110 Yale L.J. 237 (2000)

In other writing, we advance the thesis that legal policies should be evaluated solely on the basis of their effects on individuals' well-being, meaning that no independent evaluative weight should be accorded to notions of fairness. In that work, we consider a variety of principles of fairness, justice, and corollary concepts that are conventionally employed in the assessment of legal rules. In the course of our research, we discovered that each of the leading notions of fairness that we examined could be shown to conflict with the Pareto principle; that is, consistent adherence to any of the notions of fairness would, in some circumstances, make everyone worse off. This observation led us to inquire about the generality of the conflict, and we explored it in two articles. In the first, we demonstrated that, in symmetric settings (in which every person is similarly situated), every individual will necessarily be made worse off whenever a welfare-independent notion of fairness is decisive. In the second, a short, technical article intended for economists, we presented a formal proof of the proposition that, in all cases (symmetric or not), if a welfare-independent notion of fairness is given any weight in making social decisions, there will exist circumstances in which everyone is made worse off.

Howard Chang has written an article in this journal that addresses aspects of our second article. He accepts the validity of our formal proof, but he challenges the appeal of our assumptions. Furthermore, he suggests that certain notions of fairness that do not satisfy these assumptions, including his own conception of liberal welfarism, could be sufficiently modified so that they would not conflict with the Pareto principle. (Chang's precise claim is unclear, however. The overall thrust of his article may give the reader the impression that many familiar notions of fairness might be susceptible to modification so as to avoid conflict with the Pareto principle, yet the analysis itself suggests only the logical possibility that the conflict can be circumvented with respect to modifications of certain types of notions of fairness, which are not formally specified. )

We begin this Reply by summarizing the demonstration in our first paper of the conflict between notions of fairness and the Pareto principle. This demonstration, which Chang does not contest, is easier to understand than our second, and it is independently sufficient to establish our conclusion. Then we consider our second, more technical demonstration of our conclusion. We emphasize that the two assumptions that Chang challenges are really minimal in character; in essence, they amount to requirements that normative theories be logically consistent. (Indeed, the relevance of centuries of moral philosophers' normative discourse depends on one of these assumptions.) We also explain how, even when one does not require logical consistency in the respects to be articulated, Chang's effort to show that certain notions of fairness can be altered so as to avoid conflicts with the Pareto principle is unsuccessful. Finally, we offer brief remarks on Chang's liberal welfarism, drawing upon arguments from our larger work.

Before proceeding, we should note that we are well aware that many readers will be reluctant to accept our claims. First, the idea that all plausible notions of fairness conflict with the Pareto principle may seem surprising; indeed, it came as a surprise to us during the course of our research. Yet, analysis has revealed it to be true to a general extent. Second, some of our analysis--particularly the second demonstration with which Chang takes issue--is of a technical nature. We endeavor to explain the relevant points in accessible terms so the reader can see what is really involved in considering them. Third, the fact that notions of fairness have broad intuitive appeal to everyone--including to us--seems in tension with our critique. In our conclusion, however, we briefly draw upon our other writing to sketch some of the ways that this appeal can be reconciled with our overall thesis that notions of fairness should not be employed as independent evaluative principles in the assessment of legal policy.

110 Yale L.J. 259 (2000)

This Essay has attempted to clarify and reconceptualize constitutional tort law. Current doctrine severs remedies from rights and authorizes money damages on terms that apply indifferently to all constitutional violations. This remedial uniformity is faithful to the Monroe model of statutory interpretation, but at odds with the differences among rights in enforcement strategies and opportunities. In fact, even under current doctrine, various constitutional claims do have--and under any plausible understanding, should have--remedial variation. Restructuring the law of § 1983 to accommodate this insight would invite recognition of the differences among rights and promote clear thinking about remedies to enforce them.

Disaggregating constitutional torts would reorient our thinking in three important ways. First, it would inhibit the tendency, evident in virtually all discussions of § 1983, to cite one kind of constitutional violation as if it stood for all. Reasoning based on one type of unconstitutionality will apply across the board only if the particular represents the general. In constitutional tort law, that is rarely true. Virtually any assertion about the role of qualified immunity, or the availability of alternative remedies, or the utility of damage actions in enforcing constitutional rights, will make no sense in some contexts. That does not mean that we should abandon theoretical and systematic analysis of constitutional tort remedies, but it does suggest a need for caution in generating comprehensive doctrine from specific examples.

Second, disaggregation of constitutional tort law would encourage remedial comparison. The crucial question in enforcing the Fourth Amendment is not whether the exclusionary rule works well or poorly. The question is--or at least should be--whether it works better than the available alternatives. The same is true of money damages. The costs and benefits of damages liability as a means of enforcing the Fourth Amendment cannot be assessed in isolation. The efficacy of exclusion is also relevant. Such comparisons are local, not global. The fact that exclusion of evidence provides meaningful redress for illegal search and seizure in some contexts does not mean that it applies to all, much less that it has relevance for other constitutional rights. Just as remedial opportunities vary among rights, the comparative advantage of remedial mechanisms will vary as well. The straitjacket of remedial uniformity imposed by the current law of § 1983 hinders comparative evaluation of alternative strategies. A more flexible approach to remedial choice would invite attention to that concern.

Finally, I hope that thinking of remedies in relation to specific rights would lead to better enforcement of the Constitution. If the costs and benefits of civil liability vary across rights, remedial uniformity precludes optimal enforcement. Crafting remedial strategies to redress particular kinds of constitutional violations would hold out the prospect, at least, of securing greater compliance at lower cost. Muddled thinking about the relationship between rights and remedies in constitutional law not only leads to intellectual confusion and misplaced argument; it also contributes to shortfall and sloppiness in redressing constitutional violations. A better understanding of the differential role of civil liability in enforcing various rights would not make the hard choices go away, but it would remove the conceptual blinders that prevent us from seeing those choices clearly. Disaggregating constitutional torts would be a step in the right direction.

110 Yale L.J. 333 (2000)