Elizabeth Pollman on the Supreme Court and the complexity of business interests (at Harvard Law Review)

Hlr pollmanBy 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.


Elsa Kugelberg on norms, choice, and responsibility (in Politics, Philosophy & Economics)

Ppe coverBy 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.


Bossert, Cato, and Kamaga on sufficientarianism (open-access at Journal of Political Philosophy)

J pol philBy 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.


Bailey, Rettler, and Warmke on the ethics of cryptocurrency (at Philosophy Compass)

CryptocurrenciesBy 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.


Elizabeth Brake on price gouging (in Economics and Philosophy)

Economics and philosophyBy 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.)


Concluding the "Cost-Benefit Analysis at the Crossroads" symposium (LPE Project)

Lpe projectBy Mark D. White

The final two posts at the "Cost-Benefit Analysis at the Crossroads" symposium at the LPE Project are more practical, focusing on the impact of CBA techniques in health care and the environment. (Kudos to the LPE Project for this fascinating and provocative collection of essays.)

In "The 'Value of a Statistical Life': Reflections from the Pandemic," Mark Silverman (Franklin & Marshall College) questions the validity of the concept of willingness-to-pay (WTP) on which most CBA calculations are based, especially insofar as they are taken to reflect risk-reward trade-offs, which are at the center of policymaking during the pandemic. He identifies two specific problems in particular:

The first is specific to the notion of worker rates of substitution between income and risk. In the pandemic-induced recession of 2020, with a restricted range of job opportunities, and little publicly provided material support, newly-acknowledged “essential” workers had little choice to but to accept increasingly risky jobs with little or no hazard pay. In fact, the worse the bargaining position for workers, the less they will “value” their lives – lest they risk their livelihood.

The second criticism focuses on the endogeneity of the underlying preferences. Even assuming away the question of worker bargaining power, we are still left with the question of whether, as a matter of policy, our social willingness to pay for mortality risk should be defined exclusively in terms of agents’ WTP as revealed by the market.

In "The Shaky Legal and Policy Foundations of Cost-Benefit Orthodoxy in Environmental Law," Amy Sinden (Temple University) surveys the numerous difficulties with using CBA to screen environmental policies, given the difficulty of quantifying (or monetizing) environmental improvements. Sinden lays out the implications of this failure:

If important benefits are left out of the equation the vast majority of the time, then CBA operates at best as an informal screening tool, telling us, if we’re lucky, whether the benefits of a regulation in a rough sense exceed the costs. (When you’re not so lucky and your partial benefits estimate comes out lower than your cost estimate, it doesn’t tell you much of anything.) 

Once demoted from a formal optimization tool to a rough screening tool, CBA loses its normative pedigree in welfare economics and joins the ranks of the other perhaps less theoretically beguiling but highly pragmatic cost screening tools that Congress has so often relied on in crafting our environmental statutes. These are the scrappy, street-smart tools of regulatory decision-making, like feasibility analysis, cost-effectiveness analysis, and multi-factor balancing—tools that arguably make up for in pure pragmatic effectiveness what they lack in theoretical elegance. Once your goal is no longer to reach the mythical state of economic efficiency, but rather to ensure that costs are not in some general sense unreasonable, these other tools may actually get you there more quickly, easily, and—dare I say—efficiently

She concludes that, rather than doubling down on CBA, the federal government should defer to individual agencies, who

should decide how to most appropriately account for costs and benefits by choosing among the wide array of tools available. This choice should be tailored to the particular context in which the rulemaking arises, giving particular attention to the feasibility of quantifying and monetizing relevant costs and benefits, along with the agency’s statutory mandates.


Nebel on Harsanyi's aggregation theorem

HarsanyiBy 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.)


Fleurbaey and Leppanen on expanding social welfare analysis to other species (in Journal of Bioeconomics)

J of bioeconomicsBy 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)


Another update to "Cost-Benefit Analysis at the Crossroads" symposium (LPE Project)

Lpe projectBy Mark D. White

Talk about the gift that keeps giving: The "Cost-Benefit Analysis at the Crossroads" symposium at the LPE Project has posted several new entries which collectively focus and intensify the critical look at CBA in the earlier contributions. In this post, I'll look at three that highlight the failures of inclusivity at the heart of CBA.

In "Modernizing Regulatory Review Beyond Cost-Benefit Analysis," Melissa Luttrell (University of Tulsa College of Law) and Jorge Roman-Romero (Equal Justice Works) write that:

Cost-benefit analysis (CBA) is inherently classist, racist, and ableist. Since these are foundational problems with CBA, and are not simply issues with its implementation, they can never be fixed by mere methodological improvements. Instead, the ongoing modernization of centralized regulatory analyses must focus on “moving beyond” CBA, and not on fixing it or improving it.

In response, they suggest a more comprehensive and holistic approach to regulatory review that incorporates values outside of CBA, partly by inviting the input of experts other than economists:

A comprehensive and just approach to regulation that properly balances economic considerations with deontological factors is possible in a post-CBA world. In the context of risk regulation, the regulatory review process should prioritize deontological interests, particularly when controlling statutes don’t provide for a welfarist blueprint, and are, instead, more concerned with protecting rights or promoting equity—as most of them are.

Implementing this post CBA-approach to regulation requires OIRA to diversify its portfolio of career staffers beyond economists, thus avoiding falling into methodological labyrinths that threaten to derail regulatory action with no apparent coherence. By incorporating more areas of disciplinary expertise in the review process, important non-quantifiable considerations like climate resilience, environmental justice, and intergenerational equity would be given predominant weight despite the difficulties associated with assigning a monetary value to the benefits that might accrue from centering them. Moreover, a post-CBA regulatory review that appreciates deontological values should be wary of falling into other reductionist utilitarian frameworks that democratically-enacted statutes do not call for. Recall that the Clinton and Obama administrations both made gestures toward retaining CBA while softening its anti-regulatory effects; these half-measures were ineffective then, as they will be again if CBA is merely “reformed” instead of rejected.

Karen Tani (University of Pennsylvania) follows in the same vein in her contribution, "The Limits of the Cost-Benefit Worldview: A Disability-Informed Perspective," which details two specific objections to CBA in this specific context. First, she highlights who has the power to make decisions and who is subject to them:

In a society that remains inaccessible to many disabled people, some have found it useful to be able to say, “this thing I want (need) is not that costly, especially relative to the benefits, so you should just give it to me.” But as disability law scholars and practitioners would be the first to admit, that same framework carries within it a concession. It suggests that at some point, or for some seekers, cost will be an entirely valid reason for the person who controls access or resources to say “no.” The benefits may be entirely real, but they will not justify the costs.

Surely there are situations in which we don’t want to make that decisional framework available—not because we think we can simply wish away costs, but because of the importance of the interest at stake and because we know just how easy it is to craft compelling narratives of austerity and costliness. To be sure, austerity/cost narratives have counter-narratives—of deservingness, of need, and even of right—but historically, some narrators have received more credence from the American public than others. There is a thumb on a scale against anyone who can plausibly be blamed for their own vulnerability (“welfare mothers” are a prominent historical example).

Second, she questions the ways that different issues are framed, either as costs or benefits:

The second point—again, heard often in the disability community—is about deep structures of exclusion and how easily they escape the notice of policymakers. CBA is particularly unhelpful in this regard. As Martha Nussbaum has argued, in the context of her capabilities work, CBA may help us in answering which of the options in front of us “contains the largest net measure of good,” but it is not an apt tool for naming and questioning the immorality that may be embedded in the set of choices made available. As Nussbaum puts it, CBA foregrounds the “obvious question” and leaves unasked and unanswered the “tragic question” that may be present in the same situation. Thus in the disability context, CBA might help us decide whether and how to make existing public transportation accessible (still a serious problem), but it does not ask why transportation systems were built in ways that excluded so many disabled people in the first place. It might help us make a decision about the pace and nature of deinstitutionalization, but it would not interrogate the morality of a society that has long separated people with intellectual and developmental disabilities from the rest of the community and confined them in warehouse-like settings. More generally, CBA is comfortable casting some people’s needs as the “costs,” and implicitly asking those people show their worth, rather than asking how and why they ended up on that side of the ledger to begin with.

Finally, in "A Post-Neoliberal Regulatory Analysis for a Post-Neoliberal World," James Goodwin (Center for Progressive Reform) echoes the comments of the previous two posts, calling out the undemocratic nature of CBA as well as its neglect of deontological values, and adds an anti-social bias (that will certainly resonate with social economists):

[T]he analysis must recognize and properly account for the complex patterns of social relationships that define and give meaning to each of our lives. Welfare economics-based cost-benefit analysis denies these linkages, viewing individuals in strictly atomistic terms and pretending our existence is little more than the single-minded pursuit of self-interested utility. An analysis lacking a richer understanding of our situated, mutual dependencies is not merely incomplete; it is systematically biased against pro-social policies, such as controls on toxic mercury pollution emissions from fossil-fueled power plants or effective COVID protections for workers in the service industry. Worse still, it rewards and reinforces the cultural disconnectedness at the root of so many of our public policy challenges.


New open-access book: Jeremy Bentham on Police (UCL Press)

Bentham on policingBy Mark D. White

UCL Press has released a new book, Jeremy Bentham on Police, edited by Scott Jacques and Philip Schofield, which is available as a free download. Its chapters are written mostly from the viewpoint of criminology, but they would seem very relevant to the law-and-economics approach to policing as well, given Bentham's foundational influence over the field.

From the description at the publisher's website:

Jeremy Bentham’s ideas on punishment are famous. Every criminology student learns about Bentham, and every criminologist contends with him, as advocate or opponent. This discourse concerns his ideas about punishment, namely with respect to legislation and the panopticon. Yet, scholars and students are generally ignorant of Bentham’s ideas on police. Hitherto, these ideas have been largely unknowable. Now, thanks to UCL’s Bentham Project, these ideas are public.

Jeremy Bentham on Police celebrates this achievement by exploring the story of Bentham’s writings on police and considering their relevance to the past, present and future of criminology. After Scott Jacques introduces the book, the Director of the Bentham Project, Philip Schofield, describes and explains how it works. Then Michael Quinn, who brought together Bentham’s writings on police, delves into the personal and socio-historical background in which they were created. An extract follows, representing the most (criminologically-)relevant passages from Bentham’s police writings. Finally, a rich variety of scholars offer their thoughts on what those writings mean for criminology. These contributions come from Anthony A. Braga, Ronald Clarke, David J. Cox, Stephen Douglas, Stephen Engelmann, G. Geltner, Joel F. Harrington, Jonathan Jacobs, Paul Knepper, Gloria Laycock, Gary T. Marx, Daniel S. Nagin, Graeme R. Newman, Pat O’Malley, Eric L. Piza, Kim Rossmo, Lucia Summers and Dean Wilson.