Gaus’ paper argues that social coordination is legitimate only if it satisfies the following two requirements: (a) there should be no Pareto-superior outcomes, and (b) “the authority of law derives from its role in improving everyone’s lot” (p. 9, Gaus’ emphasis). The former requirement may be thought to warrant legal activism whenever this leads to Pareto optimal equilibria. But this inference would be a mistake, since the costs of moving to one such equilibrium may be greater than the benefits accruing from being in it.  

Universidad Torcuato Di Tella