Slouching towards equality

Iowa Law Review

Volumn 84, Issue 4, 1999, Pages 801-816

  Peters, Christopher J ^a  

^a NONE

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EID: 0033431459     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (56)

1. Joshua D. Sarnoff, Equality as Uncertainty, 84 IOWA L. REV. 377 (1999).
2. Peter Westen, The Empty Idea of Equality, 95 HARV. L. REV. 537 (1982).
3. Kent Greenawalt, "Prescriptive Equality": Two Steps Forward, 110 HARV. L. REV. 1265 (1997).
4. The label "prescriptive equality" is, I believe, mine and not Professor Westen's. See Christopher J. Peters, Equality Revisited, 110 HARV. L. REV. 1210, 1211, 1215 (1997) [hereinafter Peters, Equality Revisited].
5. Westen, supra note 2, at 539 (citations omitted).
6. Peters, Equality Revisited, supra note 4, at 1222-27; Christopher J. Peters, Foolish Consistency: On Equality, Integrity, and Justice in Stare Decisis, 105 YALE L.J. 2031, 2062-64 (1996) [hereinafter Peters, Foolish Consistency].
7. Peters, Equality Revisited, supra note 4, at 1222-27; Christopher J. Peters, Foolish Consistency: On Equality, Integrity, and Justice in Stare Decisis, 105 YALE L.J. 2031, 2062-64 (1996) [hereinafter Peters, Foolish Consistency].
8. Peters, Equality Revisited, supra note 4, at 1223.
9. Id. Kenneth W. Simons articulated a similar nontautological principle of prescriptive equality in Equality as a Comparative Right, 65 B. U. L. REV. 387 (1985), but did not attempt to debunk it as I did in Equality Revisited.
10. Peters, Equality Revisited, supra note 4, at 1231-57; Peters, Foolish Consistency, supra note 6, at 2065-73.
11. Peters, Equality Revisited, supra note 4, at 1228.
12. Sarnoff, supra note 1, at 394 (quoting Peters, Equality Revisited, supra note 4, at 1229).
13. Peters, Equality Revisited, supra note 4.
14. Id. at 1231-57.
15. Greenawalt, supra note 3, at 1266.
16. Id. at 1273.
17. Id.
18. Sarnoff, supra note 1, at 384.
19. Id.
20. Id. at 385.
21. Id.
22. Id. at 381.
23. Sarnoff, supra note 1, at 390.
24. Id. at 383.
25. Id. at 382.
26. Id.
27. Giving the same treatment to two people might not be seen as treating them "equally" if in fact the two people are not equally entitled to that treatment.
28. Sarnoff, supra note 1, at 381.
29. Mr. Sarnoff's definition of "prescriptive equality" is revealing: He "use[s] the phrase . . . to refer to the normative demand for equal treatment, however expressed." Id. at 378-79 (emphasis added). "Prescriptive equality" for Mr. Sarnoff thus includes norms of nonegalitarian justice as I have defined it, see supra notes 10-11 and accompanying text, and is not limited to the directive that likes be treated alike merely because of their likeness.
30. Greenawalt, supra note 3, at 1273.
31. Id.
32. Sarnoff, supra note 1, at 382.
33. Id. at 381.
34. Id.
35. Id. at 380.
36. Id. at 390. Mr. Sarnoff notes that "[o]ther cultures . . . may not possess this commitment to equality and against arbitrariness, or may not adhere to it with equal force." Id. at 391.
37. Sarnoff, supra note 1, at 382.
38. Id.
39. Mr. Sarnoff may be pleased to note that this example incorporates the fact of moral uncertainty rather than "assum[ing] away all uncertainty regarding the criteria for judgment" as I have done in previous examples. Id. Of course, Mr. Sarnoff's objection to "assuming away uncertainty" has force only if the fact of moral uncertainty coherently can generate an argument for equal treatment; as I explain below, it cannot. (In fact, even if moral uncertainty could generate an argument for equal treatment, it does not follow that moral uncertainty can generate an argument for prescriptive equality, which was the subject of the examples to which Mr. Sarnoff adverts.)
40. Id. at 382.
41. Peters, Equality Revisited, supra note 4, at 1232.
42. Actually, I define "conditions of competition" in Peters, supra note 4, Equality Revisited, at 1232 as conditions in which there is not enough of a particular good to go around among those equally entitled to it. The definition usefully can be broadened for present purposes, however, to include conditions in which there is competition for scarce goods among anyone who wants them, whether or not the competitors are equally entitled to those goods.
43. To say that personal well-being is in "infinite supply" is not to say that everyone in the real world actually can obtain it - only that it is not logically impossible for everyone in the real world actually to obtain it.
44. See Samoff, supra note 1, at 382 ("At its most corrosive, prescriptive equality may induce civil disobedience to institutional decisionmaking."); id. at 398-400 (discussing the risk of civil disobedience when widespread unequal treatment is perceived).
45. Id. at 389 (emphasis in original).
46. Id. (emphasis in original).
47. Id. at 389 nn.39-40 (citing Simons, supra note 8, at 437-59).
48. Simons, supra note 8, at 443 (citing Kent Greenawalt, How Empty Is the Idea of Equality?, 83 COLUM. L. REV. 1167, 1175 (1983)).
49. Simons, supra note 8, at 443 (citing Kent Greenawalt, How Empty Is the Idea of Equality?, 83 COLUM. L. REV. 1167, 1175 (1983)).
50. Id.
51. This kind of case - in which there are at least some reasonable grounds for treating one person better than another, despite uncertainty about those grounds - includes the exam grading example I introduced in section II.A.1, supra. In that example, the grader is epistemically uncertain about the validity and accuracy of his grading process, and thus about the validity and accuracy of giving the student with a 90.00 an A- and the student with an 89.75 only a B+. But because there are some reasonable grounds for treating the students differently, student X with her 90.00 can complain about being treated unjustly if both she and student Y, with his 89.75, are given the same grade. The presence of (partial) epistemic uncertainty does not eliminate the reasonable basis for complaint upon default to equal treatment.
52. Professor Simons seems to have this narrow category of cases in mind when he refers to a "presumption of equality"; he cites approvingly Professor Greenawalt's "suggest[ion] that a presumption of equality is appropriate when there are no reasons to treat persons unequally." Simons, supra note 8, at 457 (emphasis altered).
53. For a full explanation of why this is so, see Peters, Equality Revisited, supra note 4, at 1231-57.
54. Sarnoff, supra note 1, at 380.
55. Id. at 403.
56. Id. at 380.