What fairness-and-denial research could have told the Florida Supreme Court (and can tell the rest of us).

• Author: Zajac, Edward E.

Peron brought us social justice--and ruined the country.

--Remark of an Argentine tourist guide, Buenos Aires, 1996

On November 21, 2000, the Florida Supreme Court ordered the resumption of manual vote recounts in selected Florida counties, overruling the Florida secretary of state and a lower court, and triggering one of the bitterest debates in recent U.S. history. At stake was whether Al Gore or George W. Bush had won Florida's presidential election and thereby the U.S. presidency.

National cable news stations featured contending experts analyzing the Florida court's action and its aftermath around the clock. Both the Bush and the Gore advocates followed a basic unfairness/denial strategy: (1) use the same evidence and arguments repeatedly to accuse the other side of unfair tactics, and (2) deny the validity of the other side's arguments or simply ignore them.

To those familiar with fairness-and-denial research results, the aftermath of the Florida Supreme Court's action came as no surprise. It was, in fact, typical of non-market situations in which the stakes are sufficiently high. For example, government policy on who gets an organ transplant has passed through cycles of similarly bitter debates: the policy seems set in stone, only to be attacked by a group alleging that its members are being treated unfairly; the policy is then changed and is seemingly fixed for good--until the next cycle. Likewise, immigration policy has passed through similar cycles. (1) Many other examples might be cited. Most of these situations, however, affect only a small fraction of the population, so they do not capture the attention of the entire nation, and the phenomenon's predictability is not appreciated.

Research on fairness and denial makes clear the reasons for the predictability. Here, I am not referring to prescriptive writings about how we ought to act. Instead, I refer to descriptive and analytic research that attempts to determine how humans actually do act when faced with a fairness decision. In the jargon currently fashionable in the social sciences, this research focuses on developing positive rather than normative fairness theories and on the empirical studies to undergird them. (2)

As I spell out in more detail below, this research shows that what we consider to be "fair" is both complex and opaque. We do not really understand fairness. Yet, paradoxically, we have no problem recognizing "unfair" behavior when we see it. Also, to a large extent, context and the institutional setting determine what is regarded as "fair." "Fair behavior" in one institution is not necessarily considered to be fair in another.

In addition, we tend to suppress that which does not accord with our self-interest. Usually, the need for stable institutions keeps this tendency in check and subdues the use of fairness claims as a strategic weapon to gain self-interest. When the stakes are high enough, however, self-interested forces can come to the fore and give rise to fairness strategizing.

Family members may always sit in the same places at the dinner table. Suzie concludes that her parents are favoring her brother Johnny, and, consciously or unconsciously, she decides to test them. One day Johnny comes to dinner only to find Suzie sitting in "his" spot. He demands that Suzie move. A terrific row breaks out, with both Johnny and Suzie each yelling that the other is "unfairly" demanding the now-privileged spot and with Suzie tearfully accusing her parents of favoring Johnny.

In political disputes, interest groups playing Suzie's role engage in what might be called a fairness game. Contestants--mainly politicians and interest groups--trot out their best unfairness attacks and jockey for the most advantageous institutional setting. Their goal is to gain voter support by demonstrating that they, or others, have been treated unfairly. Players who think that fairness (social justice, equality, equity) is self-evident and requires no delineation can go down to humiliating defeats by opponents more skilled in the use of unfairness/denial weapons. Indeed, skilled players have often taken over entire nations by using the same demagogic technique: convince your followers that they have been treated unfairly. They will soon shut out any arguments to the contrary and will follow you enthusiastically as you lead them to the promised land of "social justice" and your dictatorship.

The unfairness/denial phenomenon and accompanying fairness tactics are not confined to politics. They have become more and more common in our court system, as Lawrence Friedman has described in his book Total Justice ([1985] 1994). He attributes toleration of such tactics to the courts' bowing to the popular will. In effect, he argues that supply and demand are at work: there is a demand for courts to rectify "unfairnesses" or "injustices"--as he puts it, to institute "total justice'--and the courts have found that their own interests are served by responding to that demand. In the presidential imbroglio, the Florida Supreme Court, already famous for its "judicial activism," just did what it was used to doing, in complete confidence that it was acting with the highest and purest of motives.

The Structure of Fairness/Unfairness

In my experience, the public's view of fairness seems to vacillate between "fairness is arbitrary--it's in the eye of the beholder" and "what is fair is obvious." These views are not as contradictory as they might seem.

Most of us have little knowledge of the complex biological, physiological, and anatomical elements of the human body and how they all interact to allow us to function. Still, we generally know when we are sick. Similarly, if we happen to look under the hood of our car, we are shocked to see the jumble of wires and tubing. How they cause the car to respond to our commands to go forward or backward or to turn is a mystery. Yet we know when the car won't start or when it makes strange noises.

In general, we know little in detail about most things. As economists routinely teach in their courses, this prevailing ignorance is to be expected. To learn about something requires spending that most precious resource, our time. We spend it only if the expected benefits exceed the cost. In the current economic jargon, we remain "rationally ignorant" of most things, and we become "rationally knowledgeable" about only a few things--those that pass our individual benefit/cost test. Luckily, for many things, such as our body or our car, warning systems indicate when we should seek expert help or prepare to battle for our interests.

Similarly, we go through life interacting with others according to fairness norms to which we give no thought. Like the structure and rules that regulate our bodies or our automobiles, the structure and rules of fairness are complex. Moreover, they are subject to manipulation. Although we are "rationally ignorant" of their detailed structure, we have a warning system; we know when we have been treated unfairly--when we have been "screwed," "shafted," "taken to the cleaners," and so forth.

Rational ignorance of the fairness structure results in the common view that fairness is completely arbitrary, but it isn't. I cannot assign my students their course grades based on the color of the shirts they wore on the first day of class, nor can faculty salaries be based on a faculty member's grandmother's maiden name. Students or faculty would revolt. Likewise, because a warning system quickly alerts us that we are being treated unfairly, we perceive that "what is fair is obvious."

Research on discovering and organizing the structure of fairness and its rules began approximately four decades ago. Psychologists pioneered the research. Economists, sociologists, philosophers, and political scientists have joined them. The main research tools have been surveys, case studies, and laboratory experiments using human subjects.

Much remains to be done. Nonetheless, the outlines of the structure of fairness seem clear. Here is a brief summary. (3)

Genetic Roots and Reciprocation

In his book Influence: The Psychology of Persuasion, Robert Cialdini ([1984] 1993) describes an experiment in which a university professor colleague sent Christmas cards to a sample of perfect strangers. A high proportion of the strangers reciprocated by sending Christmas cards to him even though they had never met or heard of him. Reciprocation, both positive and negative, seems to be a common practice.

Recent research indicates that reciprocation, like the ability to learn a language, may be hardwired into our brains, the evolutionary result of millennia of survival of the human species (for a summary of the recent research on reciprocation in evolutionary biology and psychology, see V. Smith 1998).

Whatever its origins, reciprocation has given rise to much moral theorizing. Witness the Golden Rule and its counterpart in most major religions. Our hardwired need and ability to reciprocate seems to have evolved into a complex set of fairness norms that govern human behavior. Still, little is known about how we got from the genetic roots to where we are today, why and how societies have evolved fairness norms, and why we have a warning system that alerts us to unfair treatment.

The Formal Principle of Distributive Justice, Material Principles

Suppose you and I stumble across four $100 bills lying on the sidewalk. How would we divide them? Probably equally, $200 for you and $200 for me. On the other hand, suppose we jointly make something and sell it for $400, but I put in three hours of work to make it, and you put in only one hour. In this case, we would probably divide the $400 in proportion to our respective work efforts, $300 for me and $100 for you. Finally, suppose we are given a frosted cake, but you have a disease that requires you to consume three times as much sugar as a normal person, whereas I have normal dietary requirements. I might readily...