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Legal Commentary

: Prawfs

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By Dan Markel, Ethan Leib, Rick Garnett, Matt Bodie, Paul Horwitz , Steve Vladeck, and Orly Lobel

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I find that I'm often overly critical as a reader of other scholarship, so that's one of the reasons I really like the idea of JOTWELL. It helps us find really good pieces and allows you to say so unashamedly.

The problem with JOTWELL, however, is that we're all busy and sometimes it takes too damn long to explain why something is good, especially when you're not an expert in the area but you just think: Hmm, that was really good. So, with that in mind, I want to draw attention to a few pieces I read recently and really liked. I'll put the links here and the abstracts after the jump. While I wouldn't say I quite agreed entirely with each of these pieces, I did really like them, find them helpful and instructive and interesting. That's about all one could hope for really. (And for what it's worth, I don't know the authors of either of these pieces though after reading their work, I wish I did.)

Scott Hershovitz: The Role of Authority.

Barbara Fried: Ex Ante/Ex Post.

The Role of Authority

Scott Hershovitz

University of Michigan Law School

Philosophers' Imprint, Forthcoming Abstract:

The most influential account of authority ? Joseph Raz's service conception ? is an account of the role of authority, in that it is an account of its point or function. However, authority does not have a characteristic role to play, and even if it did, the ability to play a role is not, by itself, sufficient to establish authority. The aim of this essay is to shift our focus from roles that authority plays to roles that people play ? which we can also call roles of authority ? such as chef, teacher, and parent. To justify authority, we need to justify the practices in which roles of authority play a part.

Ex Ante/Ex Post

Barbara H. Fried

Stanford Law School

The Journal of Contemporary Legal Issues, Vol. 13, 2003

Abstract:

This paper was written for a conference on legal transitions. The central question in legal transitions is whether it is appropriate for the government to offset (through grandfathering, direct compensation or other mechanisms) the ex post changes in wealth occasioned by changes in legal rules. Put this way, the government's appropriate response to the risk of legal change is just an instance of the larger question whether (and when) the government ought to intervene to bail people out of the bad ex post consequences of their (ex ante) risky choices.

Over the past twenty years, a substantial literature has emerged in both philosophy and economics on this larger question. While economists have analyzed the case for ex post compensation primarily on welfarist grounds and philosophers primarily on egalitarian grounds, the two literatures have proceeded along strikingly similar lines, and converge on strikingly similar conclusions, albeit for their very different reasons: People should bear the consequences of their risky choices, subject to a limited exception when the risk in question is undesired but uninsurable. This convergence on an "ex ante" view of distributive justice results straightforwardly from the fact that the dominant strain in philosophy that has taken up this question over the past 20 years - so-called "luck egalitarianism" - is committed to the same strong ex ante perspective (for its very different reasons) as the rational expectations model of individual decision-making that dominates welfarist policy analysis.

This article examines the convergence on "ex ante" justice in economics and philosophy, and the normative and empirical assumptions on which it rests. It then considers various challenges to the sanctity of ex ante choice. It concludes that many of these challenges deserve to be taken more seriously than they have been, and would argue in at least some cases for "ex post" justice - for bailing people out of the bad consequences of their risky choices - on fairness as well as welfarist grounds. It concludes, however, that most legal transitions do not themselves present a compelling case for ex post justice on fairness or welfarist grounds.

Full post as published by Prawfs on August 11, 2010 (boomark / email).