By Mark D. White

Courtesy of Klaus Mathis, I'm pleased to present the call for papers for the tenth Law and Economics Conference at the University of Lucerne in Switzerland (in collaboration with the University of Notre Dame Law School), from March 17-18, 2023. This year's theme is one near and dear to this blogger's heart: Law and Economics of Justice: Efficiency, Reciprocity, Meritocracy. I participated in the conference in 2015 (on nudging) and it was one of my favorite conference experiences ever—I highly recommend it.

The call elaborates on the three subtopics:

Efficiency: Traditionally, the economic analysis of law was guided by the goal of efficiency. Economists usually define efficiency as Pareto efficiency or Kaldor-Hicks efficiency. Any change that puts one member of society in a better position without making somebody else worse off is a Pareto improvement. A change is a Kaldor-Hicks improvement if the gainers value their gains more than the losers their losses, whereby only hypothetical compensation is required. Efficiency as a normative goal is heavily contested. In particular, many authors see an antagonism between efficiency and distributive justice, which they qualify as the greatest socioeconomic goal conflict. Other authors view efficiency not as a goal itself but rather as an instrument to achieve social goals. In any case, the economic analysis of law has to differ between two steps: the positive analysis and the evaluation of the results by normative criteria.

Reciprocity: Economists have traditionally based their models on the self-interest hypothesis of the homo oeconomicus. In this model, an individual maximizes his own utility without showing altruistic or jealous behaviour. Behavioural economics calls into question the theorem of self-interest. Many people do, in fact, stray away from exclusively self-interested behaviour. There are also signs that the consideration of fairness and mutual benefits are important to bilateral negotiations and the functioning of markets. For example, in the ultimatum game, two players have to agree on the division of a fixed sum of money, with one player proposing the division and the other accepting or rejecting the division and with that the money for both players. Empirical evidence shows that offers with only a small share of the available sum are considered unfair and therefore rejected.

Meritocracy: The concept of meritocracy refers to a system, organization or society in which people are chosen and moved into positions of success, power and influence on the basis of their abilities and merits. This means that through hard work, an individual is able to climb the social ladder. Moreover, meritocracy directs the most talented people into the most functionally important positions and thereby enhances a society’s efficiency. However, the equalizing function of meritocracy has been criticized. Rather than reducing inequality, meritocracy is seen as the cause of racial, economic, and social inequality.

Submissions take the form of a short (1-2 pages) description of the topic and a short CV, and should be sent to Klaus Mathis ([email protected]) by September 30, 2022. Papers will be chosen by October 15, and draft papers are due February 28, 2023. (A conference volume is planned, and final papers will be expected soon after the conference.)

Accommodations are provided for the speakers courtesy of the conference, but they are responsible for arranging their own travel. (I remember the train ride from Zurich to Lucerne well—such breathtaking scenery!)

For complete details, please see the call for papers PDF here.

By Mark D. White

A new working paper from Herrade Igersheim (BETA, University of Strasbourg, CNRS, University of Lorraine) titled "Rawls and the Economists: The (Im)possible Dialogue" offers a unique perspective on the relationship between the great philosopher and the field that would adopt his thinking. From the abstract:

Although falling within the scope of political and moral philosophy, it is well known that A Theory of Justice has also had a great impact on economists. As such, Rawls put great emphasis on his desire to combine economics and philosophy, and particularly to deal with rational choice theory, notably and famously claiming that “the theory of justice is a part, perhaps the most significant part, of the theory of rational choice” (1971, 15). After the publication of A Theory of Justice, aspects of it came in for criticism – often very vehement – by economists such as Arrow (1973), Musgrave (1974), Harsanyi (1975) and later by Sen (1980). Rawls’s immediate answers (1974a,b in particular) showed that he first wanted to maintain a dialogue with the economists, but the later evolutions of his works (1993, 2001) clearly demonstrated that he had removed himself from the economic realm, returning to his initial philosophical territory in order to overcome the internal inconsistencies of A Theory of Justice. In this paper, by focusing extensively on the letter exchanges between Rawls and the economists before and after the publication of A Theory of Justice, I attempt to shed light on other (complementary) elements which can explain Rawls’s retreat from the realm of economics, and his progressive disenchantment regarding the possibility of a dialogue on equal footing between economists and philosophers.

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

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 John Morton

Charlie Gard died on July 28, 2017, from a rare genetic disease.  His parents had raised enough money to get a second opinion on whether he could be saved by undergoing experimental treatment in the United States.  When the hospital and courts said no way, like many others I was shocked by the decision.  How could a hospital and judge overrule the opinion of loving parents?  The parents appealed, but finally too much time had elapsed, and the American specialist said Charlie could not be saved.  The parents then announced they were dropping their appeal.  This case scares the hell out of me.

A deeper--and less emotional--analysis, however, reveals thorny ethical questions.  From my libertarian perspective, I view most rights as negative.  Negative freedom protects people against violence from others against their person, property, and acts, such as speech and religious practices that do not harm others.  I’m skeptical when the government limits these rights because throughout history governments have been the main violators of negative freedom.

Positive freedom is a different story.  It is the ability to achieve a full life such as pursuing a career and obtaining adequate food, housing, education, and health care.  There are more problems with positive freedom than with negative freedom.  If the state helps people, say, provides free education, then it must tax others to get the funds.  This limits negative freedom.  All too frequently, the promise of positive freedom leads to authoritarianism with the suspension of all rights.

In Charlie Gard’s case, his parents raised the money for a second opinion and his treatment.  Nevertheless, medical resources used for Charlie could not be used for other children (opportunity cost and positive freedom).

In conclusion, I come down on the side of Charlie’s parents.  They loved their son more than any hospital bureaucrat or judge could.  The state cannot suffer, mourn, or pray.  Getting treatment for Charlie would hardly bring down the British health care system.

Jonathan B. Wight

President Obama has an eloquence and slow burning passion that is apparent in this video staged at a prison to talk about institutional injustice.

It provides the clearest statement I’ve heard of how small injustices at the margin—at each level of the justice system—compound to create systematic institutional bias.

This is moving for me to hear, when my state of Virginia executed someone this week for heinous crimes. The anger and vitriol directed against this evil perpetrator is surely justifiable. But the penalty of death is an irreversible punishment, and shown to be meted out disproportionately to some groups compared to others.

Since 1973, there have been 153 cases of death row inmates being exonerated by new information. Even if you believe that the justice system were squeaky clean in terms of doling out similar punishments to all people, the death penalty allows for no errors of fact or theory. And humans are not immune to both blunders.

Absolute punishments seem better fit for Medieval Ages when God’s certainty seemed closer at hand.

Mark D. White

Today the Supreme Court of the United States—now, thanks to Justice Scalia's dissent in yesterday's King v Burwell dissent, "officially" known as SCOTUS—declared marriage to be a right for all, covering both same-sex and opposite-sex couples. In his majority opinion, Justice Kennedy affirms same-sex marriage to be a matter of rights and dignity; Chief Justice Roberts, in his dissent, regards it as a matter of policy best left to the voters.

I agree with Kennedy, as I explain at Psychology Today. For more details on the opinions themselves (found here), I recommend Orin Kerr's summary at The Volokh Conspiracy.

Mark D. White

Over at the Association for Social Economics Blog, I talk about my latest edited book, Law and Social Economics: Essays in Ethical Values for Theory, Practice, and Policy, drawn from papers presented at the Allied Social Science Associations (ASSA) and Law and Society Association (LSA) meetings. Below is the table of contents:

Part I: Foundations

Chapter 1: "Towards a Contractarian Theory of Law," Claire Finkelstein

Chapter 2: "Environmental Ethics, Economics, and Property Law," Steven McMullen and Daniel Molling

Chapter 3: "Individual Rights, Economic Transactions and Recognition: A Legal Approach to Social Economics," Stefano Solari

Chapter 4: "Institutionalist Method and Forensic Proof," Robert M. LaJeunesse

Chapter 5: "Retributivist Justice and Dignity: Finding a Role for Economics in Criminal Justice," Mark D. White

Part II: Applications

Chapter 6: "Female Genital Mutilation and the Law: A Qualitative Case Study," Regina Gemignani and Quentin Wodon

Chapter 7: "An Unexamined Oxymoron: Trust but Verify," David George

Chapter 8: "On the Question of Court Activism and Economic Interests in 19th Century Married Women’s Property Law," Daniel MacDonald

Chapter 9: "Divergent Outcomes of Land Rights Claims of Indigenous Peoples in the United States," Wayne Edwards

Chapter 10: "Punitive (and) Pain-and-Suffering Damages in Brazil," Osny da Silva Filho

Mark D. White

The first issue of Economics and Philosophy in 2014 (30/1) is a special issue on "Themes from the Work of Amartya Sen: Identity, Rationality, and Justice." For the time being the symposium articles are open access. The symposium articles and abstracts follow:

Amartya Sen, "Justice and Identity"

This paper discusses the relationship between justice and identity. While it is widely agreed that justice requires us to go beyond loyalty to our simplest identity – being just oneself – there is less common ground on how far we must go beyond self-centredness. How relevant are group identities to the requirements of justice, or must we transcend those too? The author draws attention to the trap of confinement to nationality and citizenship in determining the requirements of justice, particularly under the social-contract approach, and also to the danger of exclusive concentration on some other identity such as religion and race. He concludes that it is critically important to pay attention to every human being's multiple identities related to the different groups to which a person belongs; the priorities have to be chosen by reason, rather than any single identity being imposed on a person on grounds of some extrinsic precedence. Justice is closely linked with the pursuit of impartiality, but that pursuit has to be open rather than closed, resisting closure through nationality or ethnicity or any other allegedly all-conquering single identity.

Mozaffar Qizilbash, "Identity, Reason and Choice"

In criticizing communitarian views of justice, Amartya Sen argues that identity is not merely a matter of discovery but an object of reasoned choice subject to constraints. Distinguishing three notions of identity – self-perception, perceived identity and social affiliation – I claim that the relevant constraints implied by this argument are minimal. Some of Sen's arguments about perceived identity and social context do not establish any further constraints. Sen also argues that a model of multiculturalism and some forms of education can restrict, or fail to promote, reasoned and informed identity choice. This argument is better understood in the light of Sen's work on capability and justice, notably his concern with ways in which underdogs can adapt and his emphasis on public reasoning. It highlights limitations on information and opportunities for reasoning. I suggest that these lead to genuine constraints on (reasoned and informed) identity choice. The paper focuses on Sen's work, though its claims are also relevant to George Akerlof and Rachel Kranton's analysis of identity.

Ann E. Cudd, "Commitment as Motivation: Amartya Sen's Theory of Agency and the Explanation of Behavior"

This paper presents Sen's theory of agency, focusing on the role of commitment in this theory as both problematic and potentially illuminating. His account of some commitments as goal-displacing gives rise to a dilemma given the standard philosophical theory of agency. Either commitment-motivated actions are externally motivated, in which case they are not expressions of agency, or such actions are internally motivated, in which case the commitment is not goal-displacing. I resolve this dilemma and accommodate his view of commitment as motivation by developing a broader descriptive theory of agency, which recognizes both agent goal-directed and goal-displacing commitments. I propose a type of goal-displacing commitment, which I call ‘tacit commitment’, that can be seen to fit between the horns. Tacit commitments regulate behaviour without being made conscious and explicit. This resolution suggests a means of bridging the normative/descriptive gap in social-scientific explanation.

Rutger Claassen, "Capability Paternalism"

A capability approach prescribes paternalist government actions to the extent that it requires the promotion of specific functionings, instead of the corresponding capabilities. Capability theorists have argued that their theories do not have much of these paternalist implications, since promoting capabilities will be the rule, promoting functionings the exception. This paper critically surveys that claim. From a close investigation of Nussbaum's statements about these exceptions, it derives a framework of five categories of functionings promotion that are more or less unavoidable in a capability theory. It argues that some of these categories may have an expansionary dynamic; they may give rise to widespread functionings promotion, which would defeat the capabilitarian promise that paternalist interventions will be exceptions to the rule of a focus on capabilities. Finally, the paper discusses three further theoretical issues that will be decisive in holding this paternalist tendency in check: how high one sets threshold levels of capability protection, how lengthy one's list of basic capabilities is, and how one deals with individual responsibility for choices resulting in a loss of one's capabilities.

Ian Carter, "Is the Capabilities Approach Paternalist?"

Capability theorists have suggested different, sometimes incompatible, ways in which their approach takes account of the value of freedom, each of which implies a different kind of normative relation between functionings and capabilities. This paper examines three possible accounts of the normative relation between functionings and capabilities, and the implications of each of these accounts in terms of degrees of paternalism. The way in which capability theorists apparently oscillate between these different accounts is shown to rest on an apparent tension between anti-paternalism (which favours an emphasis on capabilities) and anti-fetishism (which favours an emphasis on functionings). The paper then advances a fourth account, which incorporates a concern with the content-independent or ‘non-specific’ value of freedom. Only the fourth account would remove all traces of paternalism from the capability approach. Whatever reasons advocates of the capability approach might have had for rejecting this fourth account, those reasons are not internal to the capability approach itself.