Legal Theory Blog

Bertram on Cohen Chris Bertram

Bertram on Cohen Chris Bertram has an impressive post on Gerald Cohen's Facts and Principles (download requires subscription). Chris makes this observation about the main point of Cohen's piece:

The principal target of Cohen’s article is Rawlsian constructivism. This is because Rawls believes that the way the world is (the facts) enter into the construction of the fundamental principles of justice (via, for instance, the general facts made available to the parties in Rawls’s original position). Cohen believes that Rawls is not altogether consistent here, in any case, since the design of Rawls’s constructivist procedure rests on general claims (that persons are to be considered as free and equal) that are either themselves fact-independent or rest on further principles that are. So, for Cohen at least, Rawls’s putatively fundamental principles of justice aren’t fundamental at all, but merely derivative or regulatory principles that actually derive from deeper fact-independent principles.

And Bertram asks whether Cohen hits the mark:

Is Cohen’s argument damaging to Rawlsian constructivism? If Cohen is correct, Rawlsians might reasonably, though concessively, reply. They might argue that it is true that if we look at what the logical structure of people’s ethical beliefs ought to be, then fact-independent principles are at the bottom. It isn’t the case then, that what justifies and constitutes our most fundamental commitments is that they derive from a constructivist procedure. But (1), epistemically, such a procedure is the best method for getting at what those commitments are and (2) given “the facts”, the regulatory principles which we are practically most interested in are best seen as the product of a constructivist apparatus. Too concessive? I think most Rawlsians could live with it.

All my books are boxed up, so I find myself frustrated. However, I think there is a problem with Cohen's argument if considered as a critique of Rawls's political constructivism. In particular, the move the Bertram describes as "concessive" seems to me entirely consistent with political constructivism, although Cohen's critique might pose a problem for Kantian constructivism. The reason for this is obvious, and I am not sure how Cohen could have missed it. Rawls is quite clear that the deep foundations for the premises of political liberalism are not supplied by political liberalism itself, but must instead by supplied by the comprehensive religious and philosophical views of citizens. Thus, we take the notion of citizens as free and equal from the public political culture. From the point of view of political liberalism, this is sufficient. I'm quite sure that Rawls would want to say that political liberalism does not need to take a stand on the question whether the ultimate foundations of justice as fairness are (or are not) fact sensitive principles. When Cohen construes Rawls as holding otherwise, he quotes exclusively from A Theory of Justice and from Rawls's essay on Kantian constructivism. Indeed, Cohen never even mentions Rawls's discussion of "political constructivism" from Political Liberalism. Of course, Cohen may not have intended his argument to be directed at Rawls's final position, and the puzzling omission that I note in no way detracts from the interest of Cohen's paper. I've gone on too long, so let me simply say: read Bertram's post and Cohen's paper!
Update: Another impressive post on Crooked Timber by Jon Mandle can be found here. Mandle argues in a different way for the conclusion that Rawls is not Cohen's real target.

Simons on the Precautionary Principle

Simons on the Precautionary Principle Kenneth Simons, the distinguished tort scholar from Boston University, writes with some comments about the precautionary principle. For my post, go here. Ken's comments are an excerpt (which was only very slightly revised in the published article) from Kenneth W. Simons, Negligence, 16 Social Philosophy & Policy 52 (1999):

Is it possible to develop a clear, nonconsequentialist formula for negligence, one that accommodates competing values but avoids the problems of a pure (or even a distribution-sensitive) maximizing approach? Consider two efforts--a “disproportion” test, and a “freedom v. security” balancing test. I will conclude that these efforts, while promising, are inadequate. The first is too ill-defined, while the second is too reductionist to capture the full array of values that should be balanced.

a. Disproportion test. One possibility is a disproportion test. On this approach, if an injurer’s risky conduct would expose potential victims to expected risks of P x L and could be avoided only at marginal cost B, then, in order for the injurer to be permitted to impose the risk, P x L must not only be greater than B, it must be much (or disproportionately) greater. This could also be called a thumb on the scale test: in weighing the potential victim’s interest in personal security against the potential injurer’s interest in freedom of activity to impose risks, we should place a (heavy) thumb on the scale, giving special weight to the interest in personal security.

These tests sound plausible and appealing, but, unless substantially recast, they provide a useless criterion. If we have identified the appropriate factors to balance, and if the method of balancing is also justifiable, then these tests say the following: one should not take a risk (as opposed to taking a precaution against the risk) simply because the advantages of taking the risk are greater than the disadvantages. Rather, one should take such a risk only if the advantages of doing so are much greater than the disadvantages (normally, only if the benefits to the injurer are much greater than the expected injuries to victims, discounted according to their probability).

This approach is either indeterminate or irrational. For unless one has a common metric or other justifiable method for measuring the competing interests or values, how does one know whether the interest in physical security and safety is “just” weightier than the interest in freedom of activity, as opposed to “much” weightier, so as to apply the “disproportion” or “much weightier” criterion? On the other hand, if one does have a common metric for measuring the competing interests, or if one does have some other justifiable method of balancing, why shouldn’t the actor simply choose the alternative that furthers the “weightier” value, even if that value is only weightier by a peppercorn?

Let me be more specific. Is the interest in avoiding the risk of having one’s arm broken “usually” greater than the interest in driving 10 miles per hour faster, or “usually” greater than the interest in avoiding the expense of a softer bumper? These questions are meaningless unless we specify more clearly both the degree of risk of a broken arm, and the disadvantages of taking a precaution. Yet once we specify these factors, and adopt a justifiable method of balancing, shouldn’t we indeed balance “at the margin”? That is, shouldn’t we examine whether the advantages of any particular action (even a narrowly defined action) exceed the disadvantages?

I suspect that the worry about weighing “at the margin” is a legitimate concern about turning moral analysis into a bloodless form of calculation. What one should do should not depend on plugging numbers into a formula. And we should often be suspicious of methodologies that purport to balance along a “razor’s edge,” such that trivial factual differences in the weight of a given factor render an otherwise permissible action impermissible (or vice versa).

These concerns are well-founded if the most justifiable method of balancing requires a strong form of commensurability, i.e., translation of all values into a single metric such as money or wealth. But weaker forms of commensurability are more plausible for most moral decisions, including decisions about risky alternatives. For example, consider the question whether a doctor should disclose to a patient all adverse risks of medical treatment of which the doctor is aware. A range of possible rules is possible, from a rule of no disclosure (if the doctor believes that nondisclosure of a particular risk is in the best interest of the patient), to a rule of relatively full disclosure (of all risks that most patients would consider material), to a rule of disclosure tailored to the second-order preference of patients (i.e., disclosure of whatever scope of risks the patient herself prefers to be disclosed). These different rules embody different conceptions of the proper scope of patient autonomy and physician discretion in decisionmaking about medical risks. Whether a given risk should be disclosed in a given case is much more likely to depend on these subtle value judgments than on the precise magnitude of the risk or on the precise financial or temporal burden to the doctor.

At the same time, however, even this more qualitative form of balancing will be sensitive to facts. Accordingly, close questions will sometimes arise about whether, for example, a particular risk is one that most patients would consider material. If we conclude that a doctor should disclose a 1% risk that hernia surgery will result in permanent numbness at the location of the surgery, but we find this a very close question, then the doctor might have no duty to disclose a 0.5% risk. In this sense, “marginal” decisions will still occur.

The “thumb on the scale” approach might also be designed to express special concern for one value in the balance, relative to some other, deficient way of valuing it. But this concern can be accommodated in a balancing test without suggesting the implausible conclusion that there will never be marginal cases. For example, one might conclude that the social value to be given to patient autonomy is greater than the value that most patients actually express in the marketplace (either because of marketplace distortions in capturing the private valuations of patients, or because recognizing patient autonomy is a collective social good, the value of which transcends the sum of individual valuations). Thus, even if patient surveys reveal that most patients only strongly care about risk information that has at least a 20% probability of changing their mind about treatment, the “thumb” might justify a rule that doctors disclose risk information with at least a 10% probability of changing a patient’s mind. Notice, however, that this use of a “thumb on the scales” is much more limited than the general use described earlier.

If you want to pursue these issues, Ken suggests two articles:

1. Mark Geistfeld, Reconciling Cost-Benefit Analysis with the Principle
That Safety Matters More than Money, 76 N.Y.U. L. REV. 114 (2001).

2. Gregory Keating, ³Pressing Precaution Beyond the Point of
Cost-Justification² 56 Vanderbilt Law Review 653 (April 2003), forthcoming,
available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=424609.

Eden on Arneson About a

Eden on Arneson About a week ago, I posted a link to a new paper by Richard Arneson, entitled Democracy is Not Intrinsically Just. John Eden writes with some interesting comments which you can read on the Legal Theory Annex.

Pryor Cloture Vote Fails Courtesy

Pryor Cloture Vote Fails Courtesy of the incredible Howard Bash, the AP report is here.

Marston on Judicial Self-Understanding Brett

Marston on Judicial Self-Understanding Brett Marston has a very thoughtful and nuanced post on legal realism, legal formalism, and how judges understand themselves. Recommended.

The Precautionary PrincipleIntroduction Here is

The Precautionary Principle

Introduction Here is something about blogging that I love: blogging is conversational! A conversation starts with one topic and it naturally flows into another. This has happened recently as a result of some blogging that started with a post by Chris Bertram on Crooked Timber about the goodness of natural foods, things to eat that are recognizably from the earth--I posted a brief footnote to Bertram's very interesting post. The conversation turned towards the possible risks associated with genetically-modified foods and organisms, and from there, to the "precautionary principle." (Stephen Laniel here & my reply here and Stephen Laniel again here.) And so I find myself wanting to say a bit more about the precautionary principle and its limits. Here goes.
Defining the Precautionary Principle What is the precautionary principle? Honestly, I am not sure I know. I've poked about a bit, hither and yon, and I'm not sure there is a clearly-formulated, well-accepted definition. Last time, I used this definition:
"the precautionary principle requires us to assign the burden of proof to those who want to introduce a new technology, particularly in cases where there is little or no established need or benefit and where the hazards are serious and irreversible. It is up to the perpetrators to prove that the technology is safe 'beyond reasonable doubt'."
But Adam Kessel takes me to task for attacking a straw man, and suggests this definition:
1. People have a duty to take anticipatory action to prevent harm. (As one participant at the Wingspread meeting summarized the essence of the precautionary principle, "If you have a reasonable suspicion that something bad might be going to happen, you have an obligation to try to stop it.")

2. The burden of proof of harmlessness of a new technology, process, activity, or chemical lies with the proponents, not with the general public.

3. Before using a new technology, process, or chemical, or starting a new activity, people have an obligation to examine "a full range of alternatives" including the alternative of doing nothing.

4. Decisions applying the precautionary principle must be "open, informed, and democratic" and "must include affected parties.


Kessel is certainly right that this statement of the principle is more fully developed, and avoids the implausible "beyond reasonable doubt" standard. Another, very influential statement of the precautionary principle is found in Principle 15 of the Rio Declaration on Environment and Development:

In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.

This formulation we reaffirmed in the Cartagena Protocol on Biosafety, and it is modeled on the Bergen Declaration on Sustainable Development (and in many other agreements, which are collected here).

My conclusion is that Adam Kessel's criticism was entirely fair. Although I spent a bit of time searching for versions of the precautionary principle; I really can't say that I found the best, most defensible version. And it turns out that the most authoritative versions are also vague. So let's take a deeper look at the issues the underlie the difficulties in formulating the precautionary principle.

Untangling the Definition: Burdens of Proof, Persuasion, and Production & Standards of Proof
The precautionary principle is concerned with the burden of proof, but in order to get straight about the principle, we need to disentangle what "burden of proof" means. Here one useful way to analyze the notion of a burden of proof:

--The burden of production is the burden of going forward on an issue. The party (or social actor) with the burden of production on an issue has burden of raising the issue. In a criminal trial, the prosecution has the burden of production on the elements of the crime. Hence, the prosecution goes first.

--The burden of persuasion is correlative with the risk of nonpersuasion. The party (or social actor) with the burden of persuasion must be convincing (by some standard of proof) with respect to an issue. In criminal trials, the burden of persuasion (like the burden of production) rests with the prosecution. Although the burdens of production and persuasion can be joined together--they can also be pried apart. For example, once a party has raised an issue, the burden or persuasion could then rest elsewhere.

--The standard of proof is the quantum (not necessarily numerical) of evidence required to meet a burden of production or persuasion. Thus, in criminal trials the burden of production and persuasion is on the prosecution to establish guilt beyond reasonable doubt. In civil cases, the burden of persuasion is on the plaintiff to carry the elements of her case by a preponderance of the evidence. Another standard of proof commonly used in the law is clear and convincing evidence. Decision theorists and policy analysts usually substitute probabilities for the qualitative standards used by lawyers. So an event that is certain to occur has a probability of 1.0. We might might translate the perponderance of the evidence standard as p < 0.5.

In the context of the precautionary principle, the notion is that the burdens of production and persuasion should rest with the actor (e.g. the individual, firm, or government unit) that wishes to introduce a new technology. Simplifying, we might say that the introducer of a new technology has the burden to establish that the technology is safe by some standard of proof. Of course, it is more complicated. 100% safe would be a silly standard, because it would preclude technologies that produce enormous benefits but small safety hazards. Hence, the burden might be reframed as the burden to show that the new technology's benefits outweigh its costs. Here is the bottom line: a precisely formulated precautionary principle must allocate the burdens of production and persuasion and specify a standard of proof. If the precautionary principle is formulated more vaguely, then it isn't well-defined. And a precautionary principle that is not well defined cannot really be evaluated. We need specificity in order to have a meaningful discussion.

Decision Theory
My discussion of burdens and standards was only the first step towards clarifying debates over the precautionary principle. A second step is necessary. We need to clarify what we mean when we talk about uncertain consequences or risks. Lot's of work on these issues has been done in the discipline (crossing lines between philosophy, economics, mathematics, and policy science) which is usually called "decision theory." We need to distinguish between decision under conditions of perfect information and decisions under conditions of uncertainty:

Decision With Perfect Information
Let's start with the idea of decision given perfect information. By perfect information, I simply mean that we know everything about the relevant consequences of our actions. Decision theory uses operates within a simplified utilitarian framework, but this is not an inherent feature of decision theory. Assuming an act-utilitarian framework and perfect information, the rational decision is the decision that produces the greatest sum of individual utilities as compared with any feasible alternative course of action. Clearly, the precautionary principle is not intended to apply to decision under conditions of perfect information. So we need to examine cases where information is less than perfect.

Decision Under Uncertainty
therefore, let's consider the possibility that we lack certainty about the consequences of the alternative actions or policies we are evaluating. This next bit is crucial: there are two different kinds of uncertainty. I will call these two forms of uncertainty risk and ignorance--but pay close attention to my definitions, because different theorists use these terms in different ways.

Uncertainty as Risk
Uncertainty as risk exists when we can assign probabilities (or ranges of probabilities) to the various possible consequences of actions. Thus, if there is a 50% chance that a genetically modified crop will cause a particular harm (e.g. kill a certain number of Monarch butterflies), that is a condition of risk. Given conditions of risk, decision theory says that one should maximize expected utilities, where the expected utility of an action is the sum of all the utilities associated with the various possible consequences of the action, each discounted by the probability that it will occur.

Uncertainty as Ignorance
Uncertainty as ignorance exists when we cannot assign probabilities (or ranges of probabilities) to the various possible consequences of our actions. Thus, if we believe it is possible that a genetically modified crop will cause a particular harm (e.g. kill some Monarch butterflies), but we cannot say whether that outcome is 100% likely or 50% likely or 0% likely, we are in a condition of ignorance.

The Precautionary Principle and Decision Theory
So now we are in a position to evaluate the precautionary principle. Here is my suggestion. Once we appreciate the difference between risk and ignorance, we discover that the precautionary principle must deal with two, very distinct, problems. Let's consider each separately, and try to get clear about the work the precautionary principle could do.

The Precautionary Principle and Risk
What does the precautionary principle tell us about situations where a new technology creates quantifiable risks of various harms? Once we start to think about this, it turns out there are further subcases:

First, there is the case where the probabilities have already been assessed. That is, the risks are not only quantifiable, they are quantified. In this case, I don't see any interesting role for the precautionary principle to play. From a utilitarian perspective, we ought to maximize expected utilities. Perhaps, the precautionary principle is meant to address the situation where there is a very low probability of a very great harm. In this situation, society as a whole might decide to adopt an aversion to risk. For example, we might adopt a maximin principle for decision, maximizes the minimum payoff, or more colloquially, avoiding the worst case scenario. So, suppose we determine that planting a GM crop would create a very, very low probability of a catastrophic result, a one in a billion chance of triggering cascading exterminations that would cause a loss that we would value at 10 billion dollars. When discounted by its probability, this loss has an expected value of minus ten dollars--rather insignificant. If this is the upshot of the precautionary principle, it stands in need of justification. Why should we allow remote possibilities to dominate the decision making process?

Second, there is the case where the probabilities have not yet been assessed, but they could be, by an investment of resources into research. Perhaps, the precautionary principle is telling us that in such cases, the advocate of allowing a new technology should have the burden of establishing the level of risk, before going forward. But there is an interesting problem here. Research is itself costly. But when we decide whether to expend resources on research, we don't know what the result will be. If we invest in costly research and it yields no useful information, we've wasted or money. But it is in the nature of research that one doesn't know the outcome until after the research is done. If the precautionary principle is telling us to do the research before we make the decision, then the question arises: how much should we invest in research? Unless the precautionary principle can answer this question, it cannot provide meaningful guidance in the case at hand.

The Precautionary Principle and Ignorance
This brings us round to the case where we are dealing with ignorance. We are trying to make a decision, but we the risks are unquantifiable. What does the precautionary principle tell us to do? Stephen Laniel's most recent post gives an example of the kind of thinking that advocates of the precautionary principle might engage in:

To my mind, the biggest danger arising from the introduction of GMOs is that we don?’t know how they?’ll interact in the real world, with real species. A laboratory experiment won?’t even approximate the real phenomenon we?’re concerned about.

So what would Solum have us do? Introduce the modified species into the natural environment, then measure the long-term consequences of our actions? Sure, we can try that, but then it would be very hard to reverse our mistakes.


Because we cannot assess the risks, we ought not introduce genetically modified organisms. Here's another way of getting to the same conclusion. Let's take the suggestion that the precautionary principle places the burden of persuasion on the advocate of a new technology. Let's assume for the sake of argument that the standard of proof is preponderance of the evidence. Thus, the advocate must show by preponderance of the evidence that the proposed new technology is safe (or that its benefits outweigh its hazards). How does that burden interact with a condition of ignorance? The principle seems to say that under these conditions, the new technology may not be introduced. Why? Because if we are talking about a risk that is uncertain in the sense that we lack the information to assess the risks, then the advocate of the new technology will be unable to meet her burden to demonstrate safety (or cost-beneficiality).

This bit is crucial: In cases of uncertainty as ignorance, allocating the burden of persuasion makes the decision. Why? Because in cases of ignorance, it is simply impossible to meet the burden of persuasion by any standard of proof.

And this point leads to another: Once we are in the realm of ignorance, the possible gains and losses cut both for and against any given action. This is because the realm of possible good and bad consequences for any action is vast. There is a possible world in which a new GMO causes cascading extinctions that result in the the end of all human life, and there is a possible world in which the same GMO prevents these extinctions. By definiton, we have absolutely no knowledge of the likelihood of these scenarios under conditions of ignorance.

If the precautionary principle is interpreted to forbid the introduction of new technologies on the basis of possible harms with unknown probabilities, it is irrational. Here is a statement of this argument from Consumeralert.org:

The precautionary approach to risk can paradoxically increase risks both to human health and the environment. There is a risk of innovation, but there also is a risk of stagnation. Any policy relating to new technology needs to use that risk vs. risk framework. To do otherwise ?– to blindly follow the precautionary principle -- means that anything new is guilty until it is proven innocent. It means that a scientific invention or a new technology that may offer life-saving benefits to millions of people also, because it may present some risks, can be banned or severely restricted. There are high risks involved in avoiding risk through the precautionary principle.

Taking Stock
Let's back up then. I think the precautionary principle is actually many principles. The family of precautionary principles is united by a common concern for decisions about new technology under conditions of uncertainty, but the actual content of the principle varies widely:

--One version of the precautionary principle simply says that harms should not be ignored solely on the basis that we are not 100% certain that they will occur. A related idea is that risks should not be disregarded pending the completion of research. This version of the principle is common sense, and a sound basis for policy making.

--Another version of the principle might say that the advocates of new technology ought to come forward with information about risks and/or reasonable investments in research about risks. As a rule of thumb, this seems quite sensible.

--Another version of the principle might say that the advocates of a new technology have the burden to demonstrate that the technology is safe (or cost-beneficial) preponderance of the evidence. This version makes some sense if we are dealing with quantifiable risks, but is irrational as applied to cases of risk as ignorance.

--Another version of the principle might say that the advocates of new technology have the burden to demonstrate that the technology is safe (whether cost-beneficial or not) and that this showing must be made beyond reasonable doubt. This version of the principle is just plain nutty. In all likelihood, it would have the consequence of increasing environmental harms and preventing the adoption of new technologies that would have great benefits to the environment.

--And there are undoubtedly, many other ways to formulate a "precautionary principle."

Conclusion
Frankly, when I started writing about this topic, I thought I was against the precautionary principle. After doing more research, I realized that there were some versions of the principle that I could support. But the more that I worked on this topic, the more I became convinced that the phrase "precautionary principle" is hopelessly muddled. Of course, diplomats may like the principle for precisely that reason, but from the point of view of good policy analysis and scholarship, I am inclined to think that we would be better off without using the phrase "precautionary principle." If we continue to use this phrase, then we ought to be careful to define it, and in particular, to be clear about burderns of persuasion, standards of proof, and the distinction between risk and ignorance.

Weatherson on Naturalist Ethics What

Weatherson on Naturalist Ethics What a joy Crooked Timber has been! Surf over to philosopher blogger Brian Weatherson's post entitled Ethical Naturalism reredux Here is a taste:

[N]aturalists deny nature has a purpose. True enough, but not much follows from that. A little analogy. Consider a crowd in Times Square on a typical work day. The crowd as a whole has no discernable purpose whatsoever. It isn’t like New Year’s Eve where the purpose is unintelligible, there just isn’t a group purpose there. But the individuals in the group can have purposes. One might be looking for food, another for theatre tickets, and another (I’m told) for where all the porn shops have gone. It might be disheartening to think of all of nature as an aimless Times Square crowd write large, but even if we do, that doesn’t entail that none of the constituent parts have purposes.

I have a trilogy of recent posts on naturalist ethics: (1) Naturalist Ethics, (2) Metaethical Prejudice: More Remarks on Ethical Naturalism, and (3) Natural Goodness: From Facts to Values.

The Crooked Timber of Monkeykind

The Crooked Timber of Monkeykind If you are interested in programming and especially if you have ever worked on a database project, you will want to gread Tom Runnacles post here. This is the line I love:

[Y]ou can’t get a project which is behind its schedule back on track by adding more code-monkeys to it.

How can it be that institutions forget this principle almost the minute after they learn it?

More from Non-Volokh on Pryor

More from Non-Volokh on Pryor For Juan's latest, go here. My comments are here and here.

Hasen on the Recall Rick

Hasen on the Recall Rick Hasen (Election Law Blog) has an editorial entitled Horse before cart in recall challenges on the California recall election in the Sacramento Bee. Here is a taste:

There are . . . significant similarities between the Florida and California controversies. Both involve numerous parties using election law challenges brought in multiple venues as part of a larger political strategy - a trend that predates, but that was accelerated by, the Florida controversy. Thus, the California anti-recall litigation strategy of going to state and federal court and throwing up numerous arguments to see what sticks follows not just Bush v. Gore, but also controversies last year in New Jersey over Sen. Robert Torricelli's replacement on the ballot and in Minnesota over absentee ballot changes in light of Sen. Paul Wellstone's death.