Justice in time

George Washington Law Review

Volumn 77, Issue 5-6, 2009, Pages 1135-1172

  Hockett, Robert ^a  

^a GEORGE WASHINGTON UNIVERSITY   (United States)

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EID: 70449120367     PISSN: 00168076     EISSN: None     Source Type: Journal    
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References (161)

1. We are of course fortunate to have my erstwhile colleague, Doug Kysar, here to say more on that.
2. More on this will be presented in Neil Buchanan's presentation.
3. See Neil H. Buchanan, Four out of Four Panelists Agree: U. S. Fiscal Policy Does Not Cheat Future Generations, 77 GEO. WASH. L. REV. 1402 (2009)
4. see also Robert Hockett, Bailouts, Buy-Ins, and Ballyhoo, 52 CHALLENGE 36 (2009)
5. Robert Hockett, A Fixer Upper for Finance, 87 WASH. U. L. REV. (forthcoming 2010).
6. Please leave open the possibility that those "beneficiaries" to whom I refer here include more than human beings. If, as we might, we owe obligations to nonhuman animals and perhaps other living-even nonliving?-things, then these too will be among the "beneficiaries" here. See infra Part III. B.
7. "Or" here to be taken in the inclusive sense-"a, b,..., n, or some combination thereof."
8. See, e.g., Robert Hockett, The Deep Grammar of Distribution: A Meta-Theory of Justice, 26 CARDOZO L. REV. 1179 (2005) [hereinafter Hockett, Deep Grammar];
9. Robert Hockett, Taking Distribution Seriously, 59 EMORY L. J. (forthcoming 2010) [hereinafter Hockett, Taking Distribution Seriously]
10. see also infra Parts II and III.
11. See Hockett, Deep Grammar, supra note 5, at 1210 n.85 ("I classify questions according as they pertain to what is distributed, to whom it is distributed, and how it is distributed.").
12. Uncertainty is of course an episteraic category, while indeterminacy is a metaphysical one. The former is accordingly more salient, in that we would seem to be unavoidably afflicted by it irrespective of whether the future is, as a metaphysical matter, determined or not. We shall presently find some occasion to note, however, that at least one form of bona fide indeterminacy-at any rate, an agent-relative form-afflicts intertemporal justice theorizing. It is the form found in the fact that, in asking what we are obligated to do in respect of the future, we cannot but view certain portions of the future as indeterminate, precisely because what will happen depends upon our decision about what to do and then doing it.
13. For more on these forms of indeterminacy, see, for example, Robert Hockett, Noncom-parabilities and Nonstandard Logics, 25 ECON. & PHIL, (forthcoming 2009), available at http://papers.ssrn.com/sol3/papers.cfm? abstract-id=931042.
14. I shall argue that this is no puzzle at all, but is nonsense. Nevertheless, this interrogative sentence is taken by many theorists to express a bona fide question, so I shall pretend likewise for the moment. The additional puzzles I shall name likewise are afflicted by varying degrees of "pseudo" stature of this sort.
15. Strong Pareto: If at least one person views one state of the world as better than another, while nobody views it as worse, then "society as a whole" should regard things this way. Weak Pareto: If everyone views one state of the world as better than another, then so should "society as a whole." Pareto Indifference: If everyone is indifferent between two states of the world, then so should "society as a whole" be deemed. For fuller discussion,
16. See Robert Hockett, Why Pare-tians Can't Prescribe: Preferences, Principles, and Imperatives in Law and Policy, 18 CORNELL J. L. & PUB. POL'Y (forthcoming 2009).
17. There are yet more renditions of Pareto, most of them developed quite recently.
18. See, e.g., the papers by Basu & Mitra, and Mitra & Basu, discussed infra Part IV. B.
19. It has recently been argued that Paretian criteria entail a strict form of "welfarism," according to which worlds can be deemed better or worse only in keeping with the preferences - even if these be morally arbitrary or indeed immoral or anti-ethical preferences-of individuals. It has likewise been argued that this form of welfarism is incompatible with justice. Hence it has been argued that justice is an offence against "welfare" and "the Pareto Principle" alike. This is all nonsense, as shown formally in Robert Hockett, Pareto Versus Welfare, Soc. CHOICE & WELFARE (under review 2009), and as argued at length in Hockett, supra note 10.
20. see also Hockett, Taking Distribution Seriously, supra note 5.
21. I note elsewhere that one can "translate" any distributive imperative into a maximization imperative, and vice versa.
22. See Hockett, Taking Distribution Seriously, supra note 5. To specify a maximization imperative without reference to distribution is thus effectively the same as to treat maximization as analytically "prior" to distribution. It is to suggest that one can first specify a normatively interesting maximandum without any reference to distribution, and then derive distributive norms therefrom. This, I argue at length elsewhere and shall note again further below, is a form of fetishism. See id.
23. I shall argue that this affords added reason to displace these imperatives from their currently dominant role in intertemporal justice theorizing. But there are many more reasons for such a displacement, which I have offered at length elsewhere and will partly rehearse below. So here we shall find simply another reason to have done with a mode of justice theorizing that is already, independently, worthy of the scrap heap.
24. See Hockett, Taking Distribution Seriously, supra note 5.
25. More on why infra Part IV. A. See generally Hockett, supra note 10
26. Hockett, supra note 12. This is scarcely surprising, by the way, when one recalls that Pareto developed his efficiency criteria, in part, precisely in order to duck politically controversial distributional questions.
27. See Hockett, supra note 10
28. Hockett, supra note 12.
29. It is conventional to subdivide justice into distributive, retributive, and nowadays even "corrective" categories. What all have in common, however, is the venerable Aristotelian idea of giving everyone her due. And "due giving" is simply "just distribution" at the level of abstraction at which we are here operating. See, e.g., ARISTOTLE, NICHOMACHEAN ETHICS 110-14 (Martin Oswold trans., 1962) (lines 1129a-1130a).
30. Careful study of case grammar appears to originate with Fillmore.
31. See generally Charles J. Hllmore, Toward a Modern Theory of Case, in MODERN STUDIES IN ENGUSH: READINGS IN TRANSFORMATIONAL GRAMMAR 361, 361-75 (David A. Reibel & Sanford A. Schane eds., 1969)
32. Charles J. Fillmore, The Case for Case, in UNIVERSALS IN LINGUISTIC THEORY 1, 1-88 (Emmon Bach & Robert T. Harms eds., 1968)
33. STUDIES IN LINGUISTIC SEMANTICS (C. Fillmore & D. J. Langendoen eds., 1971).
34. The analysis of predicates as argument-taking functions appears to have originated with Frege. See Gottlob Frege, Begriffsschrift, eine der arithmetischen nachgebildete Formelsprache des reinen Denkens, translated in Begriffsschrift, a Formula Language, Modeled Upon That of Arithmetic, for Pure Thought, in FROM FREGE TO GODEL: A SOURCE BOOK IN MATHEMATICAL LOGIC, 1879-1931 1, 5-82 (Jan van Heijenoort ed., 1967)
35. GOTTLOB FREGE, FUNKTION UND BEGRIFF (1891). I make fuller use of case grammatical categories in Hockett, Deep Grammar, supra note 5.
36. For fuller treatment, see Hockett, Deep Grammar, supra note 5.
37. By "extensionally equivalent" in this context, I mean that alternative full sets-"vectors," in the idiom of linear algebra favored by economists and some justice theorists-of variable-fillings can dictate identical distributive outcomes "on the ground." I can, for example, name "exogenous opportunity" as the distribuendum, "responsible agents" as the distribuees, and "distribute equally" as the distribution formula. I can, alternatively, name "satisfaction" as the distribuendum, "responsible agents" as the distribuees, and "to each precisely according to her expense of responsible choice" as the distribution formula. On certain plausible interpretations of the words I have used in characterizing them, these two distribuendum/distribuee/distribu-tion-formula triples recommend identical distributive outcomes "on the ground." In this sense, just distribution can be likened to an isoquant-a sort of "indifference curve" of the sort familiar to decision theory and related disciplines. Two justice theories will bear the same distributive upshot, and in that sense be located on the same "curve," so long as a difference in specification of the distribuendum is matched by a "compensating" difference in specification of the distribution formula. I think that something like this accounts for the impression one has, upon reading some sets of justice theorists, that they don't really disagree as much as their casuistic terminological disputes at the margins might seem to imply.
38. See Hockett, Deep Grammar, supra note 5.
39. See, e.g., THOMAS W. POGOE, GLOBAL POVERTY AND HUMAN RIGHTS: COSMOPOLITAN RESPONSIBILITIES AND REFORMS 169 (2002)
40. see also Hockett, Deep Grammar, supra note 5
41. Hockett, Taking Distribution Seriously, supra note 5.
42. See, e.g., JOHN RAWLS, THE LAW OF PEOPLES 23 (1999)
43. Thomas Nagel, The Problem of Global Justice, 33 PHIL. & PUB. AFF. 120 (2005).
44. See RAWLS, supra note 22, at 38-39
45. Nagel, supra note 22, at 120-21. Nagel in particular emphasizes the role of coercive authority exercised in the name of a polity as that which underwrites obligations in justice between members of that polity. I don't see that this can be either necessary or sufficient, but here is not the place to argue the point.
46. See, e.g., RAWLS, supra note 22, at 6
47. Nagel, supra note 22, at 137-38.
48. "Organicist" orientations of this sort were commonplace of nationalist ideologies of the nineteenth and early twentieth centuries.
49. See, e.g., GEORGE H. SABINE & THOMAS L. THORSON, A HISTORY OF POLITICAL THEORY (4th ed. 1973).
50. See, e.g. WILL KYMLICKA, LIBERALISM, COMMUNITY, AND CULTURE (1991)
51. WILL KYMUCKA, MULTICULTURAL CITIZENSHIP: A LIBERAL THEORY OF MINORITY RIGHTS 7-8 (1995).
52. See DEREK PARFIT, REASONS AND PERSONS 351-55 (1984).
53. The most forceful argument of this sort, in my estimation, is that of Michael Thompson, What Is It to Wrong Someone: A Puzzle About Justice, in REASON AND VALUE: THEMES FROM THE MORAL PHILOSOPHY OF JOSEPH RAZ 333, 379-84 (R. Jay Wallace et al. eds., 2004).
54. I'll prescind from nonhuman beneficiaries just for a moment here. I do happen to believe that we bear, both individually and collectively, obligations to nonhuman creatures. The obligations for their part are of course keyed to the constitutive features and functions of the creatures in question. For more on the latter,
55. See Michael Thompson, The Representation of Life, in VIRTUES AND REASONS: PHILLIPA FOOT AND MORAL THEORY 24 7 (Rosalind Hur-sthouse et al. eds., 1995).
56. There is a large literature on the notion of justice as a form of "symmetry," which latter in turn is associated with beauty. The locus classicus in ARISTOTLE, NICHOMACHEAN ETHICS 113 (Martin Oswold trans., 1962).
57. A stimulating contemporary meditation on the linkages is ELAINE SCARRY, ON BEAUTY AND BEING JUST 86-93 (1999).
58. A compelling assimilation of ethics and aesthetics is found in, among other places WITTGENSTEIN, TRACTATUS LOGICO-PHILOSOPHICUS (D. F. Pears & B. F. McGuinness trans., 1974) (1921).
59. As for virtue ethics, the literature is vast and still growing. Let me confine myself, then, simply to citing that article from which the contemporary revival has sprung. That is G. E. M. Anscombe, Modern Moral Philosophy, 33 PHIL. 1 (1958).
60. There is a growing body of empirical evidence grounding this belief. See generally Hockett, Deep Grammar, supra note 5
61. Hockett, Taking Distribution Seriously, supra note 5. I am again sidestepping, for the moment, nonhuman beneficiaries of justice.
62. Again see Hockett, Deep Grammar, supra note 5
63. Hockett, Taking Distribution Seriously, supra note 5.
64. See Richard Arneson, Equality and Equal Opportunity for Welfare, 56 PHIL. STUD. 79, 85-86 (1989)
65. G. A. Cohen, On the Currency of Egalitarian Justice, 99 ETHICS 914 (1989)
66. RONALD DWORKIN, SOVEREIGN VIRTUE 285-86 (2000)
67. AMARTYA SEN, INEQUALITY REEXAMINED 39-40 (1992).
68. See, e.g., Hockett, Deep Grammar, supra note 5
69. Hockett, Taking Distribution Seriously, supra note 5.
70. See Hockett, Deep Grammar, supra note 5
71. Hockett, Taking Distribution Seriously, supra note 5.
72. See Hockett, Deep Grammar, supra note 5
73. Hockett, Taking Dbtribution Seriously, supra note 5.
74. "But don't problems of measurement and commensuration afflict equalization at the outset just as they might further along?" you might ask. The question is fair, but is answerable. The trick is to start with certain core endowments that can be roughly measured and equalized over persons early on in their lives-before their responsibilities as agents fully kick in. Those include genetic and educational endowments, among others. Then as exchange behavior commences on markets which we do our best to keep process-neutral and complete, we work regular estimates of the degrees to which resultant or persistent inequalities can be attributed to responsible choice or to non-responsible disparities.
75. See Hockett, Deep Grammar, supra note 5
76. Hockett, Taking Distribution Seriously, supra note 5
77. Robert Hockett, Three (Potential) Pillars of Transnational Economic Justice: The Bretton Woods Institutions as Guarantors of Global Equal Treatment and Market-Completion, 36 METAPHILOSOPHY 93, 99 (2005) [hereinafter Hockett, Three Pillars];
78. Robert Hockett, Whose Ownership? Which Society?, 27 CARDOZO L. REV. 1, 37-38 (2005).
79. See Hockett, Three Pillars, supra note 37, at 100.
80. See infra Part IV
81. see also Hockett, supra note 12.
82. I believe that Matt Adler also will be presenting us with a thorough treatment of SWFs tomorrow, in the first panel of our second day's treatment of intertemporal justice.
83. see also MATTHEW D. ADLER, SOCIAL WELFARE, LIFETIME WELL-Beino, AND EQUITY: A NEW FRAMEWORK FOR POLICY ANALYSIS (forthcoming 2009, manuscript on file with the author)
84. Matthew D. Adler & Chris William Sanchirico, Inequality and Uncertainty: Theory and Legal Applications, 155 U. PA. L. REV. 279 (2006)
85. Matthew D. Adler, Well-being, Inequality, and Tune: The Time-Slice Problem and Its Policy Implications (2007) (working paper, on file with the author).
86. See H. L. A. Hart, Between Utility and Rights, 79 COLUM. L. REV. 828, 830 (1979).
87. See Douglas A. Kysar, Preferences for Processes: The Process/Product Distinction and the Regulation of Consumer Choice, 118 HARV. L. REV. 526, 617-18 (2005)
88. see also Hockett, supra note 12.
89. Those works trace many implications stemming from justice's "internality" to-or "constitutivity" of-welfare itself.
90. See ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 41 (1974).
91. This tale has been widely told.
92. See JOSEPH A. SCHUMPETER, HISTORY OF ECONOMIC ANALYSIS 126-37 (1954).
93. See KENNETH J. ARROW, SOCIAL CHOICE AND INDIVIDUAL VALUES 102-03 (1951).
94. The work, which grew from Arrow's doctoral dissertation, was first published in 1950.
95. See, e.g., JEREMY BENTHAM, AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION (1932)
96. HENRY SIDOWICK, THE METHODS OF ETHICS (1907)
97. J. J. C. Smart, An Outline of a System of Utilitarian Ethics, in J. J. C. SMART & BERNARD WILLIAMS, UTILITARIANISM: FOR AND AGAINST (1973).
98. See, e.g., R. F. HARROD, TOWARDS A DYNAMIC ECONOMICS: SOME RECENT DEVELOPMENTS OF ECONOMIC THEORY AND THEIR APPLICATION TO POLICY (1948)
99. Frank P. Ramsey, A Mathematical Theory of Saving, 38 ECON. J. 543 (1928).
100. Theorists typically cash out the Pareto criteria in terms of individual preferences. They say that one state of the world "dominates" another in a "strongly Paretian" sense when at least one person prefers the first to the second, with no one preferring the second to the first. They say that the first state dominates the second in a "weakly Paretian" sense when everyone prefers that first state. Finally, they say that two states of the world are "Pareto indifferent" to one another when nobody prefers one to the other. When at least one person prefers one state of the world, and at least one prefers another such state, the two states are said to be Pareto noncomparable.
101. See Hockett, supra note 12.
102. See AMARTYA SEN, COLLECTIVE CHOICE AND SOCIAL WELFARE 21-28 (1970), where the term "unanimity" is employed.
103. see also AMARTYA SEN, CHOICE, WELFARE AND MEASUREMENT 167-69 (1982) [hereinafter SEN, CHOICE, WELFARE AND MEASUREMENT].
104. See Hockett, supra note 12.
105. See, e.g., HARROD, supra note 46, at 38-39
106. ALFRED MARSHALL, THE PRINCIPLES OF ECONOMICS 196-97 (1890)
107. SIDGWICK, supra note 45, at 381-83
108. ARTHUR CECIL PIGOU, THE ECONOMICS OF WELFARE 28-29 (1920)
109. Ramsey, supra note 46, at 543.
110. See supra note 40.
111. See ARROW, supra note 44.
112. Hockett, supra note 12, shows all forms of Pareto to be potentially at odds with any normative principle of the sort that determines a social welfare function's argument domain and aggregation rule. The results I am about to report can accordingly, along with Arrow's 1951, Sen's 1970, and other notorious impossibility theorems, be viewed as ultimately unsurprising entailments of that more general impossibility.
113. See Peter C. Diamond, The Evaluation of Infinite Utility Streams, 33 ECONOMETRICA 170, 170 (1965)
114. Tjalling C. Koopmans, Stationary Ordinal Utility and Impatience, 28 ECONOMETRICA 287, 287-88 (1960).
115. The "infinite utility stream" idea is less intimidating than might first be assumed. In essence, the idea is simply that the SWF is to aggregate, not simply the utilities of a finite particular population, but an ongoing sequence of overlapping generations of utility-experiencing persons.
116. Koopmans, supra note 54, at 306.
117. See Graciela Chichilnisky, An Axiomatic Approach to Sustainable Development, 13 Soc. CHOICE & WELFARE 231, 242 (1996). Chichilnisky's paper also is interesting in showing that convergence criteria of the sort commonly employed to avoid the "but isn't it all infinite?" objection mentioned above-in particular the widely preferred "long-run average" and "catch-up" criteria-for their parts imply dictatorship of the future. Id. at 242-43.
118. See, e.g., Peter C. Fishburn, Foundations of Decision Analysis: Along the Way, 35 MOMT. SCI. 387, 393 (1989).
119. See, e.g., H. Stuart Burness, On the Role of Separability Assumptions in Determining Impatience Implications, 44 ECONOMETRICA 67, 77-78 (1976).
120. See Lars-Gunnar Svensson, Equity Among Generations, 48 ECONOMETRICA 1251 (1980).
121. The sup top is the topology of least upper bounds of all point sets. It is accordingly familiar to all who have studied introductory analysis courses in the modern mathematics curriculum.
122. See generally Robert Hockett, Reflective Intensions: Two Foundational Decision-Points in Mathematics, Law, and Economics, 29 CARDOZO L. REV. 1967 (2008).
123. See Svensson, supra note 60, at 1254-55. An ordering is a relation £ among objects within a defined domain x, x', x",... such that (a) for all x, x £ x; (b) for any x and x', if x £ x' and x' i x, then x = x'; (c) for any x, x and x", if x £ x' and x' £ x", then x £ x"; and (d) for any two objects x and x', either x £ x' or x' £ x. Condition (a) is typically called "reflexivity." Condition (b) is called "antisymmetry." Condition (c) is called "transitivity." And condition (d) is called "comparability." A preorder is a relation that satisfies only conditions (a) and (c)-reflexivity and transitivity. These definitions are standard, and can be found in most logic and set-theoretic texts. They also figure, under varying terminologies, in much of the social choice literature. See, e.g.. SEN, supra note 48, at 2-20.
124. The Axiom of Choice, also known (to followers of Russell and Whitehead) as the "Multiplicative Axiom," holds that for any class of classes, there is a function that selects one and only one member from each of them. See Hockett, supra note 60, at 2037-38. The link between the Axiom and Svensson's result can be seen clearly when one reflects that the Axiom, first stated explicitly by Zermelo in 1904, is equivalent to Zermelo's Well-Ordering Theorem, to the effect that there is a well-ordering for every set-i.e., that every set is well ordered, and each of its nonempty subsets has a least member.
125. Compare id., with Svensson, supra note 60, at 1254-55. These propositions are intuitively plausible enough for the finite and denumerably infinite cases, but are a bit more difficult to make sense of in the nondenumerably infinite case.
126. See Hockett, supra note 60. The intuition that underwrites the Axiom of Choice is at work, incidentally, in the "Choice Functions" of which Sen has availed himself in many of his canonical works of the 1970s and 1980s.
127. See, e.g., SEN, CHOICE, WELFARE AND MEASUREMENT, supra note 48.
128. See Hockett, supra note 60, at 2042.
129. See D. E. Campbell, Impossibility Theorems and Infinite Horizon Planning, 2 Soc. CHOICE & WELFARE 283 (1985) (generalizing Diamond result to other topologies).
130. Luc Lauwers, Continuity and Equity with Infinite Horizons, 14 Soc. CHOICE & WELFARE 345, 353-54 (1997) (generalizing Diamond result to other topologies).
131. Tomoichi Shinotsuka, Equity, Continuity, and Myopia: A Generalization of Diamond's Impossibility Theorem, 15 Soc CHOICE & WELFARE 21 (1998) (generalizing Diamond result to other topologies).
132. Marc Fleurbaey & Phillipe Michel, Intertemporal Equity and Extension of the Ramsey Criterion, 39 J. MATH. ECON. 777 (2003) (another pre-ordering with Szpilrajn's Lemma implying an ordering, a la Svensson).
133. Geir B. Asheim & Bertil Tungodden, Resolving Distributional Conflicts Between Generations, 24 ECON. THEORY 221 (2004) (like Svensson, constructing a pre-ordering, then relying upon Szpilrajn's Lemma to claim existence of an ordering-in this case, a version of leximin).
134. Walter Bossert et al., Ordering Infinite Utility Streams, 135 J. ECON. THEORY 579 (2007) (as with Asheim & Tungodden, supra note 68).
135. See William R. Zame, Can Intergenerational Equity Be Operationalized?, 2 THEORETICAL ECON. 187 (2007).
136. See Thoralf Skolem, Logisch-kombinatorische Untersuchungen iiber die Erfullbarkeit oder Beweisbarkeit mathematischer Satze nebst einem Theoreme iiber dichte Mengen, 6 VIDEN-SKAPSSELSKAPET SKRIFTER, I. MATEMATISK- NATURVIDENSKABELIG KLASSE 1 (1920).
137. translated in Logico-Combinatorial Investigations on the Satisfiability or Provability of Mathematical Propositions: A Simplified Proof of a Theorem by Loewenheim, in FROM FREGE TO GODEL: A SOURCE BOOK IN MATHEMATICAL LOGIC, 1879-1931, supra note 18. As suggested in the English rendering of the title, the Skolem result generalized an earlier one derived by Lowenheim.
138. See Leopold Lowenheim, Ober Moglkhkeiten im Relativkalkul, 76 MATHEMATISCHE ANNALEN 447.
139. translated in On Possibilities in the Calculus of Relatives, in FROM FREGE TO GODEL, supra note 18.
140. The Tarski results to which I allude are A. Tarski, Sur les ensembles definissables de nombres rtels I, 17 FUNDAMENTA MATHEMATICA 210 (1931)
141. ALFRED TARSKI ET AL., UNDECIDABLE THEORIES (1953).
142. Greg Chaitin's many representation results appear over the course of many books and papers. Probably the most often read is GREGORY CHAITIN, THE UNKNOWABLE (1999).
143. See Luc Lauwers, Ordering Infinite Utility Streams: Completeness at the Cost of a Non-Ramsey Set, available at http://www.eea-esem.com/EEA-ESEM/2007/ Prog/viewpaper.asp?pid=1956.
144. See Kaushik Basu & Tapan Mitra, Aggregating Infinite Utility Streams with Intergenerational Equity: The Impossibility of Being Paretian, 71 ECONOMETRICA 1557 (2003).
145. See Kaushik Basu & Tapan Mitra, Possibility Theorems for Equitably Aggregating Infinite Utility Streams, in, INTEROENERATIONAL EQUITY AND SUSTAINABILITY (John E. Roemer & Kotaro Suzumura eds. 2007). Their paper (1) weakens Pareto and changes domain restrictions to find a way out of Diamond result
146. and (2) tries a "weak dominance" axiom, a "weak Pareto" axiom, and a "partial Pareto" axiom. There is some success with the last of these, but the authors note wryly that in reaching that success, they also show further robustness of the original Diamond result.
147. See id. See generally Tapan Mitra & Kaushik Basu, On the Existence of Pare-tian Social Welfare Quasi-Orderings for Infinite Utility Streams with Extended Anonymity, in INTEROENERATIONAL EQUITY AND SUSTAINABILITY, supra (characterizing the class of possible finite permutations of infinite utility streams consistent with Pareto and social welfare quasi-orderings).
148. See Hockett, supra note 12. By a "preference-incumbent normative principle" I mean simply a normative principle that is incumbent upon-that is, which can trump-preferences. The idea is that normative principles determine which preferences ought to be satisfied, and which are to be renounced or repudiated as contrary to our ethical, social, or legal norms. Any system of norms or laws, by dint of its bestowal of distributed entitlements upon persons, inherently imports some such "trumping," hence partitions the class of all possible satisfactions that an individual might have into distributively legitimate and illegitimate such satisfactions. In-tergenerational "anonymity"-impartiality or equity-is of course such a norm. It might bear noting in this connection that, insofar as norms can trump preferences, there is a clear category error manifest in such locutions, often encountered in some economic writing, as "tastes for justice," "preferences for fairness," and the like. Most who engage in such talk are effectively collapsing normative principles, which are incumbent upon preferences, into preferences themselves. Loss of that distinction in turn is to lose the capacity to prescribe or judge normatively at all. And the incoherence to which I am attending here stems directly from that loss.
149. See id. I shall note here as well that Professor Kysar compellingly describes a counterpart problem in cost-benefit analysis.
150. See Douglas A. Kysar, It Might Have Been: Risk, Precaution and Opportunity Costs, 22 J. LAND USE & ENVTL. L. 1, 44 (2006). In case the distinction between preference on the one hand, and preference-incumbent normative principle on the other is not immediately clear to you, consider this observation: It is of course ever possible-and indeed to be hoped-that one will "prefer" to conform his actions to principles of normative propriety. But such principles underwrite ethical, legal, and other forms of prescription only inasmuch as they're taken for incumbent upon and hence bounding of preferences, not merely as objects of preferences. George Bush can "prefer" to drive sober and under 120 mph in our neighborhood, for example, and we all hope that he will, but a legal or ethical limit's being a "limit" is precisely its trumping his preference should he come to "prefer" otherwise and thus put all of us at risk.
151. On the Paretian "veto," see supra note 48.
152. "Individualist" SWFs simply are SWFs that take individual utility functions as arguments.
153. See Hockett, supra note 12. The term appears to originate with Samuelson.
154. See PAUL ANTHONY SAMUELSON, FOUNDATIONS OF ECONOMIC ANALYSIS 223 (1947)
155. see also Louis Kaplow & Steven Shavell, Any Non-Welfarist Method of Policy Assessment Violates the Pareto Principle, 109 J. POL. ECON. 281, 281 (2001). "Welfarism" for its part misleadingly names the untenable position that SWFs should take "only" such individual utility functions as arguments.
156. See Hockett, supra note 12
157. see also Louis Kaplow & Steven Shavell, Fairness Versus Welfare: Notes on the Pareto Principle, Preferences, and Distributive Justice, 32 J. LEGAL STUD. 331 (2003)
158. Louis Kaplow & Steven Shavell, Fairness Versus Welfare: Notes on the Pareto Principle, Preferences, and Distributive Justice, 114 HARV. L. REV. 961 (2001). The term "welfarism" would be better replaced by "strict welfarism," however, or better yet "strict preference-regard," since (a) most self-described "welfarists" unpack "welfare" as no more than preference-satisfaction, while (b) it is of course possible to represent social welfare as riding upon one or more variables additional to individual preference-satisfactions in any event.
159. In this connection, see, for example, JONATHAN GLOVER, CHOOSING CHILDREN: GENES, DISABILITY, AND DESIGN (2006).
160. see also JONATHAN GLOVER, WHAT SORT OF PEOPLE SHOULD THERE BE? (1984). This is but the tip of a vast and vexing iceberg.
161. DEP'T OF ECON. & Soc. AFFAIRS, UNITED NATIONS, WORLD POPULATION IN 2300, at 2 (2004), available at http:7Avww.un.org/esa/populatioii/publications/ longrange2/2004worldpop2300reportfinalc.pdf.