Six Sentence Refutation of John Rawls

Advice for Law Professor Hiring Candidates (a.k.a. Guts and Throwup)

Here at UCLA., we're heading in the teeth of the academic appointments season with 8 candidate call backs in the next month. I think we've got some great candidates, but the prospect does prompt me to offer them and all the other law professor candidates that'll be doing faculty presentations in the next month or so:

In Family Man, Calvin Trillin describes the evocative phrase coined by one of his daughters to describe some of the odder corners of cuisine: "guts and throwup." I've often been tempted to apply that phrase to some prominent favorites of my fellow law professors; e.g., John Rawls. Why? Because I often feel that if I have to listen to one more candidate presentation by one more 20-something academic wannabe describing how s/he has solved some Rawlsian puzzle, I will throw up my guts.

As always, if you want a legal academic job done right, you ask a corporate law scholar. My friend Bill Carney, for example, once published a brilliant essay (unfortunately, I have been unable to find it on the internet), in which he dissected the whole Rawlsian enterprise in a mere six sentences:

John Rawls and his followers argue that risk averse individuals operating from behind a veil of ignorance would choose a society, under a social compact, that contained some kind of social safety net. [FN25] That safety net, of course, protects both innocent unfortunates and those who have brought their misfortunes on themselves. This fact is rarely mentioned in pleas for more of a safety net. It is, as two scholars said, as if all persons with poverty level incomes suddenly woke up in this circumstance and said "woe is me." [FN26] This is a view of a world without fault, where no one is responsible for his or her own actions or inactions. Robert Nozick, in response to Rawls's work, has demonstrated the slippery slope that this creates, where others can claim increasing duties from each of us, until we return to a state of modern slavery similar to that known in the Soviet Union, where the rhetoric was about substantive equality. [FN27]

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[FN25]. John Rawls, A Theory of Justice (1971). The underlying assumption is that need is perfectly correlated with no fault on the part of the needy and that the needy bear no responsibility for their condition.

[FN26]. Frank H. Easterbrook & Daniel R. Fischel, The Corporate Contract, 89 Colum. L. Rev. 1416, 1419 (1989), expressed this problem in the context of corporate law:

Suppose the world is static. Everyone awakes one morning to find himself a manager or an investor. The veil of ignorance is suddenly parted. The manager exalts: "Aha! No one can stop me!" The investors gasp: "Woe is me, I'm powerless." This is the natural view of one who draws a line at a moment in time without asking how the world came to be as it is.

[FN27]. Robert Nozick, Anarchy, State and Utopia 290-92 (1974).