Inequality and Uncertainty: Theory and Legal Applications

Welfarism is the principle that policy should be based solely on individual well-being with no reference to fairness or rights. The propriety of this approach has recently been the subject of extensive debate within legal scholarship. Rather than contributing (directly) to this debate, we identify and analyze a problem within welfarism that has received far too little attention. Call this the ante/ex problem. The problem arises from the combination of uncertainty - an inevitable feature of real policy choice - and a preference for equality. If the policymaker is not a utilitarian, but rather has a social welfare that is equity-regarding to some degree, then she faces the following choice: Should she care about the equalization of expected well-being (the ex ante approach), or should she care about the expected equalization of actual well-being (the ex post approach)? Should she focus on the equality of prospects or the prospects for equality?In this Article, we bring the ex ante/ex post problem to the attention of legal academics, provide novel insight into when and why the problem arises, and highlight legal applications where the problem figures prominently. We ultimately conclude that welfarism requires an ex post approach. This is a counterintuitive conclusion because the ex post approach can conflict with ex ante Pareto superiority. Indeed, the Article demonstrates that the ex post application of every equity-regarding welfare function - whatever its particular form - must conflict with ex ante Pareto superiority in some choice situations. Among other things, then, the Article shows that legal academics must abandon either their commitment to welfarism or their commitment to ex ante Pareto superiority.

Benefit-cost analysis judges health and safety regulations according to whether the monetized benefits of risk reductions, as measured by individual willingness-to-pay (WTP), exceed their costs. One way to complement such analyses is to take into account the distributional effects of health and safety policies. Our goal in this paper is to estimate the parameters of individuals’ social welfare functions (SWFs) defined over environmental health risks—specifically, risks of cancer and lung disease. We do this by confronting people with choices between environmental programs that result in higher average but more equally distributed health risks, and programs that would deliver lower average but less equally distributed health risks. We use the responses to parameterize an Atkinson SWF for cancer risks and a similar function for risks of lung disease. This SWF could be used to evaluate programs that would alter the distribution of environmental health risks in a population. The analysis also produces an inequality index (the Atkinson index) for health risks that reflects the preferences of our sample for equality of outcomes. Our empirical estimates of public preferences for environmental health risk distributions come from a national internet survey with more than 900 completions, administered in August 2015. The survey asked respondents to choose between environmental programs that result in different mean health risks in a population and different distributions of these risks. Respondents made these choices (a) in a situation in which they (and their families) were not affected by the choices, and (b) in a situation in which they were affected, to see how this altered their preferences. We also used “leaky bucket” experiments to elicit respondents’ preferences for income inequality and a repeated coin toss question to gauge risk aversion. In addition to the base case survey, we used four alternative survey treatments to examine the effect of the scale of the risks, the nature of the health risks (lung disease versus cancer) and the effects of the order of questions on responses. The results of our survey suggest that people are willing to accept a program that results in a higher total environmental health risk provided this risk is equally distributed across the population. Specifically, the median respondent is willing to accept a 50 percent increase in mean health risk (e.g., total environmental cancer cases) if these risks are distributed equally in the population. Interestingly, this result is the same whether the respondent and his family are affected by the program or not. When we compare preferences for income equality versus equality in the distribution of health risks, we find that the proportionate sacrifice people are willing to accept in the mean outcome to ensure equality in the distribution of outcomes is greater for health than for income: inequality aversion is higher for health risks than for income.

How should legal academics respond to authoritarian populists? What shape should their public interventions take? To address these questions, this article reframes the activism of legal scholars against populism as a struggle over competing legal theories. It is well documented that authoritarian populists make opportunistic use of democratic institutions, in particular constitutional reform and lawmaking by an elected legislature. This article distills a particular populist conception of law embedded in the arguments put forward by populists to defend and legitimate their uses of law. The populists’ legal theory views law as a pure expression of popular will, with two corollaries. First, it completely collapses law into politics. Second, it adopts an extreme form of legal positivism. One way to counter the constitutional and legal changes advanced by populists is to challenge their legal theory, a task that seems appropriate for legal academics. Through a discussion of the mobilization in 2023 by legal academics in Israel, this article argues that countering authoritarian populists’ legal theory is fraught with tensions. Though Israeli legal academics did not claim to operate at the level of legal theory, their arguments against the Israeli government’s legal proposals implicitly challenged the government’s jurisprudential approach. We show that doing so required reclaiming some autonomy for law from politics, but that this was in tension with the task of countering the government’s positivism—since the latter required appealing to values. In addition, the organization of legal academics into activists aiming to mobilize public opinion stood in tension with the claim of legal expertise distinct from politics. We conclude tentatively that while legal scholars have unique contributions to make to the struggle against authoritarian populism, these contributions are necessarily embedded in a moral-political outlook—one that should generally be acknowledged and actively defended in the political arena as well.

This article aims to figure out why feminist legal theory is called for being studied in Vietnam and what are the possible implications of the movement of adopting feminist legal theory in Vietnam, specifically, for Vietnamese academia legal education and scholarship. This article first argues that Vietnamese legal scholarship and education lacks a soul regarding gender-related issues—a feminist insight. This article points out that finding a feminist legal theory has long been a quest for Vietnamese scholars. It would follow from this that the recognition and adoption of feminist legal scholarship can have overall positive impacts on the Vietnamese legal academia and its scholarship and contribute to addressing the need for gender equality in legal academia and the whole society.

Our thesis is that the assessment of a legal policy should depend exclusively on its effects on human welfare, that is, on the well-being of individuals. In particular, no independent evaluative weight should be accorded to notions of fairness, such as corrective justice in tort and desert in punishment. (Concerns about the distribution of income are not, however, subject to our critique.) When the choice of legal rules is influenced by notions of fairness, individuals are often made worse off. Indeed, if the prescriptions of any notion of fairness are followed, it is always possible that everyone will be made worse off. Moreover, when we examine notions of fairness and the literature that advances them, we are unable to identify reasons that, on reflection, justify giving weight to these notions at the expense of individuals' well-being. Nevertheless, notions of fairness are widely felt to be appealing. We suggest that this appeal can largely be explained by three factors: notions of fairness often correspond to social norms that usefully regulate everyday life; notions of fairness may serve as proxy devices for achieving instrumental objectives; and individuals may have a taste for satisfaction of the notions. However, we explain that none of these factors warrants employing notions of fairness as independent evaluative principles in the assessment of legal policy. We develop these arguments through consideration of specific conceptions of fairness that are employed in major areas of law: tort, contract, legal procedure, and law enforcement. We also discuss the implications of our analysis for our primary audience, legal academics and other legal policy analysts, and also for government officials, notably legislators, regulators, and judges.

The rise of EU law in US legal scholarship – from international lawyers' pet project to new fuel for comparative constitutional scholarship, and then on to self-contained subject matter with an independent raison d'etre – is closely tied to the professional itinerary of Joseph Weiler. Under the auspices of Eric Stein and Peter Hay, EEC law developed as a discipline at the University of Michigan, and the collaboration between US legal academia and the European University Institute (EUI) grew in quality and intensity. The year 1984 saw the birth of a massive research project sponsored by the EUI and the Ford Foundation, named “Integration through Law.” According to the vision of senior coauthor Mauro Cappelletti, the project was to map the budding European legal integration onto the lessons of a mature American federalism. The blueprint of the project had a one-way direction, portraying the United States as a source of “experience” and Europe as wide-eyed youth in need of inspiring examples. Joseph Weiler’s take on the project, however, was quite different. He was determined to avoid the trap of ephemeral similitude. Having identified a bed-rock of analogies, he then set out to unearth the specific dynamics that had enabled Europe's legal change. Weiler’s own contribution to Integration through Law, focused as it was on Europe’s institutional uniqueness, found its natural sequel in The Transformation. This article explained Europe in terms remarkably intelligible to US lawyers, but avoided any direct reference to US federalism. This was, familiarly enough, a constitutional project based on a court-led orchestration of federal and state powers. Yet its internal analytics, shaped by the logic of free trade and by technocratic opacity, were sufficiently rich and peculiar to dispel any off-putting deja vu effect.

Will there ever be a Nobel Prize in law? I use this question as a framework for discussing the current state of legal scholarship and the trend toward making legal scholarship more I discuss the meaning of and the scientific method and summarize the various theories that have developed over time to verify, modify, or reject scientific paradigms. Next, I consider whether the study of law is a science. All sciences share core theoretical beliefs about the same class of phenomena and agreed-upon methods of establishing the validity of claims made about those phenomena. This allows for the transnational study and dissemination of information about that scientific field, regardless of the country of origin of that information. Most legal academics believe that this description of a science does not and, more importantly, could not apply to their field. Rather, they argue that their field of study is inherently local by both geography and subject matter. Therefore, a legal academic who studies the tort liability regime in Moldova is generally thought to be studying something very different from someone who studies contract law in Moldova or the tort liability regime in Laos. I make three claims. First, I argue that there is no inherent reason why law cannot be scientific. There is no inherent reason within law why there cannot be a transnational theoretical core about, say, tort liability of which each particular jurisdiction's instantiation is but an example. I draw the analogy to economics in which there is a single microeconomic theory of individual and group decisionmaking that instantiates into different national and regional economies, as dictated by different histories, social and governmental organization, resource endowments, and personal and group preferences. Second, I argue that law seems to be in the process of developing a transnational theory of organizations, consensual agreements, liability regimes, and more and that law and economics is currently (but not necessarily) the source of that theoretical core. I give examples of four empirical studies of legal issues that illustrate these trends. The astonishing aspect of the first three of these studies is that although they make empirical claims that question widely held beliefs about what the law in action really is, there has been no apparent alteration in what we teach law students in response to these empirical claims. By contrast, the response to Professor Ellickson's remarkable empirical study of the Coase Theorem in Shasta County, California, has been a dramatic alteration in the profession's belief about the Coase Theorem and the centrality of law in affecting behavior - precisely the reaction one would expect in a science in which theory and empirical work are cognizant of and responsive to one another. Third, I believe that this trend toward a more scientific study of law has been greatly spurred by law and economics, whose impact on legal scholarship has been profound in the United States, if not elsewhere.

Traditional welfare economics offers limited help in evaluating economic institutions and outcomes, because it rejects interpersonal welfare comparisons. Welfare economists often espouse the Pareto principle (that A is better than B if somebody prefers A to B and nobody prefers B to A ), but such unanimity in preferences is rarely found. Welfare economists are sometimes tempted to say that A is better than B when A is a potential Pareto improvement over B , but this view is controversial. What else can economists contribute to social evaluation and decision making? The Social Welfare Function and Arrow's Theorem Social choice theory evolved out of an effort to construct better tools for evaluation. Following Bergson (1938) and Samuelson (1947), let us call any ranking of social states that depends on individual welfare a “social welfare function.” Normative principles can be regarded as constraints on acceptable social welfare functions. For example, the principle of the personal good requires that social welfare functions rank A over B if A is better for someone than B , and B is not better for anyone than A. Social welfare functions thus provide a framework for exploring normative principles. Although the framework could in principle be applied to a broad range of evaluative criteria – including nonindividualistic ones – social choice theorists have focused on social welfare functions whose inputs are individual preferences. The Pareto principle, for example, can be characterized as requiring that social welfare functions rank A over B if somebody prefers A to B and nobody prefers B to A . Most economists would regard social welfare functions as by definition welfarist – that is, as restricting the inputs to social welfare functions to information about individual welfare. In the early days of investigating social welfare functions, it was hoped that thinking in terms of such functions could assist economists in identifying additional plausible normative principles that, like the Pareto principle, relate individual welfare and social welfare. If these principles had precise mathematical formulations, then economists would be able to deduce their implications. In this way, economists could carry out a sort of moral mathematics. However, much of the work on social welfare has not taken this form, owing to (a) the limitations of the basic Paretian perspective and (b) the results of early formal inquiries into social choice and evaluation.

As President Trump reminds us every day, we live in the era of social media. While legal scholars are busy discussing, rethinking and opening fields of law to accommodate the societal changes triggered by the Internet, they have been rather slow in assessing its potential impact on their own communication and publishing practices. This is a blind spot, which this paper aims to explore. More precisely, this piece argues that blogs and social media are suitable communication means for legal scholarship and provides some pragmatic advice on how to use them. This paper first draws a general sketch of two key transformations in legal scholarship: the transnationalization of legal scholarship and the desacralization of the legal texts. It is argued that they are provoked by the rapid digitalization of our societies and are key drivers of a needed shift in scholarly communication. They constitute the wider backdrop for the analysis in the second and third sections of the function and practice of blogs and Twitter in legal scholarship.

In his Lionel Cohen Lecture 2021 Justice of the Supreme Court Lord Burrows argued that the complementary role that academics and judges play is being threatened by a trend in legal scholarship away from practical (or doctrinal) legal scholarship towards one more concerned with ‘deep theory’ and with reasoning from disciplines other than law. This present article challenges some of the assumptions upon which Lord Burrows’ argument is based. In doing this, it asks why legal academics should see their role as one in which they are under a duty to aid the legal profession and the courts, especially given the present expectations about what amounts to good research, adequate methodologies and epistemological sensitivity. It also challenges the distinction between practical legal scholarship and ‘grand theory’. What is needed, the article suggests, is not less grand theory but a greater understanding both of the nature of disciplines and of some of the epistemological conundrums that attach to law as a body of knowledge.
 Keywords: Burrows (Lord); epistemology; Frank (Jerome); hermeneutics; judges; legal scholarship; methodology; theory.

In this paper we outline a new approach to welfare economics. The purpose of welfare economics is to provide an ordering of alter native economic policies. The most desirable economic policy is the policy yielding the highest level of social welfare. This principle can be used to evaluate a specific policy change or to select the optimal policy from a set of alternatives. Dupuit (1969) originated the appraisal of alternative economic policies in terms of their impact on consumer welfare. He proposed to measure individual welfare on the basis of preferences revealed by consumer behavior. The prices faced by the consumer and the corresponding quantities demanded were used to obtain estimates of consumer's sur plus.1 Hicks (1942) introduced measures of consumer's surplus based on compensating and equivalent variations in income or total expenditure. The intuition underlying Hicks's approach to welfare economics is straightforward. Lev els of welfare before and after a change in economic policy can be ordered by compar ing the required levels of total expenditure. For Hicks's compensating variation the dif ference in total expenditure is evaluated at prices prevailing after the change in policy. For the equivalent variation the difference is evaluated at prices before the policy change. Chipman and Moore (1980) have shown that a necessary and sufficient condition for Hicks's compensating variation to provide an appropriate ordering of economic policies is that individual preferences are homothetic. Homothetic preferences are inconsistent with well established regularities in the behavior of individual consumers, such as those reviewed by Houthakker (1957). Chipman and Moore recommend Hicks's equivalent variation. The individual expenditure function intro duced by McKenzie (1957) provides the sim plest approach for implementing Hicks's measures of welfare. The expenditure func tion gives the minimum level of total expend iture required to attain a stipulated level of utility as a function of the prices faced by the consumer. This level of expenditure can be derived from the indirect utility function, which gives the maximum attainable utility level as a function of prices and total expend iture. Jorgenson, Lau, and Stoker (1980, 1981, 1982) have developed methods for construct ing indirect utility functions and individual expenditure functions for a population of consumers. Exact measures of compensating variations based on these methods were intro duced by Jorgenson, Lau, and Stoker (1980). The corresponding exact measures of equiv alent variations were introduced by Jorgen son, Lau, and Stoker (1981). We describe these measures in Section 2 below. The approach to welfare measurement originated by Dupuit is limited to individual welfare. Under the Pareto principle a change in economic policy can be recommended if all consuming units are at least as well off under the policy change and at least one consuming unit is better off. This principle provides a partial ordering of economic poli cies. To obtain a complete ordering we re quire the concept of a social welfare function originated by Bergson (1938) and discussed by Samuelson (1982-1983). A social welfare function gives the level of social welfare as a function of the distribution of individual welfare over the population of consumers. Social welfare functions incor porate the effects of changes in economic policy on the welfare of individual con sumers. A requirement often imposed on so cial welfare functions is that they must obey the Pareto principle. Social welfare functions also include the impacts of policy changes on

In academia, journals serve as a proxy for quality, where prestigious journals are presumed to publish articles of higher quality than their less prestigious counterparts. Concerns over editorial bias in selecting articles, however, challenge this claim. This article develops a framework for evaluating this bias in legal academia, examining over 25,000 articles from nearly 200 general interest law reviews. Examining published articles in law reviews—the dominant venue for scholarship—and subsequent citations to these articles,wefind that,with fewexceptions, law reviewspublishmorearticles from faculty at their own institution than from faculty at other law schools. Law review publications of their own faculty are cited less frequently thanpublicationsof outside faculty. This disparity is more pronounced among higher-ranked law reviews, but occurs across the entire distribution of journals. We correspondingly find that law faculty publish their lesser-cited articles in their own law review relative to their articles published in other law reviews. These findings suggest that legal scholarship, in contrast to other academic disciplines, exhibits bias in article selection at the expense of lower quality (JEL codes: I2,

Although law and economics is considered to be enjoying significant success and influence in the United States, particularly in American law schools, its reception elsewhere is at most tepid. In this paper, I suggest that this sorry state of affairs is due to the lack of economic literacy skills among legal scholars, which in turn is due to the legal and economic education systems in Europe and in other countries following a similar structure. Some evidence of the importance of competency in these economic literacy skills for success in law and economics scholarship is offered by way of analysis of journal editorships as a proxy for success. Furthermore, the effectiveness of various law and economics programmes are discussed and the establishment of doctoral programmes in law and economics within the legal academia as a solution to the problem of law and economics scholarship is examined.

Although access to primary legal materials in South Africa is now easily accessible as a result of the Free Access to Law movement, access to legal scholarship is not as easy. Through using the University of Cape Town (UCT) as a case study, due to its research intensive nature, it is possible to see how academics are publishing their legal scholarship through the use of bibliometrics and data mining. After the success of a Research Visibility month, law librarians were able to attest to the perceptions of legal academics around the importance of the openness and visibility of their research. The author contrasts these two to see if the perception of legal academics around the visibility of their resources reflects their publishing practices. It is seen that although academics at UCT publish mostly in closed journals, the publishing in open and hybrid journals has slowly increased during the period 2011-2015. Further it is evidenced that legal academics are exploring other avenues, including that of self-archiving, to boost the visibility of their work. Law Librarians are able to assist in boosting at least the visibility, if not the openness of legal academics’ work.

Two years ago, a research team comprising two political scientists, Andrew Martin and Kevin Quinn, and two legal academics, Pauline Kim and Theodore Ruger, set out to forecast the votes cast and outcome reached in each case argued before the U.S. Supreme Court during its 2002–3 term. To generate the predictions, the researchers turned to approaches to decision making dominant in their respective fields. The political scientists devised a statistical model, which assumes, in line with the vast disciplinary literature on the subject, that judicial decisions are largely a function of politics and case facts. The legal academics went in a different direction. To tap a common belief in their field—that Court decisions reflect law and jurisprudential principles—they asked appellate lawyers and legal scholars (“experts” in particular areas of the law) to predict the outcome of each of the term's decisions. The researchers then posted all the forecasts on the Project's Web site (http://wusct.wustl.edu), along with the actual votes and outcomes as the Court handed down its decisions. As it turned out, the statistical model produced far more accurate predictions of case outcomes than the experts (75 percent versus 59.1 percent), while the experts did marginally better at forecasting the votes of individual justices (67.9 percent versus 66.7 percent).Lee Epstein thanks Jennifer L. Hochschild, Nancy Staudt, and the journal's reviewers for their comments on her essay, as well as for their help in shaping the symposium.