By Mark D. White

In her article "The Supreme Court and the Pro-Business Paradox" in the Harvard Law Review, Elizabeth Pollman (Penn Law) reconsiders the Roberts Court's reputation as pro-business in light of the heterogeneity of interests across firms, as well as the conflicting interests of different parties within firms, both often neglected in both economic and legal commentary and analysis. (For earlier work on this general topic, see Jonathan H. Adler's edited volume Business and the Roberts Court.)

From her introduction:

This Comment makes two primary contributions. It first observes that cases from the recent Term reflect an important way in which the Roberts Court has earned its reputation: over the beginning of the twenty-first century, the Court has often expanded corporate rights while narrowing corporate liability or access to justice against corporate defendants. Part I of this Comment sets forth this argument, using Americans for Prosperity, Ford, and Nestlé as case studies to show how the Court uses ill-fitting conceptions or overbroad generalizations to empower corporations and limit their accountability.

This trend gives rise to a paradox that Part II subsequently explores: the “pro-business” Court is often at odds with internal activity in corporate law and governance. Quite remarkably, as the Roberts Court has expanded corporate rights and narrowed pathways to liability, many shareholders and stakeholders have become vocal participants, putting pressure on corporations to rein in the use of their rights, to mitigate risks generated by their externalities, and to take account of environmental, social, and governance (ESG) concerns. The Court’s expansion of corporate rights not only disserves many corporate participants and spurs them to action but also might fuel challenges to new disclosure rules about corporate political activity or other ESG-related concerns that investors and others seek for effective participation in corporate governance. Further, as the Court has downplayed or ignored corporate decisionmaking structures in its jurisprudence expanding rights and narrowing liability, by contrast, in the world of corporate law and governance, we see that board oversight, monitoring, and compliance functions have grown in importance. State corporate law cases have heightened attention on the board’s role in providing oversight to ensure legal compliance throughout the corporation’s operations and to mitigate litigation and reputational risks that can arise from corporate abuses around the world. Corporate compliance programs and voluntary ESG initiatives have proliferated amid widespread debate about the purpose of the corporation and a broadened role for stakeholders.

Looking at these diverging developments together suggests that, at least in some important circumstances, the Supreme Court’s approach may not capture the reality of modern business corporations, and it might not be what many shareholders and corporate participants actually want. It may instead create new tensions in corporations that are not fully and easily resolved through private ordering and that undermine the conceptual foundation for the existing arrangements in corporate law and governance. It may also ultimately serve only a limited set of business interests — not the great number of workers who are often framed as stakeholders on the other side of “pro-business” jurisprudence, nor the majority of public corporation shareholders, who are increasingly diversified through institutions that rely on external regulation to constrain corporations and minimize systematic risk. And so, in sum, corporations might bear little resemblance to the Court’s characterizations, and the business world, on the whole, might often be better off without “pro-business” jurisprudence that empowers corporations and erodes their external constraints.

By Mark D. White

Forthcoming in Politics, Philosophy & Economics is a fascinating article by Elsa Kugelberg (Oxford) titled "Responsibility for Reality: Social Norms and the Value of Constrained Choice," in which she investigates the impact of social norms on the responsibility we bear for our choices, using the example of the interaction of gender norms and HIV prevention measures. From the abstract:

How do social norms influence our choices? And does the presence of biased norms affect what we owe to each other? Looking at empirical research relating to PrEP rollout in HIV prevention policy, a case in which harmful gender norms have been found to impair the choices of young women, I argue that the extent to which we can be held responsible for our choices is connected to the social norms that apply to us. By refining T. M. Scanlon’s Value of Choice view, I introduce a norms-sensitive contractualist theory of substantive responsibility. This feminist ‘Value of Constrained Choice view’ presents those who choose under harmful norms as having generic reasons to reject principles that provide them with opportunities they are effectively constrained from choosing. I argue that to fulfil their duties to us, and our duties to each other, policymakers must study the influence of social norms on choice and accommodate it in public policy. Contractualists have reason to pay special attention to social norms, as their unequal effects on choice reveal that we are not living under terms that no one could reasonably reject.

By Mark D. White

Forthcoming (and open-access) in the Journal of Political Philosophy from Walter Bossert (University of Montreal), Susumu Cato (University of Tokyo), and Kohei Kamaga (Sophia University), "Critical-Level Sufficientarianism" supplements the utilitarian basis of normative policy-oriented economics with the requirement that no one ends up with too little:

In this article, we employ an axiological approach to identify a class of sufficientarian principles. Our starting point is the notion of absolute priority, a requirement that we consider to be at the very core of sufficientarian ideas. Absolute priority postulates that attention is to be focused on those whose well-being is below the threshold, and the utilities of those above the threshold only matter as a tie-breaker if the criterion to be applied below the threshold fails to be decisive. The feature that is novel to our approach is that we combine this fundamental sufficientarian principle with axioms that have a distinctly utilitarian flavor. This allows us to develop a sufficientarian theory that is based on utilitarian principles. Our most important observation is that our theory, which we refer to as critical-level sufficientarianism, necessarily follows as a consequence of adding the absolute-priority requirement to utilitarian axioms.

By Mark D. White

A two-part article forthcoming at Philosophy Compass by Andrew M. Bailey, Bradley Rettler, and Craig Warmke discusses ethical questions surrounding cryptocurrency:

"Philosophy, Politics, and Economics of Cryptocurrency I: Money without State"

In this article, we describe what cryptocurrency is, how it works, and how it relates to familiar conceptions of and questions about money. We then show how normative questions about monetary policy find new expression in Bitcoin and other cryptocurrencies. These questions can play a role in addressing not just what money is, but what it should be. A guiding theme in our discussion is that progress here requires a mixed approach that integrates philosophical tools with the purely technical results of disciplines like computer science and economics.

"Philosophy, Politics, and Economics of Cryptocurrency II: The Moral Landscape of Monetary Design"

In this article, we identify three key design dimensions along which cryptocurrencies differ – privacy, censorship-resistance, and consensus procedure. Each raises important normative issues. Our discussion uncovers new ways to approach the question of whether Bitcoin or other cryptocurrencies should be used as money, and new avenues for developing a positive answer to that question. A guiding theme is that progress here requires a mixed approach that integrates philosophical tools with the purely technical results of disciplines like computer science and economics.

By Mark D. White

In the latest issue of Economics and Philosophy (37/3, November 2021), Elizabeth Brake (Rice University) examines one of the most controversial topics in the ethical analysis of market behavior. In her article "Price Gouging and the Duty of Easy Rescue," Brake surveys the standard economic and ethical arguments for and against the practice, and suggests a novel ethical argument against it: that it violates our obligation to help people in emergency situations when it is of little cost to us. This position is usually associated with utilitarianism, thanks to Peter Singer, but can also be derived from various forms of deontology (although the positive nature of the duty may demand an extra step) as well as virtue ethics.

Brake makes a legal case as well as an ethical one, arguing that there is a basis in law for enforcement of a duty of easy rescue in such cases where price gouging arises. As she acknowledges, this is a more difficult case to make, because a legal duty normally implies a right that is violated, and a legal right to assistance is not generally recognized, however dire one's circumstances. She suggests several alternative ways of justifying a limited prohibition of price gouging based on legal duty of easy rescue, such as considering it as part of the regulation of market activity in the public interest, in which businesses are prohibited from harmful practices.

There is much more in Brake's paper than I can discuss here and it rewards a careful reading. For instance, she does address the economic benefits of price gouging, such as increasing supply of much-needed goods to disaster-stricken areas, and her ethical and legal analysis does allow for price increases to cover legitimate costs and risk. Her argument is against "pure" profiteering only, claiming that the seller's interest in higher profit does not justify holding disaster victim's interest in survival hostage to negotiations over price. Related to this, Brake also notes that market conditions are far from ideal in disasters, so we should not assume the same quality of consent, or use the same standards of coercion or duress, when evaluating transactions offered or made in such a context.

(For more of Brake's work on disaster ethics, see the dedicated page at her website.)

By Mark D. White

Forthcoming in Philosophy and Phenomenological Research, "Aggregation without Interpersonal Comparisons of Well-Being" by Jacob M. Nebel (University of Southern California) weighs in on a timeless debate in social choice theory:

This paper is about the role of interpersonal comparisons in Harsanyi’s aggregation theorem. Harsanyi interpreted his theorem to show that a broadly utilitarian theory of distribution must be true even if there are no interpersonal comparisons of well-being. How is this possible? The orthodox view is that it is not. Some argue that the interpersonal comparability of well-being is hidden in Harsanyi’s premises. Others argue that it is a surprising conclusion of Harsanyi’s theorem, which is not presupposed by any one of the premises. I argue instead that Harsanyi was right: his theorem and its weighted-utilitarian conclusion do not require interpersonal comparisons of well-being. The key to making sense of this possibility is to treat Harsanyi’s weights as dimensional constants rather than dimensionless numbers.

Aside from Nebel's own novel contribution, this paper offers a fine overview of Harsanyi's arguments and subsequent commentary on them. (Earlier this year, Nebel also published "Utils and Shmutils," a review of Matthew Adler's Measuring Social Welfare: An Introduction, in Ethics.)

By Mark D. White

There are ambitious papers and then there are ambitious papers. In the latest issue of the Journal of Bioeconomics (23/3, October 2021) is "Toward a Theory of Ecosystem Well-Being" by Marc Fleurbaey (Paris School of Economics) and Christy Leppanen (University of Tennessee), an open-access article that rejects the current human-centered (or anthropocentric) approach to welfare economics and environmental economics, and proposes, in its place, a more inclusive measure of social welfare that includes all living organisms on Earth, effectively bringing animal ethics into the domain of environmental economics.

Social welfare analysis is therefore in urgent need to shed its century-old anthropocentrism. This paper examines the scope of the reform that this move would require. The key question is whether the concepts of social welfare analysis need a complete overhaul, or can be extended. Indeed, the main task of social welfare analysis is to trade-off the interests of various members of the population under consideration. Comparing how well-off different human beings are is actually not so simple (Fleurbaey & Hammond, 2004), and has led many economists to despair that it was even possible to do on a rational, non-arbitrary basis. Different human beings differ in their abilities, needs, and goals in life, so that comparing their situations in terms of success or advantage is far from obvious. But various methods have been designed to perform that delicate task. (p. 258)

One interesting aspect of their project that stands out to me is their acknowledgment of the difficulty of measuring and comparing welfare within the human species, which they use to argue that incorporating more species into the picture does not add much more complexity.

Comparing individuals from different species is admittedly more difficult because differences in abilities, needs and goals are even larger and more profound. But it remains to be seen within this context whether inter-species comparisons are of a different nature than intra-species comparisons. This is the question we study in this paper. To do so, we review the main approaches to interpersonal comparisons that have been imagined in welfare analysis for human beings, and examine if they can be extended to comparisons across species as well. (pp. 258-59)

Fleurbaey and Leppanen preview the rest of the paper at the end of their introduction:

The next section introduces to the structure of the type of social welfare analysis that is the workhorse of this paper. In particular, it explains why in this paper we focus on the problem of well-being comparisons among individual organisms from different species and largely leave aside the problem of the evaluation of the distribution of well-being as well as questions of population sizes. In Sects. 2–5, we examine four approaches to the measurement of advantage or well-being: command over resources, hedonic well-being, objective list methods, and preference-based methods. These are the prominent methods in current social welfare analysis (Adler, 2019; Adler & Fleurbaey, 2016). In Sect. 6, we scrutinize the important issue of rescaling the measures of functionings for species with different abilities, such as longevity. This problem raises an apparent dilemma which is quite important, and echoes similar difficulties appearing among human beings with unequal capacities or with disabilities. (pp. 260-61)

By Mark D. White

Forthcoming (and open access) from the journal Moral Philosophy and Politics, "Egalitarian Trade Justice" by James Christensen (University of Essex) surveys several approaches to incorporating explicit conceptions of fairness, justice, and equality into the debates over trade (often dominated, in economics, by efficiency concerns). Judging from the other "online first" papers recently posted, an upcoming issue of the journal will focus on such expansive ethical issues involved with trade, always a welcome discussion.

The first few paragraphs preview the contents of the paper:

In recent decades, notions of fair and just trade have become increasingly widespread. These ideas are invoked by politicians, protesters, workers, consumers, and corporations. The belief that trade is currently unfair or unjust is ubiquitous, though there is considerable disagreement about where, exactly, the unfairness or injustice lies, and, relatedly, about what must be done to rectify the situation. Resolving these disagreements will be crucial if we are to succeed in reconciling ourselves to the globalized world in which we live, and in resisting calls for a return to more parochial modes of production and exchange.

Among political philosophers, it is common to claim that justice in trade requires some kind of equality (Brandi 2014; Christensen 2017; Garcia 2003; James 2012; Moellendorf 2005; Suttle 2017). Often, the claim is that the national income gains that trade makes possible should, at the bar of justice, be distributed in an egalitarian fashion. Trade egalitarianism has been defended in a variety of different ways, but, for present purposes, it will be helpful to distinguish between two broad approaches. The first approach begins with a general commitment to equality and then identifies the implications of that value for trade. Advocates of this approach argue that trade must be arranged in a manner that adequately promotes a value that we have trade-independent reason to endorse (Christensen 2017, pp. 140–142). Because this approach begins from a commitment to equality as a freestanding value, and then applies that value to trade, we can refer to it as the applicative approach.

The second approach, by contrast, does not begin with a general commitment to equality. Rather, it begins with the practice of trade, and with an account that identifies that practice’s nature, aims, and key participants. In light of the account that they provide, advocates of this approach then argue that an egalitarian principle is appropriate for trade practice – regardless of that principle’s appeal, or lack thereof, in other contexts (James 2012). Because this approach begins with an explication of the nature of trade practice – and searches for a principle suited to that nature – we can refer to it as the explicative approach.

This first distinction – between applicative and explicative approaches – has, in practice, coincided with a second, looser, distinction between stronger and weaker forms of trade egalitarianism. The explicative approach has been used to defend conclusions that are less strongly egalitarian than those defended by proponents of the applicative alternative. In this paper, I engage with the primary explicative account of trade egalitarianism – that offered by Aaron James – and argue that its egalitarian conclusions are unduly minimalistic. My aim is not to criticize the explicative approach, but rather to show that the arguments and commitments of its best-known defender – James – either fail to rule out, or in fact positively support, more robustly egalitarian conclusions. I will not claim that James’s explicative approach can yield egalitarian conclusions that are as strong as those produced by the applicative alternative, but I will contend that James’s approach can accommodate egalitarian conclusions stronger than those he in fact endorses. I hope to move the debate about trade justice forward by demonstrating that proponents of the explicative approach can endorse egalitarian conclusions of similar strength to those embraced by proponents of the applicative alternative, despite approaching the subject in a very different – and apparently more parsimonious – manner.

By Mark D. White

The October 2021 issue of Criminal Law and Philosophy (15/3) focuses on proportionality, a  principle of just punishment that is often neglected by economic models of criminal punishment that focus instead of cost-effective methods of deterrence, especially in light of costly enforcement measures. As special issue editors Douglas Husak and John Hasnas write in their introduction:

The following papers reveal the diversity of scholarly opinion about the principle of proportionality. Several are skeptical that the principle can be defended at all; others are reluctant to abandon the principle but point out many well-known and not-so-well-known difficulties in punishing according to proportionality; and a few make significant efforts to try to resolve some of these problems. We hope and believe that this set of papers represents major progress in understanding the role, if any, that judgments of proportionality should play in a just system of penal sentencing.

This is a fascinating set of papers by an astounding group of scholars, and will surely reward close reading—proportionate to effort, of course!

Douglas Husak, "Proportionality in Personal Life"

Larry Alexander, "Proportionality’s Function"

Mitchell N. Berman, "Proportionality, Constraint, and Culpability"

James Manwaring, "Proportionality’s Lower Bound" (OPEN ACCESS)

Adam J. Kolber, "The End of Liberty"

Youngjae Lee, "Mala Prohibita and Proportionality"

Jesper Ryberg, "Retributivism and the (Lack of) Justification of Proportionality"

Göran Duus-Otterström, "Do Offenders Deserve Proportionate Punishments?" (OPEN ACCESS)

Kimberly Kessler Ferzan, "Punishment, Proportionality, and Aggregation"

Heidi M. Hurd and Michael S. Moore, "The Ethical Implications of Proportioning Punishment to Deontological Desert"

By Mark D. White

In case you missed it, there was a fantastic interview with Deirdre McCloskey—another of my main influences, as well as a longtime friend—conducted by Paolo Silvestri in the Spring 2021 issue of Erasmus Journal of Philosophy and Economics. Their discussion is wide-ranging and insightful, covering much of McCloskey's writing over the years, but a significant focus is on her book Bettering Humanomics: A New, and Old, Approach to Economic Science, released earlier this year by the University of Chicago Press.

In solidarity with Vernon Smith and Bart Wilson (including their recent book Humanomics), and all of them drawing ultimately on Adam Smith, McCloskey argues for a richer economics—"quantifiably serious, philosophically serious, historically serious, and ethically serious," as she writes in the preface to the book—that recognizes the subject of economics as human beings, not mathematical abstracts, which only gets us so far (and reasonable people can quibble about exactly how far that is).

McCloskey takes particular aim at behaviorism and positivism, "both top-down, infantilizing, as in nudging, and industrial planning, and other anti-liberalisms. And both are indefensible philosophically. And both are poor guides to understanding the economy" (p. 202 of the interview). For more on these points, see the discussion between her and Silvestri in the Journal of Institutional Economics (open access), which focuses more on her forthcoming book Beyond Behaviorism, Positivism, and Neo-Institutionalism in Economics (also from Chicago).