Anti-preferences

Theoretical Inquiries in Law 22 (2):299-328 (2021)

Abstract

This Article offers a critical evaluation of preference satisfaction as a frame for normative thinking. It begins with an internal critique of the way preferences work in normative economics, distinguishing among three elements: welfare; preferences; and choices. For preference satisfaction to work well, it must be able to bridge two gaps, one between choice and preferences, and another between preferences and welfare. In contexts where both those gaps are bridged, preference satisfaction offers a workable normative framework; where at least one of those gaps is unbridgeable, the framework should be treated with extreme caution if not jettisoned altogether. The Article then goes on to pursue an external critique, by asking what price we pay for using the preference satisfaction framework when it appears to perform well. The point of the critique is that even when preference satisfaction provides a good normative framework on its own terms, the framework obscures considerations that should not be ignored. By pursuing one concrete example, the Article shows how broad considerations regarding the implications of the regime of wage labor are absent from legal contemplation when labor law is imagined and shaped through the lens of preference satisfaction. The Article concludes with a speculation about how different theories of welfare might be employed in concert, rather than as alternatives. It suggests that a pluralism of theory is a way to expose the political stakes in the kinds of policy discussion where preference satisfaction is often a dominant way of thinking.

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