Legal Theory Blog

Legal Theory Lexicon: Public Reason

Introduction

How should citizens in a modern pluralist democracy debate and discuss public affairs? What kinds of reasons are appropriate in the context of judicial opinions, legislative debate, or administrative decisionmaking? There is wide agreement that the government should not censor public debate about politics, at least not without very good reasons. But when it comes to a related question of political morality - "To what ideal should citizens aspire in political debate?" - the issue is cloudy. For example, some have argued that religious reason should be excluded from public debate; others argue for the exclusion of statements which degrade people on the basis of their religion, race or ethnicity. Still others contend that in public debate, an ideal of political morality should mirror the freedom of expression: all viewpoints should contend in a marketplace of ideas. An ideal of public reason can provide guidance on these issues. This post provides a very short introduction to the idea of "public reason"--with a special emphasis on the role of that idea in the work of John Rawls.

Before we get into the background and complications, let us briefly state the core idea of John Rawls's idea of public reason--the version of the idea that has been most influential in legal theory. Rawls argued that public political debate about the constitutional essentials should be conducted on the basis of public reasons. His view was that public reason included common sense, the noncontroversial results of science, and public political values. Nonpublic reasons include the deep and controversial premises of particular moral and religious theories; for example, the utilitarian idea that only consequences count would be a nonpublic reason. Rawls thought that the Supreme Court's deliberations and opinions about the meaning of the United States Constitution exemplified the idea of public reason.

Historical Perspective

Where does the idea of public reason come from? Contemporary scholarship sometimes assumes that the notion of public reason was invented out of whole cloth by Rawls, but in fact, it has a long philosophical history. For example, the phrase "public reason" is found in Thomas Hobbes's Leviathan. The section of Leviathan in which this passage appears addresses the question, whose reason should govern the question of whether a purported miracle has occurred?

For in these times, I do not know one man, that ever saw any such wondrous work, done by the charm, or at the word, or prayer of a man, that a man endued but with a mediocrity of reason, would think supernaturall: and the question is no more, whether what we see done, be a Miracle; whether the Miracle we hear, or read of, were a reall work, and not the act of a tongue, or pen; but in plain terms, whether the report be true, or a lye. In which question we are not every one, to make our own private Reason, or Conscience, but the Publique Reason , that is, the reason of God's Supreme Lieutenant, Judge; and indeed we have made him Judge already, if wee have given him a Soveraign power, to doe all that is necessary for our peace and defence. A private man has alwaies the liberty, (because thought is free,) to beleeve, or not beleeve in his heart, those acts that have been given out for miracles, according as he shall see, what benefit can accrew by mens belief, to those that pretend, or countenance them, and thereby conjecture whether they be Miracles, or Lies. But when it comes to confession of that faith, the Private Reason must submit to the Publique ; that is to say, to God's Lieutenant.

In this passage, Hobbes uses the phrase "public reason" to refer to the reason or judgment of the sovereign.

A second use of the phrase "public reason" is found in Rousseau's Discourse on Political Economy:

In effect, though nature's voice is the best advice a good father could listen to in the fulfillment of his duty, for the magistrate it is merely a false guide which works constantly to divert him from his duties and which sooner or later leads to his downfall or to that of the state, unless he is restrained by the most sublime virtue. The only precaution necessary to the father of a family is that he protect himself from depravity and prevent his natural inclinations from becoming corrupt, whereas it is these very inclinations that corrupt the magistrate. To act properly, the former need only consult his heart; the latter becomes a traitor as soon as he listens to his. Even his own reason ought to be suspect to him, and the only rule he should follow is the public reason , which is the law. Thus nature has made a multitude of good fathers of families, but it is doubtful that, since the beginning of the world, human wisdom has ever produced ten men capable of governing their peers.

Rousseau's use of the phrase "public reason" is quite different than Hobbes's. Public reason is contrasted to the reason of private individuals. The latter sort of reason is self-interested; the former sort is concerned with the common good. This suggests a connection between Rousseau's idea of public reason and his notion of the general will. The general will (like public reason) is concerned with the good of all; whereas, the individual will (like private reason) is concerned with the good of the individual.

Another early use of the phrase "public reason" is found in Thomas Jefferson's Second Inaugural Address:

[I]t is proper that you should understand what I deem the essential principles of our government, and consequently those which ought to shape its administration . . . . [They include] the diffusion of information and the arraignment of all abuses at the bar of public reasons.

Jefferson's notion of public reason seems connected to an ideal of democratic government. Information should be widely diffused so that government actions may be judged at the bar of public reason - which in this case seems to be the collective reason of the citizens of a democratic society. In this view, the quality or efficacy of public reason is connected to the freedom of speech and press.

In What is Enlightenment, Kant introduces the idea of public reason as an answer to a question that might be phrased, "What restrictions on freedom of public discourse will facilitate public enlightenment?" Kant replies:

The public use of man's reason must always be free, and it alone can bring about enlightenment among men; the private use of reason may quite often be very narrowly restricted, however, without undue hinderance to the progress of enlightenment. But by the public use of one's own reason I mean that use anyone may make of it as a man of learning addressing the entire reading public . What I term the private use of reason is that which a person may make of it in a particular civil post or office with which he is entrusted.

As Kant uses the phrase, "public reason" is defined in terms of the audience to which reasons are given. Public reason is addressed to the entire public. Public reason should be free if the public is to become enlightened - that is, if citizens are to rely on their own reason without the guidance of another. Notice Kant's use of the phrase is, in a sense, diametrically opposed to Hobbes's. For Hobbes, public reason is reason bound by the judgment of the sovereign; for Kant, public reason is precisely that reason which is free from such constraint.

Here is the point of the history: the idea of public reason is contested, with different theorists offering different conceptions public reason.  I am about to give you Rawls's ideas about public reason, but it is very important to realize that Rawls's theory is just one of many, and that new theories of public reason are likely to emerge in the years ahead.

Rawls and Public Reason

In an early formulation, Rawls explained what he has called the "idea of free public reason"

[G]reat values fall under the idea of free public reason, and are expressed in the guidelines for public inquiry and in the steps taken to secure that such inquiry is free and public, as well as informed and reasonable. These values include not only the appropriate use of the fundamental concepts of judgment, inference, and evidence, but also the virtues of reasonableness and fair-mindedness as shown in the adherence to the criteria and procedures of common sense knowledge, and to the methods and conclusion of science when not controversial, as well as respect for the precepts governing reasonable political discussion.

Although this discussion contains the core of the Rawls' position, a few additional points deserve separate discussion:

First, Rawls understands public reason as the reason of a political society. A society's reason is its "way of formulating its plans, of putting its ends in an order of priority and of making its decisions accordingly." Public reason contrasts with the "nonpublic reasons of churches and of many other associations in civil society." Both public and nonpublic reason share features that are essential to reason itself, such as simple rules of inference and evidence. Public reasons, however, are limited to premises and modes of reasoning that can appeal to the public at large. Rawls argues that these include "presently accepted general beliefs and forms of reasoning found in common sense, and the methods of science when these are not controversial." By contrast, the nonpublic reason of a church might include premises about the authority of sacred texts and modes of reasoning that appeal to the interpretive authority of particular persons.

Second, the limits imposed by Rawls' ideal of public reason do not apply to all actions by the state or even to all coercive uses of state power. Rather, his ideal is limited to what he calls "the constitutional essentials" and "questions of basic justice." Thus, the scope of the freedom of speech and qualifications for the franchise would be subject to the Rawlsian ideal, but the details of tax legislation and the regulation of pollution control would not.

Third, Rawls' ideal of public reason applies to citizens and public officials when they engage in political advocacy in a public forum; it also governs the decisions that officials make and the votes that citizens cast in elections. The ideal does not apply to personal reflection and deliberation about political questions; by implication it could not apply to such reflection or deliberation about questions that are not political in nature.

With these features in mind, we can offer a summary of the Rawlsian ideal of public reason; this ideal has three main features:

(1) The ideal of public reason limits the use of reason to (a) the general features of all reason, such as rules of inference and evidence, and (b) generally shared beliefs, common- sense reasoning, and the noncontroversial methods of science.

(2) The ideal applies to deliberation and discussion concerning the basic structure and the constitutional essentials.

(3) The ideal applies (a) to both citizens and public officials when they engage in public political debate, (b) to citizens when they vote, and (c) to public officials when they engage in official action - so long as the debate, vote or action concerns the subjects specified in (2).

With Rawls's view in mind, we proceed to two preliminary subjects: first, the role of the idea of public reason in the regulation of public discourse and, second, the ways in which a particular ideal of public reason might be justified.

Public Reason and Law

How is the idea of public reason relevant to legal theory?  One answer to this question might begin with Rawls's observation that judicial reasoning, for example the reasoning of the Supreme Court, exemplifies public reason. It would be unusual to see a Supreme Court justice rely on a particular religion or on a deep philosophical view about the meaning of life or the ultimate nature of the good. There are exceptions, however. One of the most infamous Supreme Court opinions in the contemporary period is Chief Justice Burger's concurring opinion in Bowers v. Hardwick, the case that was overruled in Lawrence v. Texas. Burger argued that criminalization of homosexual conduct was constitutionally permissible, because the prohibition on such conduct was rooted in Judeo-Christian morality. Arguably this argument exceeded the bounds of public reason, because the United States is a pluralist society in which there are many citizens outside of the Judeo-Christian tradition, including, for example, Buddhists, adherents of Native American religions, and nonbelievers.

One of the interesting features of the idea of public reason is that it provides an argument against what we might call "going deep" in legal theory. By "going deep," I mean making arguments that rely on deep philosophical premises, about ultimate values on the one hand or metaethics and moral psychology on the other. So, for example, it might be argued that utilitarianism (or welfare economics) is an inappropriate source of legal arguments, when the argument relies on a deep utilitarian premises, such as the notion that only utility (e.g. hedonic value or preference satisfaction) is valuable. That premise, it might be argued, goes beyond public reason.

The idea of public reason is deeply controversial and the subject of heated debate, but the connections between public reason and law have only recently begun to be explored in depth.

Related Lexicon Entries

• Legal Theory Lexicon 006: The Veil of Ignorance
  
• Legal Theory Lexicon 028: Concepts and Conceptions
• Legal Theory Lexicon 037: Overlapping Consensus & Incompletely Theorized Agreements
• Legal Theory Lexicon 069: Reflective Equilibrium
  

Bibliography

• John Finnis, On Public Reason (2007).
• Gerald Gaus, The Order of Public Reason: A Theory of Freedom and Morality in a Diverse and Bounded World (2010).
• Gerald Gaus, Public Reason Liberalism.
• Christie Hartley, Equal Citizenship and Public Reason: A Feminist Political Liberalism (2018).
• John Rawls, Political Liberalism (revised ed. 2005).
• Lawrence Solum, Public Legal Reason, 92 Virginia Law Review 1449 (2006).
• Cass Sunstein, Incompletely Theorized Agreements, 108 Harv. L. Rev. 1733, 1739-40 (1995).
• Public Reason in Political Philosophy: Classic Sources and Contemporary Commentaries (Piers Norris Turner & Gerald Gaus eds. 2017).

(This entry was last revised on April 11, 2021.)

Legal Theory Bookworm: "Legal Pluralism Explained" by Tamanaha

The Legal Theory Bookworm recommends Legal Pluralism Explained: History, Theory, Consequences by Brian Z. Tamanaha.  Here is a description:

Legal pluralism involves the coexistence of multiple forms of law. This involves state law, international law, transnational law, customary law, religious law, indigenous law, and the law of distinct ethnic or cultural communities. Legal pluralism is a subject of discussion today in legal anthropology, legal sociology, legal history, postcolonial legal studies, women's rights and human rights, comparative law, international law, transnational law, European Union law, jurisprudence, and law and development scholarship.

A great deal of confusion and theoretical disagreement surrounds discussions of legal pluralism—which this book aims to clarify and help resolve. Drawing on historical and contemporary studies—including the Medieval period, the Ottoman Empire, postcolonial societies, Native peoples, Jewish and Islamic law, Western state legal systems, transnational law, as well as others—it shows that the dominant image of the state with a unified legal system exercising a monopoly over law is, and has always been, false and misleading. State legal systems are internally pluralistic in various ways and multiple manifestations of law coexist in every society. This book explains the underlying reasons for and sources of legal pluralism, identifies its various consequences, uncovers its conceptual and normative implications, and resolves current theoretical disputes in ways that are useful for social scientists, theorists, and law and development scholars and practitioners.

 

Download of the Week: "Statutory Interpretation from the Outside" by Tobia, Slocum, & Norse

Kevin Tobia (Georgetown University Law Center; Georgetown University - Department of Philosophy), Brian G. Slocum (University of the Pacific - McGeorge School of Law), & Victoria Nourse (Georgetown University Law Center) have posted Statutory Interpretation from the Outside (Columbia Law Review, Forthcoming) on SSRN.  Here is the abstract:

How should judges decide which linguistic canons to apply in interpreting statutes? One important answer looks to the inside of the legislative process: Follow the rules that lawmakers contemplate. A different answer, based on the “ordinary meaning” doctrine, looks to the outside: Follow the rules that would guide an ordinary person’s understanding of the legal text. Empirical scholars have studied statutory interpretation from the inside — revealing what rules drafters follow — but never from the outside. This Article is the first empirical study of ordinary meaning as determined by ordinary people.

We first offer a novel framework for empirically testing interpretive canons. We argue that any empirical inquiry should test whether ordinary people implicitly invoke a canon in accordance with the circumstances that trigger its applicability. Implementing our framework, we recruited 4,500 people from the United States, as well as a sample of U.S. law students, to evaluate hypothetical scenarios that correspond to each canon’s triggering conditions. The results reveal that many existing interpretive canons reflect how ordinary people evaluate rules, but some popular canons do not.

The empirical findings support several implications, even beyond providing crucial evidence about which traditional canons “ordinary meaning” actually supports. First, interpretive canons are not a closed set. We discovered new canons that are not yet reflected as legal canons, including one we term the “non-binary gender canon” and another the “quantifier domain restriction canon.” Second, the results support a new understanding of the ordinary meaning doctrine itself, as one focused on the ordinary interpretation of rules, as opposed to the traditional focus on “ordinary language” generally. Furthermore, ordinary people interpret rules with an intuitive anti-literalism. This finding in particular challenges textualist assumptions about ordinary meaning.

We hope the Article initiates a new research program in empirical legal interpretation. If ordinary meaning is relevant to legal interpretation, interpreters should look to evidence of how ordinary people actually understand legal rules. We see our experiments as a first step in that new direction.

An important paper.  Highly recommended.  Download it while it's hot!

Fenster on "The First" by Fish

Mark Fenster (University of Florida Levin College of Law) has posted Transparency and the First (Florida Law Review, Vol. 14, No. 4, 2021) on SSRN.  Here is the abstract:

In his book The First: How to Think About Hate Speech, Campus Speech, Religious Speech, Fake News, Post-Truth, and Donald Trump, Stanley Fish neatly reverses the polarity of rights-based claims that the public enjoys, under the First Amendment’s free speech and press rights, a right to government information. Transparency and free speech ideals are indeed related, he concedes, because they share a political vision and conceptual grounding in the notion that robust conceptions of free speech carry a commitment to increase the flow of information. But this is not a good thing, Fish argues—rather, the relationship between the two merely compounds a fundamental error and creates bad consequences. This brief review essay applauds Fish’s critique of both understandings of the First Amendment and in the process offers friendly amendments regarding the distinction between public and private speech, the statutory rights to information available under the federal Freedom of Information Act and other laws, and how the Trump presidency confounded everyone’s understanding of what transparency might mean.

Johnston on Environmental Permits & Property Rights

Jason Scott Johnston (University of Virginia School of Law; PERC - Property and Environment Research Center) has posted Environmental Permits: Public Property Rights and the Extraction and Redistribution of Private Value (Notre Dame Law Review, Forthcoming) on SSRN.  Here is the abstract:

This Essay explores how private landowners bargain with federal environmental regulatory authorities under two important federal environmental permit regimes: wetlands permits under section 404 of the Clean Water Act and incidental take permits under Section 10 of the Endangered Species Act. These permit regimes transfer a landowner’s common-law development right to federal regulators, creating what are in effect public property rights in private lands. Unlike common-law property rights protection, under which injunctive relief and potential criminal sanctions for violating such an injunction are available only after a court balances the harm caused by the potentially enjoined activity against the social value of that activity, simply by issuing a cease and desist order, federal regulatory agencies such as the Army Corps of Engineers (for wetlands) and the U.S. Fish and Wildlife Agency (for species) can unilaterally trigger the accrual of fines and risk of imprisonment. Landowners are forced to bargain with federal regulators to buy back the right to develop their lands. This article explains the impact on incentives in bargaining of three key features of the reverse eminent domain system created by federal wetlands and species permitting: 1) whereas under a private nuisance regime, an adjacent landowner seeking an injunction bears the legal burden and cost of establishing her right to such relief, under an environmental permits regime, it is the private landowner who carries the burden and the bulk of the cost of persuading a court that the agency does not have a legal right to prevent the land use; 2) in determining whether the agency has a right to prevent private land use, courts do not balance the social value of the landowner’s development against the public value of its cessation; instead, courts defer to the agency – the ostensible rights holder – in determining if the agency has a right; 3) unlike private nuisance, where a private landowner does not risk fines or imprisonment unless and until a court has found that her land use if violating the rights of others, with environmental permits, merely by issuing a cease and desist order, federal environmental agencies trigger the accrual of civil and criminal penalties and a risk of imprisonment. The article shows these three features radically alter bargaining incentives – for example, making delay, which is typically a tactic used by potential buyers to get a lower price, instead into a force for sellers that causes buyers to pay more for permits – and create incentives that have little to do with the underlying social costs and benefits of the land use restrictions sought by federal regulators. Instead, under such deals, federal regulators permit development, but only if the developing landowner pays some other private landowner for its promise to preserve wetlands or species habitat elsewhere. In practice, environmental permit regimes – justified by the need to prevent irreversible, non-compensable harm – function as a system that routinely coerce compensation and redistribute private wealth among private landowners.

Recommended.

Gugliuzza on Patent Law Deference

Paul R. Gugliuzza (Temple University - James E. Beasley School of Law) has posted Patent Law's Deference Paradox (Minnesota Law Review, Vol. 106, forthcoming) on SSRN.  Here is the abstract:

Courts frequently defer to the decisions of administrative agencies, particularly when the decision is thoroughly deliberated and within the agency’s realm of technical and legal expertise. Conversely, when an agency gives little thought to a matter or brings no special knowledge to bear, the agency gets little or no deference. Patent law, however, does it backwards. The decision of a single examiner at the Patent Office to grant a patent—a decision made under significant time pressure and with incentives skewed in the applicant’s favor—receives substantial deference when the patent’s validity is later challenged in court as a defense to an infringement lawsuit. Issued patents are, by statute, presumed to be valid, so the challenger must prove the patent is invalid by clear and convincing evidence. But when a panel of expert administrative judges at the Patent Office has reassessed the validity of an issued patent in trial-like, adversarial proceedings, a de novo standard of review often applies when the Patent Office’s decision is appealed to the Federal Circuit.

This article identifies and critiques patent law’s deference paradox, under which the Patent Office’s least deliberate decisions receive the most judicial deference and its most deliberate decisions get the least deference. Two reforms would eliminate this paradox. First, the presumption of validity should be weakened by the courts or eliminated by Congress. Second, the Supreme Court and the Federal Circuit should stop describing patent validity as a question of law, which is what causes the Patent Office’s validity rulings to be reviewed de novo on appeal. Instead, those courts should hold that an invention’s patentability is a mixed question of law and fact because it mainly involves applying the law to the facts of a particular case.

These changes would meaningfully improve the patent system. Doctrinally, they would simplify patent law’s deference framework by granting all of the Patent Office’s patentability determinations the same, sliding-scale deference under the Supreme Court’s decisions in Skidmore v. Swift & Co. and United States v. Mead. As a matter of policy, this framework would better reflect how the patent system actually works: Initial examination is perfunctory, so examiners’ decisions to grant patents should be closely scrutinized when a defendant accused of patent infringement argues, in court, that the patent is invalid. Post-issuance administrative review at the Patent Office, on the other hand, is increasingly elaborate and now often substitutes for court litigation over patent validity, so the Office should receive deference when its expert administrative judges have reassessed the validity of an issued patent and either confirmed or canceled it.

Importantly, these reforms are realistic. The Supreme Court’s most recent decision on the standard of proof for patent invalidity in litigation, despite reaffirming the clear and convincing evidence standard, actually gives lower courts significant leeway to weaken the presumption of validity. As for the Patent Office, though a de novo standard of review remains on the books, recent Federal Circuit decisions are taking the first steps toward a more deferential approach by cautiously recognizing the fact-driven nature of many patent validity determinations.

Highly recommended.

Stern on First Amendment Incorporation

James Y. Stern (William & Mary Law School) has posted First Amendment Lochnerism & the Origins of the Incorporation Doctrine (University of Illinois Law Review, Vol. 2020, No. 5, 1501) on SSRN.  Here is the abstract:

The 20th century emergence of the incorporation doctrine is regarded as a critical development in constitutional law, but while issues related to the doctrine’s justification have been studied and debated for more than fifty years, the causes and mechanics of its advent have received relatively little academic attention. This Essay, part of a symposium on Judge Jeffrey Sutton’s recent book about state constitutional law, examines the doctrinal origins of incorporation, in an effort to help uncover why the incorporation doctrine emerged when it did and the way it did. It concludes that, for these purposes, incorporation is best understood as having three basic components, of which First Amendment incorporation predominated. It goes on to show how First Amendment incorporation drew in important ways from existing doctrine, including important strands of “Lochnerian” jurisprudence, and was structured in a way that in turn facilitated subsequent incorporation of criminal procedure protections. Finally, it notes that in its critical beginning moments, incorporation decisions did not consider, much less adjudicate, the kinds of issues that are today central to discussions of judicial federalism.

Highly recommended.

Coffee on Environmental, Social and Corporate Governance Disclosures

John C. Coffee (Columbia Law School; European Corporate Governance Institute (ECGI); American Academy of Arts & Sciences) has posted The Future of Disclosure: ESG, Common Ownership, and Systematic Risk on SSRN.  Here is the abstract:

The U.S. securities markets have recently undergone (or are undergoing) three fundamental transitions: (1) institutionalization (with the result that institutional investors now dominate both trading and stock ownership); (2) extraordinary ownership concentration (with the consequence that the three largest U.S. institutional investors now hold 20% and vote 25% of the shares in S&P 500 companies); and (3) the introduction of ESG disclosures (which process has been driven in the U.S. by pressure from large institutional investors). In light of these transitions, how should disclosure policy change? Do institutions and retail investors have the same or different disclosure needs? Why are large institutions pressing for increased ESG disclosures?

This article will focus on the desire of institutions for greater ESG disclosures and suggest that two reasons underlie this demand for more information: (1) ESG disclosures overlap substantially with systematic risk, which is the primary concern of diversified investors; and (2) high common ownership enables institutions to take collective action to curb externalities caused by portfolio firms, so long as the gains to their portfolio from such action exceed the losses caused to the externality-creating firms. This transition to a portfolio-wide perspective (both in voting and investment decisions) has significant implications but also is likely to provoke political controversy. In its final hours, the Trump Administration adopted new rules that discourage voting based on ESG criteria and thus by extension chill ESG investing. This controversy will continue.

As more institutions shift to portfolio-wide decision making, there is an optimistic upside: externalities may be curbed by collective shareholder action. For entirely rational reasons, the new “universal” shareholders who now dominate the market will resist even large public companies who might seek to impose externalities on other companies. Owning the market, the “universal” shareholder will protect the market. Still, this process of resistance may produce frictions, and the disclosure needs of individual investors and institutional investors will increasingly diverge. Of course, not all institutional investors are indexed or even diversified, but those that remain undiversified (for example, hedge funds) logically have the perspective of an option-holder and favor greater risk-taking. Across the board, retail investors have different perspectives and preferences than do institutional investors.

Above all, the combination of high common ownership and institutional sensitivity to systematic risk makes disclosure a far more powerful force. Once a very good disinfectant, it may now be developing a laser-like power to effect significant social change.

Azam on South Dakota v. Wayfair

Rifat Azam (Harry Radzyner School of Law, Interdisciplinary Center Herzliya) has posted Online Taxation Post Wayfair (New Mexico Law Review, Vol. 51) on SSRN.  Here is the abstract:

The United States Supreme Court saved the states’ sales tax base in the landmark case of South Dakota v. Wayfair in 2018. This revolutionary decision ended the long ban on states imposing sales tax collection duties on out-of-state retailers without a physical presence in the state, as established in Bellas Hess v. Department of Revenue of Illinois in 1967 and Quill Corp. v. North Dakota in 1992. Wayfair now allows states to impose sales taxation on out-of-state retailers in the era of digitalization. In this article, I provide valuable guidelines and suggestions to aid states on this critical journey toward taxing remote online transactions fairly and efficiently.

Specifically, this article strongly supports the state-by-state approach to taxing remote vendors. I emphasize that the first step for each state is to make appropriate policy decisions that fit the interests of that state and to structure its legal frameworks accordingly. At the same time, a multistate layer of harmonization, coordination, and cooperation is essential to the long-term success of online taxation. Therefore, this article argues that states should develop and improve the current framework of the Streamlined Sales and Use Tax Agreement by implementing insights from the European Union’s value-added tax system, which is a result of far greater experience taxing online transactions.

Toward that end, this article contributes significant proposals, including the proposal to allow vendors to account for the sales tax in one state, the state of registration, and the proposal to establish a multistate clearinghouse for handling the balances between the states efficiently. This article also contains proposals to increase the use of tax compliance technologies, especially cloud computing, block-chain, and big data. These technologies automate the process of calculating and collecting sales tax in the most efficient manner. Next, this article suggests facilitating tax data sharing and tax collection through payment intermediaries, entities which already have the data and stand at the critical juncture of online transactions. Finally, this article recommends that Congress participate in the states’ efforts to tax online transactions by applying these proposals to international transactions. As the digital transformation of the economy accelerates, each one of these proposals and measures would enhance sales taxation in the era of e-commerce and digitalization post Wayfair.

Leslie, Robinson, & Smyth on a Loyalty Effect on the High Court of Australia

Patrick Leslie (Australian National University (ANU)), Zoe Robinson (Australian National University, School of Politics and International Relations), & Russell Smyth (Monash University - Department of Economics) have posted Personal or Political Patronage? Judicial Appointments and Justice Loyalty in the High Court of Australia on SSRN.  Here is the abstract:

We examine whether Justices appointed to the High Court of Australia are more likely to find in favour of the federal government when the Prime Minister who appointed them is in office than when subsequent Prime Ministers are in office, over the period 1995 to 2019. We find evidence of a loyalty effect, even when subsequent Prime Ministers are of the same political party as the Prime Minister who appointed them. When we distinguish between Justices appointed by Labor and Liberal Prime Ministers, we find that the loyalty effect holds for Justices appointed by the Howard and Turnbull governments. These findings are important because they are central to the issues of judicial independence and the rule of law.

Jackson & Mark on Executive Student Loan Forgiveness

Howell E. Jackson (Harvard Law School) & Colin Mark (Harvard Law School) have posted May the Executive Branch Forgive Student Loan Debt Without Further Congressional Action? on SSRN.  Here is the abstract:

On April 1, 2021, the Biden Administration announced that Secretary of Education Michael Cardona will consider whether the President has legal authority to forgive up to $50,000 per debtor in student loan debt without further Congressional action. This paper collects the leading arguments for and against the position that the Biden Administration can forgive this student loan debt as an administrative action and without additional congressional authorization. The paper first surveys the history of federal student loan forgiveness programs in the United States. The paper then considers whether statutes on the books—in particular, the Higher Education Act of 1965 and the Federal Claims Collection Act of 1966—grant the executive branch the authority to effect widespread student loan forgiveness. The paper considers how the Department of Education might use administrative action to forgive loans and assesses the pros and cons of the Department proceeding without notice and comment rulemaking. Finally, the paper evaluates the Biden Administration’s prospects in court, including whether any parties would have standing to challenge administrative student loan forgiveness and which forms of administrative action are likeliest to survive judicial review.

Highly recommended.

Hovenkamp on Digital Cluster Markets

Herbert Hovenkamp (University of Pennsylvania Carey Law School; University of Pennsylvania - The Wharton School; University College London) has posted Digital Cluster Markets on SSRN.  Here is the abstract:

This paper considers the role of “cluster” markets in antitrust litigation, the minimum requirements for recognizing such markets, and the relevance of network effects in identifying them.

One foundational requirement of markets in antitrust cases is that they consist of products that are very close substitutes for one another. Even though markets are nearly always porous, this principle is very robust in antitrust analysis and there are few deviations.

Nevertheless, clustering noncompeting products into a single market for purposes of antitrust analysis can be valued, provided that its limitations are understood. Clustering contributes to market power only when (1) many customers need or at least prefer the convenience of receiving the defendant’s grouping of products rather than any single one, or (2) economies of joint provision (economies of scope) make joint distribution of the cluster cheaper per good than distribution of each separately, and (3) entering into competition with the cluster is difficult.

When network effects are present, an important variation resulting from common costs is what might be called “scope” effects, or increased value that accrues as a group of goods or services offered on the same platform becomes not only more numerous but also more diverse.

Finally, often the best way to address the cluster market problem is to avoid market definition altogether. Here, digital markets are particularly susceptible to direct measurements of market power that do not depend on a market definition.

Highly recommended.

Gamage, Glogower, & Richards on Measuring Wealth for a Federal Wealth Tax

David Gamage (Indiana University Maurer School of Law), Ari D. Glogower (Ohio State University (OSU) - Michael E. Moritz College of Law), & Kitty Richards have posted How to Measure and Value Wealth for a Federal Wealth Tax Reform (Roosevelt Institute Issue Brief (2021)) on SSRN.  Here is the abstract:

This report explains the best approaches for valuing the most important categories of taxpayers’ wealth for implementing a wealth tax reform. As this report will explain, although there are many difficulties involved in designing a valuation and measurement system, these difficulties are not inherently more challenging when it comes to designing and implementing a wealth tax than they are for designing and implementing an income tax. This report explains how a wealth tax could use a combination of formulaic valuations and appraisals to arrive at sufficiently accurate valuations so as to minimize the opportunity for tax avoidance through undervaluation. Although this approach involves some complexities and imperfections, and will require increased IRS funding and other enforcement resources, these costs are relatively small compared to the revenue and equity considerations at stake. Through a combination of increased IRS funding and enforcement resources and a practical mix of formulaic valuations and appraisals, a wealth tax could be designed so as to raise substantial revenues from the very wealthy and restore equity to our tax system.

Meyn on Non-Public Use of Force Rules in Police Departments

Ion Meyn (University of Wisconsin Law School) has posted The Invisible Rules That Govern Use of Force (Wisconsin Law Review (Forthcoming 2021)) on SSRN.  Here is the abstract:

Police departments reject the idea that use of force can be governed by rules. Under this rule-resistant view, officers retain broad discretion to respond to ever-changing conditions in the field. Despite the prevalence of this view, the Article finds that behind closed doors departments tend to construct hard and fast rules that limit officer discretion.

This disconnect—between the rule-resistant narrative and the rule-bound reality—has important implications for use-of-force reform. Acceptance of the rule-resistant narrative tends to deflect public attempts to exert influence over use-of-force practices, limiting community input to an insistence on aspirational standards. At the same time, departments are internally adopting hard and fast rules, some of which require officers to engage in violence. If communities had access to these rules, they could closely interrogate, disagree with, and amend them. Ultimately, departmental efforts to convince the public that it is impossible to do what the department actually does are at the center of a struggle over who wields control over use-of-force reform—the police or the communities they serve.

The Article’s findings are based on extensive interviews of command-level officers across the country, in addition to the transcription and examination of a comprehensive set of training videos. These sources provide rich insights that reveal the contrast between the strong departmental belief in the rule-resistant narrative that departments, however unknowingly, undermine behind closed doors.

Highly recommended.

Lobel on Boilerplate Collusion (Link Fixed)

Orly Lobel (University of San Diego School of Law) has posted Boilerplate Collusion: Clause Aggregation, Antitrust Law & Contract Governance (Minnesota Law Review, Forthcoming) on SSRN.  Here is the abstract:

Contract clauses should be assessed in relation to each other when examining their meaning, validity, and enforcement. In contemporary markets, drafters create impenetrable bundles of clauses and sets of interrelated contracts operating together. This article exposes the ways that a contract is larger than the sum of its separate clauses and a set of interrelated contracts is more harmful than the aggregation of each contract on its own. The article further shows that contract adjudication embeds these insights intuitively, but both contract law and antitrust law are yet to develop a principled and consistent analysis of how contract clauses collude in action. These understandings have implications for nearly every contract doctrine and in every policy field. Recognizing how contractual clauses produce a different effect than a simple summation of each clause enriches regulatory fields ranging from employment to consumer law, insurance law to intellectual property law, speech law and arbitration law. This article analyzes several key contexts to demonstrate the significance of aggregation: contract clauses that substantively restrict rights such as speech and mobility and clauses that procedurally restrict rights and access to litigation, including pre-dispute arbitration clauses and class action waivers. I argue that courts have instinctively employed notions of aggregation in their decisions, albeit without consistent analysis and without the wealth of contemporary behavioral research on the psychological effects of aggregation. The article is the first to analyze how behavioral studies on the human tendency to judge probabilities and risks differently when events are compiled versus unpacked are critical to understanding the effects generated by boilerplate collusion. The article concludes with policy implications for both contract interpretation and regulation. I argue that recognizing aggregation supports reforms in adjudicative defaults, including the rejection of reformation and blue- penciling and the treatment of redundancy as a feature, not a bug, in contract adjudication. Second, a better understanding of the phenomenon of boilerplate collusion points to the need for a more proactive approach to contract policy. As contract thickets abound, antitrust must reject its sharp divides between vertical and horizontal constraints and agencies, including the FTC, the EEOC and the Labor Department should use their regulatory powers to address the harms of boilerplate collusion.

Highly recommended.  Download it while it's hot!

Bussey Religion & Equality in a Pluralist Democracy

Barry W. Bussey (University of Notre Dame Australia - School of Law) has posted Responding to Limitations of the Public Square (International Journal for Religious Freedom, vol 10:1/2 (2017) pp.103–118) on SSRN.  Here is the abstract:

True freedom is dependent upon respect for a diversity of views, including religious beliefs and practices. However, the law appears increasingly reluctant to accommodate religion. Instead, it seeks to force religion into its own image on sexual identity politics, by exerting legal pressure on religious communities to make them conform to the prevailing social norms. The Trinity Western University law school case in Canada vividly illustrates the current tensions between law and religion, which are likened to a cross-cultural interaction. Moving forward, we must choose between treating religion as the nemesis of equality and accepting differences within a pluralist democracy.

Davies on Governing Cities & Neoliberal Globalism

Jonathan S. Davies (De Montfort University; Centre for Urban Research on Austerity) has posted Between Realism and Revolt: Governing Cities in the Crisis of Neoliberal Globalism (Davies, J. S. (2021) Between Realism and Revolt: Governing Cities in the Crisis of Neoliberal Globalism, Bristol: Bristol University Press) on SSRN.  Here is the abstract:

Between Realism and Revolt explores urban governance in the “age of austerity”, focusing on the period between the global economic crisis of 2008-9 and the beginning of the global COVID-19 pandemic at the end of 2019. It considers urban governance from the perspective of governability. How did cities navigate the crisis and the aftermath of austerity, with what political ordering and disordering dynamics at the forefront? To answer these questions it engages with two influential theoretical currents, Urban Regime Theory and Gramscian state theory, with a view to understanding how governance enabled austerity, deflected or intensified localised expressions of crisis, and generated more-or-less influential political alternatives. It develops a comparative conjunctural analysis of case studies in the cities of Athens, Baltimore, Barcelona, Greater Dandenong (Melbourne), Leicester, Montreal and Nantes, and concludes by highlighting five characteristics that cut across the cities unevenly, with different tonalities and in different configurations: economic rationalism, weak hegemony, retreat to dominance, weak counter-hegemony and radically contagious politicisations.

Leider on the Conventions of Modern American Criminal Law

Robert Leider (George Mason University - Antonin Scalia Law School, Faculty) has posted The Modern Common Law of Crime (Journal of Criminal Law and Criminology, Vol. 111, No. 2, 2021) on SSRN.  Here is the abstract:

Two visions of American criminal law have emerged. The first vision is that criminal law is statutory and posits that legislatures, not courts, draft substantive criminal law. The second vision, like the first, begins with legislative supremacy, but it ends with democratic dysfunction. On this view, while contemporary American criminal law is statutory in theory, in practice, American legislatures badly draft and maintain criminal codes. This effectively delegates the “real” drafting of criminal law to prosecutors, who form the law through their charging decisions.

This Article offers a third vision: that modern American criminal law is primarily “conventional” in the British Commonwealth sense of that term. That is, much of our criminal law is defined by unwritten common-law-like norms that are widely acknowledged and generally respected, and yet are not recognized as formal law enforceable in courts. This Article makes three contributions. First, it argues that criminal law conventions exist. Second, it explains how non-legal checks on prosecutorial power bring about criminal law conventions. Third, it provides an account for how legislatures and courts should respond to a criminal law heavily comprised of norms that rely primarily on non-legal sanctions for their enforcement.

Very interesting!  Recommended.

Luban on Lawyers and Complicity in Evil

David Luban (Georgetown University Law Center) has posted Complicity and Lesser Evils: A Tale of Two Lawyers (Georgetown Journal of Legal Ethics, Forthcoming. 2021).  Here is the abstract:

Government lawyers and other public officials sometimes face an excruciating moral dilemma: to stay on the job or to quit, when the government is one they find morally abhorrent. Staying may make them complicit in evil policies; it also runs the danger of inuring them to wrongdoing, just as their presence on the job helps inure others. At the same time, staying may be their only opportunity to mitigate those policies – to make evils into lesser evils – and to uphold the rule of law when it is under assault. This Article explores that dilemma in a stark form: through the moral biographies of two lawyers in the Third Reich, both of whom stayed on the job, and both of whom can lay claim to mitigating evil. One, Helmuth James von Moltke, was an anti-Nazi, and a martyr of the resistance; the other, Bernhard Lösener, was a Nazi by conviction who nevertheless claimed to have secretly fought against the persecution of Jews from the improbable post of legal adviser on Jewish matters. The Article critically examines their careers and self-justifications. It frames its analysis through two philosophical arguments: Hannah Arendt’s stern injunction that staying on the job is self-deception or worse, because like it or not, obedience is support; and a contemporary analysis of moral complicity by Chiara Lepora and Robert Goodin. The chief question, with resonance today as well as historically, is whether Arendt is right – and, if not, under what conditions lesser-evilism can succeed.

This article will appear in a symposium with comments by Leora Bilsky and Natalie Davidson, Kathleen Clark, Erica Newland, and Shannon Prince.

Highly recommended.

Tobia, Slocum, & Nourse on Empirically Testing Ordinary Meaning

Kevin Tobia (Georgetown University Law Center; Georgetown University - Department of Philosophy), Brian G. Slocum (University of the Pacific - McGeorge School of Law), & Victoria Nourse (Georgetown University Law Center) have posted Statutory Interpretation from the Outside (Columbia Law Review, Forthcoming) on SSRN.  Here is the abstract:

How should judges decide which linguistic canons to apply in interpreting statutes? One important answer looks to the inside of the legislative process: Follow the rules that lawmakers contemplate. A different answer, based on the “ordinary meaning” doctrine, looks to the outside: Follow the rules that would guide an ordinary person’s understanding of the legal text. Empirical scholars have studied statutory interpretation from the inside — revealing what rules drafters follow — but never from the outside. This Article is the first empirical study of ordinary meaning as determined by ordinary people.

We first offer a novel framework for empirically testing interpretive canons. We argue that any empirical inquiry should test whether ordinary people implicitly invoke a canon in accordance with the circumstances that trigger its applicability. Implementing our framework, we recruited 4,500 people from the United States, as well as a sample of U.S. law students, to evaluate hypothetical scenarios that correspond to each canon’s triggering conditions. The results reveal that many existing interpretive canons reflect how ordinary people evaluate rules, but some popular canons do not.

The empirical findings support several implications, even beyond providing crucial evidence about which traditional canons “ordinary meaning” actually supports. First, interpretive canons are not a closed set. We discovered new canons that are not yet reflected as legal canons, including one we term the “non-binary gender canon” and another the “quantifier domain restriction canon.” Second, the results support a new understanding of the ordinary meaning doctrine itself, as one focused on the ordinary interpretation of rules, as opposed to the traditional focus on “ordinary language” generally. Furthermore, ordinary people interpret rules with an intuitive anti-literalism. This finding in particular challenges textualist assumptions about ordinary meaning.

We hope the Article initiates a new research program in empirical legal interpretation. If ordinary meaning is relevant to legal interpretation, interpreters should look to evidence of how ordinary people actually understand legal rules. We see our experiments as a first step in that new direction.

An important paper.  Highly recommended.  Download it while it's hot!

Guadamuz on Smart Contracts

Andrés Guadamuz (University of Sussex) has posted All Watched Over by Machines of Loving Grace: A Critical Look at Smart Contracts (Computer Law and Security Review 35:6 (2019)) on SSRN.  Here is the abstract:

Smart contracts are coded parameters written into an immutable distributed ledger called a blockchain. There has been increasing legal interest in the application of these self-executing programs to conduct transactions. Most of the scholarly and practical analysis so far has been taken the claims of this technology being akin to a contract at face value, with legal analysis of contract formation, performance, and enforcement at the forefront of the debate. This article discusses that while smart contracts may pose some interesting legal questions, most of these are irrelevant, and smart contracts should be understood almost strictly from a technical perspective, and that any legal response is entirely dependent on the technical capabilities of the smart contract. The article proposes that smart contracts are not contracts for all practical purposes.

Carney on AI & Welfare

Terry Carney (The University of Sydney Law School) has posted  Artificial Intelligence in Welfare: Striking the Vulnerability Balance? ((2020) 46(2) Monash University Law Review Advance) on SSRN.  Here is the abstract:

Artificial intelligence in public administration is both inevitable and potentially quite beneficial. Its assistive form offers access, efficiency and convenience; while the gains potentially are even larger in its augmentive ‘machine learning’ form. Offsetting risks include disadvantaging technology poor clients, and poor design which fails adequately to reflect social welfare principles or provide adequate accountability and redress for errors; a risk heightened for machine learning. This paper reviews some of the different forms and settings for AI in social security and argues that the Australian experience to date has been very mixed due to poor or rushed AI designs, poor understanding of client characteristics, and inadequate understanding of dynamics within contracted-out government services settings.

Piatt, Hodge, & Barraza on Requiring COVID-19 Vaccination

Jennifer L. Piatt (Arizona State University (ASU) - Sandra Day O'Connor College of Law), James G. Hodge (Arizona State University (ASU) - Sandra Day O'Connor College of Law), Leila Barraza (Network for Public Health Law; University of Arizona - Mel and Enid Zuckerman College of Public Health) have posted When Can You Be Required to Get a COVID-19 Vaccine? (Slate - Future Tense, Forthcoming) on SSRN.  Here is the abstract:

In the second year of the COVID-19 pandemic, widespread distribution and administration of vaccines are raising hopes of achieving herd immunity—and returning to some sense of normalcy—in the U.S. Health care providers, long-term care facilities, airlines, restaurants, universities, and other entities are currently considering, or have already implemented, COVID-19 vaccine mandates, leaving Americans wondering whether these entities can require them to get vaccinated.

Complex questions underlie the legality of vaccine mandates. Public misperceptions blur the line between voluntary, mandated, and compelled vaccinations, highlighting controversial gray area cases. Though often used interchangeably, public health law distinguishes between these three approaches to vaccination requirements.

Morgan on Criminal Law, Public Space, and Homeless Individuals

Jamelia Morgan (University of Connecticut School of Law) has posted Policing Marginality in Public Space (Ohio State Law Journal, Vol. 81, No. 6, 2021) on SSRN.  Here is the abstract:

The pandemic spurred by COVID-19 has illuminated in stark detail the threats to safety and health that have long-characterized the lived experiences of unsheltered individuals. The pandemic has brought to the forefront deeply rooted structural problems, which contributed to the social conditions now currently rendering houseless people particularly vulnerable to the brutal disease and premature death. Skyrocketing housing prices coupled with city-wide housing shortages have converged in recent years to create a nation-wide affordable housing crisis. According to a 2018 report by the National Low Income Housing Coalition, to meet existing housing demand, about 7.2 million more affordable rental housing units would have to be built across the United States. Although the severity of the problem varies across jurisdictions, the same report indicates that “[n]o state, including the District of Columbia, has an adequate supply of rental housing for extremely low income households.” In Los Angeles, perhaps the “epicenter” of the affordable housing crisis,6 the number of unsheltered people has increased 12% in Los Angeles County and 16% in the city of Los Angeles—a 52% increase for the city since 2011.7 Approximately 75% of homeless people in Los Angeles are unsheltered and live outside.

The housing crisis seems to have also prompted local jurisdictions to ramp up quality-of-life policing efforts in public spaces. In this Essay, I suggest that the housing crisis in particular provides a case study from which to scrutinize some of the historical and ongoing harms that flow from managing access to public space using criminal laws—and why constitutional prohibitions against status crimes, one tool in the arsenal of challenges against quality-of-life policing, fail to protect against overcriminalization. The first part of the Essay provides a brief discussion of some of the past and present uses of criminal law enforcement to regulate the boundaries of, and behaviors within, public spaces with a focus on how those laws served to reinforce racial, gender, class and other status hierarchies. In particular, I discuss how the use of criminal laws to regulate access to, and behaviors in, public spaces reinforces both existing status hierarchies and contributes to ongoing criminalization of historically and currently marginalized groups. In the second half of the Essay, I discuss the recent Ninth Circuit case, Boise v. Martin, as an entry point into a discussion on the constitutional limits of criminalizing acts that occur in public because, in the words of Justice White in his concurrence in Powell v. Texas, the person accused has “no place else to go.” I suggest that constitutional protections against the criminalization of status do little to limit or constrain an oft-ignored but harmful purpose of criminal law as applied to the policing of public space: the public ordering function. The public ordering function of criminal law highlights its role in targeting not only houseless individuals, but an array of marginalized groups deemed “out of place,” disruptive, disorderly, or dangerous. Centering in on this function of criminal law permits a more practical view of the limits of existing constitutional protections and provides a framework to better account for the full scope of the harms stemming from ongoing quality-of-life policing efforts targeted at houseless individuals and other marginalized groups.

Meyer on Legal exceptions in International Trade Agreements

Timothy Meyer (Vanderbilt University Law School) has posted A Political Theory of Legal Exceptions on SSRN.  Here is the abstract:

This Article distills three paradigms through which to view legal exceptions in international trade agreements. Under the Policy Space Paradigm, governments have the right to violate international obligations so long as the violation is necessary to pursue a public policy goal permitted by an exception. Under the Safety Valve Paradigm, exceptions excuse violations that are undeterrable, such as those motivated by overwhelming domestic political pressure. Both of these approaches, which are dominant in international legal practice, permit governments to invoke international legal exceptions only to the extent that the government acts with a single, permissible objective. In so doing, both paradigms rest on faulty assumptions about how domestic policymaking works.

I therefore introduce the Channeling Paradigm, which rests on the observation that international trade policies are the result of bargaining between domestic interest groups. Exceptions in trade agreements influence that bargaining process and the resulting domestic coalitions. Industries seeking economic protection will often ally themselves with groups pursuing “non-trade” public policy goals, such as environmental protection or public health. Both groups benefit. The domestic industry obtains protection from foreign competition by lending its political support to a public policy goal. Public policy advocates obtain important political support for policies that provide public goods that governments often undersupply, such as measures to protect public health, fight climate change, and address economic inequality. Counterintuitively, then, the domestic political bargaining that legal exceptions encourage serves the public interest by channeling protectionist pressure into the promotion of public goods.

The Channeling Paradigm has implications for dispute resolution under international trade agreements, as well as the drafting of new agreements. In short, existing tests for the application of trade agreements’ public policy exceptions unduly constrain domestic politics. This Article argues that trade tribunals and treaty negotiations should adopt a Predominant Motive test when interpreting and drafting exceptions clauses. Under this approach, a trade restrictive policy would benefit from an exception if the primary objective of the measure is a permitted goal under the exception. So long as it does not become the predominant purpose of the challenged policy, economic protection would not be fatal to invoking an exception. The WTO-compatibility of a wide range of critical government policies that have mixed motives—including President Biden’s Buy American requirements that seek to address economic inequality within the United States; efforts to reshore critical U.S. supply chains with the goal of ensuring the United States has access to the components it needs to be a global leader in manufacturing; the European Union’s efforts to impose a carbon tariff in aid of its efforts to combat climate change; and public health restrictions on trade in medical supplies and the COVID-19 vaccine—all depend on a more flexible approach to international legal exceptions.

Recommended.

Arun on the Facebook Oversight Board

Chinmayi Arun (Yale Law School; Harvard University - Berkman Klein Center for Internet & Society) has posted Facebook's Faces (Forthcoming Harvard Law Review Forum Volume 135) on SSRN.  Here is the abstract:

The Facebook Oversight Board’s decision about the suspension of Donald Trump’s account is different from the Board’s other cases because it interests states. The ‘Trump Ban’ case affects the Board’s reputation and Facebook’s relationships with states and publics. We will not understand the case’s impact if we do not understand these relationships.

Scholarship about social media platforms discusses their relationship with states and users. The Essay is the first to expand this theorization to account for differences among states, the varying influence of different publics and the internal complexity of companies. Theorizing Facebook’s relationships this way includes less influential states and publics that are otherwise obscured. It reveals that Facebook engages with states and publics through multiple, parallel regulatory conversations, further complicated by the fact that Facebook itself is not a monolith. This Essay argues that Facebook has many faces – different teams working towards different goals, and engaging with different ministries, institutions, scholars and civil society organizations. Content moderation exists within this eco-system.

This Essay’s account of Facebook’s faces and relationships shows that less influential publics can influence the company through strategic alliances with strong publics or powerful states. It also suggests that Facebook’s carelessness with a seemingly weak state or a group, may affect its relationship with a strong public or state that cares about the outcome.

To be seen as independent and legitimate, the Oversight Board needs to show its willingness to curtail Facebook’s flexibility in its engagement with political leaders where there is a real risk of harm. This Essay hopes to show Facebook that the short-term retaliation from some states may be balanced out by the long-term reputational gains with powerful publics and powerful states who may appreciate its willingness to set profit-making goals aside to follow the Oversight Board’s recommendations.

Mayer on Temperature Targets & Climate Change

Benoit Mayer (The Chinese University of Hong Kong (CUHK) - Faculty of Law) has posted Temperature Targets and State Obligations on the Mitigation of Climate Change ((2021) 33(3) Journal of Environmental Law (Forthcoming)) on SSRN.  Here is the abstract:

The Supreme Court of the Netherlands in Urgenda held that States had a customary obligation to implement their ‘fair share’ in achieving the 2 °C temperature limitation target they had agreed upon. Yet, this article argues, the notion that States must adopt or implement mitigation action in line with temperature targets finds no support in treaty or customary law. States’ acceptance of temperature targets as a collective objective is relevant to interpreting the standard of due diligence applicable to mitigation obligations only inasmuch as this objective is actually reflected in consistent State practice. At present, temperature targets represent essentially an agreement on a direction of travel: the need for more mitigation action. Over time, the acceptance of this objective could facilitate further legal developments as States agree on particular implications of temperature targets and on a requirement that each of them acts consistently with its interpretation of these targets.

Chaudhary on Personhood & Artificial Intelligences

Gyandeep Chaudhary (Indian Law Institute) has posted Artificial Intelligence: The Personhood Conundrum (Artificial Intelligence and Law, February 2021) on SSRN.  Here is the abstract:

Legal personality is inherently linked in individual autonomy but not exclusively accorded to people. AI is not recognised as legal entity by any law currently in force. But, together with Sophia, Saudi Arabia's humanoid national, and the recent accident caused by Uber's self-driving car, determining the legal personality of AI has become imperative.

Many researchers recently took the notion that the autonomy and ingenuity of AI systems contribute to its acceptance as autonomous legal bodies with a right to legal and economic rights and duties. In other words, scholars argue that the AI system is a separate entity that should and must be responsible for the consequences of its own acts or omissions. Two alternate premises may be based on this conclusion. First, they closely resemble humans in describing their attributes of being an AI – intelligence, reasoning, liberty, and independence. Thus, they should be regarded as separate, lawful bodies. Alternatively, AI are similar to corporations that are individual, non-human legal bodies with legal rights, benefits and obligations.

The question if legal personality can be granted to an AI lies in whether legal rights and duties can be subject to it. The legal fiction created for companies constitutes a precedent for AI to grant legal personality. There is, however, a difference between companies and AI as corporations are fictitiously independent, but they are accountable via their stakeholders.

Another question that emerges is the attribution of liabilities to the AI. The general rule is that an AI cannot be held accountable in its own capacity because it does not count as an entity. The greatest challenge to re-examining this law is the conundrum on how to penalise the AI for its misconduct, which was still unrealized.

A potential middle ground would be to give AI a selected collection of rights for legal persons. But specific steps are yet to be seen in this relation.

For another take on this topic, see Legal Personhood for Artificial Intelligences.

Mascott on Auer v. Robbins

Jennifer Mascott (George Mason University - Antonin Scalia Law School, Faculty) has posted Auer v. Robbins: Case Summary on SSRN.  Here is the abstract:

This case summary was drafted as part of an anticipated compilation of summaries of leading administrative law cases. The American Bar Association has anticipated publishing a volume detailing Leading Cases in Administrative Law, and this summary was drafted as part of the publication process which is anticipated to continue to move forward in 2021.

Wansley on Concealment of Misconduct & Trading in Private Company Securities

Matthew Wansley (Yeshiva University - Benjamin N. Cardozo School of Law) has posted Taming Unicorns (97 Indiana Law Journal (forthcoming 2021)) on SSRN.  Here is the abstract:

Until recently, most startups that grew to become valuable businesses chose to become public companies. In the last decade, the number of unicorns—private, venture-backed startups valued over one billion dollars—has increased more than tenfold. Some of these unicorns committed misconduct that they successfully concealed for years. The difficulty of trading private company securities facilitates the concealment of misconduct. The opportunity to profit from trading a company’s securities gives short sellers, analysts, and financial journalists incentives to uncover and reveal information about misconduct the company commits. Securities regulation and standard contract provisions restrict the trading of private company securities, which undermines the deterrence of private company misconduct.

This Article proposes a three-pronged plan to encourage trading in private company securities, without compromising investor protection. First, eliminate Rule 144’s holding period for resales to accredited investors and reform section 12(g), so that companies are no longer forced to go public when they acquire 2,000 accredited investor shareholders. Second, attach a regulatory most favored nation clause to private company securities so that companies may not grant the right to resell selectively. Third, require that private companies with tradable securities make limited public disclosures. These reforms would create a market for robust trading in unicorn securities among accredited investors—and thereby strengthen deterrence of unicorn misconduct—while protecting retail investors and companies that wish to retain concentrated ownership.

Dodson on Texas v. Pennsylvania & Political Questions Under the Electors Clause

Scott Dodson (UC Hastings Law) has posted Texas v. Pennsylvania and the Political-Question Doctrine (University of Illinois Law Review Online (2021)) on SSRN.  Here is the abstract:

In the wake of the 2020 presidential election, Texas sued four other states in an original action in the U.S. Supreme Court arguing that those states violated, among other constitutional provisions, the Electors Clause. One issue the Supreme Court did not reach in the case—and has never reached before—was the impact of the political-question doctrine on claims under the Electors Clause. This short essay takes up that issue. Analyzing the applicability of the political-question doctrine to the Electors Clause, I conclude that the political-question doctrine operates as only a narrow constraint on Electors Clause claims. Applying those principles, I conclude that Texas’s claims were not barred by the political-question doctrine, though portions of the relief Texas sought may have been.

Recommended.

Corbin on Government Speech & First Amendment Capture

Caroline Mala Corbin (University of Miami School of Law)  has posted Government Speech and First Amendment Capture (Virginia Law Review Online (2021 Forthcoming)) on SSRN.  Here is the abstract:

Alarm regarding government speech is not new. In earlier decades, scholars worried that the government’s speech might monopolize a marketplace and drown out opposing viewpoints. But today, using a move I term “First Amendment capture,” the government need not be the loudest speaker because it can become the only speaker. First Amendment capture has been made possible by the Supreme Court’s developing government speech doctrine, which holds that government speech is not subject to the Free Speech Clause. Consequently, once speech is declared governmental, the government may censor viewpoints it does not like. First Amendment capture—categorizing contested speech as government speech and then eliminating contrary viewpoints—is an increasingly frequent occurrence, and risks giving the government too much power to suppress those who would criticize it or blow the whistle on it. While one solution is to resist the government speech label, this Essay also proposes recognizing “mixed speech” as a potential means of curtailing the expansiveness of the government speech doctrine.

Conklin on Private Censorship

Michael Conklin (Angelo State University) has posted What’s Bad for the Goose is Bad for the Gander: Censorship Is Harmful Whether Done by the Government or Private Industry on SSRN.  Here is the abstract:

This concise piece makes a strong argument for how the principles behind governmental free speech protections are also applicable to private entities. Therefore, while it is legally permissible for organizations such as Amazon and Facebook to engage in censorship, it is generally a bad idea.

Legal Theory Lexicon: Utilitarianism

Introduction

This installment of the Legal Theory Lexicon is a very brief introduction to utilitarian moral and political philosophy tailored to law students (especially first-year law students) with an interest in legal theory.

Law students learn early on that classroom discussion of cases and statutes may begin with questions about what the rule is but is likely to turn to questions about what the rule should be. And in most law school classrooms, analysis of the “should” question is likely to go down one of two paths. The first path leads to fairness (which outcome in this case is fair to the parties; which rule will produce fair results in the future). The second path leads to policy (which rule will produce the best consequences in the future). Theories about fairness will be covered in future installments of the Legal Theory Lexicon; today, we focus on arguments of policy and the theoretical question, “What does it mean to say that a rule would produce the best consequences?” One answer to that question is “utilitarianism,” a theory of enormous interest and influence. But what exactly is “utilitarianism” and how might it be criticized or defended?

What is “utilitarianism”?

Just about every law student has some basic familiarity with the idea of utilitarianism, but unless you were a philosophy or economics major, you may have only a fuzzy notion of what this term really means. (And by the way, philosophers and economists use the term "utilitarian" in slightly different ways.)  In this history of moral philosophy, utilitarianism is strongly associated with two historical figures, Jeremy Bentham and John Stuart Mill. Mill’s views are important and deeply interesting, but they are also extremely difficult to sort out properly. Jeremy Bentham, however, provides a wonderful entrée into the world of utilitarian moral and political philosophy. Law students should be especially fond of Bentham, because with only a bit of exaggeration, we can say than Bentham is the original disgruntled law student. Bentham, you see, was highly displeased with William Blackstone’s lectures on law at Oxford University. The common law, Bentham thought, was a disorganized body of archaic and dysfunctional rules. Common-law judges irrationally worshiped historical pedigree and had an immoral disregard of the consequences of legal rules.

Legal rules, Bentham believed, should be codified, and the codes should be written so as to produce “the Greatest Good, for the Greatest Number.” That is, we should adopt those legal rules that will maximize utility.

Consequentialism

Utilitarianism is just one member of a more general family of moral theories, which we might call “consequentialism.” Consequentialism is the view that morality is about consequences of decisions. Utilitarianism is a particular form of consequentialism, but not the only form. Consequentialism is sometimes contrasted to deontology, where deontological moral and political theories maintain that there are moral rules or principles, the violation of which cannot be justified on the ground that good consequences would result. Thus, a consequentialist might believe that one may tell lies, break promises, or injure innocent persons in order to accomplish a greater good, whereas a deontologist might believe that such actions are forbidden--even if good consequences will result.  Both consequentialism and deontology are contrasted to aretaic (or virtue-centered) moral theories.

Consequentialist theories focus on "states of affairs."  The right action is the action that will produce the best state of affairs--that is, the best state of the world (or universe) as a whole.  Utilitarianism evaluates states of affairs on the basis of utility.  What is "utility"?  To answer that question, we need to differentiate various forms of utilitarianism.

Disambiguating Utilitarianism

Let’s pause for a moment. It turns out that “utilitarianism,” the term, refers to many different interrelated theories. “Utilitarianism” is ambiguous, and so we need to specify what we mean by utilitarianism by answering some questions:

• What is utility? That is, when we say, the greatest “good” for the greatest number, what do we mean by “good?”

• What is scope of decision? That is, what should maximize utility, individual actions, general rules, principles, or something else?

• What does it mean to maximize utility?

• Does the rightness of an action depend on actual or expected utilities?

What is utility?

What is utility? What is a good consequence? Or to use a bit of jargon, what is a “utile,” where the word “utile” stands for a unit of utility? There are many possible answers to this question, but here are three versions of utilitarianism that give three different answers to this question:

Hedonistic Utilitarianism. Bentham himself believed that utility was pleasure and the absence of pain. Suppose it were possible to measure and quantify pleasures and pains. We might then call one unit of pleasure a positive “hedon” and one unit of pain a negative “hedon.” Maximizing utility then, would simply be to maximize the sum of hedons. When we evaluated legal rules, we would engage in what Bentham called a “hedonic calculus.”

Eudaimonistic Utilitarianism. But is the good really just a matter of pleasures and pains? Many of Bentham’s critics argued that not all pleasures are good. Would you really want to live your life carrying around a device that constantly stimulated the pleasure center of your brain and suppressed the pain center? Rather than maximize pleasure, we might instead maximize “happiness”—eudaimonia in ancient Greek. Happiness may be related to pleasure, but it includes more abstract satisfactions. Climbing a mountain may involve much more pain than pleasure, but this activity may still contribute to the happiness of the climber.

Preference-Satisfaction Utilitarianism. But if happiness seems a better candidate for “good” than pleasure, there are difficulties with the proposition that the law should maximize “happiness.” Happiness is notoriously difficult to define, and different persons have different views about what makes for a happy life. Moreover, happiness, like pleasure, is difficult to measure directly. For these reasons and others, some utilitarian theorists (especially economists) substitute “preference” for happiness as the “good” to be maximized. Preferences can be measured in a variety of ways. For example, we can ask individuals to simply rank order their preferences among various states of affairs, giving us an ordinal utility function for the individual. Economists have devised a variety of techniques for translating these rank orderings (1st best, 2nd best, etc.) into numerical values. Thus, we can construct a cardinal utility function for an individual. Because preference-satisfaction is measurable, most economists use a preference-based conception of utility. And because of the influence of economics on legal theory, this form of utilitarianism has had the greatest impact on contemporary legal theory as well.

There are other versions of utilitarianism, but you get the idea.  There are different conceptions of "utility," each corresponding to a form of utilitarianism.

Scope of Decision

So let’s assume we have a working conception of utility. Our next question is: What exactly is the decision that is supposed to maximize utility? Is each individual action required to maximize utility? Or is it general rules that we are concerned with? Or principles? Or something else? I am going to call this question, the scope of decision question. Different forms of utilitarianism give different answers to the scope of decision question. Let’s take a quick look at some of the possibilities:

• Act Utilitarianism. (abbreviated AU) The first possibility is that each individual action should maximize utility. Given this answer to the scope of decision question, we might formulate utilitarianism as follows:

  Act so that your action maximizes utility as opposed to any alternative action that you could perform.

  Suppose, for example, that you must decide whether to break or keep a promise to have lunch with a friend. You would ask yourself, “Would keeping my promise produce greater utility than breaking it?” Thus, you would consider the costs of your decision, such as: (1) your friend will be hurt, (2) you will miss out on the satisfaction of having lunch with your friend, and (3) your friend may not trust your promises in the future if you break this promise. And you would consider the benefits, such as: (1) you will be able to use a free ticket to go to the baseball game if you break the promise, and (2) you will not have to listen to your friend's boring stories. You then add the utilities for each action, and choose the action that produces the greatest utility.

• Rule Utilitarianism. (abbreviated RU) The case of promises reveals a potential problem with AU. If I calculate utilities every time, I decide whether to break or keep a promise, my promises may not be viewed by others as trustworthy. And if my promises are not trustworthy, then I will not be able to use the institution of promising to coordinate my behavior with that of other people. But the ability to coordinate through promises produces good consequences. One way out of these difficulties is to shift the scope of decision from individual actions to general rules. Thus, although the individual actions of breaking my promise might maximize utility as compared to the alternative, the general rule, “keep your promises,” might produce more utility than the alternative rules, such as “keep your promises, but only when there is nothing better to do.”

Rule utilitarianism itself has two important subvariants, and we can add a third, specifically legal, variant as well:

Ideal Rule Utilitarianism (IRU) says that you should act in accordance with the set of “ideal rules” that would maximize utility if everyone were actually to act in conformity with the rules.

Actual Rule Utilitarianism (ARU) says that you should act in accord with the set of “actual rules” that would maximize utility if it were adopted as the moral code of a real society in which persons will sometimes fail to live up to the requirements of the moral code.

Legal Rule Utilitarianism (LRU) responds to an obvious fact about the application of utilitarianism to the law. The law is concerned with individual acts (e.g. an individual judge's decision in an individual case at the trial level), but it is also concerned with rule-creating acts (e.g. the decision of a legislator to vote for or against a given bill). So it is reasonable for legal theorists to advance a more specialized version of utilitarianism, which we can call "Legal Rule Utilitarianism," as a theory about legal rules. Notice, however, that LRU will have a set of variants. So we can distinguish the utility of an ideal system of legal rules (with perfect compliance) versus an actual system of legal rules (with disobedience and enforcement costs) versus a single nonideal actual rule (where the status quo system of rules is assumed and we look at the utility of changing only a single rule).

• Utilitarian Generalization (abbreviated UG) There is one more answer to the scope of decision problem that is worth mentioning. UG is the view that one should act on the basis of principles (or maxims) that would produce the greatest utility if they were generalized (e.g. we acted upon by everyone. Because this form of utilitarianism, plays very little role in legal thought, I won't discuss it further.

What does it mean to maximize utility?

There is yet another ambiguity about utilitarianism that is really important to its application. What does "the greatest good for the greatest number" mean? Alternatively, what does it mean to maximize utility? This is a really complex topic. Right off the bat, it has both an intrapersonal and interpersonal dimension. To simplify, I will focus on the interpersonal problem. Let's assume we have utility values for individuals. What do we do with them? You may think the answer is obvious, "Add them up!," but it isn't so easy. Here are some alternatives:

• Classical Utilitarianism. "Add them up" is the classic answer. That is, we simply sum individual utilities. Sometimes this is called the "utilitarian social welfare function" by economists. This can lead to some confusion as this is what some economists think the term "utilitarianism" means.
• Average Utilitarianism. But we could average rather add. That is, we could take the sum of individual utilities and divide by the number of persons. You, gentle reader, undoubtedly have run way ahead of me and seen that this will make a big difference to things like population policy. We might have a choice between a larger population with a lower average utility but a greater sum, and a smaller population, with a higher average, but a lower sum.
• Bernoulli-Nash John Nash (of A Beautiful Mind fame) is associated with another alternative. We might multiply rather than add utilities. I won't go into the reasons why this might be a good idea, except to tell you that multiplication makes more sense if we our utility values for individuals are relative rather than absolute.  Using this approach favors more equal distributions over those that involve disparities.  You can see this in the following simple example, in which we image there are three individuals and two possible distributions of utility.  The egalitarian distribution (2, 2, 2) ties with the unequal distribution (1, 1, 4) if we add utilities (they both add up to six), but results in twice the total value (8 versus 4) if we multiply.

Actual or Expected Utilities

We rarely know with certainty what consequences will result from actions or rules. Utilitarianism might look to the actual consequences of rules. If so, then some actions that looked right at the time will turn out to be very wrong, because of some unanticipated effect of the action. The alternative is to say that the rightness or wrongness of an action depends on its expected consequences. Given the phenomenon of uncertainty, a given action may lead to several different possible future states of the world. If we could assign a probability to each state, then the expected consequences of a given action could be calculated by taking the product of the utility value for the state and the probability that the state will coming into being. Take the following choice situation:

Action A has a 50% chance of producing a utility of 10 and a 50% chance of producing a utility of 0. Since .5*10 + .5*0 = 5, the expected utility of action A is 5.

Action B has a 90% chance of producing a utility of 0, and a 10% chance of producing a utility of 100. Since .9*0 +.1*100 = 10, the expected utility of action A is 10.

And since 10 > 5, action B has the greater expected utility. Of course, it may turn out that action B produces a utility of zero, but if what counts is expected utility, then this ex post fact is irrelevant to the ex ante moral evaluation of actions A and B.

Some Objections to Utilitarianism

Utilitarianism is an enormously controversial view, with adamant defenders and critics. It is worth our while to examine a few of the most prominent objections, but we will only be sliding across the surface of a deep and complex topic.

The Rights Objection. Utilitarianism evaluates actions on the basis of the consequences they produce, and therefore does not require respect for moral or legal rights. The literature is full of hypotheticals in which utilitarianism is alleged to justify intuitively unattractive rights violations. Suppose, for example, the slavery is contrary to a moral right, but that in a particular society, enslaving a small minority of the population would produce greater utility for the majority than it produced disutility for the enslaved minority. If these facts were true, the utilitarianism seems to say that slavery would be morally required. But most people would disagree, saying that slavery cannot be justified simply because it produces good consequences: “We have a moral right not to be enslaved." Utilitarians are likely to get quite huffy when this argument is made. They may say, “But slavery does not produce good consequences. It produces bad consequences, and that’s why we think slavery is so awful.” And then the critic might say, “But suppose slavery did produce good consequences, what then?” You can see how this debate could go on for quite some time before we made any progress. Notice, however, that act utilitarianism seems more open to the rights objection than does rule utilitarianism. Rules against rights violations may produce good consequences, even if individual acts of rights violation could be justified on utilitarian grounds.

The Self-Defeating Objection. Another objection is that utilitarianism may be self-defeating or self-effacing. Suppose that everyone tried to deliberate as a utilitarian. It might turn out that nonetheless they would make decisions that led to bad consequences. For example, some people may be extremely bad at predicting the consequences of their actions. Others may systematically overestimate their own utilities while systematically underestimating those of others. One answer to this objection is famously associated with the British moral philosopher R.M. Hare. Hare proposed a two-level theory of morality. Utilitarianism, Hare argued, operates at the level of detached moral theorizing. Ultimately, an action is deemed good or bad based on its utility. But ordinary moral deliberation, Hare continued, operates at a different level. Ordinary folks should deliberate on the basis of moral rules of thumb, such as keep your promises, don’t steal, and don’t enslave your enemies when you vanquish them. As you might guess, there are many criticisms of two-level theories, but you get the general idea.

The Impossibility of Interpersonal Utility Comparisons.  This one gets very complicated, very fast. So let me just state the general idea. Suppose we are trying to add up individual utilities for everyone in society. How do we come up with values that are truly comparable across persons. That is, how do we know that X amount of my pleasure or happiness or preference satisfaction is equal to Y amount of yours? This problem is especially vexing for economists (who need to be able to translate utility into values that are susceptible of mathematical treatment).  One solution is simply to limit the conclusions of economics to cases that involve making everyone better off or that make at least one person better off and no one worse off—hence obviating the need for interpersonal comparisons: for more on this, see Legal Theory Lexicon 060: Efficiency, Pareto, and Kaldor-Hicks.

The Demandingness Objection.  The list of objections goes on and on, but let’s do just one more. It is frequently argued that utilitarianism (especially act utilitarianism) is too demanding. Why?

Imagine that it is your day off. You have two choices. You can either read a novel or your can work for Oxfam. If you read a novel, you will produce some positive utility—your enjoyment of the novel. But if you worked for Oxfam, you would save 1.7 starving children in the third world from death. Well, of course, you should work for Oxfam. But the problem is that it will always be the case that I could produce more utility for others if I dedicated my time to helping the least fortunate. Utilitarianism seems to require me to work for Oxfam after work and to stay up as late as I possibly can. In fact, I may be able to maximize utility by neglecting my health and family. If this is true, many would find utilitarianism too demanding and hence implausible.  There are various answers to this objection, but some utilitarians embrace demandingness, arguing that relatively affluent persons do have very demanding moral obligations.

Utilitarianism and Legal Theory 

In the law, utilitarian thinking is most associated with normative law and economics. It is useful to review the various forms of utilitarianism in this context:

• Normative law and economics uses preferences rather than pleasure or happiness as its concept of utility.
• Normative law and economics usually assumes that the system of legal rules (as opposed to individual actions or ideal moral rules) provide the relevant scope of decision.
• Normative law and economics usually assumes that utilities are to be summe—although this issue is rarely addressed in any detail.
• Normative law and economics usually assumes that it is expected utilities, rather than actual utilities, that are to be maximized.

If you are interested in the relationship between utilitarianism and legal theory, you will definitely want to check out Kaplow and Shavell’s book, Faiirness versus Welfare. Kaplow and Shavell don’t take a stand on the question as to whether utilities should be summed, multiplied, or combined some other way, but they do offer a trenchant defense of consequentialism as well as an attack on nonconsequentialist approaches to legal theory.

Conclusion

If you want to learn more about utilitarianism and consequentialism, I highly recommend the Stanford Encyclopedia of Philosophy articles referenced below.  I also recommend Utilitarianism: For and Against, a short introductory book by J.J.C. Smart and Bernard Williams.

Related Legal Theory Lexicon Entries

• Legal Theory Lexicon 010: Deontology
• Legal Theory Lexicon 012: Virtue Ethics
• Legal Theory Lexicon 025: Social Welfare Functions
• Legal Theory Lexicon 068: Welfare, Well-Being, and Happiness

msLinks to Other Resources on the Web

• Walter Sinnott-Armstrong, Consequentialism, Stanford Encyclopedia of Philosophy
• Julia Driver, The History of Utilitarianism, Stanford Encyclopedia of Philosophy
• Andrew Moore, Hedonism, Stanford Encyclopedia of Philosophy
• Utilitarianism Resources
• Ethics Updates: Utilitarianism
• The Bentham Project
• International Society for Utilitarian Studies

Bibliography

The literature on utilitarianism is vast, but here are some good starting points:

• J.J.C. Smart & Bernard Williams, Utilitarianism: For and Against (1973)
• Utilitarianism and Beyond (Amartya Sen & Bernard Williams eds., 2002)
• Consequentialism (Stephen Darwall ed. 2002)
• Robert E. Goodin, Utilitarianism as a Public Philosophy (1995)
• Consequentialism and Its Critics (Samuel Scheffler, ed. 1988)
• Louis Kaplow & Steven Shavell, Fairness versus Welfare (2002)
• Julia Driver, Consequentialism (2012)

(This post was last modified on April 4, 2021.)