On Initial Conferment of Individual Rights

An extended social choice framework is proposed for the analysis of initial conferment of individual rights. This framework captures the intuitive conception of decision-making procedure as a carrier of intrinsic value along with the instrumental usefulness thereof in realizing valuable culmination outcomes. The model of social decision-making consists of two stages. In the first stage, the society decides on the game-form rights to be promulgated. In the second stage, the promulgated game form rights, coupled with the revealed profile of individual preference orderings over the set of culmination outcomes, determine a fully-fledged game, the play of which determines a culmination outcome at the Nash equilibrium. A set of sufficient conditions for the existence of a social choice procedure, which can choose a game form in the first stage that is not only liberal, but also uniformly applicable to every revealed profile of individual preference orderings over the set of culmination outcomes, is identified.Extended alternative, Extended constitution function, Uniformly rational choice, Liberal game form, Non-consequentialist evaluation of rightssystem

Pareto versus Welfare

Many normatively oriented economists, legal academics and other policy analysts appear to be welfarist and Paretian to at least moderate degree: They deem positive responsiveness to individual preferences, and satisfaction of one or more of the familiar Pareto criteria, to be reasonably undemanding and desirable attributes of any social welfare function (SWF) employed to formulate social evaluations. Some theorists and analysts go further than moderate welfarism or Paretianism, however: They argue that the Pareto principle requires the SWF be responsive to individual preferences alone - a position I label strict welfarism - and conclude that all social evaluation should in consequence be formulated along strictly welfarist lines. I show that no strictly welfarist social welfare function can give complete expression to a normative social evaluation, as distinguished from simply describing a social allocation. I show also that SWFs employed to formulate complete social evaluations must accordingly, in virtue of the entailment relations obtaining among strict welfarism and the several Pareto criteria when these latter are interpreted along preference-regarding lines, be constructed without regard to Weak, Strong or Indifferentist Pareto. The results derived here generalize Arrow\u27s (1951), Sen\u27s (1970), and cognate impossibility results

The Impossibility of a Prescriptive Paretian

Most normatively oriented economists appear to be “welfarist” and Paretian to one degree or another: They deem responsiveness to individual preferences, and satisfaction of one or more of the Pareto criteria, to be a desirable attribute of any social welfare function. I show that no strictly “welfarist” or Paretian social welfare function can be normatively prescriptive. Economists who prescribe must embrace at least one value apart from or additional to “welfarism” and Paretianism, and in fact will do best to dispense with Pareto entirely

Minding the Gaps: Fairness, Welfare, and the Constitutive Structure of Distributive Assessment

Despite over a century’s disputation and attendant opportunity for clarification, the field of inquiry now loosely labeled “welfare economics” (WE) remains surprisingly prone to foundational confusions. The same holds of work done by many practitioners of WE’s influential offshoot, normative “law and economics” (LE). A conspicuous contemporary case of confusion turns up in recent discussion concerning “fairness versus welfare.” The very naming of this putative dispute signals a crude category error. “Welfare” denotes a proposed object of distribution. “Fairness” describes and appropriate pattern of distribution. Welfare itself is distributed fairly or unfairly. “Fairness versus welfare” is analytically on all fours with locutions of the form “warmth versus clothing” or “35 mph versus tennis balls.” Framing disputes in this way leads us nowhere. It only miscarries our thinking. A more venerable source of perplexity is found in the hallowed Pareto criterion (PC) and its conceptual kin. One proffered advantage of the PC is its purportedly enabling “us” to sidestep contested questions of interpersonal comparison, aggregation and distribution. But what manner of collective agent – what “we” – might plausibly be expected to take interest in unavoidably resource-distributive prescriptions, without view to the propriety with which these treat each member of the collectivity effectively addressed by the prescriptions, is left unidentified. And as soon as we plausibly fill-in the gap, the PC and kin prove prescriptively sterile. We get nowhere until we confront distributions – and de facto distributors – head-on. This Mongraph seeks to lay out with some care both when, and how, such confronting should be done. It specifies both the conditions, and the appropriately structured mode of analysis, under which distributive-ethical assessment is called for and apt to bear fruit. The means to success lie in carefully mapping the constitutive structure – the full valence grammar – of distribution-implicative claims. Effectively normative claims concerning distributions wrought by legal rules, programs or policies, if they would be so much as cognitively complete let alone ethically assessable, must assign values to all variables opened by the case grammar of “to distribute” and cognate infinitives – “to allocate,” “to apportion,” “to mete out,” etc. They must, that is, determinately and inter-compatibly indicate to whom claims are in effect being addressed, what is effectively being distributed, pursuant to what pattern the latter is being distributed, by what means and to whom. To be normatively defensible, in turn, such claims must not only carefully specify, but also must ethically justify, the jointly compatible values they proffer for filling those variables. The normative payoff of the mode of analysis proposed here is a compelling distributive ethic, a means of rendering past and present foundational disputes both tractable and conclusively resoluble, and in the end a new research agenda for what the Article labels an “ethically intelligible law and economics.

Public Opinion, Political Representation, and Democratic Choice

In this dissertation I argue that political representatives have duties to be responsive to public opinion in their policy decisions. The existence of this duty, I claim, is a basic requirement of a truly democratic system of government. In chapter 2, I show that several standard versions of democratic legitimacy require political representatives to ``respect'' public opinion. However, I argue that a particular version of political legitimacy, based upon popular sovereignty and the importance of self-governance, provides an especially useful background for understanding what this ``respect'' must mean. In chapter 3, I argue that respecting public opinion requires political representatives to integrate public opinion information into their policy decisions. According to one of the standard views of political representation, the liberal conception, representatives deciding between policy alternatives should balance what they believe to be in the interests of the public against public opinion. I argue that this is the only adequate theory of political representation. Although this view of political representation is often discussed in the literature, it is less often given a mathematically precise form. Therefore, I present a formal model of such a balancing procedure, and this reveals several important formal requirements that a conception of public opinion must satisfy; most importantly, it must account for instability in the expression of public opinion, individual differences in opinion strength, and it must be representable along a cardinal scale. Standard measures of public opinion do not satisfy these requirements. I argue that if such a model of public opinion cannot be formulated, then the liberal conception of political representation is incoherent. In chapters 4 and 5, I present a model of public opinion based upon Thurstonian scaling techniques that fulfills the necessary formal requirements. Finally, in chapter 6, I discuss several important implications this model has for the measurement of public opinion, the use of public opinion by political representatives in policy deliberation, and other problems in social choice theory