Daniel Markovits

Individual Preferences for Giving

We utilize graphical representations of Dictator Games which generate rich individual- level data. Our baseline experiment employs budget sets over feasible payoff- pairs. We test these data for consistency with utility maximization, and we recover the underlying preferences for giving (trade-offs between own payoffs and the payoffs of others). Two further experiments augment the analysis. An extensive elaboration employs three-person budget sets to distinguish preferences for giving from social preferences (trade-offs between the payoffs of others). And an intensive elaboration employs step-shaped sets to distinguish between behaviors that are compatible with well-behaved preferences and those compatible only with not well-behaved cases. (JEL C72, D64)

The distributional preferences of an elite

Few thoughts for those with the most A weighty scholarly tome has sparked a year-long public discussion of the unevenness of income and wealth distributions in the United States. In essence, a few people have a lot of both. Moral philosophers and economists have argued for centuries about the tradeoffs in life strategy that might explain wealth imbalance: between fairness and selfishness, and equality and efficiency. Fisman et al. describe the preferences of a group of elite students at Yale Law School. These elites lean toward selfishness and efficiency more than the average American, and these preferences are reflected in their job choices. Science, this issue p. 10.1126/science.aab0096 Relative to the average American, Yale Law School students are less fair-minded and substantially more efficiency-focused. INTRODUCTION Distributional preferences shape individual opinions and public policy concerning economic inequality and redistribution. We measured the distributional preferences of an elite cadre of Juris Doctor (J.D.) students at Yale Law School (YLS), a group that holds particular interest because they are likely to assume future positions of power and influence in American society. We compared the preferences of this highly elite group of students to those of a sample drawn from the American Life Panel (ALP), a broad cross-section of Americans, and to the preferences of an intermediate elite drawn from the student body at the University of California, Berkeley (UCB). RATIONALE We conducted modified dictator game experiments that varied the price of redistribution, i.e., the amount by which the “self’s” payoff must be decreased in order to increase the payoff of the “other” (an anonymous other subject) by one dollar. In contrast to standard dictator games that do not vary the relative price of redistribution, our experimental design allows us to test whether our subjects’ preferences are formally rational and to decompose subjects’ preferences into two distinct tradeoffs: the tradeoff between self and other (fair-mindedness versus self-interest) and the tradeoff between equality and efficiency. For each subject, we estimated a constant elasticity of substitution (CES) utility function over payoffs to self and other; this functional form allows us to capture each tradeoff with a distinct parameter. A fair-minded subject places equal weight on the payoffs to self and other, whereas a selfish subject does not place any weight on the payoff to other; subjects’ preferences may also fall in between these two extremes. A subject with distributional preferences weighted toward equality (reducing differences in payoffs) increases the expenditure share spent on other as the price of redistribution increases, whereas a subject with distributional preferences weighted toward efficiency (increasing total payoffs) decreases the expenditure share spent on other as the price of redistribution increases. An important strength of our measure of equality-efficiency tradeoffs between self and other is that it has been shown to predict such tradeoffs in distributional settings involving multiple others and to predict the likelihood of voting for political candidates perceived as favoring greater government redistribution. This work therefore captures, in an experimental setting, a plausible measure of subjects’ attitudes toward actual redistributive policies. RESULTS YLS subjects were substantially more efficiency-focused than were the ALP subjects drawn from the general population. Overall, 79.8% of YLS subjects were efficiency-focused, versus only 49.8% of the ALP sample. The YLS subjects displayed this distinctive preference for efficiency over equality in spite of overwhelmingly (by more than 10 to 1) self-identifying as Democrats rather than Republicans. In addition, YLS subjects were less likely to be classified as fair-minded and more likely to be classified as selfish than were the ALP subjects. Subjects from the intermediate elite fell between the YLS and ALP subjects with respect to efficiency-mindedness but were less likely to be fair-minded and more likely to be selfish than were the YLS subjects. We also demonstrate the predictive validity of our experimental measure of equality-efficiency tradeoffs by showing that it predicts the subsequent career choices of YLS subjects: More efficiency-focused behavior in the laboratory was associated with a greater likelihood of choosing private sector employment after graduation, whereas more equality-focused behavior was associated with a greater likelihood of choosing nonprofit sector employment. CONCLUSION Our findings indicate sharp differences in distributional preferences between subjects of varying degrees of eliteness. These results provide a starting point for future research on the distinct preferences of the elite and differences in distributional preferences across groups more generally. From a policy perspective, our results suggest a new explanation for the modesty of the policy response to the rise in income inequality in the United States: Regardless of party, the policymaking elite is significantly more focused on efficiency vis-a-vis equality than is the U.S. public. Classifying subjects’ distributional preferences. We classify subjects as either fair-minded, intermediate, or selfish and as either equality-focused or efficiency-focused. The bars show the fraction of subjects in each category of self-interest in the elite YLS, UCB (the intermediate elite), and relatively less elite ALP samples. Each bar is then split into equality-focused and efficiency-focused subgroups, denoted by blue and gray, respectively. We studied the distributional preferences of an elite cadre of Yale Law School students, a group that will assume positions of power in U.S. society. Our experimental design allows us to test whether redistributive decisions are consistent with utility maximization and to decompose underlying preferences into two qualitatively different tradeoffs: fair-mindedness versus self-interest, and equality versus efficiency. Yale Law School subjects are more consistent than subjects drawn from the American Life Panel, a diverse sample of Americans. Relative to the American Life Panel, Yale Law School subjects are also less fair-minded and substantially more efficiency-focused. We further show that our measure of equality-efficiency tradeoffs predicts Yale Law School students’ career choices: Equality-minded subjects are more likely to be employed at nonprofit organizations.

A Modern Legal Ethics: Adversary Advocacy in a Democratic Age

Acknowledgments xi Introduction 1 Part I Adversary Advocacy Chapter 1: The Wellsprings of Legal Ethics 25 Chapter 2: The Lawyerly Vices 44 Chapter 3: The Seeds of a Lawyerly Virtue 79 Part II Integrity Chapter 4: Introducing Integrity 103 Chapter 5: An Impartialist Rejoinder? 118 Chapter 6: Integrity and the First Person 134 Part III Comedy or Tragedy? Chapter 7: Integration through Role 155 Chapter 8: Lawyerly Fidelity and Political Legitimacy 171 Chapter 9: Tragic Villains 212 Postscript 247 Notes 255 Index of Cases Cited 341 Index of Model Rules and Other Authorities 347 Index of Subjects 351

How Much Redistribution Should There Be

This article uses a hypothetical redistributive tax scheme to examine the idea that egalitarian redistribution ties peoples fortunes together and to ask how closely peoples fortunes should be tied. The article begins from the commonly held intuition that egalitarian redistribution should track responsibility - that it should eliminate lucks differential effects on peoples fortunes while at the same time preserving the differential effects of choice. The argument connects these two ambitions of responsibility-tracking egalitarianism to two conceptions of non-subordination - which approach persons as patients and as agents respectively - and it then demonstrates that these two conceptions are incompatible with each other. Eliminating involuntary disadvantage collectivizes not just peoples fortunes but also their persons and is therefore inconsistent with respecting choices. Moreover, the article presents empirical data and thought experiments concerning two kinds of involuntary disadvantage - the disadvantages of being untalented and of having expensive tastes - to show that this incompatibility, rather than being merely a theoretical possibility, has empirical, practical bite. Accordingly, the article argues, responsibility-tracking egalitarianisms dual ambition cannot be fulfilled even in practice, so that egalitarians must choose whether to eliminate the differential effects of luck or to respect choice. The article concludes by reflecting on how egalitarians should decide this question. It observes that an egalitarianism that focuses on the non-subordination of person as agents remains substantially redistributive while, at the same time, retaining the intellectual resources needed to answer libertarian objections to redistribution per se.

Quarantines and Distributive Justice

Medical quarantines threaten the civil rights of the persons whom they confine. This libertarian concern, moreover, is anything but fantastic. Infectious diseases, particularly in epidemic forms, commonly trigger retributive and discriminatory instincts, so that actual quarantines often impose inhumane, stigmatizing, or even penal treatment upon persons who are confined based on caprice or even prejudice. But well-run quarantines confine only those whose continued integration in the general population has been reasonably adjudged to expose others to infection and, moreover, impose no burdens beyond those necessary for protecting against this harm. And even the staunchest civil libertarian must accept that one persons liberty may be restricted in this way when necessary for preventing harm to another. The civil libertarian objection therefore identifies abuses in quarantine administration. It does not apply to quarantines per se. Libertarian concerns do not, however, exhaust the ethics of quarantines. In particular, quarantines also generate an egalitarian anxiety, which addresses the distribution of the burdens that quarantines impose and worries that this pattern of burden and benefit may be in itself unfair. The egalitarian anxiety, moreover, emphasizes genetic features of quarantines - burdens and benefits associated with the patterns of confinement that quarantines inevitably involve - and so casts a wider net than the more common libertarian objection and, in particular, applies even to well-run quarantines. This egalitarian concern about quarantines has nevertheless been overlooked in discussions of quarantines, and the ethics of quarantine are in this respect not well understood. These pages take up the connection between quarantines and distributive justice and elaborate this connection in a way that tends to sow doubt about quarantines. In particular, the argument compares quarantines to vaccinations - an alternative method of combating infectious disease. It suggests that vaccinations, even if they are less efficient than quarantines, are more fair and should perhaps be preferred over quarantines, all-things-considered. Moreover, and more strikingly, the argument asks whether, when vaccinations are available but are not administered, and an outbreak of disease arises, fairness may require allowing the outbreak to spread unchecked rather than employing quarantines to contain it.

Luck Egalitarianism and Political Solidarity

Luck egalitarianism — the theory that makes individual responsibility central to distributive justice, so that bad luck underwrites a more compelling case for redistribution than do the bad choices of the disadvantaged — has recently come under a sustained attack from critics who are deeply committed to the broader struggle for equality. These egalitarian critics object, first, that luck egalitarianism’s policy recommendations are often unappealing. Second, they add that luck egalitarianism neglects the deep political connection between equality and non-subordination, in favor of a shallowly distributive regime. This Article argues that both objections to luck egalitarianism have been exaggerated. Insofar as the criticisms are accurate, they apply only to a particular, maximalist strand of luck egalitarianism, whose distributive principle does not merely adjust allocations in light of responsibility but instead proposes that allocations should precisely track responsibility. However, this responsibility-tracking view does not represent the best or truest development of the basic luck egalitarian ideal. Moreover, the pathologies of the responsibility-tracking view help to cast the appeal of more judicious luck egalitarianism into sharp relief. The redistributive policies that more moderate developments of luck egalitarianism recommend are less objectionable than critics have supposed. And, more importantly, such modest luck egalitarianism is not a purely distributive ideal but instead contains, at its core, a vision of political solidarity among free and equal citizens.

Pareto Damaging Behaviors

This paper reports a rigorous experimental test of Pareto-damaging behaviors. We introduce a new graphical representation of dictator games with step-shaped sets of feasible payoffs to persons self and other on which strongly Pareto efficient allocations involve substantial inequality. The non-convexity and sharp nonlinearity of the Pareto frontier allow us systematically to classify Pareto-damaging allocations: as self-damaging or other-damaging and as inequality-increasing or inequality-decreasing. We find that self and other Pareto-damaging behaviors occur frequently even in circumstances - dictator games - that do not implicate reciprocity or strategic interaction. We also find patterns in this behavior, most notably that behavior that Pareto damages self always reduces inequality whereas behavior that Pareto damages other usually increases inequality.

Authority, Recognition, and the Grounds of Promise

David Owens’ Shaping the Normative Landscape is a substantial book. Perhaps chief among the book’s philosophical virtues is that it is deeply personal rather than merely academic. The book does not just rehearse arguments that a philosopher might advance in pursuing her profession. Rather, Owens states a view of important elements of morality—friendship, forgiveness, consent and promising—that an ordinary person might look to in making sense of her life; a view that she might actually believe. The book’s layered quality is another virtue. Owens takes up not just substantive questions about particular moral phenomena, but also formal questions about value, obligation and practical reason. In these brief reflections on the book, I shall set the formal layers of Owens’ argument to one side in order to focus on his substantive claims, and especially on the book’s most elaborate substantive account, which concerns promising. Even here, I shall focus more narrowly still, on that account’s core idea—concerning promising’s roots in what Owens calls our authority interest. This approach to the book suffers from the drawback that it leaves many of Owens’ interesting and contestable observations about promising unaddressed. The approach also has

The No Retraction Principle and the Morality of Negotiations

The central philosophical puzzle about contract law involves the ground upon which contractual obligation arises. Omri Ben-Shahar’s intriguing essay, Contracts Without Consent: Exploring a New Basis for Contractual Liability, proposes a new theory of contractual liability and contains the seeds of an appealing new approach to this puzzle. In place of the traditional agreement-based conception of contractual liability under which, as Ben-Shahar says, “a contract forms only when the positions of the two parties meet,” Ben-Shahar proposes a new regime. His proposal imagines that offers and counteroffers generate a converging sequence of liability, under the principle that “[a] party who manifests a willingness to enter into a contract at given terms should not be able to freely retract from her manifestation.” Ben-Shahar’s contribution to the philosophical foundations of contract does not figure prominently in his own presentation of this principle of “noretraction,” however, which emphasizes an economic approach. Indeed, Ben-Shahar expressly admits that “[i]t is beyond the scope of [his] Essay to inquire into the philosophical underpinnings of the non-rejectability of an individual’s own representations.” I shall therefore devote these pages to bringing out some of the philosophical