Prioritarianism is a moral view that ranks outcomes according to the sum of a strictly increasing and strictly concave transformation of individual well-being. Prioritarianism is ‘welfarist’ (namel...

Prioritarianism is an ethical theory that gives extra weight to the well-being of the worse off. In contrast, dominant policy-evaluation methodologies, such as benefit-cost analysis, cost-effectiveness analysis, and utilitarianism, ignore or downplay issues of fair distribution. Based on a research group founded by the editors, this important book is the first to show how prioritarianism can be used to assess governmental policies and evaluate societal conditions. This book uses prioritarianism as a methodology to evaluate governmental policy across a variety of (...) policy domains: taxation, health policy, risk regulation, education, climate policy, and the COVID-19 pandemic. It is also the first to demonstrate how prioritarianism improves on GDP as an indicator of a society's progress over time. Edited by two senior figures in the field with contributions from some of the world's leading economists, this volume bridges the gap from the theory of prioritarianism to its practical application. (shrink)

This Article provides a comprehensive, critical overview of proposals to use happiness surveys for steering public policy. Happiness or “subjective well-being” surveys ask individuals to rate their present happiness, life-satisfaction, affective state, etc. A massive literature now engages in such surveys or correlates survey responses with individual attributes. And, increasingly, scholars argue for the policy relevance of happiness data: in particular, as a basis for calculating aggregates such as “gross national happiness,” or for calculating monetary equivalents for non-market goods based (...) on coefficients in a happiness equation. But is individual well-being equivalent to happiness? The happiness literature tends to blur or conflate important concepts: well-being, subjective well-being, happiness, utility, satisfaction. A preference-realization account of well-being denies the equivalence of happiness and welfare, since someone can have preferences for non-mental attributes, such as health, autonomy, goal-fulfillment, knowledge or the quality of her relationships. It is critical, therefore, to differentiate two potential policy roles for happiness surveys. First, the survey response may provide prima facie evidence of the respondent’s preference-utility: the extent to which her preferences are realized. Second, it may indicate her experience-utility: the quality of her mental states. The Article clarifies these two, very different, ideas. It then criticizes, in turn, the preference-utility and the experience-utility defenses of the policy relevance of happiness surveys. Enthusiasm about happiness is premature. (shrink)

:Preference-aggregation problems arise in various contexts. One such context, little explored by social choice theorists, is metaethical. ‘Ideal-advisor’ accounts, which have played a major role in metaethics, propose that moral facts are constituted by the idealized preferences of a community of advisors. Such accounts give rise to a preference-aggregation problem: namely, aggregating the advisors’ moral preferences. Do we have reason to believe that the advisors, albeit idealized, can still diverge in their rankings of a given set of alternatives? If so, (...) what are the moral facts when the advisors do diverge? These questions are investigated here using the tools of Arrovian social choice theory. (shrink)

Cost-benefit analysis is a widely used governmental evaluation tool, though academics remain skeptical. This volume gathers prominent contributors from law, economics, and philosophy for discussion of cost-benefit analysis, specifically its moral foundations, applications and limitations. This new scholarly debate includes not only economists, but also contributors from philosophy, cognitive psychology, legal studies, and public policy who can further illuminate the justification and moral implications of this method and specify alternative measures. These articles originally appeared in the Journal of Legal Studies. (...) Contributors: - Matthew D. Adler - Gary S. Becker - John Broome - Robert H. Frank - Robert W. Hahn - Lewis A. Kornhauser - Martha C. Nussbaum - Eric A. Posner - Richard A. Posner - Henry S. Richardson - Amartya Sen - Cass R. Sunstein - W. Kip Viscusi. (shrink)

The COVID-19 crisis has forced a difficult trade-off between limiting the health impacts of the virus and maintaining economic activity. Welfare economics offers tools to conceptualize this trade-off so that policy-makers and the public can see clearly what is at stake. We review four such tools: the Value of Statistical Life (VSL); the Value of Statistical Life Years (VSLYs); Quality-Adjusted Life-Years (QALYs); and social welfare analysis, and argue that the latter are superior. We also discuss how to choose policies that (...) differentially affect people’s wellbeing. We argue in favor of evaluating policies using a Social Welfare Function (SWF), which evaluates the possible distributions of wellbeing across individuals that may result from a policy. Such a function, we argue, should regard increases in the wellbeing of the less well-off as especially valuable. We then use a model to illustrate how such a framework can help evaluate two broad policy types in response to the pandemic: eradication of the virus, and more lenient control of the spread. Our model reveals how such evaluations depend on many empirical facts but also on key value judgments about the relative importance of health and on the extent of special concern for the worse off. The purpose of this brief is not to make precise recommendations, as conditions vary widely across countries and over time, but to provide a methodology. (shrink)

A large literature documents the correlates and causes of subjective well-being, or happiness. But few studies have investigated whether people choose happiness. Is happiness all that people want from life, or are they willing to sacrifice it for other attributes, such as income and health? Tackling this question has largely been the preserve of philosophers. In this article, we find out just how much happiness matters to ordinary citizens. Our sample consists of nearly 13,000 members of the UK and US (...) general populations. We ask them to choose between, and make judgments over, lives that are high in different types of happiness and low in income, physical health, family, career success, or education. We find that people by and large choose the life that is highest in happiness but health is by far the most important other concern, with considerable numbers of people choosing to be healthy rather than happy. We discuss some possible reasons for this preference. (shrink)

Does individual desert matter for distributive justice? Is it relevant, for purposes of justice, that the pattern of distribution of justice’s “currency” (be it well-being, resources, preference-satisfaction, capabilities, or something else) is aligned in one or another way with the pattern of individual desert? -/- This paper examines the nexus between desert and distributive justice through the lens of individual claims. The concept of claims (specifically “claims across outcomes”) is a fruitful way to flesh out the content of distributive justice (...) so as to be grounded in the separateness of persons. A claim is a relation between a person and a pair of outcomes. If someone is better off in one outcome than a second, she has a claim in favor of the first. If she is equally well off in the two outcomes, she has a null claim between the two. In turn, whether one outcome is more just than a second depends upon the pattern of claims between them. -/- In prior work, I have elaborated the concept of claims across outcomes, and have used it to provide a unified defense of the Pareto and Pigou-Dalton axioms. Adding some further, plausible, axioms, we arrive at prioritarianism. -/- Here, I consider the possibility of desert-modulated claims—whereby the strength of an individual’s claim between two outcomes is determined not only by her well-being levels in the two outcomes, and her well-being difference between them, but also by her desert. This generalization of the notion of claims suggests a new axiom of justice: Priority for the More Deserving, requiring that, as between two individuals at the same well-being level, a given increment in well-being be allocated to the more deserving one. -/- If individual desert is intrapersonally fixed, this new axiom, together with a desert-modulated version of the Pigou-Dalton principle, and the Pareto axioms, yields a desert-modulated prioritarian account of distributive justice. Trouble arises, however, if an individual’s desert level can be different in different outcomes. In this case of intrapersonally variable desert, Priority for the More Deserving can conflict with the Pareto axioms (both Pareto indifference and strong Pareto). -/- This conflict, I believe, is sufficient reason to abandon the proposal to make claim strength a function of individual desert on top of well-being levels and differences. If distributive justice is truly sensitive to each individual’s separate perspective—if the justice ranking of outcomes is built up from the totality of individual rankings—we should embrace the Pareto axioms as axioms of justice and reject Priority for the More Deserving. In short: desert-modulated prioritarianism is a nonstarter. Rawls was right to sever distributive justice from desert. (shrink)

Can constitutional rights be both personal and rule-dependent? Can it be true of constitutional adjudication (1) that a constitutional litigant must assert rights, and yet also (2) that the viability of a constitutional challenge depends (or sometimes depends) on whether a particular type of legal rule, for example, a discriminatory or poorly tailored rule, is in force?

Decision theory seems to offer a very attractive normative framework for individual and social choice under uncertainty. The decisionmaker should think of her choice situation, at any given moment, in terms of a set of possible outcomes, that is, specifications of the possible consequences of choice, described in light of the decisionmaker's goals; a set of possible actions; and a "state set" consisting of possible prior "states of the world." It is this framework for choice which provides the foundation for (...) expected utility theory, as demonstrated in the work of Leonard Savage. Problems arise, however, when the decisionmaker is boundedly rational: when the mental process of thinking about outcomes, actions, and states is itself expensive and time consuming. In the case of the unboundedly rational decisionmaker, decision theory enjoins her to employ maximally specific outcomes; to consider all possible actions; and to use a set of mutually exclusive and collective exhaustive states, each of which is sufficiently finely specified so that each action, together with each state, yields one and only one maximally specific outcome. In the case of the boundedly rational decisionmaker, this procedure is either infeasible or, if feasible, irrational. This paper presents the problem of bounded rationality. It surveys possible solutions, none of which are found to be attractive. And it concludes by discussing the difficulties that the problem of bounded rationality poses for the welfarist program for legal scholarship presented by Louis Kaplow and Steven Shavell in their book, Fairness versus Welfare. (shrink)

This chapter is an essay in a volume that examines constitutional law in the United States through the lens of H.L.A. Hart's "rule of recognition" model of a legal system. My chapter focuses on a feature of constitutional practice that has been rarely examined: how jurists and scholars argue about interpretive methods. Although a vast body of scholarship provides arguments for or against various interpretive methods -- such as textualism, originalism, "living constitutionalism," structure-and-relationship reasoning, representation reinforcement, minimalism, and so forth (...) -- very little scholarship shifts to the meta-level and asks: What are the considerations that jurists and scholars bring to bear in arguing that one or another interpretive method is legally favored? And can we "make sense" of this body of argument? Is there a model of legal discourse that both accurately describes how U.S. jurists and scholars actually argue about interpretive methods, and that vindicates this discourse (in the sense of seeing these actors as making valid arguments)? I find that Hart's rule-of-recognition model fails to describe or vindicate how U.S. jurists and scholars argue about interpretive methods. The problem, in a nutshell, is that Hart sees legal argument as asserting or presupposing the social fact of contemporary official acceptance of a rule of recognition. By contrast, jurists and scholars typically point to social facts other than contemporary official acceptance in arguing for the legal status of an interpretive method -- for example, the fact that the method is supported by Framers' intent, or by U.S. culture and tradition, or by precedent. Further, jurists and scholars very often argue that some interpretive method is legally favored even though the method is controversial. On Hart's model, such a claim is problematic -- because, on his model, the content of the rule of recognition is not controversial, but rather a matter of consensus among officials. The upshot may just be that Hart's model is a failure. However, another possibility is to adopt an "error theory" of U.S. constitutional discourse. It may perhaps be the case that U.S. jurists and scholars often make claims for the favorable legal status of some interpretive method that are inconsistent with the best understanding of the nature of law. (shrink)

How should we make interpersonal comparisons of well-being levels and differences? One branch of welfare economics eschews such comparisons, which are seen as impossible or unknowable; normative evaluation is based upon criteria such as Pareto or Kaldor-Hicks efficiency that require no interpersonal comparability. A different branch of welfare economics, for example optimal tax theory, uses “social welfare functions” to compare social states and governmental policies. Interpersonally comparable utility numbers provide the input for SWFs. But this scholarly tradition has never adequately (...) explained the basis for these numbers. John Harsanyi, in his work on so-called “extended preferences,” advanced a fruitful idea. While an ordinary preference is a ranking of outcomes, an “extended preference” is a ranking of individual histories. To say that individual k has an extended preference for history over means something like the following: k prefers to have the attributes of individual i in outcome x, as opposed to having the attributes of individual j in outcome y. Harsanyi’s proposal was to endow individuals with “extended preferences”; to represent such preferences using “extended” utility functions; and to employ such functions, in turn, as the basis for interpersonal comparisons of well-being levels and differences. Harsanyi’s analysis, however, had various gaps and flaws. In this Article, I both diagnose these difficulties, and show how they can be remedied - yielding a viable account of interpersonal comparisons, one sufficient for the needs of the SWF approach. (shrink)

Prior to recent decades, the United States Supreme Court often invoked the political question doctrine to avoid deciding controversial questions of individual rights. 1 By the 1970s and 1980s, standing limits traced to Article IIIs arsenal of threshold decision making, 3 in the last decade the Court has turned with increasing frequency to the distinction between facial and as-applied challenges to perform the gatekeeping function. However, although there is a considerable body of scholarship concerning the conventional justiciability doctrines, scholars have (...) only recently begun to address the range of questions implicated by the Courtand they have generally focused on narrow doctrinal questions about the proper treatment of discrete rights such as abortion, free exercise of religion, and freedom of speech. The papers in this issue of LegalTheory and the next view these issues in a broader jurisprudential context. (shrink)

Sunstein aims to provide a nonsectarian account of moral heuristics, yet the account rests on a controversial meta-ethical view. Further, moral theorists who reject act consequentialism may deny that Sunstein's examples involve moral mistakes. But so what? Within a theory that counts consequences as a morally weighty feature of actions, the moral judgments that Sunstein points to are indeed mistaken, and the fact that governmental action at odds with these judgments will be controversial doesn't bar such action.

The law within each legal system is a function of the practices of some social group. In short, law is a kind of socially grounded norm. H.L.A Hart famously developed this view in his book, The Concept of Law, by arguing that law derives from a social rule, the so-called “rule of recognition.” But the proposition that social facts play a foundational role in producing law is a point of consensus for all modern jurisprudents in the Anglo-American tradition: not just (...) Hart and his followers in the positivist school, most prominently Joseph Raz and Jules Coleman, but also the anti-positivist Ronald Dworkin, who argues that law necessarily synthesizes moral considerations with social facts. But which group’s practices ground each legal system? In particular, which group’s practices undergird U.S. law? Positivists since Hart have universally pointed to either officials or judges as the “recognitional community” (my term): the group such that its rules, conventions, cooperative activities, or practices in some other sense are the social facts from which the law of a given legal system derives. So Hart and all other positivists would identify either U.S. officials or U.S. judges as the recognitional community for U.S. law. This Article grapples with the tension between the positivist’s official- or judge-centered account of the recognitional community and the “popular constitutionalism” now so widely defended by constitutional scholars such as Larry Kramer, Robert Post, Reva Siegel, Mark Tushnet, Jeremy Waldron, and many others. Surely the popular constitutionalist would want to claim that U.S. citizens, not judges or officials, are the recognitional community for U.S. law. I term this position “deep popular constitutionalism.” Indeed, it turns out that Dworkin’s account of law, in its ambition to generate associative moral obligations for the citizenry as a whole, implies deep popular constitutionalism. Here there is a disagreement, hitherto unnoticed, between Dworkin and the positivists. My solution to this disagreement – to the debate between deep popular constitutionalists and deep official or judicial supremacists -- is to dissolve it by providing a group-relative account of law. Social norms, such as norms of dress or eating, are clearly group-relative. A particular dressing or eating behavior may be socially appropriate relative to one group’s norms, yet socially inappropriate relative to another’s. This Article extends the group-relative view from social norms to law itself, with a particular focus on U.S. law and constitutionalism. Part I surveys the jurisprudential literature. It shows how Hart and successor positivists identify the rule of recognition as a social practice engaged in by officials or some subset of officials (judges), rather than citizens generally, and argues that Dworkin by contrast sees the citizenry as a whole as his recognitional community. Parts II and III defend a group-relative account of law. Part II argues, with reference to the U.S. experience, that multiple groups can simultaneously instantiate the kind of social fact that undergirds law, be it a convention, a social norm, a “shared cooperative activity” (SCA), or something else. At many points in U.S. constitutional history, multiple official or citizen groups, defined along departmental, partisan, regional, state-federal, religious, or other lines, have accepted competing rules of recognition for U.S. law. Part III argues that “law” functions, primarily, as either an explanatory or a normative construct, and that insisting on a single recognitional community for each legal system would be arbitrary, both for explanatory purposes and for normative purposes. Part IV considers the many implications of the group-relative account for U.S. constitutional theory – in particular, for popular constitutionalism. (shrink)