, not theirs). The inegalitarian result depends on the possibility that listeners might share the extreme position. As Hafer and Landa explain, “Empowering the speech of the more radical extremist is informationally optimal only because it assists a more moderate agent in resolving her uncertainty about the best policy.” The moderate wants to determine whether she, too, is actually an extremist. But the more extreme the position, the less likely she is to believe it. Hafer and Landa’s optimal institution therefore does not “give any outlier the floor.” It gives outliers whose views others might plausibly share a chance to speak.
Hafer and Landa acknowledge that deliberation may serve values beyond informational accuracy. We might value fairness or active participation, and both may be essential to political legitimacy. I would add that we do not always know in advance which positions are relatively extreme or who holds them. In practice, we may not even know the full range of possible arguments. Some initial egalitarian deliberation may therefore prove useful.
The Jury Is Still Thinking
“Deliberation as Self-Discovery” shows the promise of this kind of work. It uses economic methods to reach a counterintuitive conclusion and illuminate something that would otherwise be difficult to see. That combination of methodological rigor and unexpected insight captures what law & economics can offer beyond its traditional subjects.
The article also has compelling practical applications. Hafer and Landa mention allocating time on committees and regulating campaign finance, both of which distribute scarce deliberative resources. I would add juries, an institution central to law. Juries closely resemble this model of deliberation because, by design, no juror has privileged access to the evidence. All jurors receive the same information and should decide the case solely on the record developed during the proceedings.
Juries have assumed even greater importance since the Supreme Court’s decision in SEC v. Jarkesy, which held that defendants have a right to a jury trial when the Securities and Exchange Commission seeks civil penalties for securities fraud. A wave of proposals has also revived an older idea from deliberative theory: “citizens’ assemblies” that would extend jury-like institutions and deliberation to issues beyond the courtroom. These applications suggest that deliberation as self-discovery is more than an elegant model. It may help us decide who should speak, who should listen, and how institutions can help people discover what they believe.
Further Reading
- David Austen-Smith, “Information Transmission in Debate,” American Journal of Political Science, Vol. 34, No. 1 (February 1990).
- David Austen-Smith and Timothy J. Feddersen, “Deliberation, Preference Uncertainty, and Voting Rules,” American Political Science Review, Vol. 100, No. 2 (May 2006).
- Eric S. Dickson, Catherine Hafer, and Dimitri Landa, “Cognition and Strategy: A Deliberation Experiment,” The Journal of Politics, Vol. 70, No. 4 (October 2008).
- James Johnson, “Formal Models” in “Research Methods in Deliberative Democracy,” Selen A. Ercan (ed.) et al., Oxford University Press (October 2022).
- Arthur Lupia, “Deliberation Disconnected: What it Takes to Improve Civic Competence,” Law and Contemporary Problems, Vol. 65 (Summer 2002).
- Amy Gutmann and Dennis F. Thompson, “Democracy and Disagreement,” Belknap Press of Harvard University Press (1996).
