Response or Comment
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In the course of preparing the Cooley lectures for the University of Michigan I had occasion to read your exchange with Dick Posner which clustered around the Cornell-Chicago conference of this April and May and which, I take it, will be the basis of both your and his contributions to the Hofstra Law Review symposium. Despite the perhaps unnecessarily provocative language in your first article, language which I fear will lead some to misunderstand the piece to mean that efficiency in the production of wealth is irrelevant to a "just" society, I found myself substantially in agreement with it. If I may oversimplify your fuller and more complex discussion, it seems to me that you make two points that are hard to challenge. (Indeed, I think I may have made them myself from time to time, though certainly not as systematically.):
(1) That without starting points—whether termed rights, entitlements, bodily security, or what have you—it is hard to give any meaning to the term "an increase in wealth." What is viewed as wealth, at the very least, must depend on the desires of individuals. Since these desires in turn depend on the characteristics of individuals, one must, at a minimum, justify in terms other than wealth maximization why a person "owns," rather than just possesses, the characteristics that give rise to his or her desires. In a way, this is merely a more general way of stating that my superior intelligence, my ability to hit a baseball as well as Rod Carew, or my possession of two good kidneys will affect my wants differently depending upon whether kidneys, intelligence, or batting skill belong to society, to those who wish or need to use them, or to me.
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