On Thu, 02 Dec 1999 08:04:04 -0800 Marta Russell <ap888 at lafn.org> writes:
>
>
>James Farmelant wrote:
>
>> --------- Begin forwarded message ----------
>> From: JKSCHW at aol.com
>> To: farmelantj at juno.com
>> Cc: JKSCHW at aol.com
>> Subject: Re: Michael Pugliese <debsian at pacbell.net>: Re: Re: Posner
>and
>> Gates
>> Date: Wed, 1 Dec 1999 22:18:56 EST
>> Message-ID: <0.6d428034.25773f20 at aol.com>
>>
>> snip
>>
>> This is all academic theory, good clean fun in the journals. Mostly
>it
>> does
>> not infect Posner's interpretation of the law in his opinions and it
>does
>> not
>> get in the way of his real contributions to humane learning. It has
>a
>> harmful
>> effect in legitimating rigidities that Posner is not susceptible to
>in
>> the
>> work of lesser judges and scholars.
>
>Here is a direct example of some Posner "humane learning."Ruling
>against a
>reasonable accommodation for a wheelchair user in this case, Posner
>relates
>the business schematic of cost/benefit analysis to the ADA:
>
> "If the nation's employers have potentially unlimited financial
>obligations to 43 million disabled persons, the Americans with
>Disabilities Act will have imposed an indirect tax potentially
>greater than
>the national debt. We do not find an intention to bring about such a
>radical result in either the language of the Act or its history. The
>preamble actually "markets" the Act as a cost saver, pointing to
>"billions
>of dollars in unnecessary expenses resulting from dependency and
>nonproductivity." §12101(a)(9). The savings will be illusory if
>employers
>are required to expend many more billions in accommodation than will
>be
>saved by enabling disabled people to work."
Yes, Posner's wealth maximization principle at work. The problem with that is it privileges economic efficiency as a value over everything else including especially distributive justice. For the L & E crowd including Posner, Pareto's optimality principle is everything, even though all that principle says that a given allocation of resources from the standpoint of efficiency if no one's welfare can be improved except at the expense of someone else. As Paul Samuelson (hardly a flaming revolutionary) used to point out in his textbook, the translation from Pareto optimality to what is socially optimal requires us to assume that the initial distribution of resources is normatively acceptable. Pareto's optimality principle cannot tell us if that is so or not. Thus the application of the wealth maximization principle to the law by judges like Posner in effect privileges as a matter of principle, the existing distribution of resources and the economic system which is responsible for it. To ignore questions of distributive justice is to enshrine exisiting economic injustice.
Me thinks that perhaps our Justin may have fallen in with a bad crowd. -:)
Jim F.
>
>Marta Russell
>
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