By Mark D. White

Forthcoming in Politics, Philosophy & Economics but currently available online (and open access) is "The Puzzle of Competitive Fairness" by Oisin Suttle (Maynooth University), exploring common intuitions about the concept of fairness as it applies to markets. (I find this very welcome, as the vague use of this concept in economics was one of the frustrations that drew me into economics-and-ethics in the first place.)

From the abstract:

There is a sense of fairness that is distinctive of markets. This is fairness among economic competitors, competitive fairness. We regularly make judgments of competitive fairness about market participants, public policies and institutions. However, it is not clear to what these judgments refer, or what moral significance they have. This paper offers a rational reconstruction of competitive fairness in terms of non-domination. It first identifies competitive fairness as a distinctive claim, advanced within markets in turn characterized as antagonistic, instrumental and procedural. It distinguishes competitive fairness from a number of familiar ideals with which it might be confused: legitimate expectation, equality of opportunity, sporting fairness and economic efficiency. While many exponents likely assume competitive fairness can be explained in terms of one of these ideals, in each case there are significant objections to doing so. Instead, the paper argues that the most promising justification of competitive fairness is under the republican ideal of non-domination, which can reconstruct many of the intuitive judgments of competitive fairness that we make in particular cases. However, it concludes, this explanation makes it difficult for exponents to continue to emphasize competitive fairness, given diverse other risks of domination, and to other values, in markets.

Extra points for using Ronald Dworkin's methodology of fit and justification. From Suttle's introduction:

My method throughout is interpretive, in the sense advanced by Ronald Dworkin (Law's Empire: Ch. 2). We begin with a pre-theoretical account of a practice, identifying this inter alia through a number of paradigm instances. We next ask whether there is a principle or set of principles that could both explain and justify the practice, so conceived. To be successful, the required principles must both account for prominent features of the practice, and explain the value realized thereby. We can then return to our paradigm instances, and to any unclear or marginal cases, reassessing these based on our new, principled, understanding of the nature and function of the practice under examination.

Mark D. White

I am profoundly saddened to report that pre-eminent legal and political philosopher Ronald Dworkin has died today in England. He was 81.

Aside from Immanuel Kant, no thinker has been more influential on my writing, and my classes devoted to his work have been some of my most enjoyable to teach. It is a pleasure to teach about a philosopher that has so affected the scholarly discourse and also comments widely in the popular press, particularly the New York Review of Books, where he often commented at length on important Supreme Court decisions. As a professor, it's so rare for the philosopher at the center of a course regularly apply the theories you're teaching; as a professor, scholar, and fan, I will greatly miss his timely insight, but his work will continue to enrich my life and my work for years to come.

Rest in peace, sir—today you trump us all.

Mark D. White

Adam Liptak has a "Sidebar" in today's New York Times titled "'Politicians in Robes? Not Exactly, but..." discussing judges' voting records and the politics of the president who nominated them, citing data that finds a clear link and accusing judges of deciding cases based on "ideology." My comment is below:

Of course judges are ideological, but this does not necessarily translate into naked politics. Each judge has his or her own style of jurisprudence that may appeal more to presidents of one party or the other. A president will nominate judges with judicial philosophies that support his (or, someday, her) policy agenda. From the point of the view of presidents, judges and their judicial philosophies are tools, but to the judges, they are acting on principle. There is little ground for reading a judge's record as political rather then principled simply because his or her decisions are often in favor of the party of the president who nominated him or her.

I have more to say on this theme in this earlier post (written before the Supreme Court decided the Obamacare case, obviously).

Mark D. White

Today on The Atlantic's website, Dan Ariely describes an experiment he conducted with Mike Norton in which they survey people about both the current distribution of wealth in the U.S. and what they thought the ideal distribution of wealth is. Not surprisingly, they find that most everybody underestimates the level of inequality of wealth, and that most everybody would prefer a more equal distribution of wealth--and, most interestingly that the "desired" distribution is extremely stable regardless of political party or nation of origin.*

In fact, he writes, "most likely, if you participated in one of our tests, your response too would have fallen in line with these findings." Uh, no, it wouldn't--I would have refused to answer the question because I don't accept its premise, which is that the final distribution of wealth is more important than the processes which led to it. In Robert Nozick's terms, Ariely implicitly uses a patterned theory of justice, whereas I prefer a historical theory of justice. When I see a skewed distribution of income or wealth, my first thought is not, "let's correct that," but rather "let's see what caused the skewed distribution and see if they're anything unjust about that."

Ariely illustrates this distinction with his two proposals for lessening inequality: education and taxation. Education improves the process while taxation improves the results after the fact. This is comparable to making sure a football game is officiated fairly, but then adjusting the score after the game is finished. If the outcomes of a football game--or of the economy--result from just and fair processes, then it is difficult to find a justification for questioning the results (outside simple utilitarianism).

Ariely describes his methodology as inspired by John Rawls' "veil of ignorance," in which people are asked what kind of world they'd like to live in if they had no idea where they'd fall in socio-economic terms (or, more broadly, in terms of race, gender, and so on). Ironically, however, Rawls was opposed to redistribution after the fact, and meant for his veil of ignorance metaphor to be used when designing institutions that would benefit the worst-off in society so wealth would not have to redistributed after the fact. (Ronald Dworkin's resource-egalitarianism takes the same approach: equalize resources at the beginning of persons' lives, and let them make of their lives what they will.)

My point does not lean only to the left or the right; people on both sides of the political spectrum (and especially libertarians) will happily point out injustices in the system that lead to unjust outcomes. This is one thing that the Occupy movement and the Tea Party have in common: there is corruption throghout the system that benefits the few at the expense of the many. But it does little good to say what we want the world to look at any point in time. Instead, we should focus on how we want to world to work over time--all the time--so everyone has a fair chance at leading the life they want to live.

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* They also neglect to ask what means people are willing to accept to reach their desired level of inequality--I imagine that's where differences in political affiliation would show up the most. Ariely admits to this shortcoming, but casts it in terms of what sacrifices people would be willing to make themselves to lower inequality, not what structural changes in our institutions they would recommend:

Our study also doesn't deal with how to bring what people say they want under the veil of ignorance into line with what they're willing to do when it's their money and resources that are about to be distributed. It is one thing to get people to tell us what kind of society the would want to join, and another to get them part with their money in order to create that society.

Mark D. White

Classes start for me on Monday (though our spring semester starts today--that's right, on a Friday), and my first class will be one of my favorites to teach. legal philosophy. And luckily for me (and for my students), I was given the perfect news item to start the class and motivate our discussion.

The International Business Times reported yesterday on a new Kaiser Health Tracking Poll on the Affordable Care Act (aka Obamacare). Of course, there is much confusion regarding the contents and legality of the ACA, but there seems to be just as much confusion regarding the nature of judicial decision-making.

Kaiser reported that 59% of those polled believed that the Supreme Court justices will let their “own ideological views influence their decision” on the ACA, and 28% said the justices will “base their decision on legal analysis without regard to ideology or politics.” The rest were undecided or refused to answer—perhaps because they realized neither choice was adequate. The justices not only will but must use ideology to make their individual decisions, but it will be ideology in the sense of a reflective legal and political philosophy developed over years of study and experience, not their own personal political preferences.

The hearings over the ACA, particularly regarding the individual mandate, will surely prove to be the most important legal case of the decade, if not longer. It is what scholars of judicial decision-making call a “hard case,” one which cannot be settled decisively by what is written in the Constitution and statutes or embodied in over two hundred years of judicial precedents. In such cases, the cynic would say that judges make new law out of thin air by indulging their personal political preferences. But we need not resort to this, when there is a better answer that both explains differences of opinion while retaining a strong sense of civic duty and impartiality among judges.

As legal philosopher Ronald Dworkin wrote, judges decide hard cases by interpreting the existing legal materials (the Constitution, statutes, and previous decisions) and arriving at the answer that best maintains the integrity of the legal system. The question then becomes not whether they interpret the law but how. This is where ideology enters the process, but not in terms of personal politics. In making hard decisions, each judge interprets the law against a legal and political philosophy that he or she feels best fits the historical materials.

It is not a matter of whether each justice supports or opposes the ACA, but whether he or she believes the ACA is consistent with their view of the  legal and political history of the United States of America. Understood this way, ideology does play an integral role in judicial decision-making, but it is a principled ideology based on a careful reading of law and history, not on a judge’s own predilections regarding the case at hand.

This is a subtle distinction, to be sure, and one that leads to tremendous confusion. Legal scholars and ordinary citizens alike are much too eager to say that judges vote their politics, whether liberal or conservative—especially when the judge is on the “other side on the aisle” from the critic. But this shows  a regrettable degree of bad faith. It is just as easy to say that each judge votes according to the principles for which he or she thinks—after years of study, reflection, and experience—that the United States stands. Will the resulting positions correspond to their personal political beliefs? Of course they will, but that doesn’t imply they are voting based on their personal politics, but rather that their personal politics are based on the same careful analysis that informs their judicial decision-making.

Will “liberal” judges likely vote in support of the ACA? Yes, but not because they support the president and his party; they will vote for it because their vision of this country is one in which the government plays an active role in ensuring the well-being of its citizens (whether the ACA will actually achieve that or not). Will “conservative” judges likely vote in opposition to the ACA? Yes, but not because they oppose the president and his party; they will vote against it because their vision of this country is one in which the government interferes in its citizens’ lives only to prevent harm (whatever their conception of harm may be).

Judging from the many arguments I’ve heard and opinion pieces I’ve read over the last several years, I believe this is how most people outside Washington think about the Affordable Care Act and the individual mandate: in terms of principle rather than politics. Why, then, is it so hard for them to believe that the justices of the Supreme Court think in the same way?

Mark D. White

Over at The Literary Table, I highlight a pair of recent blog posts by Ronald Dworkin cocnerning two recent Supreme Court decisions, Arizona Christian School Tuition Organization v. Winn et al and Arizona Free Enterprise Club PAC v. Bennett. (Links point to the blog posts, not the decisions.) 

Mark D. White

In the latest issue of Philosophy & Public Affairs (39/1, Winter 2011) is a review essay by eminent Harvard philosopher F. M. Kamm on Amartya Sen's latest book The Idea of Justice, which she presents as a companion to her piece on Ronald Dworkin's Justice for Hedgehogs, published in the special issue of the Boston University Law Review dedicated to Dworkin's book (and which I blogged about here). We are lucky indeed to have a powerful mind like Kamm's provide parallel overviews of two such important books--both articles are must-reads!

Mark D. White

Coming in April from Oxford University Press is my latest edited volume, Retributivism: Essays on Theory and Policy, featuring a dozen prominent legal scholars and philosophers presenting new interpretatations, extensions, and applications of retributivism, "broadly defined as the view that punishment is justified and motivated by considerations of justice, rights, and desert, rather than by personal or societal consequences" (from my introduction, p. xi).

UPDATE: The introduction is now posted at SSRN, courtesy of OUP.

From the description:

In Retributivism: Essays on Theory and Policy, Professor Mark D. White and his contributors offer analysis and explanations of new developments in retributivism, the philosophical account of punishment that holds that wrongdoers must be punished as a matter of right, duty, or justice, rather than to serve some general social purpose. The contemporary debate over retributivist punishment has become particularly vibrant in recent years, focusing increasingly on its political and economic as well as its philosophical aspects, and also on its practical ramifications in addition to theoretical implications. The twelve chapters in this book, written by leading legal scholars and philosophers, cover the various justifications and conceptions of retributivism, its philosophical foundations (often questioning conventional understandings), and how retributivism informs actual criminal justice procedures and practices.

The table of contents is as follows (my chapter was previewed here):

Part I: Conceptualizing Retributivism

1. Retrieving Retributivism (R.A. Duff)

2. Punishment Pluralism (Michael T. Cahill)

3. What Might Retributive Justice Be? An Argument for the Confrontational Conception of Retributivism  (Dan Markel)

4. Retributive Justice and Social Cooperation (Gerald Gaus)

Part II: Philosophical Perspectives on Retributivism

5. Some Second Thoughts on Retributivism (Jeffrie G. Murphy)

6. Kant, Retributivism, and Civic Respect (Sarah Holtman)

7. Pro Tanto Retributivism: Judgment and the Balance of Principles in Criminal Justice (Mark D. White)

8. Hegel on Punishment: A More Sophisticated Retributivism (Jane Johnson)

Part III: Retributivism and Policy

9. Entrapment and Retributive Theory (Mark Tunick)

10. The Choice of Evils and the Collisions of Theory (Marc O. DeGirolami)

11. Retributive Sentencing, Multiple Offenders, and Bulk Discounts (Richard L. Lippke)

12. Retribution and Capital Punishment (Thom Brooks)

Mark D. White

Next weekend (March 11-12, 2011), I am honored to appear in a session on virtue ethics and the law at the Association for the Study of Law, Culture and Humanities meetings in Las Vegas. The session was graciously organized by Cimino Chapin, the subject of an earlier blog post, and the discussant is none other than Jennifer Baker, contributor extraordinaire to several of my projects (including Accepting the Invisible Hand, as previewed here).

The program can be found here; the session I am on is as follows:

Saturday, March 12, 2011, 1:45-3:30 PM

The Power, Purchase, and Pragmatism of Modern Virtue

Chair and Organizer: Chapin Cimino, Drexel University—Earl Mack School of Law

Discussant: Jennifer Baker, College of Charleston

Papers:

• Chapin Cimino, Drexel University—Earl Mack School of Law, "Citizenship, the Campus Community, and Competing Rights: An Aristotelian Analysis"
• Ronald J. Colombo, Hofstra University School of Law, "Virtue and Corporate Governance"
• Mark D. White, College of Staten Island/CUNY, "The Virtues of Hercules"

Regarding my contribution, I will discuss the literature on judicial virtue, and argue that Ronald Dworkin's jurisprudence, as represented by his ideal judge Hercules, exemplifies the virtues that should be expected of a judge.

Mark D. White

In the latest New York Review of Books (Feb. 10, 2011), Ronald Dworkin asks "What Is a Good Life?", offering an answer drawn from his book, Justice for Hedgehogs. From the article:

We have a responsibility to live well, and the importance of living well accounts for the value of having a critically good life. These are no doubt controversial ethical judgments. I also make controversial ethical judgments in any view I take about which lives are good or well-lived. In my own view, someone who leads a boring, conventional life without close friendships or challenges or achievements, marking time to his grave, has not had a good life, even if he thinks he has and even if he has thoroughly enjoyed the life he has had. If you agree, we cannot explain why he should regret this simply by calling attention to pleasures missed: there may have been no pleasures missed, and in any case there is nothing to miss now. We must suppose that he has failed at something: failed in his responsibilities for living.