ISSN 1062-7421
Vol. 12 No. 8 (August 2002) pp. 477-486

FAIRNESS VERSUS WELFARE by Louis Kaplow and Steven Shavell. Cambridge, MA: Harvard University Press, 2002. 480p. Cloth $45.00. ISBN: 0-674-00622-4.

Reviewed by Ira L. Strauber, Department of Political Science, Grinnell College.

FAIRNESS VERUS WELFARE, by Harvard Law School faculty and economists Louis Kaplow and Steven Shavell, is an astonishing book. In part, this is because "Fairness versus Welfare" originally appeared, virtually word for word, as an article in the HARVARD LAW REVIEW (2001). To be sure, for a law review article to be re-published as a book striking is enough. Yet even more astonishing is the splendidly ambitious objective of this book, which is to set THE frame in the law scholarship for the simultaneously hoary, yet contemporary, moral debate about what should count as criteria for evaluating legal policies. Specifically, Kaplow and Shavell argue for their preferred version of a welfare economics approach to evaluating legal policy (i.e., using a wide range of measures related to the "well-being" of individuals or utility maximization rather than solely cost-benefit calculations about wealth maximization or efficiency) versus approaches
that depend entirely, or primarily upon, philosophical principles of "fairness," "justice," or rights-based criteria (in its various elastic forms, but hereafter referred to generally as "fairness-based criteria") for those evaluations.

Political scientists (whether behavioralists, rational choice theorists, or interpretivists) who might think of themselves as part of the legal intellectual community engaged in this debate will, more than likely be astonished, and probably disconcerted, to learn that the authors say otherwise. It is lawyers alone, say the authors, who are intellectually "close enough" (p. 390) to the law, other lawyers, and legal institutions to provide suitable "expert advice about the design of legal rules and
institutions…" (p. 389). Although this comes late in the book, I mention it now because it is relevant to the ambit of the book (and also because the issue of political scientists' place, or lack of same, in the legal intellectual community is worth some serious thought). But if forewarned is forearmed, political scientists who are disconcerted by being displaced should not let that interfere with their appreciation of the extent to which FAIRNESS VERSUS WELFARE is a remarkably congenial book to read. In fact, FAIRNESS VERSUS WELFARE is something of a must read for those of us who want to face up to many of the really critical questions about criteria for evaluating legal policies.

Authors Kaplow and Shavell have positioned themselves as perhaps the major proponents in the law school community of a distinctive formulation of those criteria. This formulation is said to be "equivalent to adopting the moral position that the design of the legal system should depend solely on concerns for human welfare" (p. 5), by which they refer to calculations of well-being by encompassing (virtually) anything that individuals actually include in their conception of their well-being:

Page 478 begins here

social sensibilities, goods and services, a sense of "justice," wealth, a desire not to be harmed or to have others harmed, protection from risk, a concern for the distribution of income (e.g., the overall allocation of income or wealth), and concerns for future generations. "Objectionable preferences" which involve malevolence or the like, such as the desire to discriminate on racial grounds, cannot be a priori excluded from considerations of well-being, but the authors say that it is likely that
they will be prohibited because their costs outweigh the benefits, and therefore will prove to be a preference that reduces well-being.

The authors' formulation of well-being is also unlike some other versions of welfare economic analysis in that it is indifferent to theories for aggregating individual preferences that would indicate what the welfare effect of policies may be (e.g., indifferent between strict utilitarianism, strict equality, or Rawls' difference principle, or whatever). As I understand it, this atheoretical approach to aggregating preferences is quite a controversial move among welfare economists (who defend a
specific conception of the proper distribution of well-being), and it is certainly controversial among advocates of fairness-based criteria who insist that such a theory is central to considerations of "well-being" (specifically) and of legal policy analysis (generally).

The authors' welfare-based formulation of well-being is in stark contrast not only to welfare-based analysis that focuses only on costs and efficiency, but also to most legal scholarship, the latter relying on conception of fairness-based criteria as the baseline for legal commentary sometimes regardless of whether or not individuals actually act on the basis of a scholars' criteria. According to the authors, fairness-based criteria matter only if they can be demonstrated to enter into actual
individual preferences, and even then they should never be considered independent of other preferences, or prevail over the sum of those preferences. What that comes to is that legal analyses should be conducted "exclusively in terms of their effects on the well-being of individuals (pp. 16, 384), and that fairness-based evaluations (where alone or mixed with consequentialist ones) should receive no independent consideration whatsoever in analyzing legal policies.

The authors' insistence that fairness-based criteria receive no independent role in the analysis of legal policies is impressed upon the reader by repeated hypothetical empirical scenarios designed to explain why fairness-based policies have the potential either to make some individuals worse-off, or, in the worst-case ( but not rare) scenario, to make everyone worse-off. These scenarios are placed in private and public law contexts to justify posing a trenchant moral and political question to advocates of fairness-based criteria: "To whom is one being fair?" (p. 54). What animates this question is the underlying premise that since both individuals and policy-makers seek to promote (for a variety of reasons) the well-being of individuals, the burden of proof falls on advocates of fairness-based legal policies to explain why fairness, justice, or rights-based criteria should be given preference over well-being.

Alongside these empirical scenarios are logical arguments against paradigmatic legal and philosophical theories and claims for fairness-based criteria. These logical arguments seek to demonstrate that fairness-based criteria and claims do not, and, in effect, cannot meet this burden of proof because they suffer from a range of infirmities: e.g., "metaphysical speculations"

Page 479 begins here

(p. 59) or stipulations rather than consistent and coherent support for fairness-based criteria; ideological prescriptions rather than systematic analysis of the implications of fairness-based criteria; or, in specifiable instances, internal contradictions born of fairness-based criteria that make those who are supposed to be assisted by fairness-based policies worse rather than better off.

These empirical scenarios and logical arguments constitute the evidence in support of welfare versus fairness. In the course of presenting this "evidence" the authors also provide a vast number of topic-rich footnotes that amplify, sharpen, and qualify these scenarios and arguments. Whether it is intentional or not, the effect of the footnotes is to put forward a second, more complex, version of FAIRNESS VERSUS WELFARE. Having left the more complex materials to the footnotes, it will be easier for readers who are less familiar with the welfare economic and philosophical materials to appreciate the general thrust of the empirical scenarios and logical arguments, but they will be something of a minor inconvenience for scholars who are primed to take issue with Kaplow and Shavell.

I take the liberty, as well, to suggest that readers who are less familiar with welfare economic arguments in particular consider reading the introductory, eighth, and concluding chapters together before they read the rest of the book. These chapters provide clear sign posts of the authors' approach to welfare economics. This suggestion is not meant to imply that the authors have done anything less than an excellent job, writing lively economic prose (or to imply that legal or political science prose is by contrast usually lively). But readers are going to have to navigate sentences like this one: "under the negligence rule, the injurer must pay
for the $100 harm only when he failed to take the precaution and the cost of the precaution is less than the harm it would prevent; thus the failure to the take the precaution would result in liability for negligence if the precaution costs $25, but there would be no liability if the precaution costs $150" (p. 100). At a more general level, the prose is well thought-out, skillfully organized, and expressive.

As indicated, the first chapter provides an overview of the book. It is divided into three parts: "framework," "analysis," and "extensions"). The second, and initial substantive, chapter of the first part of the book lays out the major themes of the framework. It introduces the authors' formulation of welfare economics analysis and it explains the moral significance and internal coherence of focusing on an individual's well-being. It also indicates some general objections that the authors
have about fairness-based criteria (e.g., vagueness and various forms of internal incoherence) that drive the subsequent chapters, and it covers some ancillary objections that support the authors' claim that law review and philosophical literatures have not adequately confronted the weaknesses of fairness-based theories.

The second chapter also introduces a subsidiary, but major, idea related to the empirical scenarios and logical arguments: this is the idea that although fairness-based criteria should not be an independent basis for evaluating legal policies they are normally, and defensibly, the determinative and reflexive factors that explain how individuals behave in everyday life. That is, the authors neither impeach fairness-based criteria as factors that shape and control social development, nor as
desirable rules of thumb for individual choice-making.

Page 480 begins here

Rather, the authors seek to impeach them only in regard to legal policy analysis. The justification for this bifurcation has its roots in the public/private distinction, and the authors go to some length to explain why what matters when it comes to individual choices should not carry over into choice-making in the public realm. Much later in the book (in the seventh chapter) this distinction between the two realms is revisited and expanded upon to provide an arresting discussion of why and how this gap between private and public criteria for well-being plays out in tensions between welfare policy analysis/analysts and policy makers (addressed below).

The second part of the book on analysis consists of four chapters, two of which draw from private law venues--torts and contracts--and two from public law venues--legal procedure and law enforcement--to provide specific empirical scenarios and logical arguments against fairness-based criteria and in support of welfare- based evaluations of legal policies. (It is worth considering the extent to which the authors' welfare economics approach to legal policies provides some ammunition for those who would argue that all law is "public law.")

All the chapters of the analysis part of the book follow more or less the same basic structure: a characterization of the major conceptions of fairness in relation to a specific topic; a comparison between fairness-based and welfare-based legal rules, indicating the extent to which the former make everyone worse-off; an explanation of the appeal of fairness-based rules because of their connection to social norms; an indication of the extent to which fairness-based rules lead society
astray in determining or evaluating legal policies. In addition to the empirical and logical materials, each chapter also addresses such matters as why fairness-based criteria have so much appeal, notwithstanding what welfare economic analysis uncovers about their flaws; how fairness-based social norms might serve as an understudy, as it were, for the formulation of policies that actually promote welfare; and an overview of the extent to which fairness-based legal analysis leads to mistaken public policies.

As for some highlights, the chapter on torts is impelled by the authors' concern that the tort literature is locked in the grip of fairness-based claims that neglect the empirical work necessary to evaluate the practical impact of that literature. Torts are not usual fare for political scientists. Nevertheless, a discussion of them is not without its significance for some political scientists. For example, some political scientists will be interested in the implications of the idea that categories of "injurer" and "victim" should be understood as "morally arbitrary" (p. 145) in the context of considerations of "corrective justice" and a duty to rectify victims for their injuries. And some political scientists will be attentive when the authors express alarm over the extent to which both legal scholarship and policy constantly depend upon conceptions of fairness that insist that victims be compensated and wrongdoers be liable, resulting, the authors contend, in "insufficient and haphazard" (p. 149) policies that make persons worse-off .

The fourth chapter is on contracts. The authors' main target is fairness-based legal scholarship (e.g., Charles Fried) inspired by philosophical theories involving promise-making, personal autonomy, or conceptions of social conventions (e.g., Kant, Ross, Raz, Searle, Scanlon). The failure of that scholarship that is stressed by the authors is that it lacks a coherent

Page 481 begins here

treatment of why contracts must be kept or damages paid. This inexpediency is contrasted, of course, by the ostensible coherence and advantageousness of their welfare-based theory and its moral proviso for individual well-being. But since the authors do not find that promise-keeping notions of fairness have had much impact on contract policies they focus on explanations for why welfare-based rather than fairness-based theory is the only appropriate means to improve the
substance of contract law.

When the book goes from torts and contracts into the fifth and six chapters on legal procedure and law enforcement, political scientists will find themselves in more familiar territory and it is likely that they will see in these chapters material which has a more obvious connection to their own work. The fifth chapter focuses on two dimensions of legal procedure: a "right" to sue and an extensive treatment of "accuracy" in adjudication. With some measure of exaggeration, the authors might be said to be taking issue with MARBURY'S famous dictum, now deeply rooted in the polity's political imagination that "for every legal right there must be a
remedy" (p. 240). The authors' stance here is that there is no specific body of legal or philosophical literature that develops this dictum, that the dictum is deeply rooted in the polity's social norms and political intuitions, and that the philosophizing of scholars like Ronald Dworkin, Owen Fiss, and Frank Michelman is kindred to it.

To put distance between legal policy and philosophizing kindred to MARBURY'S dictum-which either stipulates an a priori right to sue, or balances such a right against costs---Kaplow and Shavell propose that a "right" to sue be considered within the context of a multiplicity of factors: reduction of harms, litigation costs, the care taken not to be sued, costs of legal proceedings to plaintiffs and defendants, and whether suits are subsidized by the state, or are dependent upon individuals
bearing their own legal costs, as in the U. S., or are prohibited or taxed by the state. The authors run four hypothetical scenarios about contracts (variations on the cost of care being high or low and plaintiffs' costs being high or low) to compare fairness-based policies and welfare economic-based measures. The up-shot of these scenarios is that about half the time, fairness-based policies make everyone worse-off.

The authors contend that their findings about contracts and "a right to sue" are applicable to other legal policies informed by fairness-based sentiments, such as increasing access to the courts (hence creating new legal rights), the expansion of class action suits, legal assistance to the poor, and mass tort litigation. All policies of this ilk are to be analyzed in welfare economic terms. The authors do not claim that such non-contract policies are necessarily mistaken, but that they ought to
be studied to establish under what conditions fairness-based policies actually do make individuals better rather than worse-off. Undoubtedly, Kaplow and
Shavell's welfare economic-based analysis will be welcomed as long overdue by those who are sympathetic to the connotations of an English headline that heralded "Fat Americans Sue Fast Food Firms" (for enticing them to eat unhealthy foods). In turn, advocates of a "right" to sue, even those who consider the costs of litigation but not the other measures of a welfare economic approach, can be expected to be alarmed, and even unconvinced, by analyses that will undermine intuitions about an intrinsic "moral" right to sue.

Page 482 begins here

If the material on "a right to sue" does not aggravate the breach between consequentialists and those who advocate primarily principle-based approaches to adjudication, then the material on accuracy should do the trick. The authors imply that procedural and substantive policies concerned with accuracy (e.g., better information for decision-makers, enhancing availability of remedies, or quality of outcome) are to be understood as generated by self-interest. And they contend that since the core questions about accuracy are the tensions and trade-offs between more or less accuracy and costs, only welfare economic analysis specifies how to
resolve these tensions, as well as indicating what constitutes fundamental moral justifications for choosing accuracy over costs and providing criteria for determining which procedures "best" provide for accuracy. Their discussion of accuracy deals with tort adjudication, but again the authors claim that their analysis is applicable across the adjudication board, with one important, and fecund, proviso. The proviso is that the authors recognize that there is a possibility, albeit a slight one, that
persons may indeed have a taste for things like "dignity," or controlling for abuses of power, or legitimacy and that those tastes cannot be ascribed altogether to instrumental or self-interested concerns. Accordingly, the authors acknowledge that evaluating accuracy may be more demanding in other areas of the law than for torts and contracts, and therefore welfare-based measure will be more difficult to construct and conclusions about accuracy in adjudication will be more "speculative" than in torts and contracts (pp. 285-86).

What they acknowledge in this chapter is connected to qualifying remarks in this chapter about how fairness-based analysis can lead astray. The authors allow that their objections to "fairness" in regard to legal procedures "do not constitute a decisive objection if the notions of fairness are independently valuable. But if they are [independently valuable], analysts must identify the notions more precisely and indicate why the notions should be given weight, especially given that their pursuit
comes at the expensive of individual well-being" (p. 289). This is not the only instance of a nuance in the authors' confident claims for welfare-based analysis and their challenges to fairness-based criteria. Nuances also appear in the sixth, and final substantive, chapter on law enforcement and over all the impression given is that the authors are alive to the limitations of welfare-based analysis when analysis moves away from market-based phenomena like torts and contracts into other realms. However, critics of welfare-based analysis will undoubtedly question whether Kaplow and Shavell are SUFFICIENTLY alive to those limitations.

Their skepticism, to the extent that it occurs, will carry into that sixth chapter on law enforcement. The target here is the fairness-based criteria that focus on the non-consequentialist idea of retribution (attributed to Kant and Hegel's work and what follows from it). The authors' preference is to give weight to consequentialist concerns about deterrence and about how much punishment is enough punishment. Non-consequentialist fairness-based criteria are faulted for being incomplete or incoherent in regard to things like what constitutes wrongfulness deserving of punishment, what are degrees of wrongfulness, and how much to spend on
substantive/procedural justice and on catching violators. Further the authors do not believe that fairness-based analysis that emphasizes retribution can be rehabilitated without including consequentialist

Page 483 begins here

evaluations about punishment and deterrence, which would then make fairness-based theory inconsistent by diminishing its emphasis on retribution. So, at a theoretical level the authors believe that the field should be totally clear for a welfare economics approach that "pays attention to criminals who escape as well as criminals who are apprehended, and relatedly, takes account of how punishment affects potential criminals' behavior---factors that tend to be downplayed or ignored under retributive theory's…view" (p. 372).

The hypothetical illustrations in this chapter compare punishment and deterrence measures in scenarios posing various levels of the severity of sanctions. These scenarios show how and why retributive theory and criteria can be associated with more crimes being committed and more criminals escaping punishment. The authors do consider various ways to revise retributive theory so that it yields policies that are associated with fewer crimes and fewer criminals escaping punishment. But their analysis also shows that if retributivists accepted these revisions they would also have to accept a higher number of innocent persons being punished (for reasons that are beyond the ambit of this review), and therefore fairness-based analysis would fall into that problem of contradicting its core retributive principle that the punishment should fit the crime.

However, granted the relevance of social norms about retribution, the authors do not deny that tastes for retribution are deeply relevant to the assessment of legal rules. Consequently, Kaplow and Shavell do provide an important nuance to their empirical attack on fairness-based criteria by allowing that it would be appropriate to "compromise" (p. 363) deterrence, and, for example, to not exact the optimal punishment if that sanction offends the (empirically measurable) "tastes" of people (in contrast to merely some philosophized description of a taste for retribution.) Ergo, the authors do not go so far as to claim that current fairness-based and
retributive law enforcement policies are necessarily flawed, but that it falls upon the shoulders of welfare economics legal scholars and policy analysts to scrutinize those policies, and if necessary reformulate fairness-based policies in welfare economic terms.

The role of welfare economics-oriented legal scholars and analysts is, for the purposes of this review, the heart of the third part of this book. In the seventh chapter, Kaplow and Shavell advance themselves as spokespersons for the idea that legal scholars and analysts ought to assume"the social responsibility to provide proper expert advice about the design of legal rules and institutions…" (p. 389). This is the point in the book where political scientists are written out of the legal intellectual
community. Kaplow and Shavell remind legal scholars who do assume that responsibility that their recommendations will not be met with open arms. And they
try to explain why there is such intellectual resistance to welfare-based analysis, which they are confident is empirically and logically superior to its fairness-based opponent. One explanation they give for that resistance is that previous forms of welfare-based analysis have focused solely on welfare maximization, or have been viewed as callous, cruel, or were objected to because they appeared to exclude significant "moral" considerations. Undoubtedly this book should be read as Kaplow and Shavell's attempt to present a systematic rendition of welfare economic analysis that will go some distance toward reducing that resistance.

Page 484 begins here

But according to Kaplow and Shavell, a more fundamental explanation for resistance to welfare economic analysis is said to arise out of socialization to, and the resolute internalization of, fairness-based social norms (such that even welfare-minded scholars and analysts must resist them). One manifestation of this process of socialization and internalization is the authors' complaint that their opponents "are able to assume the mantle of moral superiority in discourse with other academics"
(p. 385). Furthermore, they see judges as no less inclined to adopt fairness-based criteria, and no more intellectually prepared to deal with the specifics of welfare economic-based analysis, than anyone else.

To make things even more difficult for advocates of welfare economics, the very specifics of welfare based economic analysis are recognized as a potential source of resistance to it. For instance, since the empirical effects of policies (other than for torts and contracts) are often difficult to measure, and welfare recommendations are therefore often highly qualified ones, the relatively indeterminate character of welfare-based recommendations pales in comparison to the more intuitively
pleasing and (mistakenly) decisive findings of fairness-based recommendations.

In light of all this, what should advocates of welfare economics do? One thing the authors say they should do reminds me of what William Harvey says he did in the "Anatomical Disquisition on the Motion of the Heart and Blood in Animals" (1628): persist in refining the empirical craft and amassing more evidence against the opposing point of view. This is also redolent of Richard Posner's call in THE PROBLEMATICS OF MORAL AND LEGAL THEORY (1999) for legal scholars to become more professional by rejecting philosophy for the path of the social sciences.

Even so, difficulties, notably political ones, still remain for welfare economic analysts and analysis. Governmental officials and policy makers are not well versed in welfare analysis, note the authors, and citizens, to whom those officials and policy makers are (ultimately) accountable, are, if anything, even less well versed. Into the mix, there is that grip of fairness-based norms and intuitions. Kaplow and Shavell are not deterred though. They think that more often than not welfare-based arguments can be accessible enough to ordinary citizens. When they are not so accessible, they think that governmental officials and policy makers ought to be
sufficiently rhetorical to reformulate welfare economic arguments into fairness-based ones, or to use fairness-based arguments as a proxy for the more reliable arguments of welfare-based policies.

However, the authors recognize that what analysts, governmental officials, and policy makers deem to be fair from a welfare economic point of view may conflict with what citizens intuitively think is fair following upon those fairness-based norms and intuitions. Under those circumstances, analysts should not compromise their analysis to politics and culture. Besides, they point out, gaps between what ought to be done in politics and what can be done are due less to welfare economics than it to politics generally. But if there is resistance to welfare economic-based policies all the way down then Kaplow and Shavell concede that governmental officials and policy might have to compromise what is best for what is practical. I think that this discussion of political culture and behavior--as brief as it is--will
be welcomed by behavioral political scientists, new institutionalists, and those

Page 485 begins here

who approach the law from a constitutive perspective.

But political culture and behavior are left behind in the eighth chapter, and any tension between confidence in the public policy significance of welfare-based economics and the need for concessions to fairness-based criteria is left behind also. Here, with unmitigated confidence, the authors anticipate and respond to questions and criticisms that advocates of a welfare economic approach to law and policy are likely to confront. Some of these subjects were considered previously and are expanded upon in this chapter: the design of legal institutions, accuracy, controlling governmental officials' behavior, the legitimacy of legal institutions,
administrative costs, preferences and well-being (i.e., imperfect information, the effect of law on preferences, trumping objectionable preferences, the role of law for social change, tastes for notions of fairness, equality generally and equality under the law). Other subjects are more or less new (e.g., the problem of empirical uncertainty in calculating well-being and predicting behavior and the extent to which persons are not rational maximizers of their well-being.) These subjects
are clearly central ones for evaluating the strengths and weaknesses of a welfare economics-based approach. The authors' treatment of the putative weaknesses considered here manifests the confidence the authors have in welfare economics. Their bottom line is that, regardless of its admitted shortcomings, there is every reason to expand on the strengths of welfare economics and to persist in exposing the weaknesses of fairness-based theory.

Conceivably, political scientists who are advocates of fairness-based theory will find reason to dig deeper into the putative weaknesses of an economics welfare approach, and I dare say the authors' treatment of fairness-based theory throughout the book as well. But if they do that, they should be attentive to the remaining three pages or so of the book, where Kaplow and Shavell recommend what they think needs to be done to make fairness-based theory a worthy competitor to their welfare-based approach. This advice includes fairness-based analysis becoming better at explaining the psychological basis for "fairness" as an independent principle, becoming clearer about the internal logic of conceptions of "fair" policies, repairing recommendations for "fair" policies that actually require injustices, and clearer about when and why "fair" policies require a reduction in well-being. Naturally, the authors have tried to persuade readers that such matters do not trouble welfare-economic based analysis.

Advocates of fairness-based criteria can be expected to return the favor with arguments to the effect that legal and policy analysis must inevitably depend upon the "fairness" criteria that the authors eschew, and that fairness-based theory has been inadequately or mistakenly characterized by the authors. And the hope is that in the process, the bar for what counts as credible positions in that hoary yet crucial moral debate over criteria for evaluating legal policy will be raised.

I have some hope in that regard because after two readings this book has "aged" wonderfully. It keeps drawing me back into its pages. Now, admittedly, I am one of those scholars who are positively disposed toward messages about policy analysis that pursue consequentialist and social fact considerations. Then again, I also am among those scholars who are not inclined toward an either-or approach to

Page 486 begins here

welfare versus fairness; who think that it is prudent, if not "necessary," to balance criteria for evaluating legal policies; and that politics means taking into consideration that second- and third-best policy choices may be both practical and "best."

Besides, there are discussions in this book that I am uncertain about because I am no where well versed enough in welfare economics to pursue them. For example, the authors discuss something called the Kaldor-Hicks efficiency test (concerning, at the risk of revealing my ignorance, whether those who gain from policy changes could still benefit from those changes if they compensate the losers so that they would be indifferent about policy changes), and I have an inchoate sense that that test may relate to conflicts between liberalism and welfare economic recommendations.

So, the best explanation that I have for why this book keeps pulling me back in, is, its details aside, the craft by which the authors have conscientiously constructed their position. That is more than enough to make any reader thankful, and perhaps this review will encourage others to give FAIRNESS VERSUS WELFARE the attention it deserves, if not demands.

REFERENCES:

Harvey, Philip. 2002. "Human Rights and Economic Policy Discourse: Taking Economics and Social Rights Seriously." COLUMBIA HUMAN RIGHTS LAW
REVIEW. 33: 363.

Hoffman David A., and Michael P. O'Shea. 2002. "Can Law and Economics Be Both Practical and Principled?" ALABAMA LAW REVIEW. 53: 335.

Posner, Richard A. 1999. THE PROBLEMATICS OF MORAL AND LEGAL THEORY. Cambridge, MA: The Belknap Press of Harvard University Press.

Singer, Joseph William. 2002. "Something Important in Humanity." HARVARD CIVIL RIGHTS-CIVIL LIBERTIES REVIEW 37: 103.

***************************************************************************

Copyright 2002 by the author, Ira L. Strauber.