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Citation: 13 J. Contemp. Legal Issues 123 2003-2004

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Ex Ante/Ex PostBARBARA H. FRIED*

"N o principle of ethics requires that Monte Carlo produceonly winners.'

I. INTRODUCTIONThe problem of legal transitions, put simply, is the problem of whetherit is appropriate, for reasons of efficiency or fairness, for the governmentto offset (through grandfathering, direct compensation or other mechanisms)

changes in wealth occasioned by changes in legal regimes. Althoughthis way of putting the matter is evenhanded as between transitionwinners and losers, in fact commentators have historically limited theirconcern to the case for compensating losers. That asymmetry, as morerecent commentators have noted, is itself a serious problem, a matter tobe returned to below.Since this is a conference to see what lawyers/economists andphilosophers might learn from each other, I want to focus on the aspectof the problem that has attracted the interest of both camps: whether weshould view the possibility of future change in the legal environment asa risk knowingly undertaken by investors, and if so, what implicationsthat has for the case for undoing the ex post outcome of that bet.

* William and Gertrude Saunders Professor of Law, Stanford Law School. Anearlier version of this paper was presented at the Conference on Legal Transitions,Institute for Law and Philosophy, University of San Diego Law School, Oct. 25-26,2002. I am grateful to participants in that conference, as well as Joe Bankman, Dick Craswell,Mark Kelman, Daryl Levinson, Liam Murphy, and Bill Simon, for comments on anearlier draft.

I. J. Mark Ramseyer & Minoru Nakazato, Tax Transitions and the ProtectionRacket: A Reply to ProfessorsGraetz and Kaplow, 75 VA. L. REV. 1155, 1160 (1989).

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The ambitions of the piece are largely descriptive: to figure out whateach of these literatures have had to say on the question of ex postcompensation for risk, where their analyses have diverged and why.That descriptive account is a first step to figuring out whether theseliteratures have anything at all to teach each other, or whether theirambitions are simply orthogonal to each other. To anticipate the descriptivestory: Over the past twenty years, a substantial literature has emerged inboth philosophy and law and economics on the appropriate treatment ofrisk. While economists have analyzed the case for ex post compensationprimarily on welfarist grounds, and philosophers primarily on egalitariangrounds, the two literatures have proceeded along strikingly similarlines, and converged on strikingly similar conclusions, albeit for theirvery different reasons. This, I think, results straightforwardly from the factthat one dominant strain in the philosophical literature on distributivejustice over the past twenty years is a version of egalitarianism-luckegalitarianism-that is committed to the same ex ante perspective as thestrong rational expectations model of individual decisionnmaking thathas dominated recent welfare analyses of legal transitions. The organizingpremise of luck egalitarianism is that a just state would equalize theeffects of brute luck on individual endowments, but leave individuals tobear the consequences (good and bad) of their choices. As applied to theproblem of choices made under uncertainty (i.e., the problem of risk),that premise has led luck egalitarians to more or less the sameconclusion that "rational expectations" economists have reached onwelfarist grounds: people should bear the consequences of the riskychoices they made (subject in both cases to some exceptions whereinsurance against a chosen risk is desired but unavailable).In the past few years, a dissenting literature has emerged inphilosophy. It has offered both an external critique of the foundationalpremise of luck egalitarianism that people should be stuck with theconsequences of their choices, and an internal critique that pushes on thepractical and moral difficulties of administering a distributive schemeorganized on the distinction between choice and brute luck. As far as Iknow, no similar dissenting literature has emerged within mainstreamlaw and economics. Indeed, judging at least from the most recentsignificant contribution to the economic analysis of transitions, DanielShaviro's When Rules Change,2 the trend seems to be toward greaterself-confidence that, at least in the case of transitions in legal regimes,the market can usually deliver what justice requires. Strong cautionary

2. DANIEL SHAViRO, WHEN RULES CHANGE: AN ECONOMIC AND POLmCAL ANALYSISOF TRANSITION RELIEF AND RETROACTIVITY (2000).



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[Vol. 13: 123, 2003] Ex Ante/Ex PostJOURNAL OF CONTEMPORARY LEGAL ISSUES

notes, however, have been sounded by the now voluminous behavioraleconomics literature on systematic violations of expected utility theoryin decisionmaking under uncertainty. Together, these two dissentingliteratures pose some very significant challenges to the sanctity of exante choice that underlies luck egalitarianism and the now dominantrational expectations perspective of welfarism. After describing theconventional ex ante treatment of risk in economics and luck egalitarianphilosophy, I want to return to whether those challenges deserve to betaken more seriously than they have been in assessing the case for expost compensation for ex ante risk.

A. Law and Economics Perspectiveon the Problemof Legal TransitionIn broad outline, the development of thought on the appropriate

treatment of legal transitions in the law and economics literature mightbe described as follows. Prior to the mid-1970s, the legal literatureexhibited a general bias in favor of ex post compensation for the loser.That bias reflected, I think, an often unexamined assumption that peoplehad a right to (and did) expect legal stability when they made long-terminvestment decisions, and hence that any significant change in legalregimes constituted unfair surprise, the ex post (negative) consequencesof which they were entitled to be protected against. It reflected as wellan implicit (and probably unconscious) decision to ignore the symmetricalproblem of transition winners, with the consequence that transition gainssimply lay where they fell, by default. Outside of the legal academy, thescant literature on the topic leaned towards the same pro-compensationposition for losers, on the same or similar grounds.'

All of that changed starting in the 1970s. In a series of articles in thetakings and tax contexts, scholars rejected the conventional view of legaltransitions as presenting a problem of unfair (ex post) surprise. Rather,they argued, it should be viewed as just an instance of the more generalproblem of decision-making under uncertainty.' Viewed from that

3. See, e.g., Harold M. Hochman, Rule Change and Transitional Equity, inREDISTRIBUTION THROUGH PUBLIC CHOICE 322 (Harold M. Hochman & George E. Petersoneds., 1973) ("[Transitional equity's] concern is with entitlements to certainty that pre-existing rights and endowments sanctioned by a social contract will continueundiminished"); Martin Feldstein, On the Theory of Tax Reform, 6 J. PUB. ECON. 77 (1976).4. In the takings contexts, the key works are Frank Michelman's seminal 1967article, Property, Utility, and Fairness:Comments on the Ethical Foundationsof "Just



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perspective, the risk that a future change in government policy willreduce the value of previously committed capital is just one of myriadrisks that a would-be investor faces. As with all such risks, we shouldassume that the investor has rationally calculated the upside anddownside costs of that risk, discounted by the probability of occurrence,in assessing the expected value of such investment. If the investor choosesto go ahead in the face of such known risks, she is taking a knowing (exante) gamble. The ex post results of that gamble, rather than reflecting arandom thunderbolt from the sky (to borrow Dan Shaviro's phrase),instead thus reflect just one of the expected payoffs of a risky bet comehome to roost. Moreover, any analysis of the case for ex post compensationwould have to account for transition gains as well as losses-a shiftfrom the historically one-sided perspective on the issue, and one that waslikely to dim the enthusiasm of ex post compensation types.This shift, from viewing the ex post costs (benefits) of legal transitionsas an unanticipated windfall, to viewing them as the payoff of an exante rational bet, has had enormous implications fo r what law andeconomics scholars take to be the appropriate policy response. The chiefconclusions are summarized below. (For ease of exposition, the summaryfocuses on the case fo r ex post compensation of losses, ignoring the gainside. For the most part, the same conclusions would hold on the gainside as well.)1. There is nothing distinct about the problem of legal transitions

from a policy perspective. Legal transitions represent just one of a myriadof uncertainties that face investors. The question of how to respond to themis just an instance of the larger question how (if at all) the governmentought to intervene in private decision-making under uncertainty.2. Ex post compensation is generally undesirable,on both fairnessand efficiency grounds. The fairness argument here is straightforward.In Dan Shaviro's words, the case fo r compensation on equity grounds

Compensation" Law, 80 HARV. L. REV. 1165 (1967), which foreshadowed many ofthemes subsequently formalized in more explicitly economic treatments of the subject,and Lawrence Blume & Daniel L. Rubinfeld, Compensationfor Takings: An EconomicAnalysis, 72 CAL. L. REV. 569 (1984). (For an attempt to show that once one eliminatessemantic differences in terminology, Michelman's argument lines up very closely to the(now conventional) law and economics treatment of the subject, see William A. Fischel& Perry Shapiro, Takings, Insurance and Michelman: Comments on EconomicInterpretationsof 'Just Compensation' Law, 17 J. OF LEGAL STUD. 269 (1988)). Theearly key works focusing in part or exclusively on tax include Michael J. Graetz, LegalTransitions:The Case of Retroactivity in Income Tax Revision, 126 U. PA . L. REV. 47(1977) [hereinafter Legal Transitions];Michael J. Graetz, Retroactivity Revisited, 98HARV. L. REV. 1820 (1985) [hereinafter Retroactivity Revisited]; Louis Kaplow, AnEconomicAnalysis ofLegal Transitions,99 HARV. L. REV. 509 (1986).



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disappears if we assume that (1) "any decision with long-term consequencesis at least an implicit bet about the future"; and (2) people are responsiblefo r the consequences of their deliberate risk-bearing. Or, as Ramseyerand Nakazato put it, in the quote cited at the outset of the paper: "Noprinciple of ethics requires that Monte Carlo produce only winners."6Shaviro takes the argument even further, concluding that if we assume(as a rational expectations model would require us to assume) that the(downside) risks of transition loss are foreseen and hence impounded inthe price of an investment, investors have already been compensated forthat downside risk ex ante through a lower purchase price, If wecompensate them ex post, we are therefore doubly compensating themfor the same risk.7

The argument against compensation on efficiency grounds is equallystraightforward. If the government precommits to a policy of ex postcompensation for transitions losses (without taxing away transitionsgains), that precommitment increases the expected private return toinvestment, since private investors anticipate being able to externalizesome of the costs of their bet on the government. The effect of increasingthe expected return in that fashion is to drive a wedge between privateand social returns to investment, thereby creating a private incentive toinvest even when the expected social return is negative.8 The welfaristcosts of such a precommitment policy will be magnified going forward,as the knowledge that the government provided relief in one case willincrease the expectation that it will provide it in like cases in the future,

5. SHAVIRO, supra note 2, at 18.6. Ramseyer & Nakazato, supra note 1, t 1160. For similar sentiments, seeRICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 8 (5th ed., 1998) ("If regret is allowedto undo decisions, the ability of people to shape their destinies is impaired."); RetroactivityRevisited, supranote 4, at 1834-35.7. 1 think this last step of the argument doesn't quite go through, for reasonsdiscussed at greater length below. In brief, the downside risk is impounded in the exante price only on a discounted basis (that is, discounted for the probability of loss). Asa consequence, the actual ex post loss an investor experiences when that probability,always less than 1.0, becomes a certainty, is always greater than the ex ante discount.Second, under a strong rational expectations model, one would have to assume thatinvestors foresee not only the probability of transition loss, but also the probability of expost com pensation from the government. Th e latter will offset the former if the expectedcompensation is equal to 100 percent of the expected loss, yielding no discount in theinitial price of the investment, and hence no double-counting.8. Kaplow, supra note 4, at 529-31, 535; SHAVIRO, supra note 2, at 47-53;Blume & Rubinfeld, supranote 4, at 618-19.



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even absent a precommitment, distorting all future decision-making as aconsequence.If the government doesn't precommit to transition relief but insteadgrants it retroactively, that retroactive decision in any individual casewill, to a first approximation, have exactly the same welfarist consequencesas a precommitted policy of transition relief. Unlike a precommitted policy,it is true, retroactive relief operates as a lump-sum transfer with respectto the particular set of investors affected by it, as their investment decisionshave already been sunk at the time retroactive relief is provided. (Notethat this is true whether or not those investors expected retroactiverelief-in either case, their investment decision was governed by theirexpectations, not by the government's actual, ex post actions.) Thatopens the possibility that the government could generate significant welfaregains (via lump-sum taxes and/or lump-sum transfers) through impositionof a one-time transition gain or loss. Indeed, this possibility is capitalizedon in the welfarist case fo r a transition to a consumption tax.9 But withrespect to the universe of all future investors, a retroactively applied policyshould have the same welfare costs as a precommitted one, by creatingthe rational expectation that what the government has done once (bailout investors) it will do again. Those costs have to be weighed against anygains from the lump-sum character of the treatment of past investors."In theory, the government could eliminate the distortive effects of anygiven transition relief on future transactions if it could credibly commitnot to repeat the action. Alas, it cannot (see Shaviro).

9. See Alan J. Auerbach, et al., Simulating Fundamental Tax Reform in the U.S.,26-29 (Sept. 1999), at http://emlab.berkeley.edu/users/auerbach; Joseph Bankman &Barbara H. Fried, Winners and Losers in the Shift to a Consumption Tax, 86 GEO. L.J.539, 565-68 (1998). As Shaviro notes, the welfare gains in this case come from anaccounting change (wiping out pre-change basis) rather than a policy change appliedretroactively. SHAVIRO, supra note 2, at 61.

10. One strong implication of Shaviro's thoughtful analysis is that the former costswill almost always dom inate the latter gains. Perhaps some greater caution is in orderhere. The welfare gains of transition relief are certain (in the sense of not probabilistic). Incontrast, the welfare costs going forward depend on how much that action is perceived toincrease the odds of like relief in the future, over what category of "like" legal changes,and for how long in the future. As discussed below, there is immense uncertaintysurrounding all of these questions. As a consequence, one cannot discount the possibility thatas to any particular retroactive change, the welfare gains from a lump-sum tax or transferwill outweigh the welfare loss from slightly increased perceived odds of like"retroactive" bailouts/taxes in the future. Or so I imagine Auerbach et al., supra note 9,might respond to Shaviro here.



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JOURNAL OF CONTEMPORARY LEGAL ISSUES

The foregoing argument against bailing investors out of ex post lossesfrom legal change holds whether the legal change in question is a goodone or not from a public policy perspective. Good or bad, if it is inevitable,investing resources that will be lost in the event of change is inefficient,and hence forcing investors to internalize the cost of that risk is efficient.Graetz added a further argument in favor of no compensation on efficiencygrounds that holds only if the legal change is in fact a good one. By forcingindividuals to bear the costs of change, we give them an incentive toanticipate it in their decision-making, which accelerates the effectivedate of change. If we assume that legal change is generally in the directionof better rather than worse policy, moving up the effective date ofchange is therefore (all other things being equal) desirable in and ofitself."

11 . Legal Transitions,supra note 4, at 65. The foregoing analysis of the welfaristeffects attends solely to the effects of compensation policy on individual investors'decisions. As many commentators have noted over the years, there is another factor thata full-blown welfarist analysis ought to take into account: maximizing the government'sincentives to adopt policy changes that are in the "public interest," meaning for thesepurposes that generate net welfare gains. In the takings context, that line of thought hasled some economists to argue that while compensation generally creates bad incentivesfor investors, it may well create optimal ones for governments, by forcing them tointernalize the private costs of policy changes in assessing whether there is a net socialbenefit to such change; and that perhaps the optimal solution, given these two contraryeffects, is to decouple what the government pays from what the investor receives. SeePOSNER, supra note 6, at 64; Blume & Rubinfeld, supra note 4, at 571. See generallyDaryl J. Levinson, Making Government Pay: Markets, Politics, and the Allocation ofConstitutionalCosts, 67 U. CHI. L. REV. 345 (2000). For parallel arguments in the areasof tort and contracts, suggesting that optimal damage schemes will have to trade offoptimal incentives on the victim's/nonbreacher's side (which argue for no compensation)against optimal incentives on the tortfeasor's/breachers' side (which argue for somecompensation), see generally Robert Cooter, Unity in Tort, Contract, and Property: TheModel of Precaution, 73 CAL. L. REV. 1, 3-18 (1985). Whatever the merits of thatargument in the takings context, it may not translate well to other transitions contextslike tax reform, where not only the costs, but many of the benefits of the change in lawas well, are privately captured.

As Louis Kaplow suggests, Louis Kaplow, Transition Policy:A Conceptual Framework,13 J. CONTEMP. LEGAL ISSUES 161 (2003), coming up with some rough design for tradingoff optimal incentives on the government side with optimal incentives on the individualinvestor side requires a theory of political economy to predict government behavior. Inthe absence of such a theory, most transitions analysis at least in the tax context hassimply ignored the government side of the picture, focusing on the supposed effects ofcompensation on individual investor behavior. For the balance of this piece, I will do thesame.

Ex Ante/Ex Post[Vol. 13: 123, 20031



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3. Compensation may, however, be warrantedas a form of implicitinsurance if investors would have preferred to insure against transitionrisk but the market cannotprovide it. The foregoing, essentially rationalchoice/consumer sovereignty, argument for sticking individuals with theex post consequences of their ex ante choices has been subject to oneimportant qualification. The argument makes no distinction between choicesunder conditions of certainty, and those under conditions of uncertainty.As numerous commentators have noted, decision-making under uncertaintyposes an additional complication that might argue for governmentintervention-not to change the expected value of the investment, but toeliminate the variance (risk). In the case of Monte Carlo, individuals chooseto bear the risk of a gamble-indeed, taking that risk is the sole motivefor being there, as gamblers could costlessly swap the expected value ofthat bet for a certain return of (generally) higher value just by stayinghome. In contrast, in the case of conventional investments in land, securities,etc., investors would often prefer to avoid the risk of legal changeentirely, even if the expected value of legal change is zero (i.e.,advantageous and disadvantageous changes are equiprobable) or evenpositive. When investors cannot lay off that risk through private insuranceor self-insurance via a diversified portfolio, the government may be ableto increase overall welfare by acting as an insurer, via grandfathering orother forms of implicit or explicit compensation. 2 While thereforetheoretically possible that government intervention could improve welfare,scholars have been skeptical as an empirical matter how often this willbe the case, given the relatively low magnitude of potential welfarelosses from many unwanted and otherwise unavoidable risks of governmentchange, on the one side, and the relatively high transactions costs, moralhazard problems, etc., presented by government intervention on the otherside. While economists and fellow travelers were mostly interested in

12 . Note that if investors must pay for insurance, whether obtained through theprivate market or through the government, insurance does not obviate the wealth transferimplicit in legal changes, in cases in which the expected value of such changes at thetime insurance is obtained is negative. (This wou ld always be the case in the takingscontext, often in tax reform.) In such cases, the expected (negative) value is priced intothe insurance premium. While insurance will eliminate the variance associated with thatloss, it thus will not reduce the mean expected loss. The fact that the expected loss maybe priced into the asset at time of purchase doesn't change this fundamental point. Asdiscussed below, it merely indicates that the expected loss may have to be borne by theprior holder, rather than the current one. See Blume & Rubinfeld, supra note 4, at 590-92; Fischel & Shapiro, supra note 4, at 287-91. Of course, this analysis could change ifinvestors hedge that expected loss through other investments, or if (somewhat moreimplausibly) investors are getting offsetting, in-kind compensation from the lower taxrates permitted by a no-compensation rule. On the latter point, see Daniel A. Farber,Public Choice and Just Compensation,9 CONST. COMMENT. 279 (1992).



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possible efficiency gains from providing a mechanism for investors toinsure against unwanted risk, it is not hard to anticipate the fairnessanalogue to the argument: To wit, when investors choose an investmentthat comes bundled with a risk that they would prefer not to shoulder,but cannot shed except by declining to invest at all, they have not"chosen" that risk in the same sense that they might have "chosen" tomake the underlying investment itself, or that gamblers "choose" to taketheir chances at Monte Carlo.

B. PhilosophicalPerspectiveon the Problem ofRiskDuring roughly the same period that the problem of legal change was

being recast in legal and economic circles as a problem of ex ante choiceunder uncertainty rather than ex post bad luck, a parallel literatureemerged in the egalitarian camp of political philosophy, leading to muchthe same conclusions, albeit on fairness rather than efficiency grounds:People should generally be stuck with the ex post consequences of theirex ante choices, whether made under conditions of uncertainty or not.While the philosophical literature has had little to say on the specificproblem of legal transitions, its general argument for sticking peoplewith the ex post consequences of their risky choices would cover thatcase, along with all other instances of decision-making under uncertainty.

The shift to an ex ante perspective began with Ronald Dworkin'sfamous 1981 article on equality of resources. 3 In brief, Dworkin arguedthat what egalitarians ought to care about is not equalizing ex postoutcomes (whether measured by welfare, Rawlsian primary goods, orsome other metric), but instead ex ante opportunities, measured by theresources available to individuals to further their life plans. The just state,Dworkin argued, is obliged to redistribute resources to compensateindividuals for any inequalities in their background resources (differences innatural ability, inheritance, claims on external social resources, etc.).After it has done so , individuals should be left (for better and worse) to

13 . Ronald Dworkin, What is Equality? Part 2: Equality of Resources, 10 PHIL. &PUB. AFF. 283 (1981), [hereinafter Equality of Resources]. As John Roemer has argued,the notion that we are responsible for ou r choices appeared in embryonic form in bothJohn Rawls's and Amartya Sen's earlier work, but Dworkin's account unambiguouslymoved it to center stage. JOHN E. ROEMER, THEORIES OF DISTRIBUTIVE JUSTICE 246(1996). It was also anticipated in a more general way, it seems fair to say, by theemphasis on "equal opportunity" in broader political debate over public policy beginningin the 1960s.



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the consequences of whatever choices they make from such a position ofex ante equality.'4In the twenty years since Dworkin's article, various alternative versionsof "equal opportunity" egalitarianism have been put forth by RichardArneson, G.A. Cohen, Michael Otsuka, John Roemer, Eric Rakowski,Amartya Sen, and Peter Vallentyne, among others.'5 These proposals differin a number of key respects, among them whether our aim should becomplete equality, partial equality, or simply priority of the worst off,and whether we should seek to equalize the value of the extended bundleof resources at individuals' disposal (Dworkin, Rakowski, and moreambiguously Roemer, Ackerman, Vallentyne), or should instead equalizethe opportunity to achieve certain outcome levels (Sen, Arneson, G.A.Cohen, and sometimes Roemer).'6 (The two measures will diverge whenpeople have differing capacities, through no fault of their own, toconvert resources to welfare or any other measure of outcomes that wecare about.) For present purposes, however, these internecine disputesamong ex ante egalitarians can be set aside. What is critical is thepremise that they all share-to wit, that people's claims against the stateare limited to those differences in their opportunity sets for which theyare not responsible. Any differences in their life situations that are theconsequences of different choices made from identical opportunity setsare their responsibility.

14. Dworkin adopts different mechanisms for equalizing talents and externalresources, which mechanisms imply different degrees of equality. I'm no t sure thosedistinctions make sense within the context of his broader argument, but for currentpurposes they can be set aside.15 . See Richard J. Arneson, Liberalism, Distributive Subjectivism, and EqualOpportunity for Welfare, 19 PHIL. & PUB. AFF. 158 (1990) [hereinafter Liberalism];Richard J. Arneson, Equality and Equal Opportunityfor Welfare, 56 PHIL. STUD. 77

(1989) [hereinafter Equality and Equal Opportunity]; Richard J. Arneson, LuckEgalitarianismand Prioritarianism,110 ETHICS 33 9 (2000) [hereinafter LuckEgalitarianism];G.A. Cohen, On the Currency of EgalitarianJustice, 99 ETHICS 906(1989); Michael Otsuka, Luck, Insurance,and Equality, 113 ETHICS 40 (2002); AmartyaSen, Equality of What?, reprintedin AMARTYA SEN, CHOICE, WELFARE AND MEASUREMENT353 (1982); ERIC RAKOWSKI, EQUAL JUSTICE (1991); John E. Roemer, A PragmaticTheory for the EgalitarianPlanner,22 PHIL. & PUB. AFF. 146 (1993); Peter V allentyne,Brute Luck, Option Luck, and Equality of InitialOpportunities, 112 ETHICS 529 (2002).16. See Arneson, Equality and Equal Opportunity, supra note 15, at 88 (arguingfor equal opportunity for welfare); Cohen, supra note 15 , at 907 (arguing for equalaccess to advantage, with welfare a subset of advantage); Sen, supra note 15, at 367(arguing for equality of capability, meaning, roughly, the ability to do certain basicthings in life). For very useful taxonomies of ex ante egalitarians, see Marc Fleurbaey,Equal Opportunity or Equal Social Outcome, 11 ECON. & PHIL. 25, 27 (1995); ROEMER,supra note 13, at 237-315.



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Dworkin himself took the fundamental divide between what the statewas and was not responsible for equalizing to be resources (yes) versuspreferences (no, as long as one is glad to have those preferences).Choice was critical in Dworkin's account only by virtue of the fact thatit was the mechanism by which people acted on their preferences.Subsequent versions of choice egalitarianism have construed thefundamental divide to be between those things that an individual cannotcontrol (the state has some obligations to equalize) and those that anindividual can control (the state has no obligations to equalize). In thataccount, choice is morally foundational. As G.A. Cohen put it, speakingfor the latter, more numerous wing, of choice egalitarianism: "[T]heright reading of egalitarianism... is to eliminate involuntary disadvantage,by which I (stipulatively) mean disadvantage for which the sufferercannot be made responsible, since it does not appropriately reflectchoices that he has made or is making or would make."'8

Like welfarists, choice egalitarians assumed, as a first approximation,that we should draw no distinction in this regard between choices underconditions of certainty and those under conditions of uncertainty. Dworkincaptured that view in his well-known distinction between "option luck"and "brute luck". The proper object of egalitarian concern, Dworkinargued, is what he termed "brute luck," by which he meant all the"thunderbolt from the sky" things that happen to people to leave them inbetter or worse positions than their fellow citizens. This includes, ofcourse, differential initial resources (talents, inheritance, land, etc.). Itincludes as well the good or bad things that happened to people throughouttheir lives as a matter of chance rather than choice. The latter group,Dworkin argued, should not include "option luck," meaning variance inex post payoffs to knowing gambles (risky choices). If the ex antegamble was chosen, so also were the foreseeable, ex post, consequencesof that gamble, for better or for worse. In Dworkin's words, "thepossibility of loss was part of the life they chose-it was the fair price ofthe possibility of gain."'9

17. Cohen, supra note 15, at 933, has argued, persuasively in my view, thatDworkin himself is a "choice egalitarian" manque, on the ground that all of the morallyattractive features of Dworkin's argument come from the implicit coincidence of"ambitions" (what he professes to care about foundationally) with that which we cancontrol (which he professes to care about only derivatively).18 . Id . at 916.19. Dworkin, supra note 13, at 294.



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Like welfarists, however, luck egalitarians saw from the start thatinsurance played a critical mediating role in determining what was chosenand what not in the case of decisions under uncertainty. As Dworkinobserved, the availability of insurance turns what would otherwise be bruteluck into option luck, by giving individuals a mechanism to avoid therisk of brute luck entirely.2" The availability of insurance against suchdisasters may not eliminate all brute luck differences in fortune. Ifindividuals face a different known level of brute-luck risk due to factorsbeyond their control, and as a consequence face differential insurancepremia, ex ante egalitarian principles would mandate redistributingresources to offset such differences in premia. But any losses beyond suchdifferentials in premia, which losses result from the decision not to insure,are subsumed under choice, and hence the responsibility of the individual.

Dworkin and subsequent writers have observed as well the mediatingrole insurance plays in the other direction: turning option luck into bruteluck. To the extent a risk was unavoidable because uninsurable, andbundled in with other choices it would have been prudent to make even atthe cost of unwanted risk, the absence of insurance converts what wouldotherwise have been option luck into brute luck. In such cases, there is aluck-egalitarian case for the state to step in, ex post, to bail people out ofthe bad consequences of their risky choices.2' This is, of course, just thestandard welfarist argument for limited ex post mercy in the case ofuninsurable risk, decked out in fairness rather than welfarist garb.

And so we arrive at the assertion with which I started: that conventionallaw and economics analyses and luck egalitarianism have converged onthe same broad prescription, albeit for very different reasons: The stategenerally ought not to undo the ex post consequences of ex ante riskychoices. An exception to this general rule might be called for in thosecases in which it could be shown that the risk borne was unwanted andunavoidable (uninsurable).

Notwithstanding this broad convergence, one would expect the welfaristand luck egalitarian prescriptions to diverge in particular cases, as aconsequence of the fact that the incentive-driven welfarist perspective isforward-looking, and the luck-egalitarian position largely backward-looking. So, for example, in cases in which ex post compensation forbad option luck is predicted to have no incentive effects on futurechoices (because, for example, the state can credibly commit to a one-

20. Id. at 297. For other discussions of the role that insurance plays in convertingbrute luck to option luck, see Kasper Lippert-Rasmussen, Egalitarianism,Option Luckand Responsibility,I I I ETHiCS 548, 556 (2001); RAKOWSKI, supra note 15, at 80-81.

21. Dworkin, supra note 13, at 297; see also Fleurbaey, supra note 16, at 41-43;Otsuka, supra note 15, at 46.



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shot compensation), the lump-sum nature of the transfer makes thewelfarist indifferent to ex post compensation, except insofar as it mayaffect overall welfare due to wealth differences in the transferor andtransferee groups. The luck egalitarian, on the other hand, remainscommitted to an anti-compensation position on desert grounds." (Oneimportant lesson of Shaviro's book is that such cases may be rarer thanwe think-although I suspect not quite as rare as he thinks.) So also, onthe other side, in cases of risks that could not reasonably have beenforeseen the first time, but having occurred once can be foreseen torecur, the case for ex post compensation for that first set of blindsidedinvestors will look much stronger on luck egalitarian than welfaristgrounds. There are undoubtedly other differences as well, reflecting thedifferent weights luck egalitarians and welfarists would give totransactions costs, etc., in evaluating the case for compensation.

But setting these relatively small differences aside, the two campsseem to have arrived at pretty much the same place, with (as far as Iknow) little or no awareness of each other. Why this should be so isitself an interesting question of intellectual history. One possible answer, ofcourse, is that both sides have simply hit on the ineluctable truth in theirrespective disciplines (people should be stuck with the consequences oftheir ex ante choices), and it is a matter of sheer coincidence that thesame (true) answers obtain for very different questions. I'm inclined toresist that explanation, in favor of some more sociological account. Bethat as it may, we find ourselves at a pass where the rational expectationsmodel of human behavior, enshrined in a strong ex ante perspective, isking in economics and moral philosophy respectively.

Putting choice in moralistic terms-as luck egalitarianism did-inevitably invited close scrutiny about the quality of ex ante choice inmost real-world situations, and whether it was the sort of "genuinechoice" (in G.A. Cohen's words) that could justify moral or politicalindifference to ex post losers (that is, an anti-compensation rule). 3 Inthe last few years, the question has been a hot one in philosophicalcircles, occasioning a number of very thoughtful critiques." As far as I

22 . See, for example, Ameson's modification of his hiker responsibility example,meant to shear off fairness considerations from incentive effects on future park visitorswith respect to taking precautions, by supposing that "the park is about to be shut downand [hence] there are no such incentive effects to consider." Ameson, Luck Egalitarianism,supranote 15 , at 348.

23. Cohen, supranote 15, at 934.24. See Elizabeth S. Anderson, What is the Point of Equality?, 109 ETHICS 287



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know, there is no comparable, skeptical, literature within conventionaleconomics. Economics has tended to subsume these questions under thebroader category of attacks on the rationality of individual decision-making. The standard (perfectly sensible, as far as it goes) response to allsuch attacks has been: However imperfect individual choice is as anexpression of informed and stable preferences, it is probably better thanthe alternatives. At any rate, the burden is on skeptics to show (1) thepresence of systematic irrationalities in individual decision-making that(2) the government is capable of bettering at some tolerable cost. Thereis now, of course, a substantial literature in behavioral economics andpsychology taking on the first of these two questions in the context ofdecision-making in the face of risk and uncertainty.In what follows, I want to put on the table the most serious challengesto the strong ex ante view. Some are unique to choice in the face ofuncertainty (the situation posed by transition risk). Some would apply tochoice in the face of risk or certainty as well. Most of these challengescan be accommodated theoretically within a welfarist framework. Thatis to say, welfarism's commitment to ex anteism in this context is notfoundational, but merely contingent on an empirical hunch that a quasi-strong version of rational expectations accurately captures humanpsychology, and, as a consequence, that the welfare costs of distorting exante incentives through ex post compensation are likely to swamp allother welfarist considerations in the treatment of risk. 25 Thus, thechallenges posed below are, for welfarism, largely empirical ones (e.g.,when are ex ante preferences so unstable or ill-informed that we ought tooverride them on welfarist grounds; when are the welfare gains from expost compensation of losers, given the declining marginal utility ofmoney, likely to outweigh the welfare costs of distorting decision-making by ex post compensation). Many of these problems have beenacknowledged at least in passing in the recent welfarist literature, as

(1999); Lippert-Rasmussen, supra note 20; Fleurbaey, supra note 16 ; Marc Fleurbaey,Egalitarian Opportunities, 20 LAw & PHIL. 499 (2001); Jonathan Wolff, Fairness,Respect, and the EgalitarianEthos, 27 PHIL. & PUB. AFF. 97 (1998). For my own, moretentative, discussion of the problems with implementing luck egalitarianism in the taxcontext, see Barbara H. Fried, Compared to What? Taxing Brute Luck and OtherSecond-Best Problems,53 TA x L. REv. 377 (2000).

25 . Ultimately, choice-based welfarism cannot survive without some strong version ofex ante rationality. After all, if people's choices are merely random with respect to theirwelfare, or, worse still, negatively correlated, there would be no welfarist reason to careabout choice at all. To that extent, ex anteism is foundational to all preference-basedversions of welfarism. But one could probably concede the at best weak rationality ofchoice in certain arenas (decision-making under uncertainty, decision-making over along time horizon, etc.) without giving up on preference-based welfarism entirely.



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potential limitations to the ex ante perspective that a full-blown welfaristaccount of decision-making under uncertainty would have to weigh. Myown provisional sense is that some of them deserve more weight thanthey have gotten, and, if taken more seriously, are likely to drive welfaristsaway from their strong, if empirically contingent, commitment to an exante perspective at least in some contexts.In contrast, a commitment to ex anteism is foundational to luckegalitarianism. As a consequence, the problems inherent in a strong exante view pose deeper theoretical challenges to it. Writers signing on tosome version of luck egalitarianism have anticipated many of thesedifficulties, but remain optimistic that they can be accommodated byrefining the definition of what risks are meaningfully chosen, or byrecognizing that moral responsibility for choice (and hence the case forcompensating bad consequences of choice) lies on a continuum. 6 Whilethere is not room to explore that hope adequately here, I am somewhatless sanguine that such refinements are possible, or-were theypossible-that much would be left at the end of the day of luckegalitarianism as a distinctive strand of egalitarian thought.

II. LIMITS TO TH E Ex ANTE PERSPECTIVEA. Is the World a Casino?The reigning metaphor in the philosophical and economics literaturefo r explicating and defending the ex ante perspective is the gamblingcasino.27 Even within the confines of the gambling casino, there arewell-known problems with the "individual rationality" assumption on whichthe ex ante perspective rests. But the problems become a lot more seriouswhen one steps out of the artifice of the gambling hall and into the realworld of decision-making under uncertainty. The differences in thenature of risk-taking in such uncontrolled contexts suggest that one'smoral or empirical intuitions about the appropriate treatment of gamblersat Monte Carlo may not translate well to other contexts of decision-making under uncertainty.

26. On the latter point, see Cohen, supra note 15, at 934; Arneson, LuckEgalitarianism, upranote 15, at 344.27. Dworkin, supra note 13, at 293-95; Arneson, Liberalism, supra note 15, at176; Arneson, Equality and Equality of Opportunity, supra note 15, at 83-84; Cohen,supra note 15, at 916; Ramseyer & Nakazato, supra note 1, at 1160; SHAVIRO, supra

note 2, at 18.



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As against the conventional view that the case for ex post compensationfor risk is adequately disposed of by the observation that "No principleof ethics requires that Monte Carlo produce only winners," considerMarc Fleurbaey's exemplary tale of one devil-may-care Bert.28 Bert hasbeen brought up with all the privileges of life, but has "freely adopted[with whatever notion of freedom would satisfy one here] a negligentand reckless character. In particular, he enjoys having his hair blown bythe wind when he rides his motorbike on the highway, and he seldomwears a helmet even though he has one and it is compulsory to wear it."29On the morning when he is, inevitably, about to lose his gamble, Bertspurns his mother's warnings about the helmet, saying "I prefer to takethe risk and enjoy the wind." He ends up in an accident that leaves himwith serious injuries that will cause death unless he has a costlyoperation, which operation he cannot afford because he has no healthinsurance.

As Fleurbaey correctly notes, the luck egalitarian would rule out anytransfer of resources to Bert to pay for the operation, since the ex postoutcome was one foreseeable consequence of his actions, and he couldhave taken precautions against it.3" Since the bad outcome is due tofactors that lie within Bert's control, to the luck egalitarian "any [expost] inequality" in Bert's welfare as compared to others' will be (toquote Arneson) "nonproblematic from the standpoint of distributive

28. Fleurbaey, supra note 16, at 41-44.29. Id . at 40 . It doesn't matter for Fleurbaey's larger point here, bu t I'm uncertainwhy the legality or illegality of helmetless riding is relevant here. Surely the equalopportunity perspective of luck egalitarianism will stick Bert with the unhappy end he isabout to meet in this morality tale, whether his choice of helmetless driving is legal ornot. Perhaps the thought here is just that the illegality of the choice should haveconcentrated his mind w onderfully on its danger, even if nothing else had.30. Id. at 41, citing to Arneson, Equalityand Equal Opportunity, supra note 15, at86. It is unclear what the relevant precaution is in this example. Fleurbaey seems to havein mind wearing a helmet, but of course that might not have sufficed to prevent theinjury. Even if it wouldn't-as it often will no t on a motorcycle-all motorcycle ridershave another precautionary measure available to them that will work even better thanhelmets: not riding motorcycles. That possibility opens up a problem with the ex anteperspective dealt with below: what sorts of precautions is it reasonable to expect peopleto take, such that if they fail to take them, "they are rightly deemed personallyresponsible" for the consequences of their negligent behavior. Arneson, supra note 15 , at 86.Alternatively, we could treat the failure to insure as the relevant failure to takeprecautions. If so, most of the rest of the facts in Fleurbaey's example become

irrelevant: The ex ante types would still stick Bert with the costs of this accident, even ifhe were the most cautious, prudent motorcycle rider in the world, and motorcycle ridingitself were no t an ultrahazardous activity, since, by insuring, he could have avoided thefinancial disaster associated with the (now prudent) physical risks he took.



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equality."'" To this, Fleurbaey responds: "I hope Bert's example willmake it clear how the word 'any' can be frightening in the last sentence.If you freely and deliberately make the slightest mistake that can put youin a very hazardous situation, a society complying with equal opportunitywill quietly let you die. 32

This is a deliberately arresting example, and it bears noting at the startthat it may be trading on moral intuitions and emotional responses thatdo not carry over to less extreme ex post losses of the sort that willgenerally be at stake in legal transitions. I will return to that question atthe end. But for now, I want to focus on Fleurbaey's intuition that theexample of Bert makes luck egalitarianism "looks rather primitive," andthe contrary intuition of justice he offers in its stead: that"however.. .stupid [Bert's] behavior may have been, there is a limit tothe kind and amount of suffering he should endure.33 If-as I suspect-most people share that intuition, the question is, why? What is differentabout Bert's situation from the plight of the losing gambler in MonteCarlo, besides the obvious and very important difference in the severityof their ex post plights? Do the run-of-the-mill risks we take in life lookmore like Bert or the gambler? And what if any qualifications to ex antejustice are suggested by Bert's plight?

31. Id. at 86. For similar views, throwing the Berts of the world to the wolves, seeRAKOWSKI, supra note 15, at 79 ("People who leap from airplanes, scale cliffs, or whirlaround racetracks knowingly take their lives in their own hands and cannot expect othersto foot their hospital bills or aid their dependents if fortune is uncharitable.") While theBerts of the world who are engaged in ultrahazardous activities are (in Rakowski's view)an exemplary instance of people who should not come crying to the state if risky choicesdon't work ou t as they hoped, he appears willing to impose the same fate on anyone whotakes any risk, however longshot, that he could have avoided by an alternative choice.32. Fleurbaey, supra note 16, at 40 . I should note that Arneson, prompted in part(or so he reported in a conversation) by Fleurbaey's example of Bert, has since modifiedhis position in favor of a softer version of ex anteism, which he calls "responsibility-catering prioritarianism." See Arneson, Luck Egalitarianism, upra note 15 , at 340.33. Elizabeth S. Anderson has registered her unhappiness in even stronger terms,suggesting that luck egalitarianism reflects the contemptuous, mean-spirited moralism of19th century laissez-faire capitalism, in moralistically contrasting the responsible and theirresponsible, offering no aid to those it labels irresponsible, and "humiliating aid" in anupdated version of the Poor Laws to those it labels innately inferior and hence notcapable of making prudent choices. See Anderson, supra note 24, at 308, 311. See alsoFleurbaey, supra note 16, tying what he sees to be the essentially conservative commitmentsof luck egalitarianism to the libertarian, personal responsibility ethos of our times.



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1. The ForeseeabilityofRiskA prerequisite to holding individuals to the consequences of theirchoices, on either welfarist or fairness grounds, is that they be able to

foresee those consequences, on a certain or probabilistic basis. From aluck egalitarian perspective, if they could not reasonably foresee them,then it is hard to see on what moralistic basis we would want to holdthem responsible for them. A similar argument obtains in the welfaristcontext: If people cannot foresee certain adverse consequences of theiractions at all, they are unlikely to respond to policies that increase ordecrease their financial responsibility for those adverse consequences.Pushed to its logical extreme, the ex ante perspective assumes thatevery bad (and good) thing that could factually result from a choice atany time in the future is foreseeable and foreseen at the moment ofchoice, and impounded in the price of that choice on day one. Thatassumption seems perfectly justified, at least as to foreseeability, in thecase of the gambler at Monte Carlo. There is not the slightest doubt thatthe typical gambler understands that he is exposing himself to the risk oflosing his wagered capital, in return for the upside possibility ofwinning-that is the whole point of his being there. While he maysystematically misassess the odds of winning or losing, those odds areobjectively fixed ex ante. As a result, it is at least possible to know whata fully rational person, with access to easily available information,would perceive to be his ex ante situation.Once we leave the artifice of the gambling casino, both of thesematters-foreseeing the existence of a particular risk and foreseeing itsprobability of occurrence-seem much more problematic.- Stated at ahigh, enough level of generality, every eventuality in life, howeverremote or unprecedented, is foreseeable, and hence-if it could havebeen avoided but isn't-is chosen. (Again, for the moment I set to theside the problem of unwanted but uninsurable risk.) So, one can arguethe person who bought marshland in California in 1875 should haveanticipated that 125 years later the government might preclude alldevelopment on the land under a wetlands protection act. He should haveanticipated it, not because any of the particular social and political factsthat were preconditions to that regulation were themselves foreseeable,but because it was foreseeable that circumstances might change overtime in a way that would lead the government to regulate the use of landin various fashions that might lower its value to the owner substantially.That defense of ex anteism, while logically unfalsifiable, is likely to

34. For thoughtful discussions of this problem, see Feldstein, supra note 3, at 92-94; Kaplow, supra note 4, at 525.



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strike most people as without any traction, on moral or welfarist grounds. Ifpeople in fact don't foresee a whole host of potential risks at a level ofspecificity that would make the decision to face them in any sensedeliberate and rational, then an even moderately strong version ofrational expectations is unwarranted. To operationalize a coherent versionof ex anteism, we need some theory about which risks are psychologicallysalient, such that they actually affect decision-making, and which are not.It is no accident, I think, that the luck egalitarian literature, when itleaves behind the artifice of Monte Carlo in favor of real-world risk-taking, tends to gravitate to examples of ultrahazardous activity todefend its moralism about choice. The literature is peppered with moralitytales like that of poor Bert, or the party of climbers who take a calculatedgamble to go up a difficult route under hazardous conditions, or (mostmorally wretched of all) the party of tourists who ignore signs and verbalwarnings to venture on a foolhardy hike across a treacherous steep slope"rendered more treacherous by their mid-hike alcohol consumption."35These examples all pose risks that are about as close as you can come, inpsychological prominence, to the gambling casino. Once we move awayfrom such stark cases to the sorts of risks embodied in everyday choices,the psychological salience of particular risks, and with it the moralisticcase for ex ante justice, weakens considerably.

35. The latter two examples are from Arneson, Luck Egalitarianism,supra note15, at 348. See also RAKOWSKI, supra note 15 , at 79 (for similar "exemplary instancesof option luck"). There are other features of ultrahazardous activity, beyond its psychologicalprominence, that may make it a particularly attractive example to make the case for exanteism. Tw o factors are worth noting here, both arising from the fact that ultrahazardousactivities are (eponymously) assumed to pose higher-than-customary levels of risk ofserious injury. First, that higher level of risk suggests a higher chance that the activity isimprudent, in the sense of posing risks disproportionate to any social value to theactivity, with the consequence that there is no social gain to be gotten from encouragingthe activity by subsidizing the costs associated with it. Second, a higher than usual levelof risk may make cause people to regard others' choice to assume it as an act ofcommission rather than omission, and thereby assign concomitantly greater moralresponsibility for the bad consequences that flow from it. That is, if we believe thatpeople have voluntarily assumed greater risk than the norm, as opposed to merely failingto reduce or eliminate existing risk, we are more likely to view them as morallyresponsible for the bad consequences of their choice. See Daniel Kahneman, et at.,Anomalies: The Endowment Effect, Loss Aversion, and Status Quo Bias, reprinted inCHOICES, VALUES AND FRAMES 159, 16 7 (Daniel Kahneman & Amos Tversky eds.,2000); Ilana Ritov & Jonathan Baron, Status Quo and Omission Biases, 5 J. RISK &UNCERTAINTY 49 (1992).



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Similar problems arise, in an even more exaggerated form, withrespect to assessing the ex ante odds of any known risk. If people cannotaccurately assess the probabilities of various bad or good outcomes, theycannot meaningfully be said to have chosen deliberately to bear thoserisks rather than insure against them. Again, this poses no problem in thecasino, where the distribution of outcomes is mathematically determinedand exogenously fixed. It poses a much bigger problem once we leavebehind the artifice of the casino for the real world, where the probabilitiesassociated with various possible outcomes generally cannot be fixedobjectively-where (in Frank Knight's famous distinction) we are facedwith problems of uncertainty rather than risk.36 Maybe, just maybe, it ismeaningful to say that the risk of another major earthquake in Californiaover the next 10 years is 5 percent. But what could it possibly mean tosay that the odds of fundamental tax reform over the next 10 years are 5percent? In the realm of legal change, we are dealing with historicalphenomena that are the product of deliberate, human agency, with manycausal factors that will never be reproduced. That reality makes italmost meaningless to try to extrapolate the odds of future tax reformbased on past experience, or even-except in extreme cases-based oncurrent, known social facts. And how could we ever prove any ex anteestimate false? Ex post results are, of course, no help whatsoever, sinceany outcome is consistent with any ex ante probability, except of coursefor the extreme prediction that x, which subsequently comes to pass, hadzero probability of occurring.The same difficulties in isolating causal factors for social events thatmake it impossible to fix the probabilities of a particular legal changegoing forward, also cast doubt on the strong incentive-based argumentagainst retroactive compensation in the event of that change. As notedat the outset, the efficiency costs of retroactive compensation come notfrom any supposed effects on the investments directly targeted. As thoseinvestment decisions are by definition sunk, they cannot be altered byany retroactive decision on compensation. The costs come rather fromthe effect that any bailout will have on investors' rational expectationsgoing forward. The assumption here is that if Congress repeals theexemption on tax-exempt bonds, it changes the assessed probabilities of"like" government action in the future. But what exactly counts as"like" here? Does such a repeal tell people that cognate tax preferences

36. FRANK H. KNIGHT, RISK, UNCERTAINTY, AND PROFIT 19-21 (University ofChicago 1971) (1921). Knight used "risk" to describe situations in which the probabilitiesassociated with various outcomes are objectively knowable, and used "uncertainty" todescribe situations in which they are not. That distinction tracks the standard distinctionin contemporary statistics between frequentist and Bayesian probabilities.



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[Vol. 13 : 123, 2003] Ex Ante/Ex PostJOURNAL OF CONTEMPORARY LEGAL ISSUES

are likely to be repealed? Or does it imply just the opposite: that the factthat one provision was changed while another "cognate" one was notreflects an implicit policy decision to leave the second unchanged?Does it imply that other changes outside the tax field are now more (orless) likely, and if so, what other changes? Or might it even imply thatthis very preference is likely to be reinstated in some other form by somesubsequent Congress?37 The problem, obviously, is that in order to answerthese questions, we have to have a theory of what caused this particularpiece of reform, from which we can try to extrapolate Congressionaltreatment of" cognate" issues in the future. However difficult it may beto come up with such a theory of causation in the case of earthquakes, soas to be able to predict the future from the past, it is surely far moredifficult in the context of most political action. Moreover, whatevercategory investors place past acts in for purposes of making futurepredictions about government behavior, in order to assess the incentivecosts of the past we also need a theory of how long history colors futureperceptions. Will an act of grandfathering in 1980 color investorexpectations for the next 2 years? next 5? next 20? If (as one assumes)the force of history tails off over time, at what rate does it tail off?.Without answers to these questions, it is difficult to know how, if at all,past acts of the government will be impounded in investors' ex anteexpectations going forward.None of this is meant to suggest a radical skepticism about our abilityto predict anything about future political action, or any other socialchange, from the past or present. Obviously, more knowledge is generallybetter than less, and it is often possible to make better than randomguesses about the future course of social events. At the extreme, whenpredictions cover a short time horizon and the most important causalfactors all point in the same direction-say, predicting on December 31,2000, after the Republicans took control of the Presidency and Congress,that the estate tax would be radically scaled back within a year-one canmake predictions with a fair degree of certainty. In such cases, it isreasonable to assume (from a welfarist perspective) that rational actorswill alter their behavior to reflect the high probability of legal change,and (from a luck egalitarian perspective) that if they don't alter theirbehavior when alteration is possible, that they are in some morallyinteresting sense responsible for the ex post consequences of their

37. For thoughtful discussions of these problems in the context of transition relief,see Feldstein, supra note 3, at 93; SHAVIRO, supra note 2, at 93, 143.



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choice. The point, rather, is to suggest that such clear cut cases mightaccount for a very small percentage of the decisions people make, andthat most people-even fairly sophisticated investors-most of the timenever even consider the possibility that government policies on whichthe expected outcome of an investment depends might change. If theydo consider it at all, they have so little confidence (with good reason) intheir ability to predict the likelihood of change that they simplydisregard it in their calculations.38 If that surmise is right, then surelyboth the moralistic and welfarist arguments for blanket ex anteism in thiscontext are considerably weakened.2. The Avoidability [Permissibility?]ofRisk

Both the fairness and welfarist cases for sticking people with theconsequences of their choices depend on the risk in question beingavoidable-meaning, that it could have been avoided by choosing areasonably attractive alternative that did not pose such a risk. Again, thiscondition poses no difficulties in evaluating the claim of our gambler inMonte Carlo for compensation. There is not the slightest doubt that therisk in question is avoidable, and hence, when not avoided, voluntarily(if foolishly) chosen. The sole purpose of gambling (setting aside theconsumption value of the activity itself) is to convert a sure thing (themoney wagered) into a risky bet. In that context, it is nonsensical tosuggest that the government ought to step in as a de facto insurer, toundo the effects of that gamble ex post and return each gambler to hisex ante position. More precisely, such a policy just amounts to aprohibition on gambling. Thus, we can simply assume, a priori, thatwhatever degree of risk a gambler exposed himself to was deliberatelychosen. (I set aside for the moment various sorts of irrationality thatmight call that characterization into question for other reasons.)In the case of legal change, and indeed, most other real-world problemsof decision-making under uncertainty, assessing whether a given risk isavoidable, and hence meaningfully chosen, is a much more complicatedissue.First, investors rarely choose to expose themselves to transition risk asan end in itself. Like the risk facing Bert, it is bundled into other choices(to invest in land, securities, drive a motorcycle, etc.) that are desirablein themselves, apart from the risk. Individuals may want to bear that

38. For reasons discussed elsewhere in the paper, the possibility that an omniscientmarket has already done that work for them and impounded the risk into the market priceof investments is at best only a partial answer.



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collateral risk as well as a voluntary side bet, but they may not.39 Thepossibility that any collateral risk may be unwanted is anticipated andsubsumed in the (welfarist or fairness) case for the government to act asan insurer where the private market has failed to provide that option.For ex ante types who insist on an "adequate insurance" option in orderto stick with a strong ex ante perspective, the fact that transition risks areusually bundled in with other choices presents no conceptual problem:Any collateral risks that cannot be fully insured against are not meaningfullychosen, and hence there may be a case for ex post intervention onfairness or welfarist grounds. But it imposes a huge empirical problem,and one that is by definition absent in the casino example, since itrequires us to assess in every case whether the market provided anadequate opportunity to lay off that risk, through third-party insurance orself-insurance through diversification. At least in the case of legalchange like fundamental tax reform, the answer will very often be no,and the reach of ex anteism concomitantly limited.

But other ex ante types who are not prepared to go that far-who arewilling to stick people with the foreseeable consequences of riskybehavior they could have avoided by some means, even when insuranceagainst that isolated risk is not realistically available-face a seriousproblem in figuring out what level of risk avoidance we can fairlyrequire of people. Life is full of dangers. Every time we cross a busystreet, whatever our level of precaution, we increase the odds of being hitby a car. Does that make any resulting accident a product of a deliberate,knowing choice to expose ourselves to risk, and hence noncompensable?If so, then virtually all bad things that happen to people, at least oncethey reach the age of maturity, are converted into option luck, as mostcould have been avoided by some precautionary measure. (Worried aboutanother terrorist attack on New York? Move to the wilds of Montana,which no terrorist is likely to attack. Worried about crazy co-workers ona shooting spree? Stay home and telecommute. Worried that friends orloved ones may steal your heart? Keep your own company.) For welfarists,the concerns raised here are, at least in theory, easily incorporated into awelfarist calculus, by noting that some levels of private precaution maybe socially inefficient, because they fail to account for the externalbenefits of pursuing certain activities. In such cases, there may be a strong

39. For recognition of this general problem, see Anderson, supra note 24, at 322-26; Lippert-Rasmussen, supra note 20, at 555 (labeling the pure bet as a "gamble proper"and the bundled risk as a "quasi-gamble").



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case fo r ex post compensation as a form of subsidy to a sociallybeneficial activity.4" For luck egalitarian types, the response is less clear.If-as some have suggested-the appropriate response is to stick peoplewith the ex post consequences only of those risks that were not"prudent" or "reasonable" to undertake, by what criteria do we judgeprudence here.?'

3. EmpiricalEvidence Concerning Decision-makingUnder UncertaintyThe discussion in subsection A 1 above goes to the question whether theodds of future legal change are generally "knowable" by a fully informed,rational investor, such that the possibility of legal change would be"correctly" factored in to the ex ante decision to invest. There is a secondproblem as well in defending strong ex anteism in this context: whetherthe typical investor acts as a rational investor would act with respect towhatever information is knowable. A very substantial empirical literaturehas emerged in psychology and behavioral economics over the pasttwenty years, detailing the ways in which people actually make decisionsin the face of risk or uncertainty. The basic, persistent, findings are thatpeople systematically violate the two core assumptions of classicaleconomic theory about decision-making under uncertainty: that the utihty of

each outcome will be weighted by the probability of its occurrence(expected utility theory); and that decision-makers will exhibit riskaversion across the range of possible outcomes.Among the key findings relevant for present purposes are the following.First, contrary to the fundamental assumption of expected utility analysis,

40. In the law and economics literature, this problem has been raised in the contextof torts in the (admittedly analytically non-rigorous) distinction drawn between "activitylevel" and "care level." See Steven Shavell, Strict Liability Versus Negligence, 9 J. LEG.STUD. 1 (1980). The general view is that, with respect to the private costs and benefits ofa given risky activity, a strict liability rule (analogous to a no-compensation result in thetransitions context) is efficient, for the conventional reason that it automatically forcesthe internalization of (private) costs and benefits. Id. at 2-4. But this, of course, doesnot take account of costs and benefits externalized onto others, which-if accountedfor-might well produce a different "optimal" activity level.41. Vallentyne, supra note 15, at 533-36; Dworkin, supra note 13, at 293-96.RAKOWSKi, supra note 15 , at 79-80, suggests that we make an exception from the hardline exante position only for losses that result from "whatever risk was a necessary concomitantto the ownership of property essential to live a moderately satisfying life in a givensociety." That rather minimal concession leaves virtually all the risks that people routinelyface each day in the category of option luck. For critical discussions of the problems that"reasonable avoidability" poses for luck egalitarianism, see Anderson, supra note 24, at295-302; Otsuka, supranote 15 , at 46 , 53-54; Lippert-Rasmussen, supranote 20, at 552-57.



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people evaluate outcomes not in terms of the final states of wealth orwelfare, but in terms of gains and losses relative to some neutral referencepoint, generally the status quo ante (the so-called "endowment effect").42Second, people overweight certainty on both the gain and loss side,relative to other changes of probabilities moving towards certainty (the"certainty" effect). Thus, people place much greater (negative) weighton moving from a (say) .95 likelihood of loss to a 1.0 certainty of it thanmoving from a .90 probability of loss to a .95 probability; the same effect ispresent, in reverse, on the gain side.43 Third, people tend to underweighthigh probability events. Fourth, in dealing with very low probability events,people exhibit two contrary impulses: to ignore such events entirely (editthem out); but, if the events survive editing, to overweight them." Theconsequence of the last phenomenon, as Kahneman and Tversky note, isthat the function describing the weights people attach to possible outcomes"is not well-behaved near the endpoints," since "very small probabilitiescan be either greatly overweighted or neglected altogether."45 Fifth, tothe extent the tendency to overweight low probability events dominatespeople's assessment, that tendency, when combined with the tendency tounderweight high probability events, makes people "relatively insensitive toprobability differences in the middle of the range." 6 Sixth, people'sintuitive probability judgments are often inconsistent with (known) objectiveprobabilities, and systematically vary with the descriptions given aparticular event. Thus, for example, when a described risk is unpacked intoits component parts (e.g., homicide into homicide by acquaintance andhomicide by stranger), the disjunction increases its assessed probability.47

42. Daniel Kahneman & Amos Tversky, ProspectTheory: An Analysis ofDecisionUnderRisk, in CHOICES, VALUES AND FRAMES, supra note 35, at 17 [hereinafter ProspectTheory].

43. See Daniel Kahneman & Amos Tversky, Choices, Values, and Frames, inCHOICES, VALUES, AND FRAMES, supra note 35, at 7-8 [hereinafter Choices, Values andFrames]; Amos Tversky & Daniel Kahneman, Advances in Prospect Theory: CumulativeRepresentationsof Uncertainty, in CHOICES, VALUES, AND FRAMES, supra note 35, at 44,60 , 64 [hereinafter Advances in ProspectTheory]. This underweighting of moderate andhigh probabilities relative to sure things contributes to risk aversion in gains by reducingthe attractiveness of positive gambles, and to risk-seeking in losses by attenuating theaversiveness of negative gambles. Id.44. Kahneman & Tversky, ProspectTheory, supra note 42, at 37 ; Tversky &Kahneman, Advances in ProspectTheory, supra note 43, at 60 .45. Tversky & Kahneman, Advances in ProspectTheory, supra note 43, at 50.

46. Id. at 60.47. Craig R. Fox & Amos Tversky, A Belief-Based Account of Decision under



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Many of the foregoing findings were first developed in assessingpeople's decision-making in the context of risk (that is, facing knownprobabilities). But more recent work suggests that these violations ofexpected utility theory carry over to decision-making under uncertainty,or (at the extreme) in complete ignorance of probabilities, and indeedmay be more pronounced in the latter cases than the former. 8Many of these findings have obvious relevance to the sorts of risks atissue in the transition context, as many of those risks are-at least at thetime of initial financial commitment-low probability events, susceptible tocontrary tendencies (to ignore entirely or to overweight). Many aresusceptible to unpacking in a variety of ways that would give rise to verydifferent aggregate estimates of probabilities.What, if anything, do all of these findings imply for the strong versionof ex anteism? Again, it seems clear that they undercut the straightforwardcase fo r an ex ante perspective considerably, at least for the welfarist.All but the first two of these findings suggest not only a violation ofexpected utility theory, but a violation of any other measure of ex anterationality as well. I.e., people persistently misassess the objective, exante state of the world in a fashion that causes them to choose badly,whatever they are trying to maximize ex ante. The implications forcompensation policy, however, are less clear. That there is a lot of"noise" in the way that people calculate the probabilities of uncertainoutcomes, relative to the objective state of the world, does not rule outthe possibility of systematic error that can be a useful basis for policyprescription. Just to note one possibility: If it turned out that individualssystematically under- (over-) predicted the likelihood of future governmentbailouts based on past government bailouts, it would lower (raise) theincentive costs of any compensation plan concomitantly.Other findings are more complicated to interpret. I have in mind herethe first finding (endowment effect) and second finding (overweightingthe movement to certainty over other numerically equal changes inprobability). It seems possible to construct a coherent, "rational" viewof ex ante preferences that would explain each of these effects inpsychological terms. Thus, in the case of the endowment effect, it maybe that the prospect of keeping what we already have just does give usmore pleasure than obtaining what we don't. In the case of the certaintyeffect, it may be that contemplating the mere possibility, however small,of losing a benefit we hoped to get (or escaping a loss we hope to avoid)

Uncertainty, in CHOICES, VALUES, AND FRAMES, supranote 35, at 118, 122.48. Amos Tversky & Craig R. Fox, Weighing Risk and Uncertainty, in CHOICES,VALUES, AND FRAMES, supra note 35, at 93, 116; Amos Tversky & Peter Wakker, RiskAttitudes and DecisionWeights, 63 ECONOMETRICA 1255, 1269-74 (1995).



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itself gives rise to disutility (utility) independent of the expected valuesof the outcomes. The problem comes in both cases in moving from exante to ex post. In the case of the certainty effect, whatever utility wegained (lost) from ex ante certainty about the outcome by definitionmust disappear ex post, since whatever the outcome, it is now certain,and its value relative to other outcomes must therefore reside insomething other than its relative probability of occurring.49 In the case ofthe endowment effect, the implications are less clear. One could imaginethat the preference for the status quo built into the endowment effectpersists ex post- that people continue to value holding on to what theyonce had, just because they once had it, more than they value gettingwhat they never before had. But it is equally possible that the endowmenteffect created by past wealth tails off over time, as people adjust theirbaseline to whatever is their (new) status quo. There is at least someempirical evidence to support the latter view."0 Of course, it is alwayspossible that the perfectly rational actor takes all of this into account exante, aggregating the very different values her ex ante and ex post selvesattach to the same outcomes, with each set of preferences weightedappropriately to account for their duration, etc., and then reaching adecision that (ex ante) maximizes her aggregate utility over time. But itseems more likely that the typical ex ante chooser is systematicallymisconstruing and/or underweighting the preferences of her ex post self.

4. The Problem of PastSelves Binding FutureSelvesThe foregoing poses one example of a larger problem with ex anteism:

the extent to which ex ante choosers can be trusted to look out for thewelfare of their future selves that will be bound by their choices. Thediscussion above suggests reasons for particular distrust in cases ofdecision-making under uncertainty. Many of those reasons apply whateverthe time horizon between ex ante choice and ex post outcome. (They

49. To put the point another way, many people's risk aversion probably reflects (atleast) two things: the declining marginal utility of income, which leads them to deriveless utility ex post from a given increase in wealth than they lose from an equal-dollardecline in wealth; and their psychological distaste for uncertainty. Standard expectedutility theory attends only to the former. To the (possibly) considerable extent that thelatter is operating as well, its hedonic consequences-unlike the utility consequences ofthe declining marginal utility of wealth-disappear ex post.50. For a review of the relevant literature, see Shane Frederick & George Loewenstein,Hedonic Adaptation, in WELL-BEING: THE FOUNDATIONS OF HEDONIC PSYCHOLOGY,302-29 (Daniel Kahneman, Ed Diener & Norbert Schwarz eds., 1999).



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might well apply, for example, to gambles with instantaneous payoffs).Where there is a significant time lag between ex ante choice and ex postconsequences, ex anteism poses other problems as well, arising from thefact that the person who must bear the consequences of a long agochoice may well have chosen differently-not just ex post, but ex ante aswell-because he or she is a very different person from that long agochooser. Again, this may not be a serious problem for our gambler inthe casino-whatever irrationalities may be entailed in the ex antechoice to gamble, the almost instantaneous nature of the payoff meansthat the consequences will be borne by essentially the same person whomakes the choice.5" In many other cases of risky choices, that will not betrue. Bert I, many years post accident, might make that helmet decisionvery differently-not merely because it came out badly, but because,being older and wiser, he understands better what risks he was courtingex ante, and being the one who is actually bearing the bad outcome,would weight its disutility quite differently.Faced with that possibility, luck egalitarians have taken a very harsh,unforgiving, position.52 As Marc Fleurbaey puts it, "the decisions youmake now may condemn you fo r the rest of your life."53 From themoralistic perspective of luck egalitarian, this harshness seems somewhatproblematic. Regret is ubiquitous, and not merely because it is cheap. Itis ubiquitous, because experience-the ex post-often teaches peoplesomething they didn't know, ex ante, about themselves, about how theywould experience the bad consequences of a risky choice, even maybeabout the ex ante probabilities of that bad outcome. One need not takean extreme view of the temporally divided self to be troubled by afailure to show any mercy to our future selves that must bear theconsequences of past foolishness. Luck egalitarian types recognize the51 . Then again, maybe not. Even the person who lost the final, huge, double-or-

nothing be t in Monte Carlo may be wiser (if not appreciably older) than the person whomade the bet one minute before-wiser, not simply because he knows now that he lost,but also because he knows now something he didn't know ex ante about how he wouldactually experience the severity of a total loss, and about the irrationality of his ex antebelief that luck would shield him from the 50 percent chance of losing.52. See, e.g., Dworkin, supra note 13, at 306; see generally RAKOWSKI, supra note15. Dworkin relents a bit at the end, suggesting that there may be room to accommodate"radical changes in people's minds about how they want to spend their lives," includingthe profligate "who has wasted his initial endowment and now finds himself with lessthan he needs to provide even for the basic needs in later life." Dworkin, supranote 13,at 334. If that exception extends only to some minimal safety net for the destitute whohave becomes so by their ow n poor choices, it is possible that the exception won'tswallow the rule of ex ante (equal opportunity) egalitarianism. If it extends muchfurther, I don't think the rule survives in any meaningful fashion.53. Fleurbaey, EqualOpportunity,supra note 16, at 41.



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need to exempt adults from the consequences of their juvenile actions onthese grounds." But, unless one believes there is (as Fleurbaey skepticallyputs it) a "mysterious 'canonical' moment which separates childhood(nonresponsibility) from adulthood (age of responsibility),"55 the problemhas more sweeping implications for luck egalitarianism than can beaccommodated simply by delaying the onset of ex ante justice until theage of majority. It suggests, at a minimum, that moral responsibility forpast actions must be systematically diluted over time in some fashion.56In welfarist terms, the split between the interests and preferences ofpast and future selves reduces to the problems of myopia and changingpreferences. In theory, again, both concerns can be accommodated in awelfarist framework, which would count the welfare of future selvesequally with the welfare of current and past selves. But the manner inwhich those problems would be accommodated-by acknowledging thatmost preferences change over time, and that past selves systematicallymispredict and underweight the preferences of future selves-significantlyundercuts the faith one would have in ex ante choice as the means tooptimize (ex post) welfare over time.

54. Arneson, Liberalism, supranote 15, at 179.55. Fleurbaey, EqualOpportunity, supra note 16, at 42 (commenting on Arneson).56. As Fleurbaey notes, some general principles of mercy along these lines arereflected in various legal doctrines like statutes of limitations, laches, and the law'swillingness to reduce criminal penalties in light of "sincere conversions" or contritionafter the fact. Id. at 42 n. 16. Fleurbaey's own (admittedly nonoperationalizable) proposedsolution is to say that people are stuck with the consequences of their past choices only ifthey would make them again were they to go back in time, knowing what they nowknow (presumably no t including the mere fact that they lost the bet). Id. at 42.

I am focusing on the limitations of a strict ex ante perspective here, bu t it is worthnoting the mirror image problems posed by a strict ex post perspective. In answeringFleurbaey's hypothetical question-what would I have chosen in the past, knowing whatI know now (not including the mere fact that the bet was a losing one)?-our futureselves are liable to discount the benefits (probabilistic and actual) to our past selves fromthe decision actually made. How many smokers, dying of lung cancer, say, "A lifetimeof smoking pleasure was worth this early death?" If, as s

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