Law & Society Blog Now in Maintenance Mode

Published on May 6, 2007 in Admin. Closed

The last couple of months have been extremely busy, at work (lots of great cases), at home, and academically (in the middle of a challenging article and preparing for a fall semester antitrust course). As a result, I have not been able to keep up with my regular posting schedule on the Law & Society Blog, which is now officially in maintenance mode. That is, don’t expect any new posts anytime soon. Whatever blogging I will be able to fit in will appear on the Antitrust Review. Maybe I will transition the existing content of this website to Mambo to make it more easily accessible.

In any event, many thanks to our readers and to Ben Nelson, Brian Berkey, and Manfred Gabriel and to all of you who left thoughtful and engaging comments. It was fun, and I’m sure we’ll meet again.

[tags]goodbye, and thanks for all the fish[/tags]

From the Archives: Note on the Supreme Court’s Decision in Rasul v. Bush

Published on June 29, 2004 in Law and Society. Closed

The Supreme Court’s decision in Rasul v. Bush, No.03-334 establishes that foreign nationals, captured and detained outside the U.S., may challenge the lawfulness of their detention by writ of habeas corpus in U.S. federal courts. There are two complementary legal bases for habeas corpus petitions, one is constitutional, (article I, section 9, clause 2) the other is based on the federal habeas corpus statute (28 U.S.C. ¨? 2241). In Rasul, Justice Stevens, writing for the Court, focuses on the statutory writ under ¨? 2241. The constitutional writ is the focus of Justice Kennedy’s concurring opinion.

Section ¨? 2241 provides in relevant part that “[w]rits of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions.ǃ? 28 U.S.C. ¨? 2241(a) (Emphasis added.) The issue is whether any district court has jurisdiction over individuals detained outside the U.S. In this context, the Supreme Court had to deal with three prior decisions: Ahrens v. Clark, 355 U.S. 188 (1948), Johnson v. Eisentrager, 339 U.S. 763 (1950), and Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1972).

Ahrens clarified that “within their respective jurisdictionsǃ? meant “within the territorial restrictions of those courts.ǃ? (Ahrens, at 190. Emphasis added.). That, by itself, is neither surprising nor particularly limiting, because the writ of habeas corpus is not addressed to the detainee but rather to the jailer or the officer who exercises control over the jailer. However, the Court further held that “[i]t is not sufficient … that the jailer or custodian alone be found in the jurisdiction.ǃ? (Id., at 190. Emphasis added.). If the detainee is within the territorial jurisdiction of any district court, that rule merely requires him or her to bring the writ in that court. (In Ahrens, the detainees were held in Ellis Island. Instead of bringing their action in the Eastern District of New York, they petitioned the district court in the District of Columbia.) However, if the detainee is beyond the territorial reach of any district court, as is the case with the detainees in Guantanamo, Cuba, the Ahrens rule of convenience effectively bars the detainee from exercising the writ of habeas corpus entirely. (The dissenters in Ahrens clearly foresaw and articulated that problem.) Thus, in Rasul, the Supreme Court had to find a way around Ahrens in order to make the statutory writ under ¨? 2241 accessible to the detainees. The Court took the position that Ahrens had been overruled by Braden in 1973. In Braden, the Court held “that the [detainees'] absence from the district court does not present a jurisdictional obstacle to the consideration of the claim,ǃ? (Braden, at 498) which meant that ¨? 2241 (once again) applied to cases where the jailer alone is within the territorial reach of a district court. Consequently, Rasul had a simple statutory solution: “Petitioners contend that they are being held in federal custody in violation of the laws of the United States. No party questions the District Court’s jurisdiction over petitioners’ custodians. Section 2241, by its terms, requires nothing more.ǃ? (Rasul, at 15).

What about Eisentrager? The Court explained that Eisentrager, the seemingly restrictive precedent on which the government relied, only addressed the scope of the constitutional habeas provision but did not speak to the jurisdictional reach of ¨? 2241. That explanation makes sense, because just two years before Eisentrager was decided in 1950, the application of the federal habeas corpus statute had already been severely restricted by Ahrens. Thus, absent a viable statutory basis for their habeas petition, the detainees in Eisentrager had to focus on the constitutional protections and the Court only spoke as to those. In his concurring opinion, Justice Kennedy focuses on the constitutional habeas provision and concludes that Eisentrager does not bar the Guantanamo detainees from access to the U.S. courts. For his argument, he relies on the Eisentrager framework, which sets out a sliding scale of constitutional protection for individuals depending on their connection to the U.S. Among the relevant criteria are citizenship, physical presence in the U.S. (or in territories controlled by the U.S. such as Guantanamo), and attitude towards the U.S. (friend or foe). In addition, factors of military exigency may be considered. On the basis of these factors, Kennedy concludes that the writ of habeas corpus is available to the Guantanamo detainees: they are on U.S. controlled territory, their status as friend or foe has not been determined (because they have been deprived of any legal proceedings), and after two years there is no credible claim of military exigency.

From a theoretical point of view, Kennedy’s concurring opinion is particularly interesting, because he acknowledges that “there is a realm of political authority over military affairs where the judicial power may not enter.ǃ? (Id., at 3). However, as the decision in Rasul confirms, it is the law itself that determines the realm where the judicial power may not enter. The legal system is autonomous in defining its own boundaries. Relying on the (constitutional and therefore legal) concept of separation of powers, the law acknowledges prerogatives of executive power. However, no subject matter and no executive conduct is per se beyond the reach of the law. Unchecked executive powers exist because of a (sometimes prudent) self-limitation of the legal system, but any such limitation may be revoked. In Rasul, the Supreme Court did just that.

So blame the joke

Published on April 22, 2007 in Culture and Philosophy. Closed

So recently my alma mater’s student paper, The Gazette, published their annual spoof issue. One satirical article, titled “Labia Majora Carnage”, included a mock-scene which involved the rape of a local feminist-activist by the chief of police. Many readers interpreted the passage to be trivializing rape, if not promoting it. It caught a lot of flak from students, alumni, and staff, and drew national media attention.

The editors wrote two follow-ups. The first dismissed the outrage with hoots and catcalls. When it became obvious that the condemnations would not subside (”What?! Rape isn’t teh funney??!!”), they wrote another follow-up which expressed something sort of like regret. They claimed that they were attempting to satirize feminist stereotypes, not feminists, and certainly not rape. Rushing to the defence of the Gazette were those who felt that the article was just a joke, and ought to be treated as such; and, failing that, those who try to fudge interpretations at the edge of plausibility (i.e., “that wasn’t rape”, or “they were obviously misunderstood”). Many have suggested that too much condemnation is overkill, and will strangle free speech and perhaps even ruin the career prospects of those involved.

However, the “trivialization” interpretation gained enough political momentum to earn strong words of condemnation from the University’s president, Paul Davenport, and from the London chief-of-police. They are now setting up review-boards, which (some worry) would PC-ify the paper.

I’ve read the thing a number of times. And for what it’s worth, I also condemn the article, despite the fact that I know (and like) many of the people who work at the Gazette. The article was, at best, poorly written; at worst, an attack peice against an activist and vocal critic of the Gazette, and — yes — a trivialization of rape.

One gets the sense that the satirists — some of them English majors — don’t “get” that the target of a satire needs to be clear in order for it to be an effective peice of writing. (For scorchingly effective satire, see the English spoof of journalism, Brasseye.) But the article wasn’t clearly attacking stereotypes: actually, quite the opposite. No matter how much context you inject into your reading of the article, it only comes off as a hit peice on specific people. And when professed intentions don’t match up with the content of some peice, you can only roll your eyes and give up wasting any more time trying to understand who meant what: it’s a mug’s game. (If I wanted to waste my time, I’d go and try to beat the underwater level of Nintendo’s Teenage Mutant Ninja Turtles. I don’t need help in this department.)

As far as I’m concerned, the moral status of the article is obvious. It sucks. The writer sucks. The paper sucks. Suck, suck, suck. The only pressing question is, “What level of response is appropriate?”. The answer to the question, whatever it may be, is abstract enough that it might be able to apply to greater issues, and go beyond this particular situation — be it to Imus in the morning, or to contemporary American political discourse.

As it happens, I have come to certain conclusions. It seems to me that a reasonable person, once they have reflected upon certain issues, must arrive at the following:

It has only been seven years, but already I am sick of the twenty-first century.

Let me explain by reviewing the people involved, and try to apply Kohlberg’s developmental model of moral reasoning.

Western is known as a “party-school”, yet it also has a collegial sort of atmosphere. That’s sort of why I went there. Socially, I’m a block of ice, and it’s nice to be around nice people. If it were the kind of school where rules tied down any kind of dissent or free-thinking, I would have gone elsewhere. Advocates of political correctness, to the extent that they drown us in rules that are well-meaning but mostly inane, create a sense of fatalism and moral anxiety that turn off brains. Still, Lawrence Kohlberg’s account of moral reasoning would peg such persons at Stage Three. The stage three moralist is someone who follows the Golden Rule to the letter, whose overriding maxim is to be nice, to behave in a good way.

That having been said, it is also a university with a right-wing underculture — usually not close enough to the surface to be noticed. But one venue where this underculture has sprung up over the years, quite noticeably, was in the Gazette. The long line of editors-in-chief have been at the outermost edge of sanity, with as much moral sensibility as Pat Robertson or Trey Parker. Whenever a joke is challenged for being morally sociopathic, these people cry out “free speech”. Some of them try to defend a vulgarized moral deontology, claiming that the content of speech is (or ought to be) immune from any kind of moral condemnation. This lunatic fringe, on Kohlberg’s scale, would be stage two. The stage two moralist views morality in terms of warring tribes who are out to pursue their own ends. For them, any overriding notions of improving the wellbeing of persons, etc., is morally piffle.

Stage four is a system-level perspective. It is, perhaps, the closest thing to utilitarianism that you will find in Kohlberg’s theory. (As it happens, it is also the last stage of the theory that has any empirical bones to it.) But there is a dearth of stage four voices in the discussion. And when they do show up, they are given the John Kerry treatment: nuanced and measured argument is regarded as a flip-floppy bag of comprimises. To the usual suspects, the stage-four moralist is like a cat stuck in Schrodinger’s box: unpredictable, on-again, off-again.

This, I think, is unfortunate. For the question becomes, “How can a joke be condemned?”. From a system-level view, it is at least clear what the bad answers are.

The appeal to free speech is a irrelevant so long as you’re dealing with the relationship between people with people, and not talking about institutions. Independent moral voices condemn jokes all the time for crossing the line. And it’s expected. Hell, that’s what gives the jokes an edge in the first place: most humor is about failure, mistakes, errors. (Even regardless of the norm, even if you come from the “nothing is sacred” school of comedy — the kind that says, “hey, if I want to use rape/the Holocaust/incest/etc. as a punchline in my joke, then that’s okay” — well, that’s one thing. Another thing is actually making victims of rape/Holocaust/incest/etc. the target. One is morally ambiguous, and the other is clearly wrong. And it doesn’t take much effort on behalf of chuckleheads to admit it.)

I mean, there are surely levels of blameworthiness, where each level involves punishments that are more severe than the last. A person may be accountable on some levels and not on others. Restriction upon freedom of speech, at least as it is typically used and morally salient, deals with restrictions upon free agents by political institution(s). Those among us with a feeling for non-arbitrariness may widen the “protected speech” net to include consideration of restrictions by social and economic institutions. The political restriction of free speech (or lack of intervention in favor of free speech by an institution) seems to be more blameworthy than the restriction by social institutions: it demands severe consequences when that trust is violated. However, social institutions are still blameworthy to some degree — in this case, the Gazette. But crucially, you have to care about the difference between social and political institutions in order to be able to appreciate that something really can be condemned, and how we have the moral room to react, and to appreciate that there are limits to the amount of blame you can make before you become tiresome. (A political institution is that which is empowered by a certain set of people with a common trust that recognizes the institution’s right to coercion; a social institution is that which is empowered by trust alone.)

This is vital when trying to figure out what the upper limit of condemnation is supposed to be. Political condemnation goes to lengths that social condemnation doesn’t. The paper needs independence. It needs to be student-run. I don’t know whether or not review-boards will help that along, or just obscure the underlying point — it depends on how the suggestion is implemented. I suspect, though, that something like clear and sensible editorial judgment would make it moot. I hope that the demonstration that the editors have once again failed to keep the trust of the people who fund them — and pay them — is at least enough to give them pause. Or maybe next year the whole cycle will just repeat itself. Meh.

So, how much condemnation does this thing deserve? I’d like to see an apology. I’d also like to see the editors to gain a sense of reason, and be willing to think things through a bit more. That would suffice. Anything that moves beyond the fundamental issue, the failure of trust, seems to be excessive.

But so long as the discussion is bogged down by the usual suspects, the Chuckleheads versus the Fatalists, we’re not going to see anything, any genuine moral growth, as a culture, as a species, as an anything. This is my stage-two moment: these are the warring tribes I care about.

Anyway. Instead, I expect that, as per usual, nuance will be sacrificed and replaced with characatures, South Park impressions (lol, rabble, lolomg), censorship and review boards of the Gazette, and (perhaps worst of all), the vague cynicism of people like me who know that everything is going terribly wrong but usually don’t have the words to express why.

Only seven years. And by all indications, this is how it will be for the next 93.

So whatever. I’ll be playing Ninja Turtles if you need me.

Philosophers on YouTube

Published on April 20, 2007 in Philosophy. Closed

Among the many gems on YouTube are rare videos of philosophers. This is the first time that I have seen Adorno, Horkheimer, Heidegger and Husserl!

Vilem Flusser
On communication, part 1, part 2

Juergen Habermas
Interview

Jean Baudrillard
2004 Lecture

Theodor Adorno
Blasting Joan Baez
On humanity

Max Horkeimer
On critical theory

Jean Paul Sartre
About himself, parts 1, 2, 3, 4, 5, 6

Michel Foucault
Discussion with Noam Chomsky, parts 1, 2

Edmund Husserl
Video footage from 1938

Martin Heidegger
How Marx got it wrong
The end of philosophy and the task of thinking

[tags]philosophy, youtube[/tags]

Your Closet’s Scarier Than Bush’s Agenda: Gotta Love NYC

Published on April 15, 2007 in Culture. 1 Comment

Ny

As seen in Chinatown, NYC.
[tags]NYC, advertisement[/tags]

Confessions of a Knut Fan

Published on April 6, 2007 in Culture. 1 Comment

I never quite bought into the penguin craze, but I am a complete sucker for pictures, videos, and articles about polar bear cub Knut. Der Spiegel, a reliable source for all things Knut (if not much else), now has a photo gallery of other animal babies. I know, we usually ponder heavy stuff on this blog, but these little guys just kill with cuteness.

UPDATE: Knut even appears to have antitrust implications. Who would have guessed? (Cough, cough).

[tags]Knut[/tags]

Newsweek Poll: 91% believe in God; 78% believe that God Was Involved in Creating Humans; and, yes, the Year is 2007, not 1507

Published on April 1, 2007 in Culture. Closed

Here’s the latest Newsweek poll. Interestingly, 68% think that one can be a moral person and be an atheist. That’s encouraging.

[tags]religion[/tags]

Westward ho! Moving from New York to San Francisco

Published on April 1, 2007 in Admin. Closed

My apologies for the recent dearth of postings, which (fortunately) is the result of a number of good things having taken over my life more or less completely. Among them, one great case after another (including on the pro bono side ACLU v. Gonzales, even though I hasten to add that I only played a minor role in it), and planning our move from New York to San Francisco. Moving is a strange business. The big things are relatively easy (e.g., actually doing it), but it’s those little, unexpected and utterly unresolvable issues (e.g., no hardware store, Home Depot, or carpenter within a 50 mile radius wanting to touch that one tiny piece of laminate that I need to have cut in a straight line) that make you want to throw up your hands in frustration. Be that as it may, we’re excited about the Bay Area, both professionally and personally. Any suggestions on how to find quality rentals or tips on where to buy a home optimizing for a short (walking distance?) commute to the corner of Montgomery and Sacramento Street are greatly appreciated.

[tags]move, san francisco, new york[/tags]

Comments on Spencer Brown … now in Italian!

Published on March 11, 2007 in Culture. 1 Comment

Fabio Giglietto took the time to translate my comments on Spencer Brown’s Laws of Form into Italian. Thanks! Check out Fabio’s website, which looks very interesting.
[tags]Spencer Brown, Fabio Giglietto[/tags]

Brilliant Animated Video About the Encroaching Surveillance State

Published on March 10, 2007 in Culture. Closed

Check out David Scharf’s brilliant Flash video on YouTube or on his homepage. (HT: BB). Very timely in light of the (altogether unsurprising) revelations about the FBI’s rampant abuse of the National Security Letters. But the problem lies deeper. The ubiquity of privacy invasions (e.g., photographs whenever you enter an office building in New York, what the hell for?) makes such invasions seem normal, expected, and over time appropriate. Every time I’m in line at an airport security theater or see a kid visit a parent in an office building, the kids are the most enthusiastic participants in the security charade. We are sleepwalking into the surveillance state, the British might be leading the pack, but we’re not far behind in the US. Once surveillance has become ubiquitous and the right to privacy has lost its normative bite, free speech will become guarded speech. Anyone interested in a modern day paper based (!) surveillance state should study the last decade of the German Democratic Republic. The Stasi knew pretty much every dirty secret about anyone of any consequence, all in the name of protecting the republic — but somehow they got caught by surprise when the wall came down. So much for the effectiveness of ubiquitous spying. Surveillance won’t make us safer, just less free. Anyone who really wants to blow him- or herself up in a subway train can do so at any time, surveillance or not. Anyone who really wants to bring down an aircraft can do so. The real question is not why there is terror but rather why there isn’t more of it, given that the barriers to committing mass-carnage are so exceedingly low. Real security measures would focus on strengthening the social bonds that keep people from blowing themselves up in a mall, which is, of course, an incredibly tall task and one for which law enforcement — and respect for the law and what it stands for — is of critical importance. Vacuum-cleaner surveillance, however, won’t help.

[tags]privacy, surveillance, Big Brother, Stasi[/tags]

The Market and the Leviathan: Changing Incentives to Bring About Cooperation

Published on February 28, 2007 in Philosophy. 1 Comment

In Hobbes’ state of nature, self-interested robots descend into mutual warfare, because they cannot resolve their resource conflicts by non-violent means. If every robot is programmed to maximize its own welfare, if all goods are rivalrous, and if there is no powerful central authority to change the cost/benefit calculus, then a state of mutual warfare is indeed inevitable. Hobbes solution to the problem of coordination is to introduce the Leviathan, a social construct whose primary job is to impose massive costs on non-cooperators. Hobbes’ solution is ingenious, not in the least because he does not rely on re-programming his robots to make them more social or even altruistic. Rather, he changes their environment (their incentives) so that the prisoner’s dilemma conditions are neutralized and coordinated behavior emerges among single-mindedly self-interested agents. One can fault Hobbes for having underestimated the possibility of social organization emerging as a result of mutual trade. His natural state is a zero sum game, which is an assumption of questionable value. But at the end of the day, Hobbes’ asocial robots became the type-case from which modern economics with its undersocialized rational actors emerged.

Against that backdrop, it appears that the persistence of the equilibrium model of perfect competition is at least in part the result of its ability to provide a formal answer to Hobbes’ challenge of how social order can be achieved and maintained. Hobbes’ answer was: Change the incentives of the rational actors through a central authority. The economist’s answer comes in two steps.

  • First, the economists replaces the zero sum game assumption with a theory of mutual gain from trade.
  • Second, he or she replaces the central authority of the Leviathan with the disciplining force of a perfectly competitive market.

Under conditions of perfect competition, no individual actor can afford to use violence or deceit to maximize their profits, because the other market participants will simply contract around the “difficult” participant. (Perfect information, which is part of the conceptual framework, includes not only perfect information about the goods but also about the market participants.) Since no single actor can influence the market clearing price, the “difficult” market participant harms him or herself (that is, internalizes the costs of his or her behavior) with the force of a natural law. The impersonal punishment meted out by the market is structurally similar to the costs imposed on the non-cooperator by the Leviathan. Both, the market and the Leviathan are impersonal institutional arrangements that change the actors’ incentives so as to make cooperative behavior more profitable than violence or deceit.

[tags]hobbes, economics, market[/tags]

Excellent Syllabus For Cory Doctorow’s Course on Copyright, IP, DRM With Links

Published on February 26, 2007 in Law and Society. Closed

Cory Doctorow is teaching a course on copyright, DRM, and IP policy at USC. His syllabus contains a wealth of well-chosen links, which make for a great introduction to the subject. The lectures are available for download here (podcast subscription link).
[tags]IP policy, DRM, doctorow[/tags]

Neal Stephenson on Human Nature

Published on February 23, 2007 in Culture. Closed

One of my favorite descriptions of human nature is from Neal Stephenson’s Cryptonomicon. Here it is:

Let’s set the existence-of-god issue aside for a later volume, and just stipulate that in some way, self-replicating organisms came into existence on this planet and immediately began trying to get rid of each other, either by spamming their environments with rough copies of themselves, or by more direct means which hardly need to be belabored. Most of them failed, and their genetic legacy was erased from the universe forever, but a few found some way to survive and to propagate. After about three billion years of this sometimes zany, frequently tedious fugue of carnality and carnage, Godfrey Waterhouse IV was born, in Murdo, South Dakota, to Blanche, the wife of a Congregational preacher named Bunyan Waterhouse. Like every other creature on the face of the earth, Godfrey was, by birthright, a stupendous badass, albeit in the somewhat narrow technical sense that he could trace his ancestry back up a long line of slightly less highly evolved stupendous badasses to that first self-replicating gizmo–which, given the number and variety of its descendants, might justifiably be described as the most stupendous badass of all time. Everyone and everything that wasn’t a stupendous badass was dead.

That sums it up quite nicely, as far as I’m concerned.
[tags]human nature, badass[/tags]

Moral Views of the Market Society

Published on February 19, 2007 in Law and Economics, Law and Society and Philosophy. 1 Comment

The morality of the market is one of the most significant issues not only in ethics but also, at least since Durkheim and Weber, in sociology. As is often the case, the more pervasive a practice, the harder it is to describe and analyze. Marion Fourcade and Kieran Healy, in their forthcoming paper Moral Views of Market Society do an excellent job surveying and classifying the contemporary sociological literature. The “liberal dream” of the market as a civilizing force (doux commerce) has three major themes:

  1. The promotion of individual virtues (integrity, honesty, truthfulness, etc.) and interpersonal cooperation
  2. Markets as enabling conditions for personal liberty and political freedom (Hayek, Friedman, etc.)
  3. Markets as enabling conditions for cultural production and creative flourishing.

The “liberal dream,” however, in good dialectic fashion, already contains the seeds of a “commodified nightmare,” where each element of the doux commerce thesis is negated.

  1. “Instead of virtue, [markets create] envy and wants.” Markets don’t just satisfy, they create wants, feeding the human drive towards pointless, conspicuous consumption (Veblen). Moreover, on an empirical level, the correlation between want-satisfaction and happiness is not at all clear.
  2. “Instead of cooperation, [markets create] coercion and exclusion.” Severe inequality makes a mockery of the formally free nature of market exchange, and because of its hegemonic aspirations, the market as one mode of valuing things, is crowding out modes that price cannot capture (a modified commodification argument.)
  3. “Instead of creativity, copyright.” I very much like the authors’ reference to Marcuse, Adorno and Horkheimer in this context, whose works provide an often overlooked conceptual background to understanding the battle between the owners of the 20th Century industrial means of producing mass culture (studios, networks, distributors, etc.), designed mostly to provide instant and easy gratification, and the counter-movement aimed at democratizing the means of cultural production (e.g., blogs, iMovie, Reason, etc.) and keeping open the cultural commons from which all cultural production — both industrial and decentralized — draws (e.g., Creative Commons, FSF, etc.)

The article concludes with an overview of reflexive theories of markets and morals, discussing how theories primarily invented to observe and understand markets became entangled with their objects and were thus transformed into code, executed by markets (e.g., financial derivatives). A similar story could be told about the recent translation of antitrust law into the language of antitrust economics. First, economic concepts were used to describe (and criticize) the state of the law. Over time, the external categories of observation were imported into the law and then transformed into executable legal code, now defining the practice of antitrust law.

In summary, for most of its history, intellectuals have variously praised, reviled, or downplayed the moral consequences of market capitalism. These positions are still very well represented in today’s literature. Still, the distinctive quality of contemporary scholarship is that it goes much further in opening the black box of morality and dissecting the cultural and technical work necessary to produce, to sustain or — conversely — to constrain the market. In doing so, it also reveals the role social scientists play in this process. Continuing this task, then, implies a reflexive approach, where economists, political scientists and sociologists critically consider their own participation in the definition of the market’s moral categories, and in the construction of competing moralizing instruments and techniques.

Download it while it’s hot![tags]economics, sociology, market, Frankfurter Schule[/tags]

Facebook and Information Ethics

Published on February 3, 2007 in Law and Society. 7 Comments

Like most people interested in social science, I am a social misfit. That is, I have various and sundry habits that upset a certain type of person: I slurp my soup, swear publically, really don’t like ironing my pants, and sometimes I even wear a horrible moustache. These are all forgivable sins, I hope. But for someone like me, it never hurts to have a backup: somewhere where I could go and socialize without my more autistic tendencies getting in the way. Facebook seemed like a logical choice.

I suppose it wasn’t.

First, there are certain terms used in legal contracts that annul the entire point of a contract in the first place. A contract is, by necessity, temporary. For the contract is nothing more than the expression of two or more wills being expressed to make a promise, and to bind themselves with some pre-established penalty. After the will breaks, and the penalties laid out, there is nothing left of the contract. That is, either party may plausibly fail to uphold the contract, and after penalties are laid out, the contract can be renegotiated. So when we hear of words like “inviolable” or “irrevocable”, it is smoke and mirrors: no such things may be claimed by anyone in a genuine contract. When they are asserted, i.e., by the state over its citizens, it is a product of the eclectic bases of law which may or may not have anything to do with social contracts. And the force applied by the state is a special case; nothing “irrevocable” may be claimed by private entities, unless the meaning is, “irrevocable without penalty”.

Facebook’s terms of service tell us that “By posting User Content to any part of the Site, you automatically grant, and you represent and warrant that you have the right to grant, to the Company an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such User Content for any purpose on or in connection with the Site or the promotion thereof, to prepare derivative works of, or incorporate into other works, such User Content, and to grant and authorize sublicenses of the foregoing.” Luckily, they weren’t all that serious about use of the word “irrevocable”, since the removal of content leads to the expiry of the license. One wonders, though, what the point of the word may be, especially when conjoined with fun Highlander adjectives like “perpetual”.

My second point requires some priming. Nobody here needs to be reminded that the field of information ethics is defined, in part, by its emphasis upon the importance of privacy. That is, at minimum, a person should be able to have a say how their personal information is shared. There is a distinction, of course, between private information and intellectual property: demographic details are ethically different from music and art, in that art is by definition the stuff that has been intended to be made public, while personal information cannot be presumed to be. With this distinction follows a few ethical implications: while one may ethically share art (in the non-profit sense) without penalty — since that is necessarily in line with its purpose as art — one may not share personal information unless informed consent has been given.

The clauses ask us to re-examine the distinction between art and personal information to see if it hasn’t gone up and dissapeared. No, all we have is “User Content”, which is implied to be “the photos, profiles, messages, notes, text, information, music, video, advertisements and other content that you upload, publish or display (hereinafter, “post”) on or through the Service or the Site, or transmit to or share with other Users (collectively the “User Content”)”. We do not have, here, two categories — one having to do with who I am as a person, the other to do with my silly pictures of my fat cats and failed attempts at flirting online. There is a lumpencategory, where the two run together. Evidently, they claim the right to conflate fiction and reality, and then give that to whoever they want — protests to the contrary notwithstanding. In reassuring language, we are told that Facebook won’t do this or that. “Legally can’t” is absent entirely, not even suitably and reasonably restricted to the few intelligible domains.

I expect this is all par for the course. Certainly the same sorts of thing have been alleged against Deviant Art. My place of work produces a disincentive for innovation by claiming for itself the legal right to any improvements I personally make.

The only solution is to become a nonperson, and keep my art to myself.

Sherrif Andy Taylor on Privacy and the Patriot Act

Published on January 22, 2007 in Law and Society. 1 Comment

Scary that a wholesome law & order show from the 1960s can teach us a thing or two about civil liberties in 2007. So much for progress. (HT: BoingBoing)
[tags]privacy[/tags]

Habermas, Wood: law as conversation

Published on January 19, 2007 in Constructivism, Law and Society and Philosophy. 10 Comments

Matt Wood argues:

After just reading two articles dealing with Jurgen Habermas’s theory of communicative action, I think I can take a tentative step towards fleshing out my arguments for the role of dialogue in the definition of law. According to this helpful paper, which summarizes Habermas’s theory of communicative action (and quotes from his book The Theory of Communicative Action):

“What Habermas attempts is to identify and reconstruct ‘the rational internal structure of processes of reaching understanding’ in terms of ‘the validity claims of propositional truth, normative rightness, and sincerity or authenticity’: ‘the concept of rationally motivated agreement, that is, one based on the intersubjective recognition of criticizable validity claims’; and ‘the concept of reaching understanding as the cooperative negotiation of common definitions of the situation.’”

As contrasted with instrumental rationality, Habermas proposes the ubiquity (and primacy) of “communicative rationality”, which in his own words “carries with it connotations based ultimately on the central experience of the unconstrained, unifying, consensus bringing force of argumentative speech, in which different participants overcome their merely subjective views and, owing to the mutuality of rationally motivated convictions, assure themselves of the unity of the objective world and the intersubjectivity of their lifeworld.” Rationality itself, according to this theory, turns on the ability of a speaker to justify with convincing grounds or reasons the validity of his communicative statements, dialogically – in the course of conversation – and hence intersubjectively . . . in other words, through persuasion. This conception of rationality looks to be grounded in a consensus theory of truth, and Habermas himself appears to concede as much: “The condition for the truth of statements is the potential agreement of everyone else.” (While I have doubts about how far this truth-criteria can be pushed in the context of scientific discourse, I believe it touches the core nature of “political truths”, such as questions about the distribution of “power”.)

Habermas links communicative rationality to a theory of argumentation, in which “[a]rgumentation refers to ‘the type of speech in which participants thematize the contested validity [claims of an expression] and attempt to vindicate or criticize them through argument,’ and an ‘argument contains reasons or grounds that are connected in a systematic way with the validity of a claim of a problematic expression.’ … [A]rgumentation aims to produce cogent arguments, which bring about intersubjective recognition of validity claims and transforms opinion into knowledge. … Each aspect [of argumentation] can be respectively said to aim at ‘the assent of a universal audience,’ ‘the attainment of a rationally motivated agreement,’ and ‘ the discursive redemption of a validity claim.’ … Thus, for Habermas, the rationality of social action is and should be assessed in relation to the validity claims [whose acceptance prompted such action] and the possibility of reaching agreement in critical discourse, and thus rationality is conceived as inherent in communicative practice which is intrinsically oriented towards consensus.”

Habermas identifies three types of validity claims that are at least implicit in every communicative expression: claims of propositional truth, claims of normative rightness, and claims to sincerity. Each of these types can be “thematized” by an expression (by which I understand Habermas to mean ‘made more cognitively salient’, or ‘emphasized’), even though all are actually present, giving rise to a set of more-or-less distinctive speech acts: constatives, regulatives, and expressives, respectively. (It should be noted that Habermas includes a larger number of speech acts in his own classificatory scheme.)

Lawrence Solum has written (Freedom of Communicative Action, 83 Nw.U.L.Rev. 54 (1989)) that “[u]nder ordinary circumstances, the participants will share a common set of norms or facts to which appeal may be made in the course of argumentative discourse. Where there is disagreement about specific facts or norms, the participants may still agree on the appropriate standards or criteria by which controversial norms or facts may be judged. … In some situations, however, even the standards or criteria of truth and rightness are the subject of controversy; in such cases the continuation of the attempt to reach agreement demands a move to theoretic discourse. Rational argumentation, thus, [as Habermas puts it] ‘can be conceived as a reflective continuation, with different means, of [communicative] action oriented to reaching understanding.’” Solum describes this overall process as “discursive will formation.”

I’d like to propose that “communicative action” – a process whereby validity claims are raised in speech, discursively defended in argument, and accepted or rejected as a basis for action – underlies the phenomenon of “law.” In fact, I believe “law” can be thought of as a special case of communicative action, wherein normative validity claims are justified by discursive reference to the actions (ultimately speech) of a norm-promulgating authority.

First, notice the extent to which speech underlies the effectuation of “law.” In the American system of government, a subset of the population known as Congress-people discuss amongst themselves a new norm-proposal. A formal vote is taken (itself a communicative act, rooted in assessments of the normative validity of the proposal on non-positivist grounds) and the approved norm is then written and conveyed to an authorized publisher, who records the norm in text. Copies are manufactured and distributed to judges, lawyers, and other interested parties, including the public. Each reading of the text completes an act of communication. When a violation of the norm is alleged, this text is invoked by one private party in a specialized discourse-forum known as a court. Arguments for action are conveyed to a judge by the laywers for each party (who have learned the facts of the case from their clients, and the law from published sources), and each lawyer invokes Congressional, judicial, or Constitutional speech (i.e., officially promulgated norms) as the grounds for or against the validity claims of “rightness” implicit in their requested rulings. The judge assesses the persuasiveness of the grounds for the competing validity claims and reaches a conclusion, which he communicates to the parties and larger community in the form of an “opinion”. Depending on the behavior of the losing party, this judicial speech can employed as the grounds for the validity claims implicit in requests, communicated to enforcement authorities, for the taking of enforcement action. The dialogic chain continues on, from chief of police to beat officer, from officer to officer, from officer to arrestee, from officer to jail guard, from officer to judge hearing habeus corpus petition, on and on… each link a case of conversation, of dialogue, in which repeated efforts to induce action by listeners is pursued by offering grounds to support the implicit (or explicit) normative validity of action, typically by reference to legal speech, itself typically in the form of texts.

To my mind, the importance of law as a socially ordering force lies in the ability of its *invocation in dialogue* to structure individual behavior (and I hope to have by now impressed on you the fundamental, utterly central role of speech in generating these effects). But I don’t think the truly remarkable feature of law lies in the propositional validity claims which are but one facet of the expressions that comprise links in the institutional ‘chain of dialogues’ that generate social order out of legal pronouncements (i.e., whether the statement “Congress passed a law saying X” is true) – although the validity of these propositions is surely a necessary condition for the success of “law.” Instead, it’s the implicit normative validity claims underwriting persuasion along this chain – the claims to a proposed action’s rightness – and their discursive justifications, that are most distinctive. In general, the mere fact that a governmental authority promulgated a norm is taken as *sufficient ground* for acceptance of a normative validity claim, and hence the promulgated norm, as a basis for action. Herein lies what I’ve been calling the ‘habit of legitimacy recognition.’ I think this simple dispositional response and its stimulation in the course of dialogue (through, for example, the invocation of positivist grounds to justify normative validity claims) is the tissue that holds the entire apparatus of state together. This is the “trust”, the voluntary acquiescence to state power, that works in place of the threat of violence as a means of organizing society and its many power-relationships. The unquestioned legitimacy of the state and its law is necessary for the efficient cooperation of so many actors; imagine the difficulty of governing if the legitimacy of the state had to be re-argued every time a demand was made in its name!

But this sedimented, automatic habit of legitimacy-recognition can be destabilized. Consistent with the habit’s important role in gilding grounds for the justification of normative validity claims, individual speakers may contemplate such claims with the help of their *entire* array of tools of normative evaluation, including moral principles. (Hence my use of the term “coherence theory of law” above.) As the moral propriety of a legal norm decreases, we might expect moral grounds for rejection of the normative validity of the legal norm (defined as a speech act to which the propositional validity claim of promulgation by a legal authority can be justified discursively) to overwhelm the sufficiency of “positivist grounds” for the acceptance of its normative validity. At this point, the links in the dialogue-chain that I’ve described as the very essence of the state may begin to snap, as communicative action between dialogue participants results in either consensus away from action justified on positivist grounds (and towards action whose claim to normative validity is justified on alternative, perhaps moral grounds), or intractable disagreement (perhaps rooted in the varying intensity with which the persuasiveness of moral and positivist grounds are felt). And we can expect the apparatus of the state (through the individuated yet communicatively coordinated actions of its remaining constituent actors – i.e., those still persuaded to cooperate on positivist grounds) to resort to violence as an alternative to rational persuasion through communicative action as a means of enforcing obedience and thereby preserving the state. If a critical mass of individuals begins to reject the normative validity of positivist grounds as a basis for the acceptance of proposed action, we might expect the general imperative of coordinated action that underlies all human societies to result in the formation of replacement authorities (again, dialogically), whose acts of norm-promulgation are more acceptable as a ground for the acceptance of the normative validity claims underwriting voluntary obedience to the promulgated norms themselves. Herein lies the texture and mechanism of secession, civil war, and a host of other social phenomenon that signal the breakdown of a formerly unitary political society. The terms of political dialogue change – via the changed justifications, or grounds, offered to defend validity claims – and collective action re-orients, one conversation at a time.

There is a teleological sort of thing going on with the Habermassian argument. We’re in a territory where it is our goal to reach mutual understanding, and this goal acts as the foundation (er, ceiling?) of communicative rationality.

But it could be observed (in the fretful-philosopher tone) that this is epistemically even more fantastic than the problem of establishing that there is an external world. In the latter, we’re trying to justify to ourselves that the phenomena that we are inundated with are caused by something “real”. But in the former, we’re setting up a standard whose ultimate validity is based upon something so nebulous and auto-eroding as “mutual understanding”. At least with the external world, vulgar appearances don’t shut themselves off according to either my whims or to the world’s fancies. But people shut up all the time, leaving me in the dark about the state of their understandings — these “appearances” are spotty and intermittant. Also, we have some sort of idea about what the world “is”, since we have all kinds of physics at our disposal. The cues associated with mutual understanding are not quite so clear, and our understanding of understanding is spotty. This is manifest in the fact that people misunderstand while thinking they understand, and understand when they think they don’t. Both of these aporias suppose that there is mutual good will in a conversation (a bare minimum to postulate if we want to even be talking about the same thing Habermas presumably is). But good will alone is nevertheless insufficient for mutual understanding.

This is not to say that we have good reason to believe that there is never any mutual understanding. It is just to say that one doesn’t have to be a cynic to concede that mutual understanding is difficult to achieve, and so, we should be doubtful as to whether it is the dominant force which props up the law. It certainly doesn’t appear to be the way that courtrooms operate. Quite the opposite. When trying to justify to myself the “mutual understanding” doctrine of rationality, while still admitting that the stereotypical courtroom is “rational” without being in the same timezone as a pursuit of ‘mutual understanding’, I could only suppose that what we see in vulgar debate and informal logic is more properly called “the ghost of departed reason”. I can accept that, but I wonder if anyone else would. (Though admittedly my experience of the courtroom is limited to episodes of Matlock. Perhaps that is telling.)

That being said, I really *want* to believe in a Habermas-style argument. He has broken ground in places where Grice feared to tread. But experience suggests to me that a) communicative rationality must be based upon strategic or instrumental action in most cases, because the desirability of reaching “mutual understanding” has to be cultivated (and constantly renewed); and b) communicative action is, in principle, a kind of strategic action, since strategic action is mere goal-directed behavior, and the reaching of “mutual understanding” is a goal.

Moving on to Matt’s contribution: for him, law is a kind of communicative action “wherein normative validity claims are justified by discursive reference to the actions (ultimately speech) of a norm-promulgating authority.” The first thing I noticed is that this is a positivist’s account, so long as we construe “authority” in a strict sense of social authority. If we admit that things like “conscience” are sorts of “authorities”, then I suppose it wouldn’t be positivistic; but I’m not sure entirely what Matt’s intent was there, or how far he was willing to extend the scope of the claim. As he goes on to describe the “coherance theory of law”, we get less of a positivistic vibe, and more of an eclectic one; and this emphasis upon the social embeddedness of law is to the good, following the lead of Russell, (possibly) Dworkin, and modern blawgers like Jurisdynamics. But whatever moves are being made, they are surely not compatible with the Weberian formulation of law as what is justified by the authority. The ‘coherance’ story of how civil strife emerges is likely correct, but it is not clear how we have gotten from point A to point B, or whether the tools that have been laid out (namely the definition of law as given) are able to take us there.

The second thing — the centrality of meaning and communication to law — is surely preaching to the choir! I’m quite impressed by the symbolic interactionists, and they motivated my interest in philosophy of language. I think that’s likely true for the whole roster of L&S writers.

A Comment on Spencer Brown’s Laws of Form

Published on January 14, 2007 in Philosophy and System Theory. 3 Comments

George Spencer Brown’s Laws of Form are routinely cited in the context of theories dealing with self-referential processes, autopoiesis and second-order-cybernetics. Niklas Luhmann, in particular, refers to Spencer Brown all the time and makes extensive use of his terminology: law of calling, law of crossing, re-entry, etc. I never understood what the buzz was all about, maybe because I grew up with computers so that “paradoxical” statements such as n = n + 1 never seemed quite that paradoxical to me. Self-referential expressions of that nature, obviously, are part of a loop. In other words, for my generation, using time, iterations, or operationalization as a means to resolve the paradoxa that Luhmann and his followers were so enamored with came naturally and simply wasn’t such a big deal. Similarly, the quasi-mystical tone in which many of Spencer Brown’s followers discuss the creation of “something from the void” by way of an initial distinction was lost on me. Of course, you need a “difference that makes a difference,” because a white circle on a white plane blends into the background. It appears to me that the “law of calling,” the “law of crossing,” “condensation,” and “cancellation” can very easily be understood in terms of a simple robot (or a turtle in logo) tooling about on a white plane. The turtle scans the color of the plane directly underneath it. Once it detects a change (e.g., because a line is drawn across the plane), its internal state is inverted. If the turtle’s internal state started with 0 the crossing of a line changes it to 1, if it started with 1 the crossing changes it to 0. Now imagine a circle, drawn onto the plane.


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The turtle crosses from the outside (the “unmarked state”) to the inside (the “marked state”) (0 → 1) and then, after a while, from the inside to the outside (1 → 0).

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The fundamental response of the turtle to entering and exiting a form (0 → 1 → 0; or 1 → 0 → 1) doesn’t change, no matter how many non-overlapping circles there are on the plane. Hence the “form of condensation,” whereby {}{} = {}.

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But what if there’s a circle within a circle? The first crossing inverts the turtle’s state and so does the second crossing.

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Consequently, the turtle’s state inside the second circle is identical to the turtle’s state outside the first circle, which results in the “form of cancellation” {{}} = _.

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The story gets somewhat more interesting, once we move from arithmetic to algebra, where A is a variable that can take the values {} and _ (mark and no mark). Then, you get expressions like:

(1) A = {{A}}.

For A = {}, the expression reads {} = {{{}}}, which, applying the form of condensation, resolves to {}={}. For A = _, the expression reads _ = {{}}, which resolves to _ = _. So far so good, but what about this:

(2) A = {A}.

For A = {}, the expression reads {} = {{}}, which, applying the form of cancellation, resolves to {} = _. And for A = _, the expression reads _ = {}. In other words, if A is a mark, then the value of the function is not a mark, and if A is not a mark, then the value of the function is a mark. It turns out that A = {A} describes an oscillator.

For Spencer Brown’s followers this is nothing short of the creation of time from form, which may be right but (at least to me) sounds somewhat more grandiose than the operation really is. For anyone who wants to get a glimpse into Spencer Brown’s Laws of Form without having to read the original (and I can’t blame you), check out Robertson, Some-thing from No-thing: G. Spencer-Brown’s Laws of Form, Cybernetics & Human Knowing, Vol.6, no.4, 1999, pp. 43–55.[tags]system theory, spencer brown, laws of form[/tags]

Advertising comes to TSA Checkpoints

Published on January 8, 2007 in Law and Society and Privacy. Closed

Commercial Aviation reports that:

Advertising in security checkpoints will be coming to an airport near you under a proposed Transportation Security Administration pilot program. … “TSA plans to launch a one-year pilot program where airport operators may enter into an agreement with vendors, who will provide divestiture bins, divestiture and composure tables, and metal-free bin return carts at no cost to TSA,” said spokeswoman Amy Kudwa. “In return for the equipment, TSA will allow airport operator-approved advertisements to be displayed on the bottom of the inside of the bins.” An initial test at Los Angeles began in July 2006, said Kudwa. TSA is holding an Industry Day Jan. 11 at its headquarters in Arlington, Va., for those interested in participating in the program.

(HT: Homeland Stupidity). What a great idea! First, entrap travelers in a security theater. Second, further annoy them with advertising. Here’s a recommendation to further fine-tune the program: Select passengers for in-depth screening on the basis of their ability to repeat the ad messages! If you can’t recall the ads, chances are that you are either a terrorist or in some other subversive manner harbor anti-consumerist attitudes. Either way, your bag needs some serious searching. And I thought the aptly named Captivate elevator TV screens recently installed in my building were annoying. Well, never underestimate human ingenuity.[tags]security, airport, TSA[/tags]

New Comment Setup: Please Report Any Problems

Published on January 7, 2007 in Admin. Closed

Please email us at lawsocietyblog (at) gmail.com if you experience problems with the new Captcha comment feature.

Schultze Gets The Blues

Published on January 7, 2007 in Culture. 1 Comment

Michael Schorr’s movie Schultze Gets the Blues is a quiet meditation on the concept of home and belonging. Schultze is a salt miner sent into early retirement and into a life without purpose. Without family, he is going through the motions, trying to enjoy his bleak, unwanted freedom. (Not coincidentally, the story plays in former East-Germany.) Schultze plays polka on his accordion in a local music club, where everyone is old. No one seems to be enjoying the music. The notes are there, but there’s no soul in it. One gets the distinct impression that the club will soon dissolve with demographic inevitability. One night, Schultze listens to a zydeco band on the radio. The heavily syncopated, madly repetitious accordion riff strikes a chord in his soul. He picks up his accordion and plays. Out comes zydeco polka. He’s a natural, this is the music that he was always meant to play. With the realization comes entirely credible, non dramatic alienation. The most outwardly dramatic incident in the entire movie is when someone yells “Negro music!” from the audience as Schultze plays his new tunes. Schultze ultimately ends up going to Texas and from there (on a boat, which was either purchased or stolen) to Louisiana, where he finds kindness and, in a strange yet very literal sense, a home. He dies in Louisiana, and his body is buried in his hometown by his friends who stayed behind. Schultze gets the Blues is a gem of a movie as it shows something fundamental about the human condition: even if you have lived your entire life in one place, even if you fit in seamlessly in every way, even if you truly belong, your home may well be someplace else.

P.S. I’ve finally had it with region coding/DRM chicanery and ordered TVease’s Hannibal.
[tags]movies, schultze gets the blues, zydeco[/tags]

New Jersey Legislative Commission Recommends Abolition of the Death Penalty

Published on January 2, 2007 in Law and Society. Closed

More good news from New Jersey.

Amid growing unease about capital punishment and a state moratorium on executions, a legislative commission recommended today that New Jersey become the first state in more than 35 years to abolish the death penalty. With just one of its 13 members dissenting, the commission said there was “no compelling evidence” that
the death penalty served a legitimate purpose and increasing evidence that it “is inconsistent with evolving standards of decency.” The panel recommended replacing capital punishment with the sentence of life in prison without the possibility of parole.

The death penalty is a moral outrage, unbecoming to any civilized nation in the 21st Century. Banning it would do New Jersey proud.[tags]law, death penalty[/tags]

The Argument from Design and the Missing Designer

Published on January 2, 2007 in Philosophy. 7 Comments

Of all proofs for the existence of god, the teleological argument or the argument from design is the most commonly invoked: The watch proves the existence of the watchmaker. Of course, the argument from design is a non-sequitur and fails as a result of some well-known flaws documented elsewhere. But there’s another noteworthy weakness of the argument from design: The more complex an object gets, the less likely it is that anyone truly designed it. Thus, the more complex the watch, the less likely that there is any identifiable watchmaker. Only very crude artifacts (e.g., stone tools) permit the “watch → watchmaker” inference. This is a result of the distribution of knowledge. Recall the story “I, Pencil” by Leonard Read.

I am a lead pencil—the ordinary wooden pencil familiar to all boys and girls and adults who can read and write. Writing is both my vocation and my avocation; that’s all I do. … I, Pencil, simple though I appear to be, merit your wonder and awe, a claim I shall attempt to prove. … I have a profound lesson to teach. And I can teach this lesson better than can an automobile or an airplane or a mechanical dishwasher because—well, because I am seemingly so simple. Simple? Yet, not a single person on the face of this earth knows how to make me. This sounds fantastic, doesn’t it? Especially when it is realized that there are about one and one-half billion of my kind produced in the U.S.A. each year.

No single person knows how to make a pencil, because of the dispersion of knowledge resulting from the division of labor. Thus, even though someone might have thought of “designing” a pencil, the design incorporates thousands of previous “design” decisions by others. In other words, there is no single designer, and particularly the most obviously designed objects (e.g., airplanes) do not permit the inference of a single mind behind them. Interestingly, a very similar point was made by Adam Smith in the Wealth of Nations:

The woollen coat, for example, which covers the day-labourer, as coarse and rough as it may appear, is the produce of the joint labour of a great multitude of workmen. The shepherd, the sorter of the wool, the wool-comber or carder, the dyer, the scribbler, the spinner, the weaver, the fuller, the dresser, with many others, must all join their different arts in order to complete even this homely production. How many merchants and carriers, besides, must have been employed in transporting the materials from some of those workmen to others who often live in a very distant part of the country! how much commerce and navigation in particular, how many ship-builders, sailors, sail-makers, rope-makers, must have been employed in order to bring together the different drugs made use of by the dyer, which often come from the remotest corners of the world! What a variety of labour too is necessary in order to produce the tools of the meanest of those workmen!

[tags]god, argument from design[/tags]

The New York Times on Free Will

Published on January 2, 2007 in Philosophy. 1 Comment

Here is a nice article on the contemporary free will debate by Dennis Overbye.

Mark Hallett, a researcher with the National Institute of Neurological Disorders and Stroke, said, “Free will does exist, but it i€™s a perception, not a power or a driving force. People experience free will. They have the sense they are free.”

[tags]philosophy, free will[/tags]

Fighting Server Overload

Published on January 1, 2007 in Admin. 1 Comment

Comment spam is still threatening to shut down our servers. While the Akismet and Bad Behavior plugins keep most of the crap from showing up in the comments, the comment spam still makes it into the database and puts strain on the server. One problem with Askimet, in particular, is that it optimizes the comment tables on average after every 5th comment spam has been deleted. Here’s how the optimization, which causes most of our server load, can be delayed by patching the akismet.php file.

function akismet_delete_old() {
global $wpdb;
$now_gmt = current_time(’mysql’, 1);
$wpdb->query(”DELETE FROM $wpdb->comments WHERE DATE_SUB(’$now_gmt’, INTERVAL 15 DAY) > comment_date_gmt AND comment_approved = ’spam’”);
$n = mt_rand(1, 200); # This used to be $n = mt_rand(1, 5);
if ( $n == 100 ) # This used to be 5
$wpdb->query(”OPTIMIZE TABLE $wpdb->comments”);
}

As an additional anti-spam measure, we added an image plugin. It should work with or without cookies enabled. If you have difficulties posting or commenting, please send us an email.
[tags]spam[/tags]

Stiglitz on Prizes as an Alternative to Patents

Published on December 26, 2006 in Law and Economics. Closed

Joseph Stiglitz succinctly outlines his views on prizes as alternatives to patents in this article Scrooge and Intellectual Property Rights in the British Medical Journal.

Intellectual property differs from other property—restricting its use is inefficient as it costs nothing for another person to use it. … Intellectual property rights, however, enable one person or company to have exclusive control of the use of a particular piece of knowledge, thereby creating monopoly power. Monopolies distort the economy. Restricting the use of medical knowledge not only affects economic efficiency, but also life itself. We tolerate such restrictions in the belief that they might spur innovation, balancing costs against benefits. But the costs of restrictions can outweigh the benefits. … Research needs money, but the current system results in limited funds being spent in the wrong way. … A medical prize fund provides an alternative. Such a fund would give large rewards for cures or vaccines for diseases like malaria that affect millions, and smaller rewards for drugs that are similar to existing ones, with perhaps slightly different side effects. The intellectual property would be available to generic drug companies. The power of competitive markets would ensure a wide distribution at the lowest possible price, unlike the current system, which uses monopoly power, with its high prices and limited usage. The prizes could be funded by governments in advanced industrial countries. For diseases that affect the developed world, governments are already paying as part of the health care they provide for their citizens. For diseases that affect developing countries, the funding could be part of development assistance. Money spent in this way might do as much to improve the wellbeing of people in the developing world—and even their productivity—as any other that they are given.

[tags]economics, stiglitz, patents, prize[/tags]

Is Kant’s Theory of the Right Grounded in a Theory of the Good?

Published on December 23, 2006 in Uncategorized. Closed

There is an animated discussion at PeaSoup in response to a post by Robert Johnson.

The standard view of Kantianism has been that it firmly denies that the right is grounded in the good. But recently it has become almost de riguer for Kantians to reject this priority of the right and embrace the good as the ground of obligation. … I think the standard Kantian picture … is so obviously right that I have difficulty seeing how this recent rebellion can be sustained. Against it is the idea that a necessary requirement — something you must do — is wholly inconsistent with the idea that the reason you must do it is that you will realize or produce some good. You can’t get a necessary requirement out of a value based theory. So if you think there are ethical absolutes — as do Kantians (I’m assuming) — then you can’t accept a value based theory of obligation.

I’m with Johnson. Kant expressly develops both a teleological theory of comparative freedom (Kant’s version of a theory of prudent action) and a deontological theory of transcendtal freedom. In the latter, he goes to extreme length to reconcile our experience of a causally closed universe with our independence from the principle of causality in moral actions. I act free in a morally relevant sense if and only if I act according to maxims (or reasons) that are

  1. universalizable; and
  2. desired because of their universalizability.

Obviously, the good — the desirability of ends — has no role in a theory of transcendental freedom.[tags]Kant, freedom, moral theory[/tags]

Why Do Intellectuals Oppose Capitalism?

Published on December 23, 2006 in Culture and Philosophy. Closed

Because, according to Robert Nozick, intellectuals can’t get over the fact that school’s over.

It is surprising that intellectuals oppose capitalism so. Other groups of comparable socio-economic status do not show the same degree of opposition in the same proportions. Statistically, then, intellectuals are an anomaly. … Intellectuals now expect to be the most highly valued people in a society, those with the most prestige and power, those with the greatest rewards. Intellectuals feel entitled to this. But, by and large, a capitalist society does not honor its intellectuals. … What factor produced feelings of superior value on the part of intellectuals? I want to focus on one institution in particular: schools. … The schools … exhibited and thereby taught the principle of reward in accordance with (intellectual) merit. To the intellectually meritorious went the praise, the teacher’s smiles, and the highest grades. … The wider market society, however, taught a different lesson. There the greatest rewards did not go to the verbally brightest. There the intellectual skills were not most highly valued. … There is a further point to be added. The (future) wordsmith intellectuals are successful within the formal, official social system of the schools, wherein the relevant rewards are distributed by the central authority of the teacher. The schools contain another informal social system within classrooms, hallways, and schoolyards, wherein rewards are distributed not by central direction but spontaneously at the pleasure and whim of schoolmates. Here the intellectuals do less well. It is not surprising, therefore, that distribution of goods and rewards via a centrally organized distributional mechanism later strikes intellectuals as more appropriate than the “anarchy and chaos” of the marketplace. For distribution in a centrally planned socialist society stands to distribution in a capitalist society as distribution by the teacher stands to distribution by the schoolyard and hallway.

Is that really plausible?

  • First, what about the mathematically gifted? I find Nozick’s argument for excluding them from his general prediction wholly unpersuasive:
    [The school system] produces anti-capitalist feeling among verbal intellectuals. Why do the numbersmiths not develop the same attitudes as these wordsmiths? I conjecture that these quantitatively bright children, although they get good grades on the relevant examinations, do not receive the same face-to-face attention and approval from the teachers as do the verbally bright children. It is the verbal skills that bring these personal rewards from the teacher, and apparently it is these rewards that especially shape the sense of entitlement.

    There is nothing to suggest that the math and science crowd is held in lower esteem by the teachers, that they have an easier time on the schoolyard than the fast-talking debate club crowd (please!), and that they are more successful in the “real world” compared to their humanities peers.

  • Secondly, what about countries such as France, Germany, Italy, Spain, and the UK where intellectuals are held in much higher public esteem than in the US? Shouldn’t one expect them to be more at peace with their (mellower) brands of capitalism? Let me think: Adorno, Barth, Baudrillard, de Beauvoir, Berlin, Brecht, Blackburn, Camus, Eco, Foucault, Flusser, Grass, Habermas, Havel, Kojeve, Kundera, Lukacs, Marcuse, Pinter, Rushdie, Safranski, Saramango, Sartre … no love lost for capitalism there.

Alienation and exploitation are the key concerns that animate intellectual resistance to capitalism. The beauty of a capitalist system is that it creates order without anyone being in charge, and that our complex internal lives, our hopes, dreams, aspirations, world-views, histories, etc. are relevant only to the extent that they influence our revealed preferences for existing goods and services. Capitalism is social reductionism in action, which is why it works so well. But the price we pay is alienation — more for some than for others, to be sure, but alienation nevertheless. And where there is alienation, exploitation can’t be far off. In my view, much of this criticism is vastly overstated, and many of my friends on the (non-libertarian) left completely ignore capitalism’s history of liberation from tradition and authoritarian rule, and the freedom we enjoy in private matters as a result of their irrelevance to the functioning of the system. (Freedom is inexorably linked to irrelevance.) But those are valid differences of opinion. I just don’t think that Nozick’s “we liked it better in school” explanation goes very far.
[tags]economics, capitalism, intellectuals[/tags]

In Praise of the Scrooge

Published on December 22, 2006 in Law and Economics. Closed

Steven Landsburg, author of an excellent textbook on Price Theory, explains what he likes about Ebenezer Scrooge:

His meager lodgings were dark because darkness is cheap, and barely heated because coal is not free. His dinner was gruel, which he prepared himself. Scrooge paid no man to wait on him. In this whole world, there is nobody more generous than the miser—the man who could deplete the world’s resources but chooses not to. The only difference between miserliness and philanthropy is that the philanthropist serves a favored few while the miser spreads his largess far and wide. If you build a house and refuse to buy a house, the rest of the world is one house richer. If you earn a dollar and refuse to spend a dollar, the rest of the world is one dollar richer—because you produced a dollar’s worth of goods and didn’t consume them. Who exactly gets those goods? That depends on how you save. Put a dollar in the bank and you’ll bid down the interest rate by just enough so someone somewhere can afford an extra dollar’s worth of vacation or home improvement. Put a dollar in your mattress and (by effectively reducing the money supply) you’ll drive down prices by just enough so someone somewhere can have an extra dollar’s worth of coffee with his dinner.

There you have it. Happy Holidays everyone.

Mozart’s Musical Scores Fully Available Online

Published on December 21, 2006 in Culture. Closed

Amazing![tags]music, mozart[/tags]

Cultural Cognition v. Bounded Rationality

Published on December 21, 2006 in Constructivism and Philosophy. 1 Comment

We have discussed the theory of cultural cognition extensively on this blog in the past (for example here, here, and here). One particularly interesting problem is the relationship between cultural cognition and bounded rationality.

  • Cultural cognition, in essence, posits a causal relationship between values and factual beliefs. Values are prior to beliefs. For example, people who judge drug use to be morally bad (value) are highly likely to believe that drug use is also dangerous (fact).
  • Bounded rationality makes somewhat similar claims and aims to correct some of the assumptions of rational-agent models. For example, the fact that we place greater value on something that we have just because we have it (”endowment effect”) is plainly irrational but not random. The non-randomness of certain errors in rational judgment is a significant problem for rational choice models, because the key reason for assuming rationality is not that everyone is, in fact, rational (clearly that’s not the case), but rather that rationality predicts behavior better than any alternative assumption. If there is one rational way to act and many irrational ones, and if irrational behavior is random, then rationality is the best predictor of behavior even if only a minority of people act rationally. However, if irrational behavior is not random, then the rationality assumption may be misplaced.

Cass Sunstein has argued that cultural cognition can be explained in terms of bounded rationality. Dan Kahan and Paul Slovic, in a recent paper, disagree:

In our view, Sunstein’s assertion that “bounded rationality lie[s] behind cultural cognition” merges two claims, one of which is clearly wrong … The clearly wrong claim is that one would expect persons who are boundedly rational to behave like cultural evaluators just because they are boundedly rational. It is indeed well established that people conform their factual beliefs both to the apparent view of others (through mechanisms such as “group polarization,” “reactive devaluation,” and “naïve realism”) and to their own values (through mechanisms such as “biased assimilation” and “defensive motivation”). But these dynamics don’t tell us which group commitments (professional or geographic, political or socio- economic) or which values (ideological, religious, aesthetic, etc.) will exert this impact on belief formation. They thus furnish no explanation for any particular distribution of beliefs across persons or issues, and no explanation, in particular, for why beliefs are in fact distributed in ways that express persons’ commitments to hierarchic and egalitarian, individualistic and communitarian worldviews. The most plausible way to make sense of these patterns of belief is to view culture as prior to the cognitive processes through which people perceive facts. … Bounded rationality, then, does not explain why people behave like cultural evaluators; on the contrary, the disposition of people to behave like cultural evaluators explains why established mechanisms of belief formation – social influences, biased assimilation, the availability heuristic, probability neglect, affect, etc. – generate the distinctive array of beliefs that boundedly rational people actually hold.

I find that explanation persuasive. My concern with cultural cognition theory is not with its explanatory model but with its normative implications, at least as implied by Kahan and Slovic, who claim that in a democracy people are entitled to their values and that certain factual beliefs are in a very direct sense expressions of such values. As such, both the values and the factual beliefs are entitled to some normative weight. Nonsense, says Sunstein. Incorrect factual beliefs have no “normative weight,” even where they are expressions of values. That, in my view, is obviously correct. Truth is not about counting votes or respecting people’s values and prejudices. Truth is about underwriting factual claims with the prevailing opinions of a specialized scientific community that follows certain public procedures. I am thrilled to see that Kahan and Sovic acknowledge Sunstein’s point in that regard:

[I]f we came off sounding as if we think democracy entails respecting all culturally grounded risk perceptions, no matter how empirically misguided they might be, we overstated our position. We admit to a fair measure of ambivalence about when beliefs formed as a result of cultural cognition merit normative respect within a democratic society.

In my view, Kahan’s and Slovic’s paper puts much of the cultural cognition v. bounded rationality debate to rest. Cultural cognition, properly stripped of certain overreaching normative implications, provides a useful explanatory backdrop to bounded rationality.
[tags]cultural cognition, bounded rationality, economics[/tags]

Peter Singer on What Billionaires and Others Should Give

Published on December 20, 2006 in Philosophy. 2 Comments

In his NYT article on What Should a Billionaire Give – and What Should You?, Peter Singer makes the case that the wealthy are morally obligated to give to the poor. Not just to the poor around them, but also, and equally, to the poor on the other side of the world. In practical terms, Singer suggests the following contributions from US residents or families:

[The top 14,400 earn an average of $12,775,000,] with total earnings of $184 billion. The minimum annual income in this group is more than $5 million, so it seems reasonable to suppose that they could, without much hardship, give away a third of their annual income, an average of $4.3 million each, for a total of around $61 billion. That would still leave each of them with an annual income of at least $3.3 million. Next comes the rest of the top 0.1 percent (excluding the category just described, as I shall do henceforth). There are 129,600 in this group, with an average income of just over $2 million and a minimum income of $1.1 million. If they were each to give a quarter of their income, that would yield about $65 billion, and leave each of them with at least $846,000 annually. The top 0.5 percent consists of 575,900 taxpayers, with an average income of $623,000 and a minimum of $407,000. If they were to give one-fifth of their income, they would still have at least $325,000 each, and they would be giving a total of $72 billion. Coming down to the level of those in the top 1 percent, we find 719,900 taxpayers with an average income of $327,000 and a minimum of $276,000. They could comfortably afford to give 15 percent of their income. That would yield $35 billion and leave them with at least $234,000. Finally, the remainder of the nation’s top 10 percent earn at least $92,000 annually, with an average of $132,000. There are nearly 13 million in this group. If they gave the traditional tithe — 10 percent of their income, or an average of $13,200 each — this would yield about $171 billion and leave them a minimum of $83,000.

As much as I sympathize with Singer’s proposal, I am not convinced by his philosophical justification for a universal duty of assistance (which, admittedly, is harder to justify than duties of non-interference). Here are some observations:

What is the source from which a duty for A to assist B arises? Singer states at the outset that a human life has great value (”in the millions”). From that, we can certainly derive a duty of non-interference. A must not, without good reason, harm B. But can we also derive an affirmative duty for A to assist B and a corresponding moral claim of B to A’s assistance if B’s life is in jeopardy? Usually, we require a rather narrow set of conditions to be in place for such affirmative duties to arise, specifically (i) a promise by A to B (either explicit or as a result of friendship, reciprocity, assumption of an office such as that of a firefighter, etc.); or (ii) A’s responsibility for the threat to B’s life, for example because B’s extreme poverty is the result of A’s exploitative behavior. Singer proposes much less situational and demanding conditions for a duty to assist to arise, namely (a) maximum utility for B (”saving B’s life”) and (b) minimal cost to A (”ruining A’s shoes”). In other words, Singer postulates a general duty to optimize total welfare, or at least to minimize certain extreme disequilibria. It is worth nothing that legal systems, at least, are somewhat divided on that score. German criminal law, for example, knows a general duty of assistance to strangers in emergencies, US criminal law (by and large) does not. As much as I sympathize with Singer’s result, the origin of the duty to assist that he proposes is not sufficiently well explained.

Singer makes some implicit claims about morally relevant and morally irrelevant facts, which require closer examination. Let’s take a look at his primary example.

[We walk] by a shallow pond and [see] a small child who has fallen in and appears to be in danger of drowning. Even though we did nothing to cause the child to fall into the pond, almost everyone agrees that if we can save the child at minimal inconvenience or trouble to ourselves, we ought to do so. Anything else would be callous, indecent and, in a word, wrong. The fact that in rescuing the child we may, for example, ruin a new pair of shoes is not a good reason for allowing the child to drown.

So far so good, with the caveat outlined above. But then Singer continues:

Similarly if for the cost of a pair of shoes we can contribute to a health program in a developing country that stands a good chance of saving the life of a child, we ought to do so.

Singer’s implicit claim is that physical and cultural distance between A and B is irrelevant for A’s obligation to assist B. If that’s true, then virtually everyone who could better the life of anyone in dire poverty anywhere is flaunting his or her moral obligation. (Which may well be the case.) Singer universalizes A’s obligation by extending it to everyone in B’s position everywhere. Alternatively, one could also universalize a more local obligation, e.g., everyone in A’s immediate situation (here, walking past a drowning child) has an obligation to assist. The former way of universalizing the obligation creates billions of overlapping global/universal obligations. The latter creates a global/universal “mesh network” of local obligations. Singer chooses the strategy of creating a universal duty over universalizing local duties, which may ultimately be correct (I am not sure), but definitely requires more explicit supporting arguments.

Should we really treat everyone equally? One moral problem with true equality is illustrated by Singer’s second example.

A few years ago, when he was in his mid-40s, Zell Kravinsky gave almost all of his $45 million real estate fortune to health-related charities, retaining only his modest family home in Jenkintown, near Philadelphia, and enough to meet his family’s ordinary expenses. After learning that thousands of people with failing kidneys die each year while waiting for a transplant, he contacted a Philadelphia hospital and donated one of his kidneys to a complete stranger. [Kravinsky acknowledges that we form special attachments with some people, for example our children, but] that does not, in Kravinsky’s view, justify our placing a value on the lives of our children that is thousands of times greater than the value we place on the lives of the children of strangers. Asked if he would allow his child to die if it would enable a thousand children to live, Kravinsky said yes. Indeed, he has said he would permit his child to die even if this enabled only two other children to live.

To me it is more plausible that we owe different moral obligations to different people. Kravinsky’s children, I would argue, have a greater moral claim to his assistance, based on mutual promises, than those to whom no such promises have been made, and who, as a result, don’t have the same justified expectations. That is not to say, of course, that no baseline moral obligations exist vis-a-vis strangers, but if meaningful tradeoffs have to be made, then choosing the interests of the few who are close to us over the interests of the many who are distant is not per se morally deficient.

What if there is no duty of assistance to those in need who are far away? In that case, paradoxically, charitable giving may be even more laudable. Gates and Buffet are not just doing what every decent person ought to do. They act out of kindness to which no one can lay a moral claim. Thus even if optimizing utilitarianism, other forms of consequentialism, rights-based theories, etc. were to fail in justifying universal claims for assistance, we may still owe to ourselves to help strangers in need if we want to lead virtuous lives.

[tags]poverty, morality, consequentialism, peter singer[/tags]

The Economics of War

Published on December 17, 2006 in Law and Economics. 1 Comment

Economics starts with a simple premise about individual rationality, which David Friedman sums up as follows: People have reasonably simple objectives and tend to choose the correct way to achieve them. And even though that premise is quite obviously false (many people have complex objectives, and many more screw up spectacularly in trying to achieve their goals), it is extraordinarily useful for predicting group behavior and explaining social institutions. In fact, I know of no other theory in the realm of political philosophy and social sciences that comes close to the explanatory and predictive power of simple, neoclassical economics. Neoclassical economics is to social sciences what the theory of evolution is to biology, unsurprisingly, given the structural similarity of both theories, their unapologetic reductionism, and the resulting power to explain the emergence of a complex order from the interaction of a great number of rather simple and largely identical component parts. One of my favorite examples of individual and group rationality comes from David Friedman’s article “The Economics of War,” which is available for download here.

Consider a simple case. You are one of a line of men on foot with long spears; you are being charged by men on horses, also carrying spears (and swords and maces and…). You have a simple choice: you can stand and fight or you can run away. If everyone runs away, the line collapses and most of you get killed; if everyone stands, you have a good chance of stopping the charge and surviving the battle. Obviously you should stand. It is not so obvious. I have described the consequences if everyone runs or everyone stands, but you are not everyone; all you control is whether you run or fight. If you are in a large army, your decision to run will only very slightly weaken it. If you run and everyone else fights and wins, some of them will be killed and you will not. If you run and everyone else fights and loses, at least they will slow down the attack-giving you some chance of getting away. If everyone runs and you stand to fight, you will certainly be killed; if everyone runs and you run first, you at least have a chance of getting away. It follows that whatever everyone else is going to do, unless you believe that your running away will have a significant effect on who wins (unlikely with large armies), you are better off running. Everyone follows this argument, everyone runs, the line collapses, you lose the battle and most of you get killed. The conclusion seems paradoxical; I started by assuming that people want to live and correctly choose the means of doing so and ended by predicting that people will behave in a way that gets most of them killed. But rationality is an assumption about individuals, not about groups. Each individual, in my simple example of the economics of war, is making the correct decision about how he should act in order to keep himself alive. It so happens that the correct decision for me (running away) decreases the chance of being killed for me but increases it for everyone else on my side, and similarly for everyone else’s correct decision; individually, each of us is better off (given what everyone else is doing) than if he stood and fought, but we are all worse off than we would be if each of us had failed to reach the correct conclusion and we had all stood and fought.

If that’s the problem, what are the solutions? Disincentives for defection (e.g., burning bridges, shooting defectors, shaming cowards) and incentives for taking life-threatening risks (e.g., rewarding heroism, religious or political indoctrination, promises of an afterlife, etc.). Every well-run army (or business organization, for that matter) employs those strategies, because the underlying problem is universal.
[tags]economics, theory, social sciences[/tags]

Comment Spam Attack

Published on December 17, 2006 in Admin. Closed

To avoid excessive comment spam (and the resulting server load), we had to restrict comments to those who have at least one pre-approved comment on this blog. This should not be too much of an inconvenience. So don’t be perplexed if your next comment doesn’t show up immediately. It will once we approve it. Subsequent comments should appear without delay.[tags]spam[/tags]

Michael Glennon on the Role of Congress in an Imperfect War

Published on December 7, 2006 in Law and Society. Closed

Michael Glennon, one of the most thoughtful commentators on the constitutional war powers, highlights the need for Congressional re-authorization of any US military effort in Iraq in this Washington Post op-ed.

Congress in 2002 authorized imperfect war in approving the use of force in Iraq for specific, limited objectives. As those objectives are achieved, or different ones are pursued, legislative reauthorization will be required. Absent congressional approval, the president cannot use force in Iraq to pursue new objectives, beyond the protection of forces being withdrawn. … When President Bush signed the 2002 authorization, he said that “Iraq will either comply with all U.N. resolutions, rid itself of weapons of mass destruction, and end its support for terrorists, or it will be compelled to do so.” Iraq has now done so. Saddam Hussein’s regime is history, and the threat posed by it is gone. Hussein himself has been captured, tried and sentenced. A new constitution has been adopted by the Iraqi people. A different government is in place. That government is in compliance with all relevant Security Council resolutions. It does not possess or seek weapons of mass destruction. It does not support or harbor terrorists. … As a matter of sound policy, as well as constitutional principle, Congress should participate in weighing recommendations on future military action.

Even though I agree with Glennon, I can’t help but notice the slight difference in the highlighted portions. Which of the two is it? Is the president legally required to seek re-authorization? Or should Congress weigh in as a matter of sound policy? Glennon the lawyer would probably say the former. Glennon the realist probably expects the latter.

[tags]war powers, iraq, congress, glennon[/tags]

Marx is right

Published on December 4, 2006 in Philosophy. Closed

Socrates was offside!

(HT: Brian Leiter)

[tags]philosophy, soccer[/tags]

Did I ever mention how I don’t like social contract theory?

Published on December 2, 2006 in Law and Society and Philosophy. 14 Comments

I would dispute the claim that law has been tacitly agreed to in anything like a social contract.

To see what I mean, picture in your mind the following scenario. A resident of a small, distant, isolated island of Tikopia is fishing off the coast as he does every year. Tikopia is ecologically self-sufficient, due to a wealth of forests, and these settlers and their descendents have been on the island for millenia. One day, the resident encounters a ship from a distant land. In speaking with the crew, the Tikopian finds out that this distant land is plagued by wood shortages. Although the Tikopian (and all his fellow Tikopians) is saddened to hear of these stories, he sees them as beyond his sphere of control, and as the affairs of another people. Nevertheless, the Tikopians embrace the newly arrived persons, and provide hospitality, and tell them that they are family. Time passes, and a year later, a battleship arrives to claim Tikopian lumber. The battleship crew claims that Tikopia is subject to the laws of the distant nation, and is obliged to help, since they are part of the same “family”.

Did the Tikopians tacitly commit themselves to forced aid? Of course not.

Now let’s take another story. Imagine the above scenario, sharing all of the same qualities, except substitute “Tikopia” with “early Western America”. Both are isolated and self-sufficient. Are the residents of the wild West beholden to help the residents of the distant East? We’d want to say “yes”, but why?

Whatever reason we give, I don’t think it will fully match the “tacit consent” view. There are certain irrelevant things that the Western case has but the Tikopian case lacks. Geographic continuity is one of them: you can arrive in the West by road, but it takes a lot more determination to arrive at Tikopia by sea. Also, arguably, the Native population would have posed a threat (at least in the minds of the settlers); but if this were objected, then it would still lead to a collapse of the doctrine of ‘tacit consent’, because then there would be a very clear and explicit consent.

Rather, the morally and legally relevant quality that the Western case has, but the Tikopian case seems to lack, is that the Western settlers had forewarning that their lives and property were subject to the will of the distant land before they occupied it. By contrast, the Tikopians declared only a tentative solidarity with the strangers after they (the Tikopians) had occupied the island for millenia.

But surely mere forewarning is not the same as “tacit consent”. If a man tells me that he is going to steal my pants on Tuesday, I have been forewarned; but if I don’t run away from him, that doesn’t mean that I’ve tacitly consented.

All this is just to point out that there are very serious problems with social contract theories. (And I take it for granted that natural law theories are in even worse shape.) Following Bertrand Russell (and others), I think that, if we are to be honest social scientists, we ought to admit, for better or worse, that law is to some degree a matter of violence. This is a third option which leaves behind both the aformentioned traditions, and goes back to Thrasymachus.

[I wrote the preceding as a reply to this post. I've decided to put it here, since it was a bit far from the topic at hand.]

Back from Montreal

Published on November 26, 2006 in Culture. 1 Comment

After an eye-opening trip to Toronto earlier this year, we just got back from Montreal. How can one not like a city where the neighborhood parking lot advertises its ISO 9001 certification …

Iso-1
… and the local theater stages Descartes’ “Discourse on Method.”
Descartes
Other random observations:
  • Canadian immigration officials actually welcome you to their country. What a radical concept. Passing through US immigration on the way back had the (now) familiar 1980s USSR look & feel.
  • Thanks to Michele and Al Kinik from An Endless Banquet, we found Cluny, a cafe that serves seriously impressive sandwiches in a cool steampunk setting.
    IMG_0560.JPG
    If only we had such a place in Midtown Manhattan. No, strike that, if we did, it would be mobbed 24/7 and the staff would be so snooty that I couldn’t have more than two beers for fear of losing my temper.
  • The tasting menu at Toqué! is good, but it doesn’t hold a candle to Toronto’s Splendido.
  • In sharp contrast, the home-made ravioli at L’Express are hallucinant. (Note to self: Don’t ask for poutine in a French restaurant. Bad form.)
  • Hotel Gault is a great place to stay if you like minimalist decor.
  • Starbucks employees join the pro-union picketers in front of their shop and then run back in to serve their customers.
  • People are polite in a slightly unreal way. Drivers don’t honk. Cabs give way to unarmed pedestrians (don’t try that at home). Waiters don’t roll their eyes when explaining the menu. Furniture shop owners follow up on a request to ship stuff to NY promptly and by email. Scary looking, beefy guys tip their hat and apologize for stepping in your way on the sidewalk.

[tags]canada, travel, montreal, cluny[/tags]

Sacrificing One for the Benefit of Many (Once Again)

Published on November 26, 2006 in Law and Society and Philosophy. 1 Comment

It seems that we can’t get enough of this timeless problem. (Maybe that’s why it’s timeless.) This time, it is discussed at Marginal Revolution in the context of the implications of a zero discount rate. Alex Tabarrok writes:

Tyler asks, following philosopher Alastair Norcross, whether it could ever satisfy a cost-benefit test for one person to die a terrible and tortured death in order to alleviate the headaches of billions of others by one second. Tyler begs off with “a mushy mish-mash of philosophic pluralism, quasi-lexical values” and moral conceit. I will have none of this. The answer, is yes. The clearest reason to think that we should trade a terrible and tortured death of one in order to alleviate the headaches of billions is that we do this everyday. Coal miners, for example, risk their lives to heat our homes and to generate the electricity that drives this blog. We know that some of them will die horrible deaths but few of us think that we are morally required to give up electricity.

I object to Tabarrok’s analysis on two levels. First, consequentialism and the “summing up” of people that goes along with it, is undoubtedly a principle of greatest moral significance. Unlike most competing principles it is intellectually rigorous, autitable, and eminently practical. However, consequentialism presupposes a model of the person, because we are not summing real people up, we are summing up abstractions. This is not a shortcoming of consequentialism. Consequentialism does not purport to be or to contain a theory of the person. However, the choice of our theory of the person may impose certain limitations on what goes into the consequentialist calculus. Tabarrok’s “I will have none of this. The answer, is yes” seems to imply a model of the person without “absolute” rights, that is, a model in which the value placed on being free of headaches, v(-h), is fully commensurable with the value placed on not being put to a terrible death, v(-d). That is not to say that v(-h) is equal in “weight” to v(-d), but given the right multiplier, v(-h) * x > v(-d), in which case torturing one person to death to alleviate the headaches of many is morally permissible.

In my view, a more plausible view of the person is rooted in deontological considerations. Practical reason (starting from “I”) or considerations of recognition (starting from “you”) demand that we attribute individuals with a hard nucleus of rights – rights sufficiently hardened to resist the pull of consequentialist considerations that can only be restricted and in some instances overridden by conflicting rights. Once those minimal deontological requirements are satisfied, free reign may be given to consequentialism. In the torture/headache example, I submit, those minimal conditions are not satisfied. Thus, sacrificing one for the good of the many would be morally impermissible.

Does that mean that it is never morally permissible to sacrifice one for the good of the many? Unfortunately not, I think, even though life would be so much easier if it were. As much as the normative power of consequentialism is subject to the prior satisfaction of certain rights-based conditions, rights may similarly be constrained by a consequentialist override in extreme circumstances, e.g., if saving the lives of many (How many? I don’t know) with certainty requires the sacrifice of one. (That’s why I put “absolute” rights above in quotation marks.)

My second objection goes to the coal miner example. Presumably, the miner is doing his or her job voluntarily. Miners make a trade-off between risk and reward. The person tortured to death to alleviate the headaches of others doesn’t. The moral problem only arises in instances of “involuntary sacrifice.” Thus the coal miner’s voluntary trade-offs provide no basis for concluding that torturing someone to death for the benefit of others is morally permissible.

In this context, it is helpful to recall Jonathan Wolff’s article “Making the World Safe for Utilitarianism,” which I discussed earlier on this blog. Wolff lists four conditions (”fortunate circumstances”) under which consequentialism works. (To what extent basic rights are designed to bring about or to maintain those conditions would be a fruitful avenue of inquiry.)

  1. There need to be regular opportunities of a similar nature. (Call this the assumption of “many chances”.)
  2. No single loss (or likely repeated series of losses) creates a type of level of harm for any individual from which recovery is very difficult or impossible. (The assumption of “recoverable loss”.)
  3. There is no reason to doubt that the probabilities run true. (The assumption of “true odds”.)
  4. All relevant gains and losses can be quantified and compared to each other. (The assumption of “weak commensurability”.)

[tags]philosophy, moral theory, consequentialism, deontolology[/tags]

Walking the highwire of “Charity”

Published on November 18, 2006 in Law and Society and Philosophy. Closed

It is common practice in university departments to evaluate texts by way of “the principle of charity”. Some formulations of this principle make for fantastic additions to our analytical toolkit(s). Other formulations are mere distractions, and they waste our time.

It is misleading in the first place to speak of one single principle of charity, as there are many. But there is one common property that all those “charity principles” share. They tell us that, if you come to a point in a text where the surface meaning equivocates, then you may make a decision: you can either refrain from making an interpretation, or you can interpret charitably. By advising us to interpret charitably, they tell us to give the author the benefit of the doubt, and attribute to them the most defensible interpretation of their utterance on the basis of the evidence.

So, for instance, when then-Prime Minister Margaret Thatcher said “I always treat other people’s money as if it were my own,” the most charitable reading would be to say that she meant something like, “I am careful with my own money, and in that sense I will be careful with the money of others”, and not, “ha-ha, I’ll spend all your money, taxpayers”. Or (more recently) when John Kerry made his joke about getting stuck in Iraq, he meant to speak against George W. Bush, not the troops. In cases where the author isn’t serious, is trying to be witty, or is attempting to illustrate a point by way of metaphor or other imperfect devices, then charity is well advised.

When the “charity” idea is well-formulated, it helps scholarship to the nth degree. A feast of fallacies in informal logic arise simply because the reader simply does not pay adequate attention to the words of a text, and interprets carelessly. For example, the “strawman” fallacy is the paradigmatic example of a failure of charity: the reader is so caught up in a desire to argue that they utterly misunderstand the position of their fellow conversant. Charity overrides this by telling us to listen carefully, and interpret in the strongest way.

One way to look at the relationship between charity and good scholarship, I think, is to examine the relationship between the law and virtuous conduct. In a society of the virtuous, there would be no need to have any laws. Similarly, in the society of good scholars, the principle of charity would never arise. For just as virtuous society would have no criminals, and thus no need for law, the society of good scholars would all listen to one another attentively, and thus not need to exercize charity.

But if “charity” is poorly formulated, then it actually hinders scholarship in a variety of monstrous and even anti-intellectual ways. (This trend applies to our analogy as well: a society which legislates virtue would be totalitarian.) So in the following, I’d like to quickly post two common errors associated with the careless application of ‘charity’ — errors that can be overcome by a robust understanding of what it means to exercise genuine charity in discussion.

If we are interested in achieving an adequate and serious understanding of charity, we cannot do better than to be guided by the careful work of Mark Vorobej in A Theory of Argument.

Error 1. Misunderstanding the basis of charity. Charity is not based on getting a more accurate reading of the text. The point of charity is not to understand the text more accurately. Quite the opposite: for the entire point behind our need for charity is that we’ve failed to establish an accurate interpretation that satisfies the level of lucidity we need. Rather, charity is grounded upon a sense of fairness in conversation. Vorobej explains: “To opt deliberately for any other reading [than the charitable reading] is unfair to the author, needlessly harsh and mean-spirited” (pp. 29).

This is important to recognize. If we confuse ourselves into thinking that charity is established on purely rational grounds, for instance as the cornerstone of all communication, then we end up having to abandon skepticism entirely in places where skepticism is most prudent. For instance, in some serious conversations, we simply must abandon charity altogether or else risk behaving imprudently.

The first rationale for rejecting charity is precisely because it would be unfair for the audience to be asked to make a charitable attribution in practice when the speaker has clearly spoken infelicitously. Say, for instance, that the Vice-President of the United States says, “The insurgency in Iraq is in its last throes”. Let’s also say that Iraq is undergoing a civil war which we can anticipate to be long-lasting. The most defensible interpretation of this would be to say that the meaning of “last” in the Vice-President’s utterance is used against the backdrop of some wider historical timescale; such that in (say) 30 years, the insurgency really would be gone and Iraq would be peaceful. Let’s also say that the alternate (non-charitable) interpretation of the utterance — namely, that the Vice President is simply confused about the state of Iraq — seems equally strong, as far as plausible attributions go; but we are told to attribute the more defensible interpretation, anyway.

But the “last throes” remark is not at all defensible as a way of phrasing the charitable interpretation. The words are at odds with the underlying meaning to such an extent that we simply must attribute the non-charitable interpretation to him. For, most of the time, utterances carry with them the idea that the speaker is saying things in a way that can be reasonably understood on the basis of what is said: a kind of automatic implication of felicity. To attribute the charitable intent to the speaker on the basis of some words used in context is to condone the method of phrasing (within some tolerances). To interpret charitably (without interjecting and saying, “Whoa, whoa, whoa — what?”) is to accept that the underlying proposition clearly matches the manner of speaking. This is semanticide, and against part of the foundations of communication which any rational conversant must abide by.

The moral of the story is that, within some tolerances, felicity trumps charity.

Error 2. Ignoring the speaker’s goals. What does it mean to attribute to a person the “strongest” interpretation? We might say, wrongly, that it would be to grant them the interpretation that is closest to the truth. But obviously, this doesn’t make sense. To follow one famous Davidsonian line of thinking: if we grant that the meaning of a proposition is its truth-conditions, then the possibility of having false beliefs (and correcting false beliefs in others) forms a formidable basis for our grasping the meaning of propositions in the first place. In other words, you have to understand the utterance on the basis of what is most defensible in terms of the speaker’s beliefs, and not necessarily on the basis of what is true.

So it is far more important to take an examination of the speaker’s goals, personal projects, social situation, and so on, and then decide what would be the strongest interpretation from their point of view. So if someone from the Heaven’s Gate cult says, “Soon I will be over the moon!”, the strongest interpretation would not be to interpret them as meaning “Soon I’ll be happy”, which may be plausible as a matter of fact; but rather, we may go further and attribute to them the crazy belief that they will be, in fact, above the moon. Evaluation of truth need not apply.

This demand for verstehen applies just as well to practical-normative cases, where appeals to “truth” and “falsity” don’t enter the picture. If I go to the local park and see a sign that reads, “No motorized vehicles permitted”, am I supposed to infer that the judge or lawmaker who made the sign has banned those in motorized wheelchairs from the park? Of course not. The goal of the law which the lawmaker had in mind is easy to infer — namely, “Don’t park your car on city grass” — because we know the lawmakers are (supposed) to have public wellbeing in mind; and banning wheelchairs would be plainly working against that goal. If it were well-known that all lawmakers were a shifty bunch, and had a distaste for the handicapped and elderly, then we might make another interpretation.

There are consequences to accepting this wisdom. How many times have we heard this trope: “If we assume that Mr. Writer So-and-so was really smart; and that this interpretation of his words makes him seem really stupid; then we must interpret them as having meant something else”? All it takes to blow this bit of aphoristic pomp to shreds is to note that, in philosophy, one has to get used to seemingly ridiculous arguments which were made by really smart people. The fact of the matter is, people have different goals, different thoughts, beliefs, desires, intentions. To assume that intelligence implies this-or-that interpretation is just silly, once we take into account the actual goals of the writer, and really come to accept that other intelligent persons may sometimes have wildly different beliefs than ourselves.

American democracy doesn’t work

Published on November 13, 2006 in Culture and Law and Society. 1 Comment

Glenn Greenwald argues:

The basic mechanics of American democracy, imperfect and defective though they may be, still function. Chronic defeatists and conspiracy theorists — well-intentioned though they may be — need to re-evaluate their defeatism and conspiracy theories in light of this rather compelling evidence which undermines them (a refusal to re-evaluate one’s beliefs in light of conflicting evidence is a defining attribute of the Bush movement that shouldn’t be replicated).

Karl Rove isn’t all-powerful; he is a rejected loser. Republicans don’t possess the power to dictate the outcome of elections with secret Diebold software. They can’t magically produce Osama bin Laden the day before the election. They don’t have the power to snap their fingers and hypnotize zombified Americans by exploiting a New Jersey court ruling on civil unions, or a John Kerry comment, or moronic buzzphrases and slogans designed to hide the truth (Americans heard all about how Democrats would bring their “San Francisco values” and their love of The Terrorists to Washington, and that moved nobody). It simply isn’t the case that we are doomed and destined to lose at the hands of all-powerful, evil forces.

It’s not hard to see a bit of pride in Greenwald’s writing. But the attentive democratic reader can only respond to the slightest hint of pride with the barest winsome smile. Even the faintest self-praise from the Colossal Failure that is the contemporary American left comes off as triumphalism. When a movement is so starved for success, its genuine successes will still seem like failures.

No doubt these people who have called themselves “Democrats” deserve some encouragement. They deserve sympathy in part because they have suffered through bad electoral times, and would like a break from perpetual horror; they also deserve it in part because they’re generally right. But what Mr. Greenwald and all the rest need to be reminded of, is that the sigh of relief can’t last long, and it hasn’t been earned.

The fact is, American democracy is in dire shape. The Democrats a) have gone from a barely-minority position, to a barely-majority position; and b) now have substantial amount of power because of that. And both propositions show how far gone American democracy has gotten, albeit in entirely different ways.

The Republican party’s image is a public-relations nightmare. Recent news has shown that they are the party of pederists, warmongers, supporters of a lost cause, censors, killers of innocent Iraqi civilians, apologists for torture, destroyers of social security, tactical and diplomatic incompetents, courtesans of theocrats, enemies of stem-cell research, despisers of both the United Nations and international law, and apologists for state terrorism. They are contemptuous of basic democratic systems, and lie to the public from the highest levels in order to get what they want.

But any basic democratic state would not, and could not, vote for such a party; it would be reviled by 90+ percent of the population. The mere fact that anyone would support it, shows that the democratic culture is reeling from a powerful blow. Much of the pent-up paranoia that any given 1950s straight-man felt against the communists can be attributed to, and was legitimated by, fear of totalitarian rule (albeit mixed with a healthy dose of greed, nationalism, and xenophobia). Yet you can scarcely find any such sentiment among the contemporary Republicans towards themselves; the libertarian right has fled.

Of course, the power of the Republicans originates from identity politics. And the fact of the matter is that identity politics skews towards the undemocratic insofar as it stops aiming toward the achievement of policy goals aimed at the greatest good for the greatest number, and replaces those ambitions with sectarian goals. It may be useful to remind ourselves of Rousseau’s insight on the matter: that a democracy is what happens when the people vote for whatever’s best for the people.

Granted, Rousseau’s ideas are unworkable in practice; people will tend to be self-centered and vote accordingly. Nevertheless, his sentiments are deeply connected at the root to the very practicable thing that makes a democracy work — namely, the willingness of a majority of persons to actually be democratic, and to utterly reject totalitarianism. To have a majority abandon this feeling for law — or to abandon the necessary second premise, of a feeling for reality — is not functional to democracy in any sense of the word. It is a genuine crisis of democracy at its most basic level. As much as I may like her, Nancy Pelosi can’t just pass some legislation to make it go away.

The problems of the culture translate into problems for the law. The dismantling of the filibuster, the alienation of large blocs of the voting population by providing limited voting booths in neighborhoods sympathetic to Democrats, the use of insecure Diebold machines which have zero transparency, and most importantly, the 2000 elections debacle, ought to have shown Americans that their system is broken. That system is broken, simply, because the crimes listed above are things that were done with impunity.

After the 2000 elections, given that we know how the majority really did vote for Gore, the legislature of the intervening years (2000-2004) could only be understood as having been altered or dissolved. As Locke explained: “When, by the arbitrary power of the prince, the electors, or ways of election, are altered, without the consent, and contrary to the common interest of the people, there also the legislative is altered. For, if others than those whom the society hath authorized thereunto, do choose, or in another way than what the society hath prescribed, those chosen are not the legislative appointed by the people”. The Conyers Report, coupled with reports from the GAO, lead us to suspect that the same sort of nonsense happened in Ohio of 2004. Yet where you find election fraud, you cannot find a legitimate democracy; you may only find a rogue state.

Second, the role of the opposition party should be considerable in a democratic state. Yet the impotence of the Democratic party in the past few years shows how broken the American system is. The American public genuinely was split 50-50, yet if you had just looked at the corridors of power, you’d never know it. The Democrats held a respectable amount of seats in both House and Senate, and yet could do almost nothing. The perfect illustration of this is that they had to hold their hearings on Iraq in the basement of the Capitol, literally driven underground.

These facts are not news to Greenwald. Still, he tells us that American democracy has suddenly come alive, with its “basic mechanics” working at a level that is “functional”. If so, it’s news to me. One does not need to be a conspiracy theorist to point out that the “defects” of American governance, rob it of all pretense to democracy.

Weapons of Mass Democracy Rediscovered in the US (About Time!)

Published on November 10, 2006 in Culture and Law and Society. 9 Comments

Here is an inspired cartoon by the Australian artist Bill Leak.

0,1658,5299915,00[1]-1
Of course, the big question is whether the new Congress will have the courage to act, to restore checks and balances, to assert its role against the “unitary executive,” and to insist on a return to the rule of law in all government affairs. Anthony Romero succinctly summarizes what needs to be done:
  • Demand a thorough investigation into the NSA’s warrantless eavesdropping and stop funding this illegal program and start investigating it instead. …
  • Restore respect for human rights and undo the damage done by both the Bush administration’s despicable practices and the recently passed Military Commissions Act. We must close Guantánamo and begin immediately to push for the restoration of due process and the writ of habeas corpus, a cornerstone of our Constitution and our legal heritage.
  • Expose massive invasions of our personal privacy and the monitoring and suppression of those who dare to disagree with government policies. We need to do away with FBI monitoring of peace activists and religious organizations and end unfettered government access to our private financial, health care, and communications records.
  • End government intrusion into the most personal and private aspects of our lives. It is time to reclaim the moral high ground and fight for marriage equality, put the brakes on the federal government’s relentless assault on reproductive freedom and stop the funneling of billions of tax dollars to religious institutions that are free to discriminate.

I would add one item to that list in particular: Fight tooth and nail to end the insane ban on embryonic stem cell research. There is no conceivable justification for opposing the development of treatments for some of the most tragic diseases known to humankind. Whatever else the anti-stem cell research coalition purports to stand for, they clearly promote human suffering and are, in practice and effect, pro cancer. No one should feel compelled to “respect” such views, even if they are couched in terms of religious belief.

[tags]politics, law, stem cells[/tags]

Soldier killed self after participating in interrogations

Published on November 5, 2006 in Law and Society. Closed

http://www.editorandpublisher.com/eandp/columns/pressingissues_display.jsp?vnu_content_id=1003345862

I don’t really want to lower the tone of this blog, but I have to say, this story is revolting at a level I find hard to express.

Greg Mitchell reports:

The true stories of how American troops, killed in Iraq, actually died keep spilling out this week. On Tuesday, we explored the case of Kenny Stanton Jr., murdered last month by our allies, the Iraqi police, though the military didn’t make that known at the time. Now we learn that one of the first female soldiers killed in Iraq died by her own hand after objecting to interrogation methods used on prisoners.

She was Army specialist Alyssa Peterson, 27, a Flagstaff, Ariz., native serving with C Company, 311th Military Intelligence BN, 101st Airborne. Peterson was an Arabic-speaking interrogator assigned to the prison at our air base in troubled Tal-Afar in northwestern Iraq. According to official records, she died on Sept. 15, 2003, from a “non-hostile weapons discharge.”€

…

But in this case, a longtime radio and newspaper reporter named Kevin Elston, unsatisfied with the public story, decided to probe deeper in 2005, “just on a hunch,” he told E&P today. He made “hundreds of phone calls” to the military and couldn’t get anywhere, so he filed a Freedom of Information Act request. When the documents of the official investigation of her death arrived, they contained bombshell revelations. Here’€™s what the Flagstaff public radio station, KNAU, where Elston now works, reported yesterday:

“€œPeterson objected to the interrogation techniques used on prisoners. She refused to participate after only two nights working in the unit known as the cage. Army spokespersons for her unit have refused to describe the interrogation techniques Alyssa objected to. They say all records of those techniques have now been destroyed. …”.

I’m reminded of the horror film, “Cube”, where people of varying degrees of innocence were trapped, tortured, and killed without exactly knowing why. If you were part of this, or of something that you considered to be a crime against humanity, what would you do? How do you capture the level of insanity, horror, and injustice with mere words? The answer that was evident to Emile Durkheim, suicide, may also be the case here, although I’m not sure Durkheim would quite have had the theory to describe it.

The spin that we’ll hear from, of course, is that she was suicidal from the beginning, had a series of mental problems, etc. Maybe it’s even true. But of course, information about all these things will not be hard to come by. If it becomes an issue, the consensus among pundits will be that she was unstable, and couldn’t deal with the harsh reality of entirely practical, functional detainee interrogation techniques. The role of moral horror in the crafting mental instability will be downplayed; but of course it will be a tragedy, with flowers going to the parents of the deceased, and kind words, etc.

On a more sober note, I must admit surprise that not all documents have been destroyed, and am continually surprised at the effectiveness of FOIA. The true test of FOIA’s effectiveness will be whether we ever see the suicide note.

Global Privacy Rankings

Published on November 2, 2006 in Privacy. Closed

Privacy International published an interesting survey of the degree of informational privacy afforded by various countries to its citizens and the pervasiveness of electronic surveillance. Here are the key findings:

  • The two worst ranking countries in the survey are Malaysia and China. The highest-ranking countries are Germany and Canada.
  • In terms of statutory protections and privacy enforcement, the US is the worst ranking country in the democratic world. In terms of the health of national privacy protection, the US has been ranked between Thailand and Israel.
  • The worst ranking EU country is the United Kingdom, which fell into the “black” category along with Russia and Singapore. The black category defines countries demonstrating “endemic surveillance”.
  • Despite having no comprehensive national privacy law, the United States scored higher than the UK. Thailand and the Philippines also scored higher than the UK.
  • Argentina scored higher than 20 of the 25 EU countries.
  • Australia ranks higher than Slovenia but lower than Lithuania and Argentina. New Zealand ranks higher than Australia and has an equivalent ranking to the Czech Republic.

Here is the ratings table and a map based on the chart. If I was managing an email service provider in Germany, such as GMX, I would start marketing the comparative advantage in terms of privacy protection to US customers. (Hushmail, a great Canadian service, is already doing it.)

[tags]privacy, hush, gmx, surveillance[/tags]

What it Means to be a Liberal

Published on October 30, 2006 in Culture. 1 Comment

Geoffrey Stone proposes ten principles of what liberalism means in this article for the Chicago Tribune (HT: Brian Leiter). Here is an abbreviated version.

  1. Liberals believe individuals should doubt their own truths and consider fairly and open-mindedly the truths of others. …
  2. Liberals believe individuals should be tolerant and respectful of difference. …
  3. Liberals believe individuals have a right and a responsibility to participate in public debate. …
  4. Liberals believe “we the people” are the governors and not the subjects of government, and that government must treat each person with that in mind. …
  5. Liberals believe government must respect and affirmatively safeguard the liberty, equality and dignity of each individual. …
  6. Liberals believe government has a fundamental responsibility to help those who are less fortunate. …
  7. Liberals believe government should never act on the basis of sectarian faith. …
  8. Liberals believe courts have a special responsibility to protect individual liberties. …
  9. Liberals believe government must protect the safety and security of the people, for without such protection liberalism is impossible. …
  10. Liberals believe government must protect the safety and security of the people, without unnecessarily sacrificing constitutional values. …

Surprisingly (to me), there’s nothing on that list that I disagree with. Read it along with Brian Leiter’s scathing critique of We Answer in the Name of Liberals.

[tags]politics, liberalism[/tags[

Stated and Revealed Beliefs: What the Dow Jones Index Tells Us About The End of the World

Published on October 28, 2006 in Culture. 4 Comments

In “Letter to a Christian Nation,” Sam Harris refers to a Gallup poll according to which

[f]orty four percent of the American population is convinced that Jesus will return to judge the living and the dead sometime in the next fifty years. (p. xi)

That’s 132 million out of 300 million people. Now let’s discount those older than 65, for whom “sometime in the next fifty years” effectively means “in all likelihood after I’m dead,” and those younger than 15, because their opinion is likely to reflect the beliefs of their parents, not their own. That leaves us with a 67.2% slice of the total population, or 88.7 million of 132 million. What would happen if 88.7 million people were truly convinced that the world would come to an end within the next fifty years? Presumably, they would forego future consumption in exchange for present consumption. Consequently, they would trade future dollars for present dollars, which is a recipe for inflation. Similarly, we would expect a serious drop in demand for long-term investments. The macro-economic fingerprint of 88 million people living (almost) “as if there was no tomorrow” should be unmistakable. I seriously doubt that we’re seeing that fingerprint in the real world. In short, it seems to me that a record Dow Jones Industrial Average Index North of 12,000 points is irreconcilable with 88 million people truly believing that the world will end within their lifetimes. The upshot is, not surprisingly, that actions speak louder than words. The stated beliefs of those who profess to expect the world to end differ from their revealed beliefs in the future utility of a well-funded 401(k) plan.

That, of course, is an eminently positive result! It suggests that people indulge in delusional beliefs only as long as there are no real consequences attached to holding such beliefs (e.g., in the context of answering a bunch of survey questions), which, of course, implies that they have an inkling that such beliefs are, in fact, delusional. Or maybe they are just hedging their bets, in case their beliefs are wrong — the inverse, in a sense, of Pascal’s wager.

[tags]religion, delusion, sam harris, economics[/tags]

NJ Supreme Court Comes Out in Favor or Gay Marriage

Published on October 25, 2006 in Uncategorized. 1 Comment

The New Jersey Supreme Court today ruled that New Jersey has no business denying “committed” gay couples the benefits of marriage. Here are some quotes from the syllabus:

Denying committed same-sex couples the financial and social benefits and privileges given to their married heterosexual counterparts bears no substantial relationship to a legitimate governmental purpose. The Court holds that under the equal protection guarantee of Article I, Paragraph 1 of the New Jersey Constitution, committed samesex couples must be afforded on equal terms the same rights and benefits enjoyed by opposite-sex couples under the civil marriage statutes. The name to be given to the statutory scheme that provides full rights and benefits to samesex couples, whether marriage or some other term, is a matter left to the democratic process.

…

New Jersey’s marriage laws, which were first enacted in 1912, limit marriage to heterosexual couples. The recently enacted Domestic Partnership Act explicitly acknowledges that same-sex couples cannot marry. Although today there is a national debate over whether same-sex marriages should be authorized by the states, the framers of the 1947 New Jersey Constitution could not have imagined that the liberty right protected by Article I, Paragraph 1 embraced same-sex marriage.

Times and attitudes have changed. There has been a developing understanding that discrimination against gays and lesbians is no longer acceptable in this State. On the federal level, the United States Supreme Court has struck down laws that have unconstitutionally targeted gays and lesbians for disparate treatment. Although plaintiffs rely on the federal cases to support the argument that they have a fundamental right to marry under our State Constitution, those cases fall far short of establishing a fundamental right to same-sex marriage “deeply rooted in the traditions, history, and conscience of the people of this State.” Despite the rich diversity of this State, the tolerance and goodness of its people, and the many recent advances made by gays and lesbians toward achieving social acceptance and equality under the law, the Court cannot find that the right to same-sex marriage is a fundamental right under our constitution.

…

The State does not argue that limiting marriage to the union of a man and a woman is needed to encourage  procreation or to create the optimal living environment for children. Other than sustaining the traditional  efinition of marriage, which is not implicated in this discussion, the State has not articulated any legitimate public need for depriving committed same-sex couples of the host of benefits and privileges that are afforded to married heterosexual couples. There is, on the one hand, no rational basis for giving gays and lesbians full civil rights as individuals while, on the other hand, giving them an incomplete set of rights when they enter into committed samesex relationships. To the extent that families are strengthened by encouraging monogamous relationships, whether heterosexual or homosexual, the Court cannot discern a public need that would justify the legal disabilities that now afflict same-sex domestic partnerships.

As we have said before, it is a fundamental tenet of the liberal state that the power of the state to limit citizen’s liberty be restricted to areas in which such restrictions are necessary for the protection of other citizens or the functioning of the commonwealth of citizens. Bans of on gay marriage cannot be justified under universalist morality. Note that the court did not require “marriage” to be extended to gay couples, but only that the benefits and privileges of marriage be extended to them.

Congratulations to New Jersey and to Liberty!

On Skilling’s 24 Year Sentence

Published on October 25, 2006 in Law and Society and Theories of Punishment. 1 Comment

Geoff Manne offers the following insightful comment over at Truth on the Market , extending a discussion about the proportionality of Skilling’s sentence compared to sentences meted out in the so-called “war on drugs.”

The problem in the drug war context is quite different, at least for me. Given a social (or at least government) policy of deterring drug use, perhaps draconian sentences are required and appropriate (given the difficulty of deterrence). But I happen to think the policy itself is idiotic and the practice shouldn’t be deterred in the first place. In that sense, I think punishments for drug use are approximately infinitely too large. But there’s little sense in quibbling over the length of sentencing and optimal enforcement policy given my priors.

The same doesn’t go for corporate fraud: It should be deterred. The question there, however, is how to do so optimally, given the staggering social costs of over-deterrence; the risk of self-aggrandizing, politically-motivated, error-prone prosecution; and the reality of pretty good, existing agency-cost controls. Was Skilling’s prosecution, conviction and sentencing here optimal from a deterrence standpoint? I doubt it, and so do many others.

While Skilling’s sentence is not as preposterous as, say, 200 years for possession of child pornography, it is yet another indication that criminal sentencing in the US, across a wide range of offenses, is simply off the charts. The virtually unchecked power given to prosecutors to destroy a defendant’s life at their discretion (which will often be driven by career, or worse, political ambitions) is unjustifiable. The entire punishment debate needs an empirical reset. Policy goals should be identified on the basis of harm to others, with physical harm — at least lasting physical harm — counting for more than economic harm. And punishments should be calibrated on the basis of optimal level of crime, deterrence and future expected contributions to society by the offender (a.k.a. rehabilitation). The rich experience of other developed nations, more developed nations when it comes to rational criminal law policies, should be taken into consideration in calibrating the model. Lastly, the consequentialist framework should be bracketed by deontological considerations, for example, even if the evidence were to show that certain crimes are effectively deterred by the death penalty, imposing it is beyond the legitimate powers of any government. (Utilitarian-Libertarians will have no problems recasting this as a consequentialist argument.)

[tags]crime, punishment[/tags]

On the Positive Externalities of pr0n

Published on October 25, 2006 in Culture. 1 Comment

David Friedman points us to a recent article by Todd Kendall on Pornography, Rape, and the Internet. Here is Friedman’s summary:

One argument sometimes offered for laws against pornography, or against some kinds of pornography, is the claim that consumption of pornography leads to violence against women. A counter argument is that it has the opposite effect, that imaginary sex, including imaginary violent sex, is a substitute for the real thing. I recently attended a talk by an academic who had found an ingenious way of using a natural experiment to find out which was true. Access to the internet makes pornography more readily available—not only cheaper and easier to find, but more private and so less likely to lead to embarrassment and other negative social consequences. Internet access increased at different rates in different states. Data on rape rates by state is available. So he looked to see whether, controlling for other variables, increased access to the net correlated with an increase or decrease in rape. It correlated with a decrease—about a ten percent drop in rape for a ten percentage point increase in internet access, with the exact numbers varying according to just how he did the analysis. There was no similar relation for murder, which suggests that the result is not simply picking up the effect of some third variable that correlates with both internet access and violent crime.

[tags]pornography, Internet[/tags]

Shocking (Rational) Ignorance

Published on October 24, 2006 in Culture. 3 Comments

The war in Iraq has been the dominant political issue for the last three years. If recent data are accurate, about 650,000 Iraqis have died as a result of the war, about 2,800 US soldiers have died, and about 21,000 have been wounded. Fueling much of the post-invasion violence in Iraq is the sectarian divide between Sunnis and Shiites, and it is now clear that some sort of compromise between those two factions is a necessary condition for a stable post-occuptation Iraq. Given the centrality of the Sunni-Shiite divide, one would think that all higher-ranking U.S. counter-terrorism officials are at least conversant in what’s behind the labels that make one faction fight the other and (sometimes jointly, sometimes by way of association with “the other side”) the Coalition forces. That assumption, however, would be wrong. Jeff Stein of the NYT asked counter-terrorism officials in D.C. the rather basic question: “Do you know the difference between a Sunni and a Shiite?” A perfectly acceptable answer, I suppose, would be that according to Sunni belief, Mohammed did not appoint a successor and that according to the Shiites he did. Extra points for mentioning that Shiites are a (~ 15%) minority among Muslims that is truly dominant only in Iran, Azerbaijan, parts of the Lebanon, and notably, the South-East of Iraq. Well, here are some of the answers that Stein got in fact:

At the end of a long interview, I asked Willie Hulon, chief of the [FBI's] new national security branch … if he could tell me the difference [between Sunnis and Shiites]. He was flummoxed. “The basics goes back to their beliefs and who they were following,” he said. “And the conflicts between the Sunnis and the Shia and the difference between who they were following.” O.K., I asked, trying to help, what about today? Which one is Iran — Sunni or Shiite? He thought for a second. “Iran and Hezbollah,” I prompted. “Which are they?” He took a stab: “Sunni.” Wrong. Al Qaeda? “Sunni.” Right. [...]

Take Representative Terry Everett, a seven-term Alabama Republican who is vice chairman of the House intelligence subcommittee on technical and tactical intelligence. “Do you know the difference between a Sunni and a Shiite?” I asked him a few weeks ago. Mr. Everett responded with a low chuckle. He thought for a moment: “One’s in one location, another’s in another location. No, to be honest with you, I don’t know. I thought it was differences in their religion, different families or something.” [...]

Representative Jo Ann Davis, a Virginia Republican who heads a House intelligence subcommittee charged with overseeing the C.I.A.’s performance in recruiting Islamic spies and analyzing information, was similarly dumbfounded when I asked her if she knew the difference between Sunnis and Shiites. “Do I?” she asked me. A look of concentration came over her face. “You know, I should.” She took a stab at it: “It’s a difference in their fundamental religious beliefs. The Sunni are more radical than the Shia. Or vice versa. But I think it’s the Sunnis who’re more radical than the Shia.” Did she know which branch Al Qaeda’s leaders follow? “Al Qaeda is the one that’s most radical, so I think they’re Sunni,” she replied. “I may be wrong, but I think that’s right.”

In other words, at least some of those in charge of fighting the so-called “war on terror” never bothered to spend ten minutes on Wikipedia to learn about “the enemy.” The implication, in my view, is not that people who don’t know the difference between Sunnis and Shiites are unfit to lead the “war on terror.” Rather, given that most ignorance among educated people with access to information is rational ignorance, the implication is that even the most basic knowledge of what drives actual events in Iraq is superfluous for certain leadership positions in the “war on terror,” which — in significant part — is decidedly no longer a reality-based event.

[tags]culture, rational ignorance, shiite, sunni, iraq[/tags]

ACLU v. Gonzales, Defending Free Speech on the Web Against Chilling Effects

Published on October 23, 2006 in Law and Society. Closed

Here is a case to watch over the next couple of weeks.

The ACLU returns to court for the latest round in the battle against Internet censorship with ACLU v. Gonzales, originally ACLU v. Reno, then ACLU v. Ashcroft. The court will decide whether the law violates the constitutional right to free speech. The ACLU has challenged the “Child Online Protection Act” (COPA), which would impose draconian criminal sanctions, with penalties of up to $50,000 per day and up to six months imprisonment, for online material acknowledged as valuable for adults but judged “harmful to minors.”

For more information, check out the press release and the client bios.

[tags]aclu, free speech, first amendment[/tags]

Textual Revelation?

Published on October 21, 2006 in Philosophy. 1 Comment

Some people seem to believe in “textual revelation” as a truth criterion. I don’t get it. What kind of truth criterion is that supposed to be? I read a (presumably ancient) text and interpersonal truth is revealed to me? How? By whom? Does it work with any text? How do I know what qualifies as bona fide revelation and what’s just a figment of my imagination? What if my “textual revelation” is different from yours? Who wins? How do you know that I’m not just faking it? Textual revelation is nonsense, plain and simple. If anyone could point me to a source that suggests otherwise, I’d be much obliged.

[tags]philosophy, textual revelation[/tags]

“Untruths are not Lies”

Published on October 21, 2006 in Law and Society. 2 Comments

Brian Tamanaha tells the following cautionary tale…

about a young federal public defender handling a case, United States v. Rewald, which involved the CIA and several hundred documents containing classified information. One day, about a month into the trial, following a grueling cross-examination by the defense attorney of a witness from the CIA, which clearly harmed the government’s case, the federal prosecutors asked the judge for a closed hearing. In the closed hearing, with only the lawyers and the judge present, the lead prosecutor, from the U.S. Department of Justice, requested that the judge hold the defense attorney in criminal contempt for asking questions of the CIA witnesses that elicited prohibited classified information in open court.

It turns out that the classified information was made up by the CIA specifically to mislead another federal agency (the IRS).

The official admitted that none of the stories were in fact true. However, he insisted that they were not “lies.” He said that they were “creative stories.” When I asked him to tell me the difference between “lies” and “creative stories,” given that both are untrue, he said (I paraphrase):

“Untruths are not ‘lies,’ but ‘creative stories,’ when they are made up in the interest of protecting the country. And the CIA is protecting the country.”

This was the testimony of a high ranking CIA official, under oath, in federal district court. This kind of mindset, needless to say, can justify almost anything.

On the basis of that evidence, the judge went on to find the defendant guilty as charged, and Wilson spent the next twenty years in jail — until his conviction was overturned by another federal district court judge. What happened to Tamanaha? Well, head over to Balikinization and read for yourself.

[tags]law, cia[/tags]

Freeing speech & limiting acts

Published on October 20, 2006 in Jurisprudence, Law and Society and Philosophy. 19 Comments

In reply to a recent thread, Cosim had two pressing concerns over the ethics and legal philosophy behind free speech.

(1) “I’m not sure why the law should tolerate racist opinions; general propositions don’t decide concrete cases. For example, to take the Brandenburg case from American constitutional law, Klansmen spoke about sending “€˜the Black back to Africa, the Jew to Israel”€™. Although the threat was surely not imminent, I’m not certain why a society should permit such talk, even if it is only that: talk by white men in white bedsheets.

In such a case, the risk-of-error – supression of speech that might in the long term come to good – seems exceedingly small so I think one can saely consider the limit of this over onto zero.”

(2) “Speech/act distinction: how viable? It’€™s mentioned several times, and I’m unsure as to whether and how much useful it is.”

On the surface, their arguments seemed somewhat plausible to me, for two reasons. One, I’m a Canadian, and I’ve grown up in a legal climate which is not especially interested in tolerating abuse in the name of free speech. True enough to that tradition, I can’t help but admit that I have no sympathy for hatemongers. Two, there is a distinction between the freedom to express content and the freedom to make particular speech acts, where the former is treated as sacrosanct, while open season may be declared on the latter. Yet this distinction can be troublesome. For instance, elsewhere in comments, I’ve admitted that the law may be more flippant with some kinds of cases of speech, and more wary with other kinds. For certain kinds of claims have a traditional rhetorical force than others; imagine the difference between an activist’s impassioned plea for desegregation as a direct commandment of the Constitution, versus a man giving an impassioned plea for the liberation of turnips. The former has a force on our sympathies which the latter obviously doesn’t, and the distinction in some part rests on the content, and not the manner of speech. The former would seem to have more political force than the latter.

Still, flying by on one’s initial reactions is a crappy way to live one’s life, so (1) and (2) need further examination.

(1) Let’s say for the moment that what Cosim says is true for a certain category of cases — in other words, that the speech act will always produce some kind of bad, and avoidable, consequence. If what he/she says is true, it would seem that the utilitarian (like myself) would be compelled to make an exception against free speech in that kind of case. The topic then zeroes in on the question, “Is free speech really a right?”.

I want to say, ultimately, “yes, it is a right”, because there’s always the worry about a slippery slope. So we have to ask ourselves two questions:

First, will the exception made by the community have a negative impact on its habits — i.e., will it weaken or destroy our understanding of “rights”? I believe so. Still, if the distinction we make is a principled exception, then that might seem more permissible — though it’s like a stop-gap measure which protects us from the collapse of a dam.

Second, will a principled exception made by the polity have a negative impact on the polity’s habits of enforcing rights? The entire judicial system works on the basis of precedent, so the answer seems to be an undeniable “yes”. But what do we figure would be the extent of the damage? Would people simply accept the exception to the rule, and leave it at that — or would they use it as a springboard for further erosions?

It’s hard to say; so much seems to be context-contingent. And if we do look at the present context, I can’t help but be pessimistic. Just think of the fiascos of recent years. The political attitude appears to be an eagerness toward the suppression of free speech, both in America (Bill Maher’s firing), Europe (anti-Islamist postures), and the Mideast (Danish cartoons). That worries me. But anyway, giving the benefit of the doubt, I could at best only claim agnosticism about the possible consequences. But whenever I’m blocked from the application of the principle of utility into a judgment, I must err on the side of principle — in this case, in favor of free speech. This “deontology-as-a-last-resort” attitude is perhaps not at all convincing. But I think it is no more convincing than any sweeping argument that the principled erosion of some right will have no potentially disastrous impact at all upon the way that right in general is applied (and understood) in the future.

(2) I worry about the viability of the act/content distinction as well. First, there’s obviously the worry that people will, in practice, make errors in applying the distinction. But there are also worries about whether a speech act can be divorced from the context of the act and the sensitivity of the audience, which would affect the force of the perlocutionary act.

What are we talking about here, in plain terms? I must confess, I don’t even know. Really, it doesn’t seem as though there’s any such thing as a perlocutionary act. For an act is supposed to be the product of some agent’s intentions; yet the perlocutionary act varies from audience to audience.

For example, let’s say that a popular comedian, Lenny, gets on stage before a large audience. Let’s also say that part of Lenny’s act is to make racist-sounding remarks in order to parody racist people. Most of the audience laughs at the joke. But let’s say that a prude in the audience, Richard, doesn’t quite understand that Lenny is actually mocking racists — rather, he thinks that Lenny is himself being a racist. Richard despises racists, and so, is offended. Now — given that because an act is supposed to be the product of some agent’s intentions, and given that we are working with the definition of “perlocutionary act” linked above — Lenny has performed an action, and that action was to offend Richard. But Lenny never intended to offend Richard; so how could he be said to have performed the act of offending him?

If we were to maintain that Lenny’s perlocutionary act was to offend Richard, nonsense would follow. Not only have we seemingly washed away the distinction between action and a mere consequence, we’d seem to have to say that the expressed content of the joke was all there was to the speech act.

A more nuanced examination would say something like, “Lenny’s speech act was to tell a joke; his perlocutionary act was to make the audience laugh; but a latent consequence was that Richard was offended”. But if that was the case, then Richard’s hurt feelings would not be the target of a perlocutionary act, but rather something else. Still, happily, the act/content distinction would seem undamaged in this case, because we can point to the content of the words and then contrast it to communicative intentions in a social context.

Perhaps Cosim had other concerns about how the viability of the distinction might be challenged, but the above was (I think) my big lumpenworry.

Dawkins and Dennet Podcasts

Published on October 15, 2006 in Culture. Closed

Ola Endre Reitstøen has this useful collection of interviews, presentations, and podcasts by Richard Dawkins and Daniel Dennet (among others). The site’s link library is also excellent.
[tags]atheism, dawkins, dennet, podcast[/tags]

Not Quite Free Speech

Published on October 12, 2006 in Uncategorized. 1 Comment

The French parliament has passed a law, making it a criminal offense to deny the Armenian Genocide of 1915-17, as the BBC reports:

The bill, which provides for a year in jail and a heavy fine, still needs approval from the Senate and president.

Turkey called the decision a “serious blow” to relations with France. It has already threatened economic sanctions.

Armenia says Ottoman Turks killed 1.5 million people systematically in 1915 – a claim strongly denied by Turkey.

The European Commission has said that the bill, if passed into law, will “prohibit dialogue which is necessary for reconciliation” between Turkey and Armenia on the issue.

There are several countries who have penalized holocaust denial, including Germany and Israel. The German statute does not address the so-called Auschwitz lie directly, but German courts have long considered denying the holocaust as an act of inciting ethnic hatred. And in the context of German history and society, this makes sense. How is the denial of the Armenian genocide in France comparable? Is it a way of enciting hatred against Armenians living in France? The law comes on the day that Orhan Pamuk receives the Nobel Prize for literature, to mixed reactions at home and abroad. Pamuk not long ago sparked a heated debate by referring to the killing of a million Armenians by the Turkish. As a result, there were calls for Pamuk’s indictment under Turkish law:

Mehmet Üçok, an attorney, filed charges at the Kayseri public prosecutor’s office. Another charge was filed by Kayseri Bar Association attorney Orhan Pekmezci: ‘Pamuk has made groundless claims against the Turkish identity, the Turkish military and Turkey as a whole. He should be punished for violating Articles 159 and 312 of the Turkish penal code. He made a statement provoking the people to hatred and animosity through the media, which is defined as a crime in Article 312.’

I am sure the French bill comes against this background; but this doesn’t make the law right or sensible. Will France make it an offence to deny British oppression of the Irish next? All limits on the substance of free speech should be as narrow as possible. Limits are justified only when speech devolves entirely into insult and hatred (not mostly; entirely). Taking the position in France that the deaths of Armenians during World War I were not intended by the Ottoman Empire may be historically indefensible and a self-serving position for the Turkish government to take—but is it nothing but an insult to Armenians living in France and an expression of ethnic hatred?

Free Speech and the Campus Left

Published on October 10, 2006 in Culture. 15 Comments

I have long been critical of the tactics that are sometimes employed by left-wing activists on college campuses, and also of the kind of thinking (or perhaps more accurately not thinking) that tends to motivate the use of such tactics. This criticism has earned me much scorn from members of the campus left, and the ways in which activists tend to respond to the most general aspects of my critique make me think that the most vocal advocates of what I think are often (though certainly not always; I have plenty of political disagreements with much of the campus left, and in particular with the most radical elements thereof) importantly correct policy views are not only failing to advance their cause, but actually doing significant harm to it. This concern is especially serious in cases in which the organized activities of leftist groups clearly violate principles that they claim to to defend, such as free speech. These actions accomplish nothing except providing the right with ammunition with which to attack the activists, members of the left generally, and thereby (at least in the minds of many who hear the attacks) the ideas for which the activists stand (or at least claim to).

Last Wednesday the College Republicans at Columbia University organized an event that included a speech by Jim Gilchrist, the founder of the Minuteman project. Minutes into Gilchrist’s speech, a number of left-wing students stormed the stage, halting the speech and forcing Gilchrist to exit the auditorium out the back door (video here). The students opened banners with slogans painted on them and chanted loudly, turning what was supposed to be a provocative speech by a controversial individual into a chaotic scene in which no discussion was possible at all.

This is yet another example of activists on the left engaging in actions that stifle reasoned debate, rather than fostering it. And this only hurts their chances of having a genuine political impact. It allows right-wing pundits to characterize them as dogmatic ideologues, unwilling to listen to opposing points of view or even to allow those points of view to be heard at all. And in at least some cases, this characterization is basically accurate. Some pundits also accused the students of taking the action that they did because they are incapable of winning a debate on the issues. This characterization is also basically accurate, at least with respect to many of the students who engage in the kind of actions that occured at Columbia. It is not accurate for the reasons that conservative pundits think, namely that the Minutemen are actually in the right. It is accurate only because so many campus activists have little or no interest in developing the skills necessary to engage in reasoned debate. This in turn has to do with a conception of politics that has become common to many left-wing campus activists and many right-wing political operatives. This conception involves the view that reasoned debate has no legitimate role to play in the political process; for right-wingers this view arises out of the view that political legitmacy is nothing more than the ability to exercise power (see here and here), while for those on the left it arises out of the view that there are no correct answers to normative political questions, just the equally valid opinions of individuals. This skepticism about objectively correct answers to normative questions in turn arises from a more general skepticism about reason and rationality. And this skepticism leads not just to the conclusion that reasoned debate has no role to play in politics, but that there is nothing that could even constitute reasoned debate (I’m still amazed how often left-wing campus activists simply accept this conclusion when I press them on these points; this really seems to be what many of them think).

With reasoned debate out the window as a means of advancing their cause, activists often choose to adopt tactics such as those used at Columbia. Of course these tactics seem to clearly undermine free speech, a value which these same activists often claim to defend. On Bill O’Reilly’s show last night Democratic strategist Kirsten Powers (with whom I often disagree) made the perceptive point that the students who rushed the stage at Columbia simply don’t understand what free speech is: “Free speech means that sometimes you have to hear things that offend you”, she said. This is an extremely important point, and one that many on both the left and the right tend to lose sight of. For example, here is a bit of what the students said in defense of their actions:

Fascist scapegoating is not up for academic discussion. Like Hitler in pre-Nazi Germany, Gilchrist and the Minutemen attempt to demonize foreign-born poor people, blaming “illegals” for society’s problems. His group doesn’t present reasoned debate. It spouts racism and hatred, aiming to divide people against one another.

This statement seems to me not entirely false. There are at least racist elements within the Minutemen, and even the comparison to Nazi race-baiting may be apt, at least in some sense. But to call a group ‘fascist’ without explaining what the term means is already to leave the realm of rational discourse; it is mere name-calling, designed to cut off rather than foster debate. More importantly, the students seem to mean their claim that the Minutemen “don’t present reasoned debate” as a criticism; but surely what they did strays even further from reasoned debate than the speeches of Gilchrist and the other Minutemen. If engaging in reasoned debate is the way to address political disagreements, then why not respond to Gilchrist by asking tough questions and presenting arguments against his views, rather than calling him names and eliminating the possibility of any debate at all?

We are sure that if the Nazi party held a public meeting on campus, Jewish groups would be there to challenge them-so would we. We are sure that if the Ku Klux Klan held a public meeting on campus, African American groups would be there to challenge them-so would we. The Minutemen are no different.

Of course individuals and groups have the right to, and indeed should, attend such events and register their dissent from the views being put forward by Nazis and Klan members, just as it would have been perfectly appropriate for students opposed to the Minutemen to attend the event at Columbia in order to register their dissent. But the relevant issue is how to do this in a way that both respects important principles like free speech and will be effective in combating the views of such groups. Holding signs, wearing T-shirts with slogans, passing out fliers, asking tough questions and making arguments against the views of the Minutemen are all perfectly appropriate ways that the students might have made their views known. But even racists, Nazis, and Klan members have the right to free speech, and silencing them in the way that the students did only harms their cause, as well as perversely providing legitimacy to those on the right who use different but equally repugnant means of silencing those with whom they disagree (e.g. communists, atheists, anarchists, etc.).

This is not an issue of free speech. The Minutemen were able to reserve a hall at our university and had the protection of campus security and the NYPD-all to espouse their hate speech. We along with hundreds of others expressed our right to speak and protest.

The students fail to see that this is an issue of free speech because, as Powers said, they do not understand what free speech means. Free speech means that people can say hateful and offensive things (and of course others can, and should, respond by denouncing those statements). The students’ claim seems to be that all that they did was exercise their right to speak, and that since they spoke louder they were able to drown out the message of the Minutemen. But this view assumes a conception of free speech in which everyone simply attempts to drown out opposing views, rather than engaging with them and responding with arguments (that is, engaging in reasoned debate). This not only a deeply troubling conception of free speech, but it is a conception that, as a general matter, surely favors the right and not the left, despite the isolated cases on elite campuses in which leftist students can do what was done at Columbia.

Scott Horton on When Lawyers are War Criminals

Published on October 9, 2006 in Culture and Law and Society. Closed

Scott Horton has written a powerful essay on the moral and legal responsibilities of lawyers in a time of war. He begins his essay with a quote from Helmuth James von Moltke, a staff lawyer at the German defense ministry during WWII.

In France, innumerable summary executions occur, even as I sit here writing. Each day certainly more than a thousand people are killed, and thousands of German men experience murder as a matter of routine. And yet all of that is child’s play compared to what’s going on in Poland and Russia. Can I learn about this and just sit at the table in my heated apartment and drink tea? Don’t I establish my complicity simply by doing nothing? What will I say in the future, when someone asks me: and what did you do during this time? (Helmuth von Moltke, in a letter to his wife, Oct. 19, 1941)

Three years later, von Moltke was arrested by the Gestapo, sentenced to death by the Volksgerichtshof under the infamous Roland Freisler, and executed in early 1945, just a few months short of Germany’s unconditional surrender. Horton explains:

Disgusted by an atmosphere in which law was constantly subverted to political expedience, Moltke envisioned harsh prosecutions of politicians and lawyers who engaged in such antics as an essential purgative. In a draft dated June 14, 1943, Moltke envisioned a special international criminal tribunal to be convened at the conclusion of the Second World War for the purpose of bringing to justice those who violated the laws of war. Lest there be any doubt, it was principally the men he worked with every day in the Wehrmacht whose punishment he foresaw. In view of mounting evidence of a crime of genocide, and out of concern that international customary law failed yet to provide a medium for its punishment, he advocated an expansive posture for prosecution. “Any person who violates the essential principles of divine or natural law, of international law, or of international customary law in such a fashion that makes clear that he contemptuously disregards the binding nature of such law shall be punished,” he wrote in a plan for a post-war tribunal in 1943. … I come to the example of Moltke for another reason, namely that he very properly puts the emphasis not on the simple soldiers who invariably operate the weaponry of war, but on those who make the policies that drive their conduct. And in that process, his stern gaze falls first on the lawyers. In a proper society, the lawyers are the guardians of law, and in times of war, their role becomes solemn. Moltke challenges us to test the conduct of the lawyers. Do they show fidelity to the law? Do they recognize that the law of armed conflict, with its protections for disarmed combatants, for civilians and for detainees, reflects a particularly powerful type of law – as Jackson said “the basic building blocks of civilization”? Do they appreciate that in this area of law, above all others, the usual lawyerly tricks of dicing and splicing, of sophist subversion, cannot be tolerated? These are questions Moltke asked. They are questions that the US-led prosecution team in Nuremberg asked. They are questions that Americans should be asking today about the conduct of government lawyers who have seriously wounded, if not destroyed, the Geneva system.

If you only read one blog post today, make it Horton’s thoughtful, angry, courageous, and beautifully written essay dedicated to the memory of von Moltke.

[tags]war crimes, von moltke, lawyers[/tags]

Privacy and Security: A False Dichotomy

Published on October 8, 2006 in Culture. 2 Comments

Bruce Schneier recently led a discussion about privacy and security at the USC Center on Public Diplomacy as part of a speaker series organized by Cory Doctorow. Here is the podcast, which doesn’t disappoint. Schneier’s position with respect to security has no particular ideological bent, after all, he is in the business of selling security. But he’s a committed pragmatist who always asks “what works, and at what cost.” Schneier makes a number of critically important points, including:

  • The only useful measures to actually increase airplane security since 9/11 are reinforced cockpit doors, sky marshals, and passengers knowing that they will have to fight back.
  • We are only focusing on one threat at a time. In the past, there was the threat from government. (A defining theme since the American Revolution.) Today, it’s terrorism. And in the process of fighting terrorism, we are dismantling the protections against other threats — including government abuse.

Schneier’s most important point is that the current identification-based security paradigm is deeply flawed. Identification-based security relies on the assumption that we can

  • Create a complete and accurate list of dangerous people, for example, a no-fly list; and that
  • Armed with that list, we can track dangerous people, and if need be stop them from carrying out whatever bad acts they might be contemplating.

What’s wrong with that idea? First, we don’t know which observable characteristics are reasonable proxies for the intent to commit bad acts. Past offenses? Frequent travels to Afghanistan and Pakistan? Sharing a name with a known terrorist? Maybe, but all of these criteria are vastly overinclusive and don’t provide much guidance as to who should be on that list. (Of course, the potential for abuse of such a system is simply breathtaking.) Second, even if we had a way of identifying potentially dangerous individuals, we would have no way of telling when they are about to commit bad acts. Third, identification-based security requires wholesale surveillance of millions of people, and that’s what puts ID-based security directly at odds with privacy. And here is the critically important point: Only ID-based security is directly at odds with privacy. Security measures that are not based on identification usually enhance, not diminish privacy, for example locks, doors, fences, walls, etc. Why do we need to know who is boarding an airplane? All we need to ensure is that nobody brings a bomb on board, a problem that can be tackled with technological means that do not require identification (e.g., sniffers, better x-rays, etc.). Schneier is right in that security v. privacy is a false dichotomy. Security and privacy don’t necessarily clash, in fact, they don’t even clash very often. It is only one particular means of promoting the end of security, ID-based security, that is in direct opposition with privacy. And more often than not, ID-based security doesn’t even work very well. Why then is ID-based security so popular? Why is it pursued virtually to the exclusion of other means? In my view, there are two primary reasons:

  1. Companies have an incentive to support ID-based security measures, because they generate marketing data. Identification-based security generates personalized data, lots and lots of personalized data, revealing consumer preferences: for airlines, doctors, lawyers (think ID collection in the lobby of every major building), hotels, bars, liquor purchases, etc. That data, while pretty much useless for security purposes, has significant commercial value. So private corporations are likely to support mandatory ID-based security measures. Put yourself in the shoes of a landlord of a New York city office building. Why not sell the highly individualized visitor information that your “security” collected to a professional services marketing firm? If there’s a buck to be made, it will be made. And since the data collection “for security purposes” is mandatory, the risk of negative PR is limited.
  2. Law enforcement has an incentive to support ID-based security, because it helps them catch criminals. A significant part of police work is investigative in nature, and investigative work depends on identification. (After all, we want to be sure that the right person is apprehended and tried. In this context, reliable identification protects the innocent.) Even though ID-based security is rather useless in achieving its primary purpose, police investigations will certainly be aided by the personalized data it generates. So even we can expect support from the law enforcement community for ID-based security measures.

The alignment of commercial and law-enforcement interests translates directly into broad, bipartisan political support, which explains how an otherwise inferior technological paradigm managed to become the default.

It seems that the only way to promote both security and privacy is for the government to create a market in privacy-neutral security measures, for example by making secondary use of data collected for security purposes dependent on the express consent of the affected individuals. Use restrictions would still permit the collection of data for security purposes, but any ID-based security system would have to compete with other approaches on the merits, that is, with respect to whether it effectively enhances security. Presently, we don’t choose security systems on the basis of whether they enhance security. To a large extent, we choose security technologies on the basis of whether they have the potential to generate commercially useful information. That is not a desirable state of affairs, neither from a privacy nor from a security standpoint.

[tags]privacy, security, identification, schneier, no-fly[/tags]

On Scary Bible Quotes and Cultural Cognition

Published on October 7, 2006 in Culture. 20 Comments

Michael Huemer offers this selection of Bible quotes. (HT: Brian Leiter). Some of them are scary as advertised:

When the Lord your God brings you into the land you are entering to possess and drives out before you many nations … then you must destroy them totally. Make no treaty with them, and show them no mercy. (Deuteronomy 7:1-2)

Others are just plain weird:

You may eat any animal that has a split hoof divided in two and that chews the cud. However, of those that chew the cud or that have a split hoof completely divided you may not eat the camel, the rabbit, or the coney. (Deuteronomy 14:6-7)

(One may sensibly ask: Why not?) In any event, by far the most interesting piece of information on Huemer’s site is the following:

According to polls conducted in 2004, 82% of Americans believe that the Bible is the word of God, and 55% believe that “every word of the Bible is literally accurate.”

At some point you really have to wonder how a set of beliefs, the core of which lacks any empirical foundation and much of which is counterfactual, managed to survive for so long. Persistent religious belief, especially among the educated, appears to provide strong support for cultural cognition theory.

[tags]religion, bible, cultural cognition[/tags]

Battlestar America

Published on October 7, 2006 in Culture. 1 Comment

With the third season opener for Battlestar Galactica, Ron Moore firmly lays claim to the best series on TV since the West Wing. No program has explored the connected and conflicting themes of freedom and security more intelligently than Battlestar. With the third season, Moore decisively takes the series out of the SF mainstream. The Cylons, technologically sophisticated, overwhelmingly powerful, and deeply religious in an unmistakably Christian way, have occupied New Caprica, not to destroy the surviving humans, but rather to find a way for some kind of peaceful (but not necessarily equal) coexistence. In a strange way, which has not yet been fully explained, the humans possess a resource that the Cylons need, maybe biological fertility, but whatever it is, it is sufficiently important to keep the hard-liners among the Cylons from wiping out the humans once and for all. The humans, of course, resist in part and collaborate in part, as is our nature, and it is here that the obvious parallels between New Caprica and Iraq are most striking. The collaborators form the human/Iraqi police force and the resistance, split into secular and religious insurgents, targets them. In a particularly disturbing scene, one of the insurgents blows himself and 30 other human/Iraqi police cadets along with a handful of Cylons to pieces after having lost his wife to a Cylon attack on a human temple — in which, of course, the secular insurgents had stored their weaponry. (This subplot is explored in a series of Webisodes.) What’s most disturbing about the show is that — in Moore’s fictional world — we find ourselves emotionally attached to a group of people who, in the political discourse of the last four years, we have only encountered as insurgents, terrorists, and enemies of peace and freedom. Moore is taking a huge gamble by going so completely against the cultural mainstream. But that’s what artists should do, so bravo to him and his team!

UPDATE (10/8/2006): Ben pointed me to this very interesting post on Crooked Timber by Scott McLemee, which includes a link to the Battlestar Wiki.

[tags]Galactica, Ron Moore, Iraq, terror, security, freedom[/tags]

Anonymous Surfing? Don’t Rely on the Law for Your Protection!

Published on October 1, 2006 in Law and Society and Privacy. Closed

Technology, not law, is the only reliable means for ensuring privacy. For example, take this excerpt from the fairly standard privacy policy of a provider of anonymous internet surfing:

[W]e disclose personal information only in the good faith belief that we are required to do so by law, or that doing so is reasonably necessary to: comply with legal process; respond to any spamming and related abuses of netiquette claims; or protect the rights, property or personal safety of [our company], our customers, or the public.

This affords virtually no protection. “Good faith” is primarily defined by the absence of outright bad faith — not a particularly taxing standard by any definition. And “reasonably necessary” is pretty much any means that is not obviously unrelated to the ends of protecting “the … property … of [our company], our customers, or the public.” And, of course:

[We]reserve[] the right to disclose your information … [w]hen required by law or by order of a court.

In practice, the company is free to turn over personal user information to any number of third parties, including the government, if (i) there is any claim to a right to receive that information made by the third party, which passes the red face test; or (ii) the disclosure would promote the protection of someone’s rights or property, and not be obviously frivolous or abusive.

Don’t get me wrong. I am not faulting the company, these are the good guys. It just goes to show that meaningful online privacy can only be ensured by technological means, in particular encryption and anonymous architectures such as Tor, which hide a user’s encrypted communication in a cloud of others. When it comes to online privacy, the law has deserted us. But not all is lost. Compare the above privacy policy with this legal and technological privacy architecture from CryptoHeaven:

We would like to stress that confidentiality of your data is mostly protected by our encryption technology and not entirely by our policy. Technology prevents us from accessing your data in the plain form. Your data stored on our servers is always encrypted, including message subjects, message body, file data, file names, file descriptions, folder names, folder descriptions, contact names, various keys and other information. Service administrators have access to the encrypted files, but its content is illegible to them without your user name and your passphrase. Your passphrase is never transmitted to us in a plain or encrypted form. CryptoHeaven has strict protocols that limit access to collected information. Only selected administrators have access to the user database itself. CryptoHeaven never associates IP addresses with user accounts, we never log demographic user access trends or user access times.

As a user I prefer the “we can’t” to the “we won’t” any day.

[tags]privacy, anonymity, surfing, nsa, eff, CryptoHeaven[/tags]

Revisiting “Manufacturing Consent”

Published on September 23, 2006 in Culture, System Theory and Theories of Punishment. 5 Comments

“Manufacturing Consent” is a document written by Prof. Chomsky which tries to show that the institution of newsmedia is, and has historically been, beholden to the powers that be. The cornerstone of the book is a “Propaganda Model”, which explains the political slant of mass media according to five filters, all of them fairly sinister: organizational ownership, funding, news sourcing, defence against flak, and ideology.

My first thoughts were rather skeptical; I think the model could never pretend to explain all of the pressures and nuances that lead to certain abysmal features of modern newsmedia (for instance, it doesn’t directly attribute anything to the laziness of journalists or editors). Moreover, all other things equal, aren’t capitalistic enterprises supposed to be sensationalistic? Wouldn’t one expect for these big stories to be bled for all they’re worth? It seems like slanted social science, the kind of thing which gives the whole faculty a bad name.

But after reading this just recently, some of my skepticism has abated. The link there is to the Columbia Journalism Review, which tells the story of one journalist (Carlotta Gall) whose exemplary work on torture of detainees was marginalized and respun by her own editorial board at the New York Times. This is exactly the kind of behavior that the Propaganda Model predicts — not total suppression, but systematic muffling of salient and sensational stories. I like to think that I’m not naive, and the behavior of the model seemed plausible *some* of the time; but now I am forced to wonder just to what extent. [Edit: And Gall is just one name in a pack. We can also mention Peter Arnett, Ashleigh Banfield, Eason Jordan, Giuliana Sgrena, and most recently, Anna Politkovskaya, among others.]

Moreover, the Model (upon some consideration) seems to be in line with some of the sources of power. I indicated in a previous post that there seems to be great hope that Dependency Theory may have enough descriptive gusto to explain a wide swath of phenomena across the social sciences. And it seems to apply to the first four of the Chomsky-Herman filters as well. Those within an organization are dependent upon the rewards of their superiors, and upon the withholding of punishments; and the organizations themselves are dependent upon like rewards and restraints supplied by outside sources of funding, both in the forms of sourcing and flak. Only ideology seems to be the odd man out, but we may be able to describe that as a special case of dependency which operates at the moral and social-psychological level, and not at the level of organizations.

Mourning the Victims of 9/11

Published on September 19, 2006 in Philosophy. 2 Comments

Given Hanno’s post directly below, it is particularly appropriate to examine the question to what extent we ought to mourn the victims of the 9/11 attacks, relative to those who die from many of the causes mentioned in the chart in Hanno’s post.

In response to this post of mine on the anniversity of the 9/11 attacks, Alex Gregory of Atopian commented that I seemed to be writing as though the lives of the 9/11 victims mattered more than the lives of others who have died from other more common causes (e.g. cancer, car accidents). In order to do justice to Alex’s remarks, I’ll quote him in full:

Sometimes academic discussion about these things can seem alienated and innapropriate, and I certainly don’t mean to downplay the idea that many people did lose their lives, which is certainly a very bad thing.

However, with those two caveats noted, I have the impression that you’re a consequentialist kind of person. If that is the case, then why do you mourn these people more than the greater number who have died from cancer, or heart disease, or car accidents, and so on?

That, as I say, is not to say that 9/11 wasn’t a very bad event. It’s just that what was bad about it is surely the badness /for those people who lost their lives/ (and those who thereby lost a loved one). But equally, there are more people who experience equal badness from other causes. Why the disproportionality?

First, Alex is right that my views in ethics are broadly consequentialist in character. Furthermore, it seems clear enough that one need not even be a consequentialist in order to think that, all else equal, every death is equally morally bad, regardless of its cause. The deaths of those on 9/11, tragic as they surely were, were in themselves no worse than many other deaths. Nevertheless, it seems to me that there is at least some reason to think that those deaths deserve more of our attention than at least some other deaths, for example deaths resulting from car accidents, not because the deaths are in themselves worse, but because their cause differs from other causes in certain important ways (I will not deal with deaths from cancer in this post, because it is, I think, a much more difficult and complex case than that of car accident deaths).

In some sense we as a society choose to subject ourselves to a certain amount of risk when we allow people to drive, and we as individuals subject ourselves to a certain amount of risk every time we get in a car. We know that so long as people are driving in the numbers that they do, a certain number of people will die as a result of car accidents. We can do much to mitigate the risks (e.g. build safer cars, strictly enforce drunk driving laws, etc.), and we should certainly do all these things unless the costs are prohibitive, but we cannot eliminate the risks entirely. We accept this risk because the benefits that the overwhelming majority of us obtain from being able to get to where we need to go by driving outweigh the very high costs that wind up being imposed on the unfortunate victims of car crashes (and, of course, their loved ones). Given the severe costs suffered by those unlucky individuals, the only justification for allowing anyone to drive at all is that such a policy provides smaller benefits to a much greater number of people, enough to outweigh the costs. This requires that we accept that, at least in some way and to some extent, benefits can be aggregated across persons and weighed (this sort of case is a significant problem for those, like Scanlon, who reject aggregation entirely, and want all justification of actions and policies to be individualistic). The cause of the deaths that occur in car accidents, then, tragic as those deaths surely are, is one that society plans for and accepts as the cost of allowing the majority the benefits provided by driving.

The cause of the deaths on 9/11, on the other hand, was not a danger that our society chose to subject itself to in order to gain benefits. Some might argue that the danger should be considered at least foreseen as a result of our government’s policies in the Middle East, and that therefore the risk was imposed on us by our government. First, this would not make the case exactly analogous to the driving case, since the 9/11 attacks required deliberate action on the part of agents that was surely not justified, no matter how unjust we think U.S. Middle East policy is (and surely it is unjust). Second, even if our government did impose foreseeable risks on us, and failed to do all they could to protect us from those risks, and even if most of us do gain some benefits as a result of U.S. Middle East policy (e.g. cheaper gas), many of us think that we should not be pursuing those benefits or taking on the associated risks at all (we might think this for purely prudential reasons, or for moral reasons; it does not matter for my purposes). But I doubt that very many people think that we should disallow driving entirely in order to avoid any deaths from car accidents (though we should, I think, endorse a significant reduction in driving for environmental and economic reasons).

Because of this difference in the cause of the two types of deaths, I think it is much more important, as a political and social matter, to remind ourselves of the deaths on 9/11, and to have a public debate over how to prevent further such deaths, than it is to remind ourselves of the deaths of car accident victims. This is not because the lives of the 9/11 victims mattered more; surely they did not. But the need to avoid further such deaths in the future is great, while there is no such need to avoid future deaths from car accidents (it would be wonderful if we could, but we can’t without giving up the ability to drive).

Finally, let me acknowledge a significant omission in my original post to which Alex responded. I mentioned the deaths of those who died in the World Trade Center, but neglected to mention the now greater number of American soldiers that have died in Iraq and Afghanistan, as well as the much greater number of Iraqi and Afghani civilians who have died as a result of our nation’s military actions in those countries. Their deaths fall into the same category as those who died on 9/11 (at the very least all those who have died in Iraq fall into this category, for surely neither we in the U.S. nor the Iraqis are better off as a result of the war there), and deserved to be mentioned right along side them.

Terrorized by Fearmongers

Published on September 18, 2006 in Culture. 1 Comment

There are One Million Ways to Die (probably a conservative estimate), but terrorism is not one of the more likely causes, at least not in the US. Ryan Singel of Wired News has compiled this handy chart (HT: BoingBoing):

200609181210
The chart lists the number of deaths in each category from 1995-2005.[tags]culture, terrorism, fear[/tags]

Espresso NYC

Published on September 17, 2006 in Carpe Diem. Closed

One of life’s persistent mysteries is why so many great restaurants serve such utterly crappy espresso. Chefs know how important first and last impressions are. They go out of their way to surprise you with dessert, they even give you little cakes for breakfast the next day, and then they serve you some brew that’s half-way between Folgers and bile. That’s just not smart, given that a consistently decent (not great!) espresso requires a capital investment of $500 and has variable costs of about $0.50. But there is hope. In fact, there might even be salvation. If you happen to be in the East Village (hell, if you happen to be within 250 miles of the city), make sure to visit Ninth Street Espresso. These guys positively know what they are doing. Here’s proof (Triple Cappuccino, $3.50/cup.)

IMG_0393.JPG
I have a feeling that Starbucks will skip that city block.[tags]espresso, NYC[/tags]

Antitrust, IP Policy, and Digital Rights Management. The Department of Justice Gets Involved.

Published on September 16, 2006 in Law and Society. Closed

Tom Barnett’s speech on the Interoperability between Antitrust and IP Policy is the first major DOJ policy statement on the competitive effects of digital rights (or restrictions) management (”DRM“). The importance of DRM cannot be overstated. Arguably, DRM is the pivotal information technology issue of our time. Let me highlight just a few aspects of the effects of DRM, and note how ambiguous they are in terms of consumer welfare.

  • From an economic point of view, DRM introduces engineered scarcity by transforming non-rivalrous information goods into rivalrous goods.
  • Engineered scarcity drives up the price for information goods. The profits from higher prices sustain the legal distributors and some creators of DRM’ed information goods.
  • DRM has the potential to spur innovation and increase the production of some information goods by allowing producers to recoup their R&D costs.
  • DRM has the potential to diminish innovation and decrease the production of derivative or complementary information goods and of interoperable hardware.
  • DRM has the power to create fully integrated verticals, locking content into a specific “trusted” distribution and hardware environment.
  • DRM shifts control over content from the consumer to the holder of the content distribution rights.
  • DRM shifts control over general computing hardware from the consumer to the holder of the content distribution rights.
  • DRM allows for unilateral, post-acquisition changes in the utility of user-acquired information goods.
  • DRM is an exclusive connection technology. It connects information goods with a certain hardware environment, with certain persons (the authorized users), and with its origin (the content distribution rights holder).
  • DRM pushes markets towards high entry barrier platform competition and away from low entry barrier application competition.

Barnett deserves applause for taking on these incredibly complex issues.

As an initial matter, I am delighted to see that Barnett fully endorses the significance — maybe even the primacy — of dynamic efficiencies.

It follows from the Schumpeterian view that antitrust law, with its focus on improving consumer welfare, has a keen interest in protecting innovation. Fostering innovation requires recognition of the benefits of dynamic efficiency and the dangers of focusing myopically on static efficiency.

I also agree that in some R&D intensive industries that require massive up-front investment in order to create leapfrog information goods, strong (but narrow) patent protection is a proven way to ensure that the innovator internalizes a fair share of the benefits that he or she creates (innovative drugs come to mind.) I am skeptical, however, that — without more — a generalized case for strong copyright can be made on the basis of the incentives theory alone, and I am even more skeptical that arguments for strong copyright protection necessarily support arguments for DRM if consumer welfare is the evaluative standard. As an initial matter, Barnett subscribes to a strong version of the antitrust-IP harmony theory.

[S]trong intellectual property protection is not separate from competition principles, but rather, is an integral part of antitrust policy as a whole. Intellectual property rights should not be viewed as protecting their owners from competition; rather, IP rights should be seen as encouraging firms to engage in competition, particularly competition that involves risk and long-term investment.

Now the goal of IP policy is not to create incentives through exclusive rights. It is to increase the quantity, quality, and variety of information goods available to the consumer. Consumer welfare is the goal that IP and antitrust policy share. However, the means by which antitrust and IP policy promote the policy goals of “more, better, and different” are not identical. IP law relies on exclusive rights, antitrust relies on open competition. Some exclusive rights may foster open competition, others may serve primarily to exclude competitors from the marketplace. The difference in means may ultimately be more significant than the common goal. So I am somewhat less sanguine about the IP/antitrust harmony thesis.

Barnett then walks through three objections to IP/DRM combos that are advanced by the “access faction” against the “asset faction,” using iTunes as an example and explains why he is not convinced by them.

  1. “[C]onsumers are locked into buying songs only from the iTunes service and that they will have to pay too high a price for iTunes songs.” Not true, says Barnett, because users are free to upload songs from other sources, they can “re-record an iTunes song in an MP3 format,” and iTunes has brought prices for songs down.
  2. Apple is following a printer/ink strategy, selling cheap devices and expensive songs. Barnett is not convinced, because, if anything, Apple is selling expensive devices and cheap songs.
  3. “A third theory is that, darn it, ‘information just wants to be free.’ That quote is so much in use on the Internet that I could not pin down its original source. Wikipedia attributes it first to a participant at a computer hacker’s conference in 1984. In any event, this argument is not based on competitive effects and consumer welfare. Information may want to be free, but information creators want to be paid — they will not create without rewards.”
  4. Lastly, the song/player combo harms competitors, which is neither here nor there from an antitrust standpoint, unless the continued survival of a competitor is essential to maintaining competition in the marketplace.

This is a powerful and articulate defense of the “asset faction’s” key arguments, and I am curious to see how the “access faction” will respond. I find Barnett’s arguments as to (2) and (4) most convincing. As to (1), it all depends on the facts of the individual case. A semi-open system is certainly less of an antitrust issue than one that is fully locked down. As long as free mp3s play alongside a4ps, the player is indeed a dual use good, and the ability to de-DRM one’s collection of songs via burn and rip somewhat diminishes the lock-in effect. However, DRM policies may change retroactively, but I understand the argument that antitrust enforcement should deal with those issues if and when they arise. The weakest point, in my view, is (3), which is also the most fundamental.

First, I disagree with Barnett’s categorical claim that “information creators want to be paid — they will not create without rewards.” Some do, some don’t. Where did Barnett turn to, when he researched the origin of “information wants to be free?” He turned to Wikipedia, an encyclopedia created entirely by unpaid volunteers. The explosion of the blogosphere, the existence of Linux and other open source projects, the success of Amazon, driven by user-contributed book reviews, and the world of online academic publishing (think SSRN) belies the claim that rewards are a necessary condition for the creation of knowledge goods, at least the kind of direct monetary rewards that IP/DRM are designed to generate. As I said initially, I agree that some information goods require incentives qua exclusivity grants, but we should be cautious to make more general claims on that basis.

Second, while there is no reason to focus on exclusive rights as the only — or even the primary means — for compensating content creators, it is here that I see the greatest shortcoming of the “access faction.” The “access faction” lacks a convincing creator remuneration model. Unless the proponents of less IP/DRM and greater access can make a convincing case for the commercially profitable creation of information goods that does not rely on transforming non-rivalrous goods into rivalrous goods via IP/DRM, it will be hard to overcome the (properly qualified) claim that “information creators … will not create without rewards.” IP/DRM is a proven tool to compensate artists, there can be no doubt about that. But it may not compensate artists very well and it may impose extraordinary opportunity costs on society. Antitrust enforcement should ensure that there is commercial and legal room for alternative creator remuneration concepts to develop, because in practice, IP/DRM is not just a tool (nothing ever is), IP/DRM is also a particular way of doing business. And, quoting Barnett quoting Schumpeter, antitrust should never protect existing business models from leapfrog competition

which strikes not at the margins of the profits and the outputs of the existing firms but at their foundations and their very lives.

This is an extraordinarily important and fruitful debate. I am glad to see that the DOJ leadership is getting involved in it.

NOTE: Cross-posted (in slightly updated form) at the Antitrust Review.

[tags]antitrust, IP, DRM, itunes, barnett, doj, policy[/tags]

Six Tips to Protect Your Online Search Privacy

Published on September 12, 2006 in Privacy. 1 Comment

The EFF just published a six step program for protecting online search privacy, an increasingly important issue that we covered on this blog just a little while ago. The tips are:

  1. Don’t put personally identifying information in your search terms (easy)
  2. Don’t use your ISP’s search engine (easy)
  3. Don’t login to your search engine or related tools (intermediate)
  4. Block “cookies” from your search engine (intermediate)
  5. Vary your IP address (intermediate)
  6. Use web proxies and anonymizing software like Tor (advanced)

Few people realize how pervasive the threat to their privacy from associating search terms with their names really is. Part of the problem is that “privacy,” at least in the US discourse, has little emotional resonance. What we are really talking about here is the potential for blackmail and persecution — either today or decades from now, either in the US or abroad.

[tags]privacy, eff, google, search[/tags]

Democracy and Civil Disobedience

Published on September 5, 2006 in Law and Society and Philosophy. 9 Comments

In this post over at Philosophy, et cetera Richard Chappell suggets that in liberal democratic societies civil disobedience may never be morally acceptable. He says of radical activists (including those involved in the actions described here, whose tactics seem to have played a role in motivating his post):

These dogmatists feel so assured of the infallibility of their moral opinions that they’re willing to coercively impose them on others. This implies a startling disrespect for one’s fellow citizens. If you’re really in the moral right, then you ought to be able to persuade your fellow citizens of this, and hence get the needed reforms implemented through legitimate democratic processes. Hence, if you can’t succeed democratically, perhaps it’s just as well…

Now surely Richard is right that many radical activists are excessively self-assured in their views, and tend to be unwilling to seriously and honestly consider the possibility that they might be wrong (I discuss some reasons why this might be the case, in particular among student activists, in my very first post on my blog). And it seems reasonable to think that the activists involved in the animal rights action described in the above link fall into this category; let me be clear that I strongly disapprove of their tactics, given the totality of the circumstances surrounding their actions, despite the fact that I tend to agree with their motivating belief that nonhuman animals’ suffering ought to be given much more weight than it currently is in our society’s moral consciousness.

But it seems also to be the case that even in societies that can reasonably be considered democratic, it is false that, “If you’re really in the moral right, then you ought to be able to persuade your fellow citizens of this.” Just as radical activists tend to have an inflated degree of confidence in their views, so the general public tends to have an inflated degree of confidence in prevailing views on the very same moral issues that motivate radical activism (and others besides). Indeed, radical activists are often motivated to engage in civil disobedience out of (often legitimate) frustration with attempts to convince others of the importance of their cause. Animal rights activists, for example, are often portrayed by the media as out of control vigilantes (the above link shows that this characterization isn’t always wrong), even though most surely aren’t, and this is one reason that most Americans tend to be not just uninterested, but hostile to animal rights claims, despite the fact that the arguments in favor of greater moral consideration for animals are quite strong. The strength of the arguments for a cause, at least in some cases, does not mean that there is much chance that the public can be convinced that the cause is just.

Of course the fact that a cause is just, along with the fact that the public cannot be convinced of this, does not necessarily mean that advocacy of the cause through civil disobedience is morally acceptable. In many cases, including the above animal rights case, civil disobedience will be counterproductive, at least in the long run (for example, these tactics make it even less likely that the public at large will take seriously the case for animal rights). In other cases the injustice is simply not serious enough to justify attempting to rectify it outside the democratic process; for surely there are strong reasons not to engage in civil disobedience in a liberal democratic society that do not exist in non-democratic societies. I simply maintain that these reasons can, at least in principle, be overridden by the reasons provided by severe enough injustices to do whatever one can to rectify them. Richard seems to disagree:

What if one lived in a society that overwhelmingly endorsed slavery? Would it be wrong to “illegally” help slaves break free? That might seem a tough bullet to bite, but I think there is some plausibility to the idea that – even then – one would do better to work through legitimate channels (if such exist). Changing public opinion would have more significant long-term effects than isolated lawbreaking in any case, so could be preferred even on fairly crude utilitarian grounds (so long as such efforts are sufficiently likely to succeed). And again, we need to factor in our own fallibility: it’s not entirely obvious that in such a situation we would have sufficient epistemic justification for our anti-slavery beliefs to warrant coercive action on their basis.

Of course Richard is right that changing public opinion, if one could succeed in doing so, would be much better in the long run than whatever benefits would be obtained through civil disobedience (assuming that such civil disobedience would not itself be a factor in changing the public’s collective mind about an issue, which can surely happen – Rosa Parks’ courageous act of protest on a Montgomery bus is a clear and powerful example). But for many activists changing public opinion is simply not an attainable goal, especially in societies that, though democratic, have poor standards of public debate, or worse, have a public debate that is largely controlled by pro status quo forces that own nearly all of the media, such as is largely the case in the U.S. (though the internet has, I think, improved the situation overall, despite the fact that it has given rise to problems of its own). When one knows that she has no chance of affecting public opinion or government policy, and passionately believes in a cause, what is she to do?

Richard suggests that she should do nothing, since one can never be sure that she has “sufficient epistemic justification” for her beliefs to “warrant coercive action.” Even in a society in which slavery is widely accepted, perhaps it is better to simply defer to the majority on policy until such time as prevailing views change (if they ever do), since we are all fallible and could, for all we know, be mistaken in opposing slavery. Though I think this view is actually more plausible than it may initially appear (after all, we are all fallible, and there are very strong, though overridable, reasons not to engage in civil disobedience in liberal democratic societies), there are problems, particularly in the case of slavery. First, it seems to me that any society in which slavery is legal cannot legitimately be called a liberal democracy. Without going into the details of what makes a society democratic (this would make an already too long post much longer), it seems clear that simply having elections is far from sufficient; legitimate liberal democracies must protect certain individual rights, and allowing slavery certainly violates this requirement. We can even imagine that slaves are given the right to vote, but because they are outnumbered by pro-slavery citizens, their favored (anti-slavery) candidates inevitably lose elections, and so they are condemned to their lives as slaves against their will by the very democratic process that Richard suggests makes civil disobedience necessarily unjustified.

Furthermore, if we accept that our fallibilty with respect to our anti-slavery beliefs means that we should not engage in civil disobedience in order to free slaves, then we ought to be at least as skeptical of our committment to democracy. And if we allow that this sort of radical skepticism should undermine the reasons that we take ourselves to have to work to free slaves by (just about) any means necessary, then it will also undermine the reasons provided by the existence of democratic institutions not to engage in civil disobedience. And then it seems that many of the reasons that we ordinarily take to be legitimate guiding forces for our actions will lose their force. From this state of radical skepticism about our own most strongly held moral beliefs, it seems that conservatism about civil disobedience is just as arbitrary as endorsement of radical activism. We cannot, from this position, either endorse or condemn civil disobedience to free slaves or for any other cause. If we give up the reasons for civil disobedience provided by our anti-slavery convictions due to an acknowledgment of our fallibility, we give up the reasons against that same civil disobedience in the process, and are left without much to say on the subject.

In a comment in the thread for Richard’s post, he gives the following principle that he says underlies his position (along with others that are not as troubling):

The Epistemic principle: No matter how awful X seems to you, if you can’t rationally convince your fellow citizens then you’re probably wrong about it, and so have no business engaging in coercion.

This principle seems to me not just false, but obviously false, and beyond that, dangerous. In effect it is the claim that prevailing views on all issues are likely to be correct, so long as those prevailing views are sufficiently resistent to criticism. But throughout history many of the views that were the most deeply entrenched and resistent to criticism have been ones that we now consider obviously wrong (e.g. slavery is morally acceptable, women should not be treated equally to men, etc…). The fact that one cannot “rationally convince her fellow citizens” of a view is, I think, not much of a reason (if it is a reason at all) to think that she is wrong in her belief.

Finally, Richard treats the democracy condition, which he takes to be a defeater for any claim to the legitimacy of civil disobedience, as an all or nothing matter. Either a society is a liberal democracy or it is not. I’m inclined to think, however, that societies can be more or less democratic, and that this can affect the legitimacy of civil disobedience. For example, a society with publicly financed elections, proportional representation, a multi-party system, and a diverse media that provides outlets for a variety of views on important social, political, and ethical matters, should be considered more democratic than a society like the United States, in which politicians can easily be bought, elections are an all or nothing matter dominated by two parties that don’t differ much on many key issues, and the media is heavily consolidated and managed by pro status quo forces. In societies that are democratic to a lesser extent, the reasons provided by democracy not to engage in civil disobedience are, I think, more easily overridden, though they still possess significant force.

Just no sense to this here nonsense

Published on September 4, 2006 in Uncategorized. Closed

Thanks for J. Carter Wood at Butterflies and Wheels for bringing this gem of an article to greater attention. The title: “Deconstructing the evidence based discourse in health sciences: truth, power and fascism“. Published in the International Journal of Evidence-Based Healthcare, written by health science Profs. David Holmes (also a registered nurse) and Genvieve Rail, PhD candidate / registered nurse Amelie Perron, and English Prof. Stuart Murray.

Yes, you read it right: fascism. In health science.

The really bad kind of fascism, if you will.

The thesis is that what is called “Evidence based health sciences” (or EBHS) is a hegemonic form of discourse. (Hegemony, we’re led to believe, is just another way of saying “fascism”.) The villain, EBHS, involves, well, evidence: taking into account the successes and failures of certain practices, and then acting accordingly. It is alleged that this sort of method is tied to a source of data called the “Cochrane database”, which (we’re told) provides the RN or doctor with information only about the most reliable methods. It is to be contrasted with “pluralistic” visions of the nature of science; the details of these other, marginalized sciences escape me, though empathic understanding (or verstehen) appears to be part of what they have in mind.

I don’t think I can do this thing justice. No matter what I say about it, my words will be but a shell of the experience of reading it. I could be even-measured as a reviewer, but the result would be to interpret sense into a place where there’s a fundamental lack of it; and I could be scornful and mean, if I didn’t sympathize with some of the intuitions that nevertheless inspired the abysmal end product, which deserves no sympathy. (This paper, incidentally, was brought to us in part by the government of Canada, whose SSHRC division’s ostensibly ironic motto is “We build understanding”.)

The first thing that occurs to me is that the thesis commits the common fallacy of blaming a method for one of its uses. The authors seem to blame evidence-based searching for the supposed wrongs of taking the Cochrane database to heart. The database, evidently, only provides the absolutely optimally justified information, the best and most reliable knowledge one can find. The authors state: “One of
the requirements of the Cochrane database is that acceptable research must be based on the [randomized controlled trials] design; all other research, which constitutes 98% of the literature, is deemed scientifically imperfect.” As stated, I see no problem, because there’s no significant normative exclusion involved in presenting the facts as they are. The problem arises when people in the system define the terms of when something is or isn’t actionable, without first taking pains to think of the consequences of what they’re doing.

Now in practice, I can imagine a scenario where this might be an issue. Sometimes, people in authority have a hard time believing that facts about a situation are not especially predictable, and can’t accept that incomplete data (and the risk that accompanies it) may still be far better than rash, random ignorance. When a starving man turns down all meals except fillet mignon, then you know he’s asking to die; and the same applies here. And perhaps (to exercize a bit of verstehen) it is rage with personal experiences with such characters which animated this paper. Fine enough.

But comments about the contingent practices of authoritarian dopes are not to be conflated with the niceties involved with a theory, because (absent any citation to the contrary from the authors) the theory is ambiguous about which data are actionable and which are not.

All of this, we’re told, is “fascist” — actually, “microfascist”. My former political philosophy professor and permanent member of my good books once explained: “In today’s terms, to call someone a “fascist” seems to just mean that you’re a jerk”. I guess that’s what’s going on here, because the old label doesn’t apply; indeed, the idea of “microfascism” is curious, since the entire idea of fascism is to champion a nation-state over an individual, and to devote oneself to its will; a kind of radical collectivism, there’s nothing “micro” about it. And no new definition is provided: rather, we’re given a footnote to Deleuze, and later informed that we’ve already been given a definition. If imagination is a necessary component of nostalgia, then I guess this is a prime example. The only attempts to define that I can see come in rather late in the paper, and say that fascism is “exclusion”. This is about as meiotic as calling a lion a pussycat. And anyway, it doesn’t apply to a mere method: the authors may have a right to aim at the misuses of a certain database, but evidence itself has been caught in the crossfire.

“Crossfire”, you say? Yes, evidently. We’re told that there is a war going on, between the powerful 1984-style elites in the Cochrane group and the ragtag misfits with hearts of gold who endorse the conflationist model of criticism. If the authors took their words seriously, then they’d be in violation of the Hippocratic Oath. One then hopes not to have to be under the knife anywhere in Toronto or Ottawa, where the authors live.

Probably the only interesting remark I derive from this is that a more pluralistic approach to the examination of power would have stalled this tragic essay from ever being written. Power is virtual dependency. Power is not exhausted by the hegemony of an idea, if those hegemonic ideas have simply been persuasively put forward in cooperative conversation. This is especially important when one comes to understand totalitarianism, because hegemony of an idea is merely one source of power, namely, the power of the common mind; while totalitarianism is power which has captured all sources. To conflate a method — which does indeed have hegemony, because it is authentic to a large degree — with the way that some people have decided to use a database, is …

…well, nonsense. It does not compute, does not provoke any mental images, fit into a sensible syllogism; it has no truth-conditions, has no cogency, no role in everyday usage, no consequence on our behavior; no value as an achievement; as a speech-act, it is barely audible; it uses no radial categories, no propositional functions lead us to a lasting moral; it has no content, conforms to no intention, resists interpretation, and hermeneutical study is as ignorant of its sentences as George W. Bush is to Casey Sheehan. In short, it literally, exhaustively, definitely, definitively, and scrupulously makes no sense. The irony (one bit of irony among many) is that one of the very things they want to argue against is the practice of linguistic opaqueness: that is, using words in a way that’s totally out of step with the common lexicon, simply for the purposes of exclusion. But in the process, they only succeed at alienating everyone.

This, then, is a miserable day for the Canadian grant system; and a proud day for the ‘International Journal of Evidence-Based Healthcare’, which has proved its merits most successfully by entertaining opposing arguments which had failed to give the question any serious thought.

It is perhaps no coincidence that my mother is a registered nurse, and it is her job to gather data on patient statistics at her hospital, and to report them to the Canadian government along with various information about treatments. I asked her to read this article, so she can have the last word on the subject. She said: “I don’t understand it. It makes no sense to me, the words didn’t make sense. The only thing that made sense that they said was that you can’t get funding unless you’re doing evidence-based research. But you can call these things whatever name you want, and your point of view might even be valid, but at the end of the day, it’s not going to change anything unless you can show that you’re evaluating things in a rational way. I don’t know if I’m just not smart enough to understand it, or what.”

Advice for Prospective LL.M. Students

Published on September 4, 2006 in Law and Economics. 1 Comment

Maya Steinitz offers useful advice to foreign lawyers who think about getting an LL.M. degree (Master of Laws) in the US.

A well known cultural fact, that often stuns non-Americans, is that tuition really pays as much for the placement services schools offer as it does for the education itself (a cynic would say: more so for the placement services). But despite paying the same tuition, LL.M.s are generally not offered the same services by the placement offices as do the JDs. And because the level of placement assistance available in the U.S. is unheard of in most other countries, foreign students don’t know to ask for it; literally, they don’t know what they’re missing. Some examples brought to my attention include: main on-campus interviewing programs that are usually JD-only with LL.M.s having segregate events, if at all, competing for a minority of the job slots that JDs have not filled earlier in the year; placement counselors who simply do not know how to advise LL.M.s; no lawyering skills trainings, of the kind that first year JDs get, make it de facto impossible to compete for jobs.

While I agree with many of her points, much of the suspected “bias against LL.M.s” is probably just a function of increased information costs. Today’s LL.M.s tend to be a much more heterogeneous group than their JD peers in at least three crucial respects:

  1. Non-US academic record
  2. Language abilities, and
  3. Plans for the future.

Many foreign LL.M.s that I have met and interviewed simply have no comparable undergraduate (and graduate) academic record to their US peers at top law schools. Whether such foreign students should even be admitted into prestigious law school programs is another matter, but as Steinitz plausibly observes:

LL.M. programs are a huge money-maker for the schools and are regarded as such. The considerations for the number of LL.M.s admitted may be influenced by the amount of revenue expected rather than by purely scholarly concerns.

Of those foreign LL.M.s whose academic records are comparable to or better than those of their US peers, many seek only temporary employment in the US, that is, “a couple of years in New York with a top law firm.” At starting salaries north of $130,000, temporary employment — with all the added costs, e.g., for visa applications, and diminished incentives that go along with it — is an expensive proposition for any employer. That leaves us with the (much smaller!) group of highly qualified LL.M.s who want to stay and practice law in the US more or less permanently. For those, in my view, the greatest risk is to get lumped in with the less qualified or committed, so that stepping outside the traditional hiring channels might be essential for a successful job search. That involves:

  • Explaining one’s foreign credentials. (For example, German law students get graded on a scale from 1 to 18, with 18 being the top score. What, without further explanation, would you do with a 13.5 candidate? Reject him if you lack context. Invite her for an interview immediately if you know that she must be among the top 0.1% of all graduates.)
  • Early networking
  • Reaching out to potential employers well in advance of the fall interview frenzy
  • Letters of recommendation.

I cannot overemphasize the significance of serious and meaningful letters of recommendation from a respected scholar, lawyer, or judge from the applicant’s home country and, ideally in addition, from his or her US professors. The fight for talent at the leading law firms is fierce, and no firm can afford to lose top talent — LL.M or not — to the competition. But the task of identifying oneself as top talent falls pretty much entirely on the LL.M. applicant. In that sense, he or she does in fact carry a burden unknown to the JDs.[tags]llm, law, law firm, hiring, jobs[/tags]

Dada at the MoMa: A Timely Exhibition

Published on September 4, 2006 in Culture. Closed

The Dada exhibition at the MoMa is eerily timely.

200609041641
Dada was the explosive, artfully inarticulate rejection of a false consensus in politics, society, and art — a consensus that was supporting a barbaric war (read All Quiet on the Western Front if you need a refresher) and, after 1918, an increasingly stifling intellectual and political climate that, by eliminating individualism, gave rise to the totalitarian nightmares of the 1930s and 1940s. Here’s an online sample of some of the works on display. Highly recommended![tags]dada, moma, culture[/tags]

The Wikipedia Blues

Published on August 30, 2006 in Uncategorized. 5 Comments

There have been a gross number of critiques of Wikipedia, the encyclopedic source online that anyone can edit. Most of them have been sourly negative, because the Wiki system has certain disadvantages. A common (and correct) complaint is that experts are not given incentives to participate in the process of making great articles, and are frequently given disincentives by being subject to the scrutiny of comparable dunces. Getting right to the core of the matter is the implicit idea that Wikipedia goes by a “consensus theory of truth” — whatever the randomites agree on, is true. (As Ophelia Benson would say, “that’s just fashionable nonsense”.) But just as there is a dark side to Wikipedia, there’s also a dark side to its critics.

In academia, as well as in law, one’s bread and butter is made by name recognition, accomplished not just through great research, but confidence. To a limited extent, internal disagreement is a functional part of the academic system. Dominant names in a field are often remembered for the arguments they made, and for their places in the great debates of the time. What makes conflict in academia functional is that it is generally expected to happen reasonably and respectably, without much permanent damage done to either party. The rules of debate, or cooperative discussion, are pretty straightforward, and informal logic is generally recognized. But the important point is that there are rules for respect, and the common recognition of these rules allows inevitable conflict to bear fruit with actual gains, conclusions, arguments, etc.

Conflict on Wikipedia, however, has no strict rules for respect. Instead, the system is propped up to a great degree by emotions and tactics. There is WikiLove, which is the idea that friendliness and courtesy will curb a lot of silly disagreements before they begin; and the “be bold” tactic, which asks editors to go ahead and perform those edits which seem best to them. The former attempts to curb conflicts; the latter makes sure that conflicts are inevitable. Neither of these have to do with logic or reasons, but only with (admittedly sensible) worldly wisdom.

It is unfortunate that there lack incentives to engage in reasonable behavior. It is precisely the lack of an institutionalized sense of reason which causes the irritable hobbyist to alienate the expert, and cause her to leave. But the dagger cuts both ways: it is the lack of desire to engage in cooperative conversation, due to lack of incentives, which ensure that the expert will not engage in disagreement reasonably.

It is as if Wikipedia were the microcosm of the mass political scene. The expert who leaves the walls of academia will dismiss alternate evidence without even noticing that they’ve dismissed it; they will resort to ad hominem; they will ignore arguments, etc. In short, anything to push a certain conclusion which they are convinced of (and which may or may not be correct). The stamina required to push forward certain propositions, and to assert intellectual territory, makes impatience with counterproposals necessary. And sometimes, the propositions are based on insufficient data; good faith attempts to make corrections are ignored, viewed with scorn, dismissed, and marginalized; entire discussions collapse into foregone — and false — conclusions.

That has essentially been my experience with Wikipedia, and why I’ve lately abandoned it.

Some preliminary remarks on the study of power

Published on August 28, 2006 in Philosophy. 13 Comments

There are a couple of different ways to look at power.

Sociology is supposedly divided into two camps: “conflict” theorists and “consensus” theorists. As far as I can tell, this means that some people enjoy describing society at large as an eternal struggle for egoistic benefits, and others enjoy describing it in terms of voluntary agreement. No doubt they will have things to say about power relationships. Well, these are both, I think, fairly unserious characatures so long as they pretend to be exclusive theoretical claims.

We have some other, related suggestions.

1. On the one hand, we have the idea that power is trust (or acquiescence), as Matt Wood recently suggested. I think there’s a lot going for this outlook; it seems to be able to account for group power, and community power, in a way that other traditions haven’t. But ultimately it’s still incomplete without discussing depedency and fear.

2. Another bundle of theories include the exchange theories of power, which are a cousin of contract theories of government. Such theories explain the emergence and structure of power as being based upon voluntary relationships which occur in order to secure mutual rewards.

One candidate for explanation along the lines of personal exchange has been the power-dependence tradition. According to the preliminary work in this tradition, a person (A) is said to be powerful when others (B) are more dependent upon A for certain rewards than A is dependent upon B.

The theory has the advantage of making a testable (and successful) prediction: asymmetry in dependence leads to an asymmetry in benefits. However, it also seems to have difficulty with explaining acquiescence and community norms, and how these are shaped by power-relationships. Moreover, the preliminary work in the tradition seems to underplay the role of fear and coercion, in favor of a view based on positive exchanges, rewards, and opportunity costs.

3. Later work in the power-dependence tradition investigates power as originating out of both rewards and punishments. So we can just as easily speak of bartering tomatoes as we can of blackmail. This seems less arbitrary. The language of “voluntariness” is exchanged for a more realistic picture, and the label of “dependency” is stretched pretty thin. Also, it loses out on the insight that trust is (or can be) a part of power.

4. Still other theories understand power as the product of domination and terror. This doesn’t need to be the same thing as dependency theory, because all that is required is the subject’s personal terror, not necessarily needing the threat of harm.

If we take all of these suggestions seriously, the emerging picture tells us that fear, dependence, and trust are different spheres of influence, and that each plays some role in an overall picture of what it means to have power.

Privacy Self Help: freenigma.com

Published on August 26, 2006 in Privacy. Closed

Freenigma is an ingenious little Firefox plugin that simplifies the social networking aspect of public key cryptography. At this point, Gmail, Hotmail, and Yahoo Mail are supported. Here is how it works. First, type your email as usual:

Free 1-1
Then, hit encrypt to get a PGP encoded message.

Free 2-2
The recipient hits “decrypt,” and that’s it. Freenigma is not a substitute for end-to-end encrypted communication, for example, the To: and From: fields of the email are still plaintext. But for the occasional sensitive message, Freenigma is a great, minimally intrusive solution.[tags]privacy, freenigma[/tags]

What Justifies Originalism as a Theory of Interpretation? (A Reply to Solum)

Published on August 21, 2006 in Jurisprudence. 16 Comments

Larry Solum takes issue with my previous post on originalism, ostensibly because I “question[] the idea that the ‘original public meaning’ provides the semantic content of the Constitution.” To be clear, I don’t question that original public meaning can be established or that it may be useful in determining the meaning of the constitution. I do however question that original public meaning is more relevant to our present interpretive efforts than the public meaning at any later point in time. More fundamentally, it appears that we should not assume without good reason that public meaning, original or not, is particularly relevant to solving interpretive problems in the first place.

Suppose that a present-day judge is faced with the task of interpreting article x of the constitution, that she believes that the public meaning of article x should (!) guide her interpretation, and that she has accurately determined the meaning of article x in 1789, 1889, and 1989. She proceeds to solve the interpretive problem at hand by reading article x in a manner consistent with the original public meaning, that is, the public meaning in (or around) 1789. This judge, I take it, can fairly be called an “original public meaning originalist.”

Now let me repeat my questions:

  1. Why should the public meaning of article x guide the judge’s interpretation in the first place? Why not the meaning that the judge in her unfettered discretion applies to it? Or the meaning that scholars and experts favor? Or the meaning that other courts have determined? Or the meaning that foreign courts have applied to similar provisions? Or the meaning suggested by a functional or systematic interpretation? (”Constraining judges” might be one such reason, but — as Leiter remarks — there are multiple ways of achieving that, and originalists would have to show that their preferred way is superior to others). I am not saying that my alternative proposals are superior to originalism (even though I believe that some are). My point is that we need good, normative reasons to choose between these competing theories of interpretation. Originalism has no claim to the default position.
  2. If we concede that the public meaning of article x should guide the judge’s interpretation, why should the public meaning of 1789 be more relevant than that of 1889 or 1989? Once again, originalists need to come up with convincing normative reasons for why a past meaning should inform our present-day interpretive practice. If anything, and with certain counter-majoritarian qualifications, I submit that in a democratic society the present will of the people is presumably more significant than the past will of dead people. From that, one may well infer a preference for the present public meaning.

It seems to me that these are the kinds of questions that need to be answered first. And these seem to be precisely the kinds of questions that Brian Leiter and Marty Lederman have been asking.[tags]originalism, jurisprudence[/tags]

Caffeine Addicted Raccoon

Published on August 20, 2006 in Uncategorized. 1 Comment

Every other night a raccoon goes through our garbage, very selectively picks out the espresso capsules, chews them open, and gets a caffeine fix. Here’s proof.

IMG_0254.JPG

I like this guy.[tags]coffee[/tags]

Originialism’s Misguided Search For An Origin

Published on August 20, 2006 in Jurisprudence. 9 Comments

Assuming that the constitution is authoritative, why are the original intentions (oI) and the original meaning (oM) of that document still relevant for its interpretation and application today? Since terminology is a major issue in this debate, let me be clear in my use of original intent and original meaning.

  • oI(x,y) = At the time of its adoption, the intentions of the authors of the constitution with respect to x were y.
  • oM(x,z) = At the time of its adoption, the relevant audience of the constitution understood x to mean z.

In my view:

  1. The constitution is authoritative, because it is and has been followed by the government.
  2. oI(x,y) is a fact about the state of mind of the authors of the constitution, but there’s no reason to give the authors’ intentions controlling weight in interpreting and applying the constitution today.
  3. oM(x,z) is a semantic fact about a particular audience at a particular point in time, but there’s no content-independent reason to give that semantic fact controlling weight in interpreting and applying the constitution today.

Note that I am not implying that oI(x,y) and oM(x,z) have no significance at all. The author’s intentions and the original reception of any text inform our understanding of that text to some extent. But originalism as a normative doctrine of constitutional interpretation claims that oI(x,y) and oM(x,z) trump other canons of interpretation, such as the objective or subjective meaning at any other time, including the present. I disagree with that claim.

Brian Leiter, if I understand him correctly, makes a very similar point, when he writes that:

[i]n general, originalists fail to come to terms with the question of why original meanings or intentions should be authoritative, and opt instead for instrumentalist arguments of the form, “We need originalism to constrain judges.”

If we only turn to oI(x,y) and oM(x,z) in order to constrain judges, then we don’t intrinsically value oI(x,y) or oM(x,z) for what they are (appropriate intentions, correct meanings) but merely instrumentally as tools to achieve a present-day purpose (e.g., to constrain judges). I have no quarrels with “originalists” who accept that instrumental meaning — if there are any. I disagree with those who claim that oI(x,y) and oM(x,z) have special normative force in guiding our present day interpretation and application of the constitution, because of their “originality,” that is their temporal, geographical, and personal connection with the adoption of the constitution.

Larry Solum, in discussing Brian Leiter’s above-quoted criticism, doubts that we can (i) accept the constitution as authoritative, and at the same time (ii) disclaim the special authority of oI(x,y) and oM(x,z) for the interpretation of the constitution, because

[i]f the constitution has authority, then it seems most reasonable to think that the authority it has attaches to the semantic properties.

But why should we assume that the constitution derives its authority from its adoption? Why locate the “origin,” to which originalism ascribes special meaning, in 1789 (or the dates of subsequent amendments)? What if we were to re-ratify the constitution toady without changing its text? Presumably, that would reset the date for any originalist interpretation. And how would originalism work in a country without a written constitution and no readily discernible point of origin? My point is simply that it is far from clear that the legal authority of a constitution derives in significant part from its “origins,” from the contingent facts surrounding its actual enactment — even from the enactment itself! — after having been in effect for decades or centuries. Arguably, by far the most significant aspect of a constitution’s authority is its present social efficacy. As long as a constitution is effective, there is no privileged moment in its life, no annus mirabilis to command the special attention of later interpreters. Of course, a constitution has a history of interpretation, and that history may well be persuasive. But I see no reason why the source of normativity and authority of a constitution should be tied so closely to its birth and origin as most originalists seem to assume.
[tags]originalism, jurisprudence[/tags]

On Instilling Fear and Selling Security: The Counterterrorist-Media-Industrial Complex

Published on August 19, 2006 in Culture. 5 Comments

Sex sells alright, but fear is the real deal. Fear creates demand for security. Fear of terrorism, specifically, creates demand for government provided security. Demand for government action also creates legitimacy, which is precisely why the broader public doesn’t seem to be particularly worked up about ongoing torture in Guantanamo, the NSA’s illegal spying program, extraordinary rendition, useless bag searches in the subway, etc. At some basic level, the government is satisfying public demand (”Someone please do something!) For the same reason, the democratic opposition to the executive’s power grab has been muted, to put it charitably. Lastly, where there’s demand for political action, there’s a budget. In the case of terrorism, the budget is huge with excellent prospects for sustained growth.

Terrorism, as a social phenomenon, involves a large number of constituents. It involves, of course, the terrorists and their victims. But it also involves potential voters most of whom are not threatened by terrorism but very much afraid of it (e.g., pretty much everyone who doesn’t live in New York, DC, LA, Chicago, and San Francisco), politicians, who only stand to gain from being tough on terrorism, bureaucrats who promise to deliver increased public perception of safety in exchange for agency funding, and, of course, a rapidly growing counter-terrorism industry, ready, willing, and perhaps even able to supply the government with secutity-enhancing products, e.g., airport scanning equipment, data mining solutions, etc. Of all the constituencies involved in terrorism as a social phenomenon, by far the smallest, least well funded, least well educated, and ultimately least influential are the terrorists themselves.

The less-than-central role of the actual terrorists for the rapid expansion of the counterterrorist-industrial enterprise should not come as a surprise. By all historical accounts, terrorism has really not been all that dangerous. (John Mueller provides an interesting summary of well known facts in his article A False Sense of Insecurity). The risk of drowning in one’s pool – let alone driving one’s car on the freeway – is greater by orders of magnitude than being killed by a terrorist attack. And how realistic is the threat of terrorists setting off WMDs outside of the fictional universe of “24″? Probably rather remote. Biological and chemical weapons have been around for well over a century. By and large, they have been of limited military value. They are hard to use, depend on conditions beyond anyone’s control, and just aren’t particularly lethal compared to conventional weapons. What makes us think that terrorists will be able to use those weapons more effectively than trained military specialists? Similar skepticism ought to apply with even greater force to dirty bombs and nukes. The terrorists that we are presently dealing with (the real ones, not the unfortunate bystanders that are still being held in Guantanamo and elsewhere) are certainly motivated, evil, and deserve to be hunted down – but they are simply not sufficiently dangerous to warrant a $35.6 billion response – and that’s the President’s budget for the Office of Homeland Security alone, not counting any terror-related allocations from the $439.3 billion DOD budget. (Note that I am not talking about North Korea and Iran here. Those present different issues.)

The crux with terrorism is that it terrifies, even though it is, objectively speaking, not particularly dangerous. Terrorism exploits various vulnerabilities of our cognitive operating system, such as probability neglect (we discount the improbability of a negative event, if the negative event has strong adverse moral connotations) and availability bias (we tend to recall the sensational, even though it is not representative). Unfortunately, for-profit media largely relies on exploiting the same cognitive vulnerabilities to boost sales and ratings. As they say: “If it bleeds, it leads.” The fact that terrorism instills fear so well makes it, as a topic, irresistible to both media and politics. A positive feedback loop kicks in. The media makes a huge deal of every moderate incident (e.g., British police shutting down a possible plot to blow up airplanes, which was weeks if not months away from execution), politicians have to respond accordingly, and the terrorists are delighted, because the media-machine amplifies their every rumbling into a civilization-threatening thunder. That’s just not particularly smart. Few things would hurt the terrorists more than a combination of (i) level-headed reporting; (ii) destruction of their financial support networks by kicking our addiction to oil; (iii) well-run domestic police and foreign secret service operations, using lawful means and resulting in public trials of the accused; and (iv) our refusal to understand and tolerate violence by religious fanatics as justifiable forms of self expression or outcries of the oppressed.
[tags]terrorism, media, politics, risk[/tags]

An Unconvincing Case Against Smoking Bans

Published on August 19, 2006 in Law and Economics. 3 Comments

In The Case Against Smoking Bans, Thom Lambert argues – among other things – that smoking bans, for example in restaurants and office buildings, are unnecessary and, on the whole, utility-reducing. In particular, the internalizing externalities argument, well known from regulating the quality of outdoor air, fails, because “indoor air” is owned by the building owner and no tragedy of the commons problem arise.

[C]ustomers who do not like the air policy a space-owner has selected will patronize the space only if they are being otherwise compensated by some other positive attribute of the space at issue say, cheap drinks or a particularly attractive clientele. They are, in other words, compensated for any “rights” violation. The de facto property rights that exist in indoor air, then, prevent the inefficiencies and injustices that accompany outdoor air pollution. But what about workers at businesses that permit smoking? Isn’t there an externality in that they are forced to bear costs (and assume risks) over which they have no control? Again, the answer is no. Workers exercise control by demanding higher pay to compensate them for the risks and unpleasantries they experience because of the smoke in their workplaces.

Here’s a perfectly sound economic argument that somehow doesn’t ring true. I have to admit that I’m on the fence with respect to bars and restaurants. Personally, I enjoy the smoking ban in NYC a lot, even though my level of tolerance is probably pretty high (undoubtedly a result of having spent a great deal of time in smoky European bars for 20 years or so). But that’s just my set of preferences, and I can’t deny that when it comes to restaurants I do have a broad array of choices.

In the workplace setting, however, we can’t just ignore the real-world power dynamics. It is borderline comical to assume that “[w]orkers exercise control by demanding higher pay to compensate them for the risks and unpleasantries they experience because of the smoke in their workplaces.” I bet you dollars to donuts that there’s no income difference between smoke and no-smoke corporate environments, after controlling for all other variables. What are the chances of an employee successfully demanding higher pay because his or her co-workers or, worse, bosses are smokers? And is it realistic to assume that employees would give up their jobs and the goodwill accumulated over years just for the chance of a smoke-free environment someplace else? I doubt it. Most people would stay and suffer quietly. Absent legislation, revealing a no-smoke preference carries too heavy a penalty in most corporate environments. Because real-world office power dynamics interfere with the functioning of the market, workplace smoking bans are justified and likely increase overall utility. It is much less of an imposition on smokers to expend the marginal cost of stepping outside for a cigarette than for a non-smoker to suffer through years of discomfort.
[tags]economics, smoking ban[/tags]

ACLU v. NSA: Spying Program Found Unconstitutional

Published on August 17, 2006 in Law and Society. 5 Comments

In a major victory for the ACLU, a Michigan federal district court held the NSA’s surveillance program, a key part of the war on civil liberties, unconstitutional and ordered it ended immediately. Here’s from the opinion:

For all of the reasons outlined above, this court is constrained to grant to Plaintiffs [= ACLU] the Partial Summary Judgment requested, and holds that the TSP [= the NSA Terrorist Surveillance Program] violates the APA; the Separation of Powers doctrine; the First and Fourth Amendments of the United States Constitution; and the statutory law. Defendants’ [= NSA] Motion to Dismiss the final claim of data-mining is granted, because litigation of that claim would require violation of Defendants’ state secrets privilege. The Permanent Injunction of the TSP requested by Plaintiffs is granted inasmuch as each of the factors required to be met to sustain such an injunction have undisputedly been met. The irreparable injury necessary to warrant injunctive relief is clear, as the First and Fourth Amendment rights of Plaintiffs are violated by the TSP. See Dombrowski v. Pfister, 380 U.S. 479 (1965). The irreparable injury conversely sustained by Defendants under this injunction may be rectified by compliance with our Constitution and/or statutory law, as amended if necessary. Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution.

As Justice Warren wrote in U.S. v. Robel, 389 U.S. 258 (1967):Implicit in the term ‘national defense’ is the notion of defending those values and ideas which set this Nation apart. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of . . . those liberties . . . which makes the defense of the Nation worthwhile. Id. at 264.

If you want to know what this does to the legitimacy of the spying program, check out Brian’s post below.
[tags]ACLU, NSA[/tags]

It’s Official: Coffee is Good For You

Published on August 16, 2006 in Uncategorized. 5 Comments

This is from the NYT:

Coffee is not usually thought of as health food, but a number of recent studies suggest that it can be a highly beneficial drink. Researchers have found strong evidence that coffee reduces the risk of several serious ailments, including diabetes, heart disease and cirrhosis of the liver. … Larger quantities of coffee seem to be especially helpful in diabetes prevention. … [R]esearchers found that people who drank four to six cups of coffee a day had a 28 percent reduced risk compared with people who drank two or fewer. Those who drank more than six had a 35 percent risk reduction. … [W]omen who drank one to three cups a day reduced their risk of cardiovascular disease by 24 percent compared with those drinking no coffee at all.

There you have it! I’m off to get myself another cup.[tags]coffee[/tags]

Power and Legitimacy

Published on August 15, 2006 in Law and Society and Philosophy. 4 Comments

Matt Wood’s thoughts on power raise a number of important issues. Ben suggests that questions about power can be separated into 1) questions about what individuals in fact have the power to do, and 2) questions about whether the exercise of certain powers that individuals have is legitimate. Questions in the first category are purely empirical; as Ben says, “power, like any ability, is demonstrated through its exercise.” In this sense, then, the statement “President Bush did not have the power to authorize the NSA wiretapping program” is false, due to the simple fact that he did authorize the program, and citizens were wiretapped. Questions in the second category, on the other hand, are normative, though I think the precise nature of such questions requires some spelling out, and perhaps some further distinctions.

Consider again the statement “President Bush did not have the power to authorize the NSA wiretapping program.” There are multiple things that one might plausibly mean by such a statement. Most obvious among them is that Bush did not have the legal authority to authorize the program. Someone who intends the statement in this way believes that the program itself violates some previously existing (and valid) law or laws, or that it violates certain fundamental and legally guaranteed rights, and is therefore unconstitutional. But Matt raises an interesting point about claims of this sort. In our society it is generally accepted that the courts are the arbiter of legal authority, and because of this it might seem that whether or not the program is legal (and even whether it was legal at the time of implementation) is determined only after the courts have ruled on the issue. If the statement is made prior to any legal ruling regarding the program, then, it might be taken as a mere opinion about what decision the courts should make, given the speaker’s interpretation of the law. Whether or not Bush actually had the power, in this normative sense, to authorize the program, depends on how the courts rule, and (as Matt points out) on whether the public acquiesces to the ruling (of course the public almost always does acquiesce, for a number of reasons, including the fact that the courts tend to follow public opinion, at least on highly publicized issues). In fact, Matt seems to suggest that there is not much more to the legitimacy of an exercize of power than that it is accepted as legitimate by others:

“Legitimacy” exists insofar as individual B ratifies A’s action, either by reference to personal values or institutional structures. Legitimacy exists at the level of individual belief (B’s here), but nothing prevents a belief in legitimacy from being a function of group approval, as in the case of constitutional amendment.

So, since the general population accepts that it is the courts’ role to interpret the laws and the Constitution, then their doing so is legitimate, despite the circularity worries that Matt highlights. And, assuming the courts come down in favor of Bush, he had the power to authorize the NSA program all along, despite the legal ambiguities that existed prior to the ruling.

But might someone also make the statement “Bush did not have the power to authorize the NSA program” even after the courts have ruled the program legal? Perhaps the statement would be made in a slightly different way at this point; in fact, it might be put in terms of legitimacy, as in “authorizing the program was an illegitimate use of power.” In the legal sense discussed above, this is false. The courts have ruled, and the public has not risen up against the ruling; therefore authorizing the program was legitimate in the legal sense. So it may seem that the answer to Matt’s question “can one dissident voice validly stand back from the mass of consensus and say, “I know you all believe he had the power, but he *really* didn’t,” or the converse, “I know you all believe he didn’t have the power, but he *really* did?,” is no, both in the empirical and legal senses.

But is this the whole story? Like Ben, I am inclined to think not. It might seem that once the courts have ruled in Bush’s favor, it is simply false, in every possible sense, to say that he did not really have the power to authorize the program. But there are at least two objections to this conclusion, the second, I think, deeper than the first. The first is simply that the courts may, at some point in the future, reverse their decision. If and when that happens, even if it is decades into the future, it might seem that Bush in fact never actually had the (legitimate) power to authorize the program, not even during the period between the decision in his favor and the later reversal (think about what we might say about the legitimacy of the Fugitive Slave Laws in the period immediately following the Dred Scott decision, now that we are able to look back on that decision long after it has become conventional wisdom that it was disgraceful).

The second objection, which I think is the more interesting one, is that because the courts tend to rule in accordance with prevailing public opinion, they sometimes misinterpret the law, particularly in cases about which public passions are enflamed (consider, for example, cases in which religious displays on public property have been ruled legally acceptable). This view depends upon the premise that there are determinate answers to at least some legal questions prior to actual court rulings on those questions, which is something that Matt seems inclined to deny. Still, at least in certain cases, it might seem clear enough that a decision has no plausible basis in the law, or in the Constitution. And in these cases it might seem reasonable to call a policy illegitimate even after a court ruling has determined the policy to be legal.

Final note: A third objection might involve the claim that “legitimate” powers must meet some standard of moral, in addition to (or perhaps rather than) legal, legitimacy. The Dred Scott decision may have been entirely legally sound (given the Constitution and existing law), as well as generally accepted by the public, but we might still think that those who executed the Fugitive Slave Laws were, in some sense, exercizing illegitimate power. This, however, seems to me a slightly different sort of issue, and I bring it up merely to highlight the difficulty of nailing down precisely what is meant by talk of “legitimacy”.

Privacy Self Help: How to Avoid Personalized Search Engine Data Collection

Published on August 13, 2006 in Privacy. Closed

Internet privacy always entails a tradeoff between usability and anonymity. That tradeoff differs from application to application and from website to website. One of the greatest threats to privacy are personalized search histories. The latest AOL privacy breach is a vivid illustration of how much we reveal about ourselves through the use of search terms. Here is a practical, middle of the road setup for safeguarding your privacy against personalized data collection by search engines.

  1. Get Firefox. Really, that should be a no brainer.
  2. Install privoxy and tor. This is child’s play with the new installer package.
  3. Install foxyproxy. Amazingly, the zero configuration tor/privoxy wizard actually works. The great thing about foxyproxy is that you can designate individual sites that will be accessed through tor/privoxy.
  4. Add *google.com/* to the whitelist, so that all google searches will be routed through tor/privoxy.
  5. Have Firefox delete all cookies upon exit. (Whitelist those sites whose cookies you wish to accept.)
  6. Have Firefox block all cookies set by mail.google.com and gmail.com

As (6) effectively disables Gmail on Firefox, use Safari or IE to access Gmail. Using two browsers is essential, because once you log into Gmail, Gmail sets a cookie. Any search that you run in Google after starting Gmail will be linked to your Gmail identity. (Don’t believe me? Open Google in one tab, then log into Gmail in another tab. Return to Google and run a search. Your name will show up in the upper right hand corner.) The two browser setup effectively quarantines the Gmail session cookie.

Some might ask, sensibly, why I even use Gmail if I’m concerned about privacy. First, Gmail is far and away the best web based email client. I love it. It is a technological marvel. Second, I am not particularly concerned with email privacy, at least not with my private email. If I want some real privacy then I can (and do) encrypt my messages with PGP.

Another solution is provided by scroogle.org. Their search bar plugin is the way to go on computers, where you can’t install privoxy/tor (e.g., in the office).
[tags]privacy, tor, privoxy, eff[/tags]

Matt Wood: “What is power?”

Published on August 11, 2006 in Law and Society, Philosophy and System Theory. 3 Comments

Matt posted a mini-essay recently in the comments section of the “10 Worst Books” thread which I think itself deserves discussion. After musing over a particularily apt headline on “The Onion”, he writes:

The central premise of American government is that all legitimate power flows from the Constitution. And yet the Constitution is not a self-executing document; some degree of interpretation is required. So let’s take a few basic propositions:

i. The Constitution grants power.
ii. The power to interpret the Constitution equals the power to grant power.
A. Therefore, when the President claims the power to interpret the Constitution authoritatively, he is claiming the power to grant himself power.

Such a claim should sound mental alarms for several reasons. First, it raises specters of unchecked power. Second, as a formal matter, it seems to violate the doctrine of separation of powers (which is designed to guard against the first danger).

So where would this putative power to interpret flow from? Perhaps the President would claim that executive power to interpret the Constitution can also be found in the Constitution, by implication. But this is a circular argument: The basis for the power to interpret is itself an interpretation, which begs the question.

[A comparison can be made to a religious figure who bases his authority to interpret scripture on the basis of (an interpretation of) scripture.]

Let’s examine this phenomenon from the perspective of a legal layperson, with no concrete knowledge of the content of the Constitution, much less a copy close at hand. The President’s appeal, while illogical, operates on the level of rhetoric: if individuals believe that yes, he does have the power to claim that the Constitution grants him the power to interpret the Constitution, even though such a claim is premised on a circular power of interpretation, these believers will act as if this power exists. In effect, they will grant those powers to him ‘extra-constitutionally’ by their acquiescence. [The line is apparently thin between our attention to the substance of a claim and our attention to the status of the individual to make the claim. The more believable the claim, the less likely we are to question the status of the individual to make it authoritatively. Under our current system, presidential persuasion of the general population would likely constrain Supreme Court decision-freedom. In other words, the presidential claim becomes imbued with a sense of ‘objective truth’ which constrains the formal authority’s decision-making freedom, effecting a subtle but de facto shift in the distribution of interpretive power.]

Take the following example:
The president takes controversial action. Two universes are possible, depending on how well the President subsequently makes the case that his actions were constitutional. In the first, the people are persuaded and believe that yes, he *had* the power. In the second, persuasion fails, and the people believe that no, he *did not* have the power. Note the tenses that accompany these beliefs. They seem to suggest that subsequent persuasion can determine prior existence. A strange reversal of causality’s normal chronology, to say the least. The burning question seems to be then: is there any valid sense in which power exists apart from belief, or is it just a reification constructed on the grounds of belief? This is especially thorny when we consider that people may be persuaded on grounds other than the merits of the claim to power – perhaps almost solely as a function of trust. If we can acknowledge that the success of the president’s persuasion bears no *necessary* relation to things such as the intent of the framers, prior history of the nation, etc. (even though such devices may enhance persuasiveness), can one dissident voice validly stand back from the mass of consensus and say, “I know you all believe he had the power, but he *really* didn’t,” or the converse, “I know you all believe he didn’t have the power, but he *really* did.”

A description of power as reification is consistent with the notion that if every person outside government simply stopped believing that the social structures of government had any power to control their actions – that its laws have the power to bind them, that its subpoenas are anything more than junk mail – and recognized the system as just cooperative associations of role-playing individuals, government would cease to exist as a psychological, and perhaps therefore ontological, matter. [Something akin to this process probably happens during civil wars or when empires are in a state of dissolution.]

So why would anyone be vulnerable to the President’s circular claim that the Constitution grants him the power to interpret the Constitution? Perhaps because they actually believe that the Constitution really does ’say’ something on the matter, and that his claim is reasonable and believable.

This is consistent with the notion that the Supreme Court authoritatively interprets the Constitution’s meaning, which is reified as something discoverable, not created in the act of interpretation. So where does this interpretive power come from? Marbury v. Madison, and something more like natural law claims than constitutional interpretation. But a parallel question is raised: if the Supreme Court invokes the power to interpret natural law, on what is this power based? Ultimately, I think, the answer is that it derives simply from our belief in it, our acting *as if* it were true. And if the existence of power is ontologically dependent upon belief, the relevant question, in response to a claim of power, ceases to be a descriptive “Does X have the power?” and becomes of necessity the normative “Should X have the power?”. If we do not believe X should, then the avenue of counter-persuasion is available to us.

By “belief” in the context of Matt’s example, I take it his total meaning is something like “popular belief in the legitimacy of the execution of power by so-and-so”. If I’m reading him right, then popular belief in legitimacy seems far from enough to be a characterization of power in general. Rather, what Matt has put his finger on is a special kind of power — organizational power. But social power more generally can also involve illegitimate force and coercion, which haven’t got much to do with legitimacy; the barrel of a gun can be mighty convincing, even though the victim sees no legitimacy in its exercize. (Of course, it barely needs to be said that there can be non-social kinds of power, as well: my free will is a kind of personal power, and my ability to manipulate objects is an inanimate power, and so on.)

Still, Matt is very much on the right track by identifying trust as one source of power. It just needs to be emphasized in this context that fear is another source. Once we take both to heart, we have a plausible model of societal emergence (Matt calls it “extra-constitutional acquiescence” here) which is capable of replacing the contract theory paradigm in the social sciences at large.

The conundrums involved in Matt’s “two universes” example are especially illustrative of another point, I think — the question of the ontology of power. His examples seem to describe the reality behind power in a plausible way. But there’s a certain “What the hell?!” factor which arises in the cool hour when we try to digest the lesson here. Rationally, we want to say that either a person has power, or they don’t. It smacks of the memory hole to think that whether or not power exists can be decreed after the fact.

This conundrum, I think, can be resolved once we realize that this doesn’t apply to power itself, which is more or less objectively observable, but rather, to the legitimate or illegitimate status of power, which is more subjective. Matt’s dissident character would be wrong to say that an illegitimate leader lacked the power to do what they did. Power, like any ability, is demonstrated through its exercize.

Still, there may be more to say in defence of Matt’s idea that power in fact and as norm are intertwined. And we would be fools not to pursue this interesting line of inquiry! Still, it just seems to me that it can’t be the whole story.

On The Libertarian Mistake of Assuming a Fixed Quality of Government

Published on August 11, 2006 in Culture and Law and Society. Closed

Here’s an interesting post by Tyler Cowen of Marginal Revolution:

The libertarian approach treats government vs. market as the central question. Another approach, promoted by many liberals, tries to improve the quality of government. This endeavor does not seem more utopian than most libertarian proposals. The libertarian cannot reject it on the grounds of excess utopianism, even though much government will remain wasteful, stupid, and venal. More parts of government could in fact be much better, and to significant human benefit and yes that includes more human liberty in the libertarian sense of the word. Libertarians will admit this. But it does not play a significant role in their emotional framing of the world or in their allocation of emotional energies. They will insist, correctly, that we do not always wish to make government more efficient. Then they retreat to a mental model where the quality of government is fixed and we compare government to market.

This is clearly correct. The disdain for government in any form — sometimes open, sometimes thinly veiled — that runs through the writings of many of the classic liberals is off-putting to say the least. Improving the quality of government is surely as important as improving the quality of markets, probably even more so, because free markets do have a tendency to self-correct, unless we’re dealing with a true market failure, where the individual incentives lead to a socially unacceptable outcome (e.g., pollution). The political sphere is haunted by principal-agent problems that dwarf those of corporations. And much less has been done about minimizing those problems in the political sphere. We have been through a tumultuous evolution of corporate governance models, all aimed, in some way, at resolving principal-agent problems. Some of these innovations have improved corporate governance and corporate conduct, other haven’t. One may even question whether successfully aligning the interests of management and owners would be sufficient for good corporate governance, because the owners are not the only relevant constituency whose lives are shaped and influenced by the corporation. But in any event, there is world-wide competition for new and innovative corporate governance models, which really can’t be said (or at least not to the same degree) for models of political governance.[tags]politics, libertarian, liberal, corporate governance[/tags]

The Ten Most Harmful Books of the 19th and 20th Centuries

Published on August 8, 2006 in Culture. 6 Comments

Human Events, a right-wing online publication that features Ann Coulter pop-up windows and ads for conservative dating services (I kid you not), has this list of the top 10 most harmful books of the 19th and 20th Centuries. (HT: Doing Justice).

  1. Karl Marx and Friedrich Engels, The Communist Manifesto
  2. Adolf Hitler, Mein Kampf
  3. Mao Zedong, Quotations from Chairman Mao
  4. Alfred Kinsey, The Kinsey Report
  5. John Dewey, Democracy and Education
  6. Karl Marx, Das Kapital
  7. Betty Friedan, The Feminine Mystique
  8. Auguste Comte, The Course of Positive Philosophy
  9. Friedrich Nietschze, Beyond Good and Evil
  10. John Maynard Keynes, General Theory of Employment, Interest and Money

Honorable mentions:

  • Theodore Adorno, Authoritarian Personality
  • John Stewart Mill, On Liberty
  • Charles Darwin, The Origin of Species
  • Michel Foucault, Madness and Civilization
  • Margaret Mead, Coming of Age in Samoa
  • Simone de Beauvoir, Second Sex
  • Antonio Gramsci, Prison Notebooks
  • Rachel Carson, Silent Spring
  • Sigmund Freud, Introduction to Psychoanalysis

With a few exceptions (Mein Kampf, Quotes from Chairman Mao) this is actually a pretty good reading list for a college course in critical thinking. It certainly contains some of the most important works of the last two centuries, such as the Origin of Species, Beyond Good and Evil, Introduction to Psychoanalysis, On Liberty, Das Kapital, etc. Hats off to the “15 clowns scholars and public policy leaders [who] served as judges in selecting the Ten Most Harmful Books.”[tags]politics, books[/tags]

Conflict, Cooperation, and the Value of Democracy

Published on August 6, 2006 in Philosophy. 3 Comments

Every human society experiences both conflict and cooperation. Conflict, more often than not, is conflict over scarce resources, in other words, an economic problem. (There are other types of conflicts as well, but economic conflict is as close to universal for humans as it gets.)

  1. One prominent way of dealing with economic conflict is violence: If I want X and you want it too but we can’t both have it at the same time, then we will have to fight.
  2. Another way of dealing with scarcity is organized production. If I want X and you want it too, then let’s work together (= let’s each specialize and trade) and make more of X or improve X. There have been surprisingly few patterns of organizing production in history. They broadly fall into the categories of tradition (e.g., casts, guilds, apprenticeships, etc.), authoritarian rule (e.g., soviet-style central planning), and market exchange (e.g., barter, bazaars, eBay, NYSE). Virtually every real-world system of organized production that exists today contains elements of each.
  3. A third way is some arrangement by which you and I transform our preferences so that we no longer want X (or want less of it). Virtually every such arrangement aims at replacing (or tempering) our self-interested nature with some form of altruism.

Only option (3) requires agents to change their preference structure and thereby presumes that such a thing is possible. In contrast, options (1) and (2) operate mostly at an agent-external level, which is why realists instinctively feel drawn to (1) and (2) as explanations for human behavior and (3) has held great appeal for idealistic reformers of both secular and religious ilk.

Let’s assume for the sake of argument that humans, by and large, are in fact fundamentally self-interested, and that they are unlikely to change in that regard. That rules out (3) as a viable approach to solving the economic problem. As between (1) and (2), the latter has proven to be significantly more successful at minimizing scarcity and thus the potential for violent conflict over scarce resources. As within (2), the “free exchange” mode of organizing production is not only more efficient but also most compatible with notions of fundamental equality (e.g., no casts) and democracy. That, I believe, is the kernel of truth in the adage that “democracy follows free markets.” However, democracy follows free markets not because they both share some fundamental commitment to freedom, but rather because free markets are efficient at avoiding violence as a means of solving resource conflicts and, unlike authoritarian and traditional patterns of organizing production, are compatible with our phenomenological experience of and belief in self-determination and the resulting urge to have a say in matters concerning ourselves. In addition, the majoritarian character of democratic rule is a structural counterweight to the tendencies of free markets to produce economic elites with disproportional influence over both, the economic and the political system. The bottom line is that of all political economies within (2), the “free market plus democracy” combination seems to have emerged as the most successful means of avoiding violent conflicts over resources by means of growth and innovation – humans being what they are. That is not to say, of course, that humanity won’t self-destruct in one way or the other. There’s a good chance that it will, for example, by continuing to pursue growth qua growth over growth qua innovation, by remaining in the grip of traditional and religious superstition, and by a single-minded focus on the short run. But it means that if there’s a solution to these problems, it is to be found within (2), not within (1) or (3).

What I find attractive about this bare-bones model of both the economic the and political system is that it provides at least the outline of an explanation for what I observe in the real world without requiring me to make assumptions about human nature beyond some fairly basic propositions such as virtually universal self-interest. In addition, it seems that the above is at least continuous with the results of hard science and history, and should thus pass the test of m-naturalism. Why should we introduce intrinsic qualities of both freedom and democracy, if we can explain the world around us without them?
[tags]politics, economy, democracy, freedom[/tags]

Mark Graber on (Seriously Confused) Privileged Victims

Published on August 5, 2006 in Culture. Closed

Mark Graber posted an interesting essay entitled Privileged Victims about a recent Pew survey, in which:

Researchers found that core Republican voters can be divided into three groups, Enterprisers, Social Conservatives and Pro-Government Conservatives. … Enterprisers differ from every other group of voter in two respects. They are much better educated and far more affluent on average. … Second, Enterprisers are far more committed to limited government and Bush administration policies during the war against terror than any other group of voters.

Come again? Enterprisers are committed to limited government and its abolition? These findings cry out for a cultural cognition analysis.
[tags]politics, republicans, cultural cognition[/tags]

Welcome Brian Berkey!

Published on August 4, 2006 in Admin. Closed

We are excited to announce that Brian Berkey of Philosophy from the Left Coast will guest-blog at the Law & Society Blog. Here is how Brian describes himself:

I’m a Ph.D student in philosophy at UC-Berkeley. I work mainly in normative ethics and political philosophy, and I have side interests in applied ethics, including bioethics, and in radical political thought. I did my undergraduate work in philosophy and politics as well as an interdisciplinary Masters degree at New York University.

Make sure to read Brian’s excellent post on the Value of Democracy, and his insightful (and well written) comment on my comment to his essay Capitalism, Utopianism, and Democracy. Welcom Brian! We are looking forward to an exciting discussion!
[tags]politics, philosophy[/tags]

Why Value Democracy?

Published on August 3, 2006 in Philosophy. 7 Comments

In my post entitled Capitalism, Utopianism, and Democracy I say this:

What is perhaps most striking about the articles written by the free marketeers is that, despite containing a great deal of commentary on the role of government, there is no mention of democracy. They clearly emphasize that it is an essential role of government to protect free competition in the marketplace; nowhere do they also claim that it is the role of government to carry out the will of the people. … Their committment to capitalism is prior to their commitment to democracy (this, of course, is not unusual on the American right).

In his response, Hanno says the following:

This is clearly an accurate observation. Even though most free market libertarians are committed to the democratic process, that commitment is usually instrumental in nature. Most libertarians value individual freedom higher than democracy. But is that really a shortcoming? The libertarian concern with democracy is rooted in an individualist political philosophy. Any subordination of the individual will under the collective will, as envisioned, for example, by Rousseau, cannot be conceptualized as a realization of freedom from a libertarian standpoint. Freedom, for libertarians, is primarily a negative concept, defined roughly as the absence of arbitrary interference with the realization of an individual’s subjective preferences. As indicated above, libertarians and free marketers are suspicious of any form of “summing people up,” to use David Friedman’s phrase. Of course, a totalitarian way of summing people up under the banner of an official ideology is worse than the democratic summing up of individual votes, but the fear of majoritarian rule, however achieved, persists. That, I submit, is a perfectly reasonable concern, and treating democracy as a means to the end of individual freedom should not discredit a political philosophy on moral grounds.

While I certainly agree with Hanno’s concluding point that valuing democracy only instrumentally in no way discredits a political philosophy on moral grounds (one could certainly be a thorough-going consequentialist about the value of political arrangements and procedures), I wonder about the implications of this stance for libertarian views (such as Hanno’s) in particular. Specifically, it’s not clear to me that libertarians can argue, consistent with their view that individual liberty is intrinsically valuable, that the democratic process is only instrumentally valuable, insofar as it contributes to ensuring that individuals retain as much personal liberty as possible. After all, the democratic process is, at least ideally, the means by which individuals’ preferences are given voice in decisions about how society functions. It provides individuals with a forum to express their preferences regarding society’s political and economic structure, and the opportunity to have one’s preferences count in such essential social decision-making is, at least arguably, one of the most important forms of the individual liberty that libertarians value intrinsically. In fact, it seems to me a necessary element of any scheme of ordered liberty. Without the democratic process there is either a form of political authority that is not determined by the expression of individuals’ preferences, or else there is anarchy (it is, of course, conceivable that a regime not empowered through democratic processes might choose to adopt policies that reflect the popular will, but as a practical matter this is unlikely). It seems, then, that valuing individual liberty intrinsically may, at least in some sense, entail valuing democracy intrinsically as well.

Of course libertarians are likely to insist, and rightfully so, that society not be governed entirely on the basis of majority preference, because the majority is sure to support at least some policies that infringe on fundamental rights of members of minority groups. The question for the free marketeers that I discuss above, then, assuming I am right that valuing individual liberty intrinsically entails valuing democracy intrinsically, is whether the right to the sort of economic liberty that libertarians tend to endorse is a fundamental right (such as, say, freedom of speech and religion) that even the democratic process should not be able to take away. I contend that it is not. But that is a subject for a future post.

Putting an end to unsound examinations

Published on August 2, 2006 in Philosophy. 2 Comments

/// What follows is the final installment of a series of examinations of utilitarianism from Harwood’s seminal essay, “Eleven Objections to Utilitarianism”, along with my demonstrations of how these objections are unsound. Previous installments address such topics as integrity, justice, promise-keeping, supererogation, average and total utilitarianisms, rule utilitarianism, and hedonism. ///

10. Utilitarianism makes interpersonal comparisons of utility.
What utilitarianism demands, implicitly, is that the happiness of persons can be compared to one another (usually using some abstract idea of a “hedon”, or unit of pleasure). However, this in itself seems suspect, since the experience of happiness is entirely a) idiosyncratic, b) subjective, and c) variant between persons. Thus, it seems bizarre, or outright impossible, to say that one may compare happiness across persons.

Harwood rightly dismisses this objection for a variety of reasons.

First, he stresses that utilitarianism allows for different means by which satisfaction may be achieved. So the fact that needles make me miserable without doing the same to you, doesn’t indicate anything about pain itself. Thus, the idiosyncratic nature of pleasure and pain can be dealt with by utilitarians.

Second, he argues that we regularly and commonsensically make interpersonal comparisons of utility. To illustrate, he writes that “we build freeways even though we know that it is just a matter of time before and innocent baby who would not have died nearly so soon had the freeway never been built gets crushed in an automobile accident on the freeway. But the great convenience of the freeway and the other lives saved by allowing ambulances and other emergency vehicles to use the new freeway … outweighs the harm caused to the crushed baby”. This seems to defuse some of the motivation behind the objection, although, as an appeal to this mysterious thing we call “common sense”, it falls short of being persuasive.

Third, he argues that interpersonal comparisons of utility have just as many problems as intrapersonal comparisons of utility; all the same arguments made against the former can be made against the latter.

This isn’t true, however. I may compare my imagined happiness in the future to that of the present, or the present to the past, and my act of doing so does not interfere with the objection that both are subjective experiences. But if I were to try to compare my experiences to another person’s, I would run into problems, because experience is always unique to the subject. The point — which is worth taking seriously — is that you can’t just lay out the contents of one person’s conscious mind, lay out those of another person’s, and compare the two. Minds just aren’t like that.

Still, I think that, for all intents and purposes, we may make comparisons between persons by taking our analyses with a few grains of salt. But even if we were to allow that such comparisons could be made in principle, we can rightfully ask, “Well, how? Put it in empirical terms, already”.

It is said that utilitarianism has served to be an inspiration to economic theorists, but one thing that economists have grown to accept is that happiness cannot be measured en masse. Rather, they tend to rely upon observing the preferences of persons, postulating through the use of models of human action that there is a connection between desire satisfaction and happiness. An economic sociologist and utilitarian could then argue that certain models of social action allow us to infer levels of happiness, at least in part, on the basis of satisfying desires.

I won’t begrudge the general epistemic point, although the calculation depends upon a plausible model of human action. The favorite of classical economists and vonMiseans, rational choice theory, is something which we now know is implausible, and has rightfully fallen out of grace across the social sciences. Still, I mention these things only to point out yet another place where utilitarianism appears to be in desperate need for coherant and plausible analytic social philosophy to help provide genuine moral guidance.

[Edit: So those are Harwood's first few rejoinders. But he also considers a second kind of thought-experiment. Let's say that there are two kinds of people: those who are disposed towards dourness, and those disposed towards contentment. The same effort that it would take to make the dour person happier by 2 hedons could also make the contented person happier by 4. This experiment tells us, then, that utilitarianism councils us to expend more effort on those who are easily amused, since they will produce greater hedonic dividends.]

Harwood’s objection to this experiment is fairly brilliant and deserves to be quoted at length. He accuses a thesis of variance between interpersonal happiness as leading to bad statistical mojo. “Even if satisfaction was as wildly unpredictable from person to person… would it not mizimize our margin of error if we assumed that each person’s satisfactions were comparable? It seems so. For if we started giving preference or extra weight to persons whose satisfaction was assumed to be weightier [i.e., someone who is easily and intensely delighted], then the wildly unpredictable nature of satisfaction … would imply that we are as apt to be preferring and weighting the satisfactions of the right persons… as those of the wrong persons. If we chose the wrong person and thus gave extra weight… to the satisfactions of a [dour person]… then we have compounded any mistake we would have made by considering all satisfactions comparable, and we have extended the margin of error further than it was.”

[Edit: I really haven't got much to add to this point, because I think Harwood offers a persuasive argument relative to what he's arguing against. My only caveat would be to point out that the objection need not state that the differences in temperament are wildly unpredictable in order to be morally salient. It might be obvious that some people get more happiness than others as a matter of character; it is not at all unpredictable. And so it really would seem worthwhile to help these persons over those of more phlegmatic temperament, which seems wrong.

The trouble with all this is the habit which it forces us to endorse a habit of arbitrarily helping certain persons over others, which (if taken to such extremes where moral intuitions would come into play) would violate the optimizing spirit of utility.]

11. Utilitarianism forces us to violate the publicity condition.
Ethics, to put it roughly, is the guidance towards right thought, action, and life. This rough definition uses the word “guidance”, which seems to imply a necessary social element. Based on these axiomatic truths, we can understand that ethics, in order for it to be what it is, must be a public phenomenon. It can’t be secretive.

But some utilitarians have argued that “it would be a mistake to let most or all people directly pursue maximizing satisfaction, since too many will show bias or incompetence in calculating what will maximize satisfaction”. I can see very good sense in this objection, because (as we’ve seen in this series) a number of unsound objections are based upon bizarre, unrealistic worldviews can use utilitarianism to create nasty and evil results. Utilitarianism is dangerous when used improperly.

This has caused some to remark that utilitarianism is “elitist” or “secretive”. But that’s not getting to the core of the problem. To put it another way, the moratorium on publicity can be invoked by admitting the sheer impracticability of making utilitarian calculations in the real world. We have already dismissed objective utilitarianism because it provides no succor except to those who can see the future — that is to say, none of us. Meanwhile, subjective utilitarianism gives us a wide range of possibilities and risks, which requires some cool-headed and informed deliberation which we often don’t have the opportunity to engage in.

This objection concerns me more than any of the others because it seems to be quite strong. The publicity condition must be defended. The intuition behind the doctrine arises out of an inescapable conviction that unwritten laws must be either exposed and treated with rational scrutiny, or be ignored. Human social life is largely a mystery for me, but mindless conformity to (and rationalization of) norms strikes me as one component of Arendt’s banality of evil, mentioned earlier. An attack upon unwritten laws strikes me as an attack upon that very thing. When we take it seriously, we (rightfully) understand that for any abstract system of laws which direct action, thought, or life, and which is incommunicable, or (just as well) are based upon mere thoughts or beliefs instead of speech acts, then those systems are amoral by default.

Moreover, the publicity condition seems to be necessary because it is supported by the most plausible doctrines of accountability. We may formulate a person as accountable for some act if they could not possibly be blameworthy (or praiseworthy) by a moral agent. And a person cannot be blamed for a law to which they had no way of knowing. Thus, the laws which a person are held to, must be made public, so that persons may be held accountable to them.

My argument is in favor of examining utilitarianism in a slightly different way. It should no longer be considered a fundamental norm; instead, it is a kind of supportive groundwork for any fundamental norms at all. What I would like to say is that utilitarianism is a meta-ethic. This kind of utilitarianism (or “meta-utilitarianism”) provides guidance to the ethicist, but not guidance in general, simply because when taken alone it wouldn’t be very good at getting the job done. Its purpose for the ethicist is to provide clarity and guidance when reasoning concerning moral quandries, and to spur forward more nuanced analyses of social science. Ultimately, however, guidance must be intelligible in short form, either in the form of rules or narratives, and these things will be more helpful in everyday life. Since its audience is limited to ethicists, it does not need to satisfy the publicity condition.

I can imagine the reader getting impatient, and yelling: “that’s still elitist!”. And certainly, meta-utilitarianism (MU) seems more aloof than classical utilitarianism in some way. The way I think of MU is as if it shared a relationship with ethics like that between geometry and soccer. [Special thanks to Mitchell Langbert (CUNY) for his emphasis on this fact in discussion]. Zinedine Zidane didn’t need to do complex calculations during the World Cup, but every single move he made was still compatible with geometric truths. Similarly, the virtuous person doesn’t need to perform utilitarian calculations in every ethical dilemma; but for any plausible ethical reasoning, it will have to be compatible with utility. I don’t think it is elitist for that fact, any more than geometry is elitist.

I come to this conclusion on the basis of examining the evidence in the harder cases presented in the series. None of them seem to be decisive, many often missing the point. But all of them conclusively show that more explicit decision procedures towards judgments are needed than mere postulation of the principle of utility. Indeed, utilitarianism does not seem to exhaust all that there is to say on the subject of moral guidance; to use just one example, it is not usually obvious when, and to what extent, considerations of the social system are to be counterweighed against considerations about individual happiness, and these things make the project difficult to keep up in practice.

Some theorists may interpret this formulation as the last cries of the theory itself. If we are speaking in terms of the Benthamian calculus, and of archetypical utilitarians who are so skilled as to compute their way into infallible judgments at every turn, then in indeed, the theory is dead, has long been dead, and has only the scarcest hope of resurrection. But what if we take these dismissals more broadly, to include a rejection of the entire family of utilitarian theories (and especially MU)? No, I do not think such accusations can succeed. In the way I have presented it, meta-utilitarianism is, and should be, forever a part of the landscape of moral thinking. And even if there are more objections (as there always are), my more modest goal here has been to corall the efforts into tasks with a hope of success. If the theory at large, or MU in the small, are ever to be defeated, it won’t be through these unsound examinations of utilitarianism.

—
Summary of the important working parts of the argument

i. Agency is an incorrigible value.
ii. Enjoyment is a product of choice, and is unique to beings with agency.
iii. If supererogation is a significant concept, it derives out of successful moral risks. If it isn’t significant, then virtue serves as a replacement concept.
iv. Virtue is, in part, the fulfillment of agentic duties: the obligations to know and learn, and to empower oneself.
v. Counterfactual cases are significant only when they represent plausible or intelligible universes.
vi. Trust compels promise-keeping.
vii. Truth is not an incorrigible value. It is sometimes wrong to tell the truth. This counters proposals by thinkers like W.K. Clifford.
viii. Rights demand commitment at the risk of making them powerless.
ix. All “rules” are really just principles with extra weight. Rule-following is associated with positive duties more than negative ones. Nevertheless, the demands of utilitarianism apply across all situations.
x. The experience of waking from the experience machine serves as a reason to doubt that the machine is reliable. Also, the experience of waking from the machine rightly inspires moral horror. These are reasons why a person might not be advised to enter the machine.
xi. Hedonism is a thesis about the intrinsically valuable. It is not a thesis about right and wrong.
xii. Utilitarianism seems to violate the publicity condition. Until peripheral questions are answered regarding values and social systems, it must be understood only as a meta-ethic.

Antitrust and Ideology: Moral Goodness or Corruption

Published on August 1, 2006 in Law and Society and Philosophy. 1 Comment

Antitrust policy has often been portrayed as a struggle between free-marketers and populists. In The Ideological Origins and Evolution of Antitrust, William Page labels the two competing ideologies evolutionary and intentional.

The first of antitrust’s defining ideologies, which I call the evolutionary vision, views the market, framed by common law rules of property and contract, as a mechanism for facilitating free exchanges among countless individuals in the pursuit of their best interests. In that vision, the conditions that emerge from market processes, including the distribution of wealth, are fundamentally legitimate and, except in rare cases, unintended by any individual market actor. … The second great ideology, however, which I call the intentional vision, views the market as a mechanism within which powerful interests can coerce consumers, labor, and small businesses; market structures, consequently, tend toward monopoly. In the intentional vision, the unfair outcomes of market processes can and should be corrected by democratic, governmental intervention, including direct regulation.

This is an excellent summary, but let me try to put the issue a bit more starkly. The underlying question is: What is the moral significance of wealth or economic power? There are two competing views.

  • Wealth as a sign of moral goodness. Wealth (and its implications, power, and unequal patterns of distribution) is the result of a series of free, consensual exchanges, of trades that, with a priori necessity, must have made both parties to the exchange better off (or else, people wouldn’t have traded). The implication is that, in a free market economy, one can only get rich by serving others. Power and wealth are the result of (and the just reward for) having bettered most everyone’s lot along the way. That, in a nutshell, is the core of market idealism.
  • Wealth as a sign of moral corruption. Wealth (and its implications, power and unequal patterns of distribution) is the result of exploitation by means of coercion or deception. “Free, consensual exchanges” only exist among equals in power. In every other case, the strong do what they can and the weak suffer what they must. The implication is, that one can get rich only by exploiting others. Wealth and power are the reward of the ruthless, of those who have been more successful in exploiting the weak. That, in a nutshell, is the core of coercion idealism.

These are the competing visions animating not only antitrust law and policy, but also much of the discussion about free markets, regulation, big business, socialism, distributive justice, and globalization. One critical insight is that the competing views don’t necessary rely on incompatible normative standards. Rather, their disagreement is couched in descriptive terms, in the proposed causal explanations for what brings about wealth and power: free exchange on the one hand, exploitation on the other. Of course, almost no participant in this discourse engages in the empirical work that would be required to provide the microfoundations for their beliefs. In that sense, both views are idealisms, reflective more of individual value commitments than of how the world really works. Casual empiricism at least suggests that almost every exchange contains elements of both, freedom and coercion (however loosely defined). The critical question is, of course: how much of each? An empirical answer to that question would bring us closer to solving the underlying age-old philosophical problem than entire libraries of conceptual analyses of “power” and “freedom” have brought us so far.

Note: Cross-posted at Antitrust Review.
[tags]antitrust, politics, ideology[/tags]

Personal Gasoline Permits?

Published on July 30, 2006 in Law and Economics. 1 Comment

Jonathan Wolff proposes the following:

Suppose everyone is given the right to buy only a certain number of gallons of petrol/gasoline a month; somewhat less than average current usage. You can use your allowance, or if you would prefer, sell it in whole or part on the free market either to those who want more than the allowance, or to brokers. … [This scheme] provides people with an incentive to cut personal consumption, which would be the sensible thing to do, given that the further twist in the scheme is that the allowance would decline over time, so as to make it increasingly costly to maintain the same consumption level.

In the US, a roughly similar scheme of marketable permits has had remarkable success in reducing, for example, sulfur dioxide emissions under the 1990 Clean Air Act. Marketable permits, which are scheduled to decrease over time, are among the most effective ways of providing polluters with incentives to pollute less. It also rewards net sellers of permits much more tangibly than a pollution/gasoline tax, as the cash from selling a permit goes to the seller whereas the tax goes to the government. (Of course, the pollution-reducer saves taxes, but saving taxes feels somehow less rewarding than selling one’s gas allowance on eBay after a month of taking the bus to work). If we agree that CO2 emissions are destroying the biosphere in the long run (which appears to be an unsettled question only in the US public discourse, not in the scientific literature or anywhere else in the world), and if we agree that personal consumption is a significant enough contributor to the overall problem so as to warrant regulation, then Jonathan’s proposal seems entirely reasonable to me. In practical terms, the actual permits could be issued in electronic form (e.g., with public key validation), which would make trading them virtually costless. Whoever doesn’t have access to the Internet would receive their permits in the mail. It wouldn’t take long for local gas stations to emerge as brokers for paper permits.
[tags]environment, marketable permits[/tags]

Unheeded Innocence

Published on July 30, 2006 in Law and Society. 1 Comment

Here’s a very personal post by David Schraub, titled Unheeded Innocence, that’s worth quoting in full.

I’ll lay it straight for you. One of my absolute, deepest fears, is of being charged and/or convicted of a crime I did not commit. I fear that despite knowing my innocence, I won’t be able to convince a prosecutor or a jury of that fact. I fear that I’ll be villified by everyone I ever loved. I fear I’ll spend my entire life behind bars based off a mistake. It terrifies me. It’s articles like this that explain why. If for no other reason than to prevent horrors like this from happening, we must be ever-vigilent in making sure that our criminal justice system does everything possible to prevent an innocent man from being convicted. That commitment may not be politically popular, but it represents the baseline of how a just society conducts itself.

In that context, the death penalty is a particular problem. If you are looking for some basic statistics, check out the ACLU’s website on capital punishment. Here are the chilling highlights:

  • Almost all people on death row could not afford to hire an attorney. The quality of legal representation is a better predictor of whether or not someone will be sentenced to death than the facts of the crime.
  • Race often plays a role in determining a capital sentence. Over 80% of capital cases involve white victims, even though nationally, only 50% of murder victims are white.
  • Where a death sentence is sought often determines whether a defendant is sentenced to death more than the circumstances of the crime.

With over 60 executions in 2005 alone, the US is keeping some very questionable company. Here’s the international hall of shame:

1. China (At least 1,770 Executions)
2. Iran (At least 94)
3. Saudi Arabia (At least 86)
4. United States (60)
5. Pakistan (31)
6. Yemen (24)
7. Vietnam (21)
8. Jordan (11)
9. Mongolia (8)
10. Singapore (6)

The death penalty is legalized barbarism and has no place in a decent society. How about a worthwhile constitutional amendment for a change? One that simply states: “Capital punishment is abolished,” as in Article 102 of the German Constitution.
[tags]death penalty[/tags]

Larry Solum’s Legal Theory Blog Has Moved

Published on July 30, 2006 in Law and Society. Closed

Update your links to this must read blog.

The Short Run, Humility, and Conservatism in Modern Antitrust Economics

Published on July 29, 2006 in Uncategorized. 1 Comment

The “we can’t predict the future” attitude of courts and most antitrust commentators and the resulting focus on the short run, locks us into methodological conservatism. If our only valid benchmarks are the past and the minimally extrapolated near-future, then we tend to see our world as the best of all worlds. For example, in Trust on Trial, Richard McKenzie claims that (I paraphrase) “in every market that Microsoft entered, prices dropped.” That sounds right. I still remember the $499 price tag for WordStar. The chart below compiles some useful historical information on word processor pricing over time. (If anyone has a more recent overview, please let me know. Today, Word sells for around $200).

200607291948-1
But who says that prices would not have dropped to even lower levels or more quickly but for Microsoft’s anticompetitive practices? Worse yet, who says that we would not have seen significant new technologies and innovation such as free, web based word processing similar to Writely a decade earlier? My point is that the epistemological humility of post-1970s microeconomics has a decidedly conservative bent in the strict sense of the word: It ennobles the status quo. Take as an example the law of predatory pricing. Successful predation proceeds in two steps. In the investment phase, the predator undersells the competition at a loss. Once the competitors have been vanquished, the predator raises prices above competitive pre-predation levels. That’s the harvest phase, in which consumer exploitation follows competitor exclusion. A focus on the short run makes predatory pricing seem irrational, as the only certain outcome is a short run windfall for the consumer, while the long run harvest is disregarded as speculative. Herein lies one of the more fundamental philosophical differences between US and European antitrust. We, in the US, have confined the time horizon for antitrust analysis to the past and to a minimally extrapolated short run future. The European Commission, in contrast, exhibits much greater confidence in its ability to predict the future and is thus much more willing to trade off short run consumer benefits against long run welfare losses. In the ideological battle between the past and the future, the past usually wins: better the devil you know than the devil you don’t. I’d be interested in any pointers to recent empirical work on the accuracy of microeconomic predictions.

Note: Cross posted at Antitrust Review. Please post any comments over there.

[tags]antitrust, economics, ideology[/tags]

Comments Require Registration and Login

Published on July 29, 2006 in Admin. Closed

In the last couple of days, we and other blogs have come under massive comment spam attacks, which Akismet, our spam filter, is apparently unable to block. So for now I have turned on the registration feature for comments. Sorry for the inconvenience!
[tags]spam sucks[/tags]

Irish Jury Acquits Plane-Bashing Peace Protesters – The Limits of Criminal Law?

Published on July 29, 2006 in Law and Society. 3 Comments

This week in Ireland, five peace protesters were aquitted by jury verdict of the charge of criminal damage to property. In 2003, the protesters forced their way into an airplane hanger at Shannon airport and attacked a US Airforce transport plane, bashing the airplane’s nose and causing $2.5 million of damage.

The Dublin Criminal Circuit Court ruled July 25 that the five — two Irish, one Scot, one American and one Australian — were not guilty of causing damage to U.S. government property and the Aer Rianta doors at the airport. The five admitted in the court that they had forced their way into the hangar and had attacked the plane, but said their actions were legally excusable because they were trying to protect lives and property in Iraq, which the U.S. invaded the following month. After attacking the nose cone and windows of the plane with hammers and paint, the five prayed. They offered no resistance when arrested.

Source. Further news reports are here, here, and here.

There are several things going on here, of course. For one thing, the Irish consider themselves neutral and there is a strong popluar resentment of U.S. military airplanes refueling in Shannon on their way to Iraq or transporting or “rendering” prisoners. The jury expressed, according a statement read by the protesters after their acquittal, this resentment by refusing to condem the act as criminal:

The jury is the conscience of the community, chosen randomly from Irish society. The conscience of the community has spoken. The government has no popular mandate in providing the civilian Shannon Airport to service the US war machine in its illegal invasion and occupation of Iraq.

The interesting legal-theory question is how and why peace protests could excuse a criminal-damages charge. I wouldn’t be happy if a protester came along and bashed my car to protest the war in Iraq. Here is the Irish criminal-damage statute:

A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.A person charged with an offence to which this section applies shall … be treated … as having a lawful excuse . . .

(c) if he damaged or threatened to damage the property in question …. in order to protect himself or another or property belonging to himself or another … . and, at the time of the act or acts alleged to constitute the offence, he believed

(i) that he or that other or the property, right or interest was in immediate need of protection, and

(ii) that the means of protection adopted or proposed to be adopted were or would be reasonable having regard to all the circumstances.

The five protesters argued that they acted to protect the Iraqi, who were in immediate need of protection, and that bashing a U.S. military plane was reasonable under the circumstances, since it is the U.S. military that is killing Iraqi (the protest happend in 2003 — now of course, there is much killing of Iraqi by Iraqi). Remarkably, the court heard evidence as to the legality of the U.S. war against Iraq. Under the statute, the case therefore came down to the “reasonableness” of the protesters’ belief that it was necessary to destroy U.S. military property in order to save Iraqi lives. The case was won for the defense, I believe, the moment counsel managed to get the issue of reasonableness before the jury.

Judge Reynolds said only the reasonableness of the belief, not its honesty, was at issue in the case, and said the question was so tied up with the facts of the case that it wouldn’t be appropriate for her to prohibit the jury from considering it.

Detailed transcripts of the trial are available, which give insight into what was said on the issue of reasonableness. I will add some excerpts below. But first, a couple of theoretical points.

The first point: This case shows very clearly the tension created by an “override” provision in the (criminal) laws. What is being argued here is that there are higher considerations of justice or morality or necessity that trump the law. By definition, the law is antithetical to such overrides and their only certain characteristic is that they apply in exceptional cricumstances (comparable to Radbruch’s formula about “extreme injustice” if operating at another level). Arguments against taking into consideration the horror of the war in Iraq, its alleged illegality, the sincerity and concern of the accused protesters all stem from the potential consequences for the legal system: Would our efforts to protect private property not be vitiated if we permitted such defenses? Are we not rocking the very foundaton of law if we permit an override, based in morality and religion, or even worse, in politics? Such arguments, to my mind, have greater theoretical than practical weight. While we can never agree on what justice or truth mean, we can often agree on what is injustice or betrayal: Extreme cases are easier to agree on. An override provision for extreme cases therefore does not significantly undermine law and the general belief in its applicability and enforcement. Usually slippery-slope arguments are brought to bear against override provisions (that’s my term, by the way), and like almost all slippery-slope arguments I find them unconvincing, since they pre-suppose an inability to draw a meaningful distinction between “normal” cases and extreme cases. (The U.S., I am sure, is worried about about the slippery-slope potential of the jury verdict: They have already indicated that they would like a word with the Irish government to discuss the “implications of the judgment.”)

My second point is technical. [EDIT: Please see the comments to this post] The Irish statute declares criminal damage that was reasonably believed to be necessary to prevent harm to be lawful, which means, for example, that self-defense would not be permissible against the act. Consider that the airplane’s pilot had tried to defend his airplane against the attacking peace protesters and that the pilot had injured one of the protesters while trying to ward them off. If the protesters’ reasonable beliefs made their act lawful, the pilot would be prevented from stopping the attack by force and could be prosecuted for assault and battery if he tried: self-defense is a right only against unlawful attacks. That result strikes me as absurd. But the Irish statute does not seem to provide a category of acts that are unlawful yet not punishable. In other words, no distinction is drawn between justifications (eliminating the unlawfulness of the act) and exculpations (removing the guilt of the actor). If the court could say “the act by the five protesters was unlawful – but they were excused from punishment for the unlawful act” the illegality of criminal destruction of property would not be called into question. There would be less of a suggestion that it is okay to go around bashing airplanes. In this respect the case is similar to Regina v. Dudley & Stephens, the famous case of two castaways who were convicted of homicide for killing and eating the ship’s boy in order to survive in an open boat at sea. In Dudley & Stephens, which was decided in 1884, the court cannot conceive of an unlawful act that isn’t punishable. But there is clearly a need in cases of extreme necessity to publicly condemn the act but to spare the actors. In Dudley v. Stephens the practical solution was for Queen Victoria to commute Dudley’s & Stephens’ death sentences to six months’ imprisonment.

But back to the Irish plane-bashers. Here are some excerpts from the interesting transcripts (lightly edited). First, a passage from the prosecutor’s closing argument:

We live in a country that has law, a system, a vote, a voice. They [the accused] said that’s not good enough, we will do something more. They had no lawful excuse. No emergency. They made an eloquent statement. Damien Moran [one of the accused] said he looked forward to being put on trial to test the conscience of the Irish people. Where do we stop? If someone is drunk and about to get into a car and you go over and assault the person in an effort to prevent him from getting in (and possibly killing someone) that would be reasonable. But that’s not what happened in this case. In this case, the five have contributed to the action. Your consciousness may have been raised during the trial. Deirdre [another of the accused] was asked about what would constitute success. She had replied that for her (it would have been) success if other Irish citizens had taken part. This was her mission. … All five were raising public opinion to stop others from going to war. This is laudable. But is it reasonable? No. It is not a lawful excuse. … Ed Horgan brought an action to the Courts to prevent the government from using Shannon because he thought it was unconstitutional. Eoin Dubsky did similarly. At least one of the accused knew of these actions. Not one of them went to a lawyer but had a view on what the law was. They said that the Irish Constitution didn’t allow this [the use of Shannon airport by US military]. Only you can decide if it’s reasonable. They knew we have a democracy, a system. If there is criminal activity or threat (unless, as indicated, there is a burning building) we don’t set up checkpoints, vigilantes, or posses, [who] take law into their own hands. What they did was very brave, hats off to them. They did what they did, they knew it was criminal. It was a conscience-raising exercise And they looked forward to this trial. You must decide whether what they did falls on the wrong side of the line. Democracy does not allow people to take the law up into their own hands.

Here is an excerpt from one of defense counsel’s closing statements. When is the last time you quoted a long passage from the Sermon on the Mount in court (and followed it up with Forest Gump’s mother)?

Mr. Devally [the prosecutor] has said the action of these defendants was a political act. I’ll tell you of some one who made a great political speech, the greatest political speech of all time and that’s Jesus Christ. And the name of the political speech he made was “The Sermon on the Mount”. You’ll find it in Matthew chapter 5, verses 3 to 10. This is what it says:

Blessed are the poor in spirit: for theirs is the kingdom of heaven. Blessed are the meek: for they shall posses the land.
Blessed are they who mourn: for they shall be comforted.
Blessed are they that hunger and thirst after justice: for they shall have their fill.
Blessed are the merciful: for they shall obtain mercy.
Blessed are the peacemakers: for they shall be called the children of God.
Blessed are they that suffer persecution for justice’ sake, for theirs is the kingdom of heaven.

These are the words of Our Lord and Saviour Jesus Christ and Jesus is one of the greatest pacifists that ever lived on this earth.

Now Lebanon is burning. Today children swimming in a pool were bombed. A swimming pool is now filled with burning children. This is war. People in Gaza are suffering and children dying. Now, I ask you: Would you take an axe to destroy an Israeli plane or a Hizbullah rocket?

We may ask “What is good?” Forest Gump’s mother has the answer: “Good is as good does.”

Finally, here is a bit from the second defense counsel’s closing statment, showing that when you argue the necessity defense, the Nazis are never far off in the landscape of argument.

Also, Mr. Devally [the prosecutor] said the accused may have had other reasons, such as to raise consciousness, get others to join, etc., and that that, somehow or other, weakens the reasonableness of their actions. Raising consciousness doesn’t weaken the reasonableness of acting to save a life.

The question maybe that we should be asking is: Why does the vast majority do nothing? We all read about the sanctions – Why did we just continue on?

Mr. Nix elicited that the whole number who died because of sanctions in Iraq was one quarter of the Holocaust figure. Germany in ’39 is not equal to Ireland in 2003 Germany in the 30s was gripped by a totalitarian regime. Ireland in 2003 was not. Yet, the question must be asked “Why did no-one speak out about the sanction deaths in Iraq? Mr. Nix said that if there were even a thousand deaths of children in Ireland, there would be an outcry. – Is he over optimistic. In Turkey the average age is 57. Our own Travellers [itinerant Irish poor] – how many are over 57? But we don’t see it.

Three years later, the Events of 2003 have faded. In that year we were in the eighth year of the Celtic Tiger. There was a great fear of going back to the bad times – economically – that we had come through. It became clear in the debate of the time that what the Government was doing (in letting the US military use Shannon) was based on their fear that (US) Companies would get up and go and the economy would regress. The economy was the important factor. If you disagree with this viewpoint, fair enough; but if you agree, you then begin to understand how we can see 1.5 million people die and take no action to prevent it.

The Germans who stayed silent during the Holocaust were not bad people. The Irish who didn’t get angry were not bad people – they were just people who were wrapped up in their own business.

When you do something, as Nuin Dunlop [one of the accused] did, you don’t know whether or not the effect will gather the force of a tsunami. History has shown that people who go against the grain make a difference. You can’t conclude it won’t make a difference What you can say is that it’s reasonable to assume that it might make a difference.

Rosa Parks got on a bus and set off a chain reaction. Black people were marching all over America. So much so that their feet were sore, but their souls were resting.

[tags]iraq, defense of others, ireland, criminal law[/tags]

He Who Cast the First Stone Probably Didn’t

Published on July 26, 2006 in Uncategorized. 5 Comments

Don’t miss Daniel Gilbert’s interesting Op-Ed over at the New York Times: He Who Cast the First Stone Probably Didn’t. Gilbert writes about recent experiments that show that (a) we tend to regard our own actions as consequences (of the actions of others) and the actions of others as causes, and (b) that we tend to escalate responses. Both points are important in law and jurisprudence, not only when we consider justification and exculpation, but in a broader sense when constructing the foundations of the criminal-justice system in society. A fascinating aspect is the empirical foundation of moral or immoral behavior. Here is a taste:

The results revealed an intriguing asymmetry: When volunteers were shown one of their own statements, they naturally remembered what had led them to say it. But when they were shown one of their conversation partner’s statements, they naturally remembered how they had responded to it. In other words, volunteers remembered the causes of their own statements and the consequences of their partner’s statements.

What seems like a grossly self-serving pattern of remembering is actually the product of two innocent facts. First, because our senses point outward, we can observe other people’s actions but not our own. Second, because mental life is a private affair, we can observe our own thoughts but not the thoughts of others. Together, these facts suggest that our reasons for punching will always be more salient to us than the punches themselves — but that the opposite will be true of other people’s reasons and other people’s punches.

Examples aren’t hard to come by. Shiites seek revenge on Sunnis for the revenge they sought on Shiites; Irish Catholics retaliate against the Protestants who retaliated against them; and since 1948, it’s hard to think of any partisan in the Middle East who has done anything but play defense. In each of these instances, people on one side claim that they are merely responding to provocation and dismiss the other side’s identical claim as disingenuous spin. But research suggests that these claims reflect genuinely different perceptions of the same bloody conversation.

If the first principle of legitimate punching is that punches must be even-numbered, the second principle is that an even-numbered punch may be no more forceful than the odd-numbered punch that preceded it. Legitimate retribution is meant to restore balance, and thus an eye for an eye is fair, but an eye for an eyelash is not. When the European Union condemned Israel for bombing Lebanon in retaliation for the kidnapping of two Israeli soldiers, it did not question Israel’s right to respond, but rather, its “disproportionate use of force.” It is O.K. to hit back, just not too hard.

Research shows that people have as much trouble applying the second principle as the first. …

The Right to Inefficient Government

Published on July 26, 2006 in Jurisprudence and Law and Society. 1 Comment

As the BBC reports today, Germany has signed a Nazi-files accord, which will give access beyond victims to the files kept by the Nazis. The accord still has to be ratified by the eleven members of the ITS commission (Germany, Belgium, Britain, France, Israel, Italy, Greece, Luxembourg, Poland, the Netherlands and the US).

The 47 million files stored in the spa town of Bad Arolsen hold meticulously recorded information on forced labourers, concentration camp victims and political prisoners.

In grey, bureaucratic language the Nazis documented everything – from the number of lice on a prisoner’s head to the exact moment of their execution.

The archives have been used to help people trace their relatives, but were kept closed to protect victims’ privacy.

The files contain also the names of collaborators, homosexuals and prostitutes.

Much of this information may be incorrect – the Nazis often had an interest in defaming their victims.

Germany had previously refused to open these archives because of privacy concerns.

The opening of the archives is a significant event, although I do not envy the task of historians who will soon begin to review and hopefully understand what is stored in Bad Arolsen—nothing less than the essence of the Nazi horror. What sets the Third Reich and its Judenvernichtung apart from other genocides and progroms is not alone the sheer magnitude, but also the chilling efficiency with which it was carried out. What government and administration in the 1940 would have been capable of organizing even the transport of the millions of victims from all corners of conquered Europe to Ausschwitz and the other camps? The logistics of that destruction are staggering.

This raises a point that I hope historians will explore as they analyze the Nazi files: The state, with its monopoly on force, becomes more threatening as it becomes more efficient. In many areas, the protection of civil rights consists in the efforts to hobble the state, for example, by placing limits on information exchanges and collaborations between agencies or by restricting the domestic role of the military. On the other hand, we want the state to be efficient in protecting us, in discovering and preventing crime, and in using its resources. The difficult question therefore becomes, to what extent do we want government to be inefficient, for the sake of liberty? (The famous maxime, that is better that ten guilty men go unpunished than one innocent man be hanged, is a variation on this theme.)

There are, as I have argued, two fundamental approaches to the tension between the efficient state power and individual liberty. If we take the view that the state (as represented by the head of state and the administration—and to some extent by parliament), is either “good” or “evil,” there is little reason to fret and worry about maximum state efficiency as long as we know that the state is “good.” It is the righteousness of those in office that protects us, rather than laws and procedures that would hamper saintly as well as morally-corrupt governments. The other approach is to balance powers and restrict competencies, always assuming that government will be “evil.” Or to put it another way, the guarantors of individual liberty in the state should be strong enough to protect us even from a government that doesn’t have the best interests of the citizens, or of minorities, at heart.

Remote Controlled Aircraft Security

Published on July 25, 2006 in Uncategorized. Closed

After having once again been delayed for two hours in Newark, because “TSA had orders to search every third person” (sigh), I am glad to see that someone is thinking about approaches to aircraft security that go beyond the compulsive confiscating of nail clippers. (HT Engadet).

[The innovation comes] in the form of a software platform being developed by a consortium of 30-odd European businesses and research institutes that would make an aircraft’s systems completely unusable in the event of a cockpit breach — control of the plane would be passed to officials on the ground — even if one of the hijackers was among the 1337est of hackers.

Unless, of course, (i) hijackers pry open the cockpit doors with their contraband nail clippers, while (ii) another team breaks into ground control. Sounds like another bad day for Jack Bauer.
[tags]security[/tags]

“Unsound examinations…” series: part 4

Published on July 25, 2006 in Philosophy. 2 Comments

/// What follows is a piece which presents a series of examinations of utilitarianism from Harwood’s seminal essay, “Eleven Objections to Utilitarianism”, along with my demonstrations of how these objections are unsound. Previous installments address such topics as integrity, justice, promise-keeping, supererogation, average and total utilitarianisms, and rule utilitarianism. As the objections get more and more serious, my replies have grown in length. My apologies. ///

7. Utilitarianism requires us to enter the experience machine.

Most readers are by now familiar with the film “The Matrix” (just as most philosophers are tired of references to it in introductory philosophy classes). A central feature of the film was the concept that people could, without their knowledge, live in a world that was entirely virtual. Robert Nozick, in “Anarchy, State, and Utopia”, famously asks us to imagine a device called the “experience machine”. The experience machine is, in almost all respects, akin to the apparatus featured in The Matrix, with the sole exceptions being that for Nozick, a) people would have a choice as to whether or not they could enter the machine, and b) the machine would be programmed to provide nonstop pleasure to the participant(s). It would simulate happy experiences in virtual reality, allow the participant to achieve their greatest dreams, and so on. Let’s also suppose that everyone else on the planet has already entered such a machine. Suddenly, Joe awakes, as part of a normal procedure of setting up the details of the virtual life to come.

Nozick argues that utilitarianism requires Joe to enter the machine, for it would ultimately create happiness in him. However, Nozick contends that this is wrongheaded; people are in some sense alienated from their goals if those goals are not satisfied in reality. Thus utilitarianism is false.

This is a serious objection, and not just a charicature of hedonism. What is impressive is that the qualitative aspect of experience is kept the same in the example. If the example had involved lobotomy, or morphine injections, it would misfire, because they would diminish our capacity to experience which is necessary for the enjoyment of things. It would, for example, destroy the ability to commit to enjoyment, among other things which the utilitarian ought to concern herself with. Moreover, it doesn’t (as an accusation) say anything about what Joe would, in fact, choose. Rather, it relies upon our intuitions concerning what he ought to choose.

1. The first reply that needs to be made is that the consequences of leaving the experience machine are dire. As we have seen, there is such a thing as enjoyment, which appends itself to experiences of happiness that we have. It is important to note that one form of enjoyment is nostalgia, where we enjoy the acts we do through hindsight.

If Nozick has any viable intuitions here, it is that very good virtual experiences would involve the desire for the authentic achievement of one’s goals. Let’s grant him that. (If we refuse to grant him that, the objection to utilitarianism would be automatically defused; but that’s hardly interesting.)

Now let’s imagine a person wakes from the experience machine. How would they feel? How would it feel to realize that all which one finds meaningful has been a lie? We all know the experience of waking from very good dreams, and feeling distraught at the realization that they are false (before the memories of them fade in the process of waking). If this same sense were generalized to a sufficient portion of one’s life, then it would surely be an excruciating experience. Yet even this comparison may not capture quite the psychological impact of it. Perhaps the best analogue would be to the cases of refugees whose families and homes were destroyed in war. Surely these are not enviable positions to be in.

But in order for the Nozickian argument to carry, they would not seem to be enough to compel us not to enter the machine. Perhaps, they would argue, the participant’s pain in that brief moment would be outweighed by a lifetime of good future experiences in the machine. Let’s grant them that the machine produces great horror upon waking, but that is but a moment in time, and the memories of the subject were wiped upon re-entering the machine. Are the participants obligated to continue with it?

Before settling on a good reply to Nozick, I should consider a few replies which I think are insufficient.

The creed, “agency is an incorrigible value”, has had the power to deal with some objections so far. However, it does not seem to have much power here. An incorrigible value is trumped by an intrinsic value, and the only thing of intrinsic value is happiness. And Nozick’s example is a critique of precisely this: hedonism. Indirectly, it may play some role, though, in that agency produces enjoyment and its related concepts.

Enjoyment, and nostalgia, can be inverted: their twins are regret and embitterment. And these are precisely the things a person should avoid in a contented life, but which are inevitable results of the experience machine. The moment of misery upon waking creates a sense of embitterment which seeks to countermand every single happy experience created by the machine. However, the counterweight of bitterness only applies for the length of time in which a person is outside of the machine, which is a comparatively short period of time. Thus, this still may not be enough to save utilitarianism. However, it should be noted that the sting of bitterness present here is exquisite, which even a calamatous instance like that of the refugee doesn’t necessarily have to suffer.

What about supererogation? It would say, as would objective utilitarianism, that the person has no hope of behaving virtuously in the supererogative sense. But this is barely the point, as I’ve admitted that virtue is ultimately a means to an end, just like anything else. And it was unreliable anyway.

What would the person do? Would they go back into the machine? Likely not. But that’s not the point, Nozickians would insist: the point is that utilitarianism requires them to go back. Their actual choice afterwards is irrelevant.

We must wonder, what experiences did the person have in the machine, such that they would want to go back? Nozick’s example involves virtual reality, where the experiences are identical to real experiences. Knowing what we know — that agency is incorrigible — we may suspect the drive for authenticity would have demanded experiences that were contingent upon perceived authenticity while in the machine — it would be part of the person’s goal. Thus, it seems as though the participant’s goals, desires, and preferences aren’t being satisfied; and that this would be a way out. Indeed, a number of utilitarians have taken this route, exclaiming that ‘true satisfaction of goals’ is an aspect of happiness alongside length, intensity, purity, and so on. But I don’t believe that this position works, either. For there is a difference between a goal and the state of affairs which the goal maps onto. The goal is critically tied to a person’s intention and perceived experience, while the state of affairs is objective. And only goals are significant, because they’re a part of the person’s experiences, and the actual state of affairs is not necessarily available to the participant.

We can postulate that the person would, if they entered the machine, lead a happy life. What we can’t postulate is that the person would KNOW they would lead a happy life if they entered, or even that it would be reasonable to believe it, because of the circumstances of their waking. If we were given the same knowledge as he, then we couldn’t advise him to re-enter the machine. Because he would run the risk of future rediscovery of this world-crushing incident.

Now let’s presume that Joe is sound of mind, and change the experiment slightly: Joe was born and raised in an ordinary life, and was offered the opportunity to enter the machine, and is assured that he will never wake. If he is sound of mind, the outcome would be the same, the difference being that the negative consequences are provided by Joe’s imagination, and not through firsthand revelation.

A clever interlocutor might say (as Brian Berkey did recently), “Aha! But what about our obligation to know? It would seem that insofar as Joe doesn’t know that his future in the machine is happy, he would be in violation of his agentic duties!” The obligation to know can be defended radically, as with W.K. Clifford, who wrote: “it is wrong always, everywhere, and for any one, to believe anything upon insufficient evidence”. It may also be defended modestly, by saying something like, “Believing in the truth tends to produce good, but not always”. I support the latter sort of view, because of the ‘dying mother’ example we encountered in the promise-keeping objection.

Second, the Nozickians are the ones fighting an uphill battle on the epistemic question, because it is manifest to the waker that the possibility of waking up again and again in the future is very real, given that he is presently experiencing wakefulness. The best evidence available to Joe tells him that he is, and in the future will be, in deep trouble. Asking a person to re-enter the machine is like asking a refugee to withstand another war on new soil.

That would be wrong.

2. Another interesting avenue for escape arises through the examination of the self. It may be that we need to understand the notion of the self as (at the very least) the coherant connectedness of memory and consciousness across time. Recall that Joe’s memory would be wiped if he were to enter the machine. If so, then he would be cutting ties to his past self. In a sense, the Waking Joe and the Sleeping Joe would be entirely different people. I don’t know the extent to which this consideration makes much of a difference to the Nozick objection, but ultimately, it has some impact.

8 and 9. The axiology objections.

At first glance, Harwood’s essay provides us with two objections as if they were separate. They are: (8) Utilitarianism wildly overstates our duties to animals; and (9) Utilitarianism panders to bigots and sadists. However, in fact, they’re just variants of the same confusion.

The first argument is a rephrasing of the old accusation, that utilitarianism is the philosophy of pigs; for utilitarianism seems to provide no distinction between the “higher pleasures” (presumably, drinking tea and listening to NPR) and “lower” ones (which don’t require enumeration here).

I think that this argument is propelled by the intuition that certain pleasure-seeking activities are evil, sinful, etc. Some acts really aren’t that great to perform. Still, the entire point of utilitarianism, from Bentham’s view, was to show that some acts tend to produce less happiness, and some produce misery in others, and so they are to be avoided. So certain “lower” acts would produce less happiness, and so, should be avoided.

Mill wasn’t entirely satisfied with Bentham’s quantitative view. Thus, Mill famously produced his doctrine of qualitative utilitarianism, whereby particular values are better or worse than one another because certain values somehow become a “part of” happiness with experience. The rank-ordering of values can be accomplished on the basis of opinions from competent judges, who have tested this and that pleasure and can rank them one after the other. Mill did not exactly disagree that Bentham had produced an adequate reply, but sought to supplement Bentham’s argument by showing the place of particular values, in order to make the doctrine seem more palatable.

I think Bentham’s original account was satisfactory. I must confess to being mystified both by Mill’s account, which contains outright bizarre claims (what does it mean for a thing to be a “part of” happiness?), and by the accounts of those critics who carry on with objections which are not only explicitly dealt with by a classic utilitarian, but are dealt with by the original utilitarian himself.

Why, though, is it better to be Socrates dissatisfied than a pig satisfied? First, I wouldn’t quite go that far; if asked whether I would rather be a tortured man or a happy pig, I would probably and quite naturally reply, “a happy pig”. Such exaggerated examples, which are meant to shock us into disavowal of a doctrine under scrutiny, don’t quite have the rhetorical force that’s being looked for when they make the case against them quite so costly. I think that the aphorism, though, could be rephrased and agreed to, if we were to say that “it is better to be a blasé Socrates than a happy pig”. Second, with the doctrine of enjoyment at our disposal, we can say that the person is able to have more experience of happiness than the pig is able to. Third, we might say that the human being is more capable of discerning pleasures than the pig, which would both mean that conscious pains are more sharp and horrible, and conscious pleasures are greater.

I think part of the confusion arises over utilitarianism’s commitment to the thesis that happiness is the only intrinsic value. Sometimes, this point is glossed over by critics, who declare (as Harwood does) that “utilitarianism insists that there is only one moral value, satisfaction”. This is not true. Rather, from what I understand, there is only one thing of intrinsic value, and this thing applies to explain the genesis of both moral and non-moral values. There are plenty of instrumental values, and as we’ve seen (with Bentham), they may be rank-ordered in order to produce moral guidance on the basis of however they produce happiness.

Similarly, we are told that the pleasure of bigots and sadists are not of intrinsic value, and so, hedonism is mistaken. However, I deny that the pleasure of any animal is without intrinsic value. But I declare that this proposition, when considered in context, amounts to nothing; for the worth of particular kinds of acts are evaluated separately from the worth of the happiness which they originate from. The experience of pleasure of the lion who eats a baby, and of a bigot who protests the funerals of hate crime victims, are activities that produce intense and personal misery in many others. They are immoral and unjust. But it is no contradiction to say that the pleasure of the sadistic act has intrinsic value, and then to say that it is grossly immoral. All that is asked is that the reader understand that that which is valuable is not necessarily that which is morally significant.

ABA on Presidential Signing Statement

Published on July 25, 2006 in Uncategorized. Closed

Here is from the ABA Blue Ribbon Task Force press release:

Presidential signing statements that assert President Bush’s authority to disregard or decline to enforce laws adopted by Congress undermine the rule of law and our constitutional system of separation of powers. … From the inception of the Republic until 2000, Presidents produced fewer than 600 signing statements taking issue with the bills they signed. According to the most recent update, in his one-and-a-half terms so far, President George Walker Bush … has produced more than 800. … President Bush’s signing statements are “ritualistic, mechanical and generally carry no citation of authority or detailed explanation.” Even when “[a] frustrated Congress finally enacted a law requiring the Attorney General to submit to Congress a report of any instance in which that official or any officer of the Department of Justice established or pursued a policy of refraining from enforcing any provision of any federal statute, … this too was subjected to a ritual signing statement insisting on the President’s authority to withhold information whenever he deemed it necessary.”

Marty Lederman offers this insightful analysis.
[tags]ABA, unitary executive[/tags]

Don’t Copy That Floppy

Published on July 25, 2006 in Law and Society. 1 Comment

For a bit of fun and a blast from the past, here is an educational video, Don’t Copy That Floppy, from the Software Publisher’s Association (which merged with the Information Industry Association in 1999 to form the SIIA). I believe it is dated 1992, around the time of the first FBI raids on pirate bulleting boards. Check out the sound track and sophisticated finger movements of the gamers. If you can make it to the bit where the SPA lawyer (Ilene Rosenthal) comes on, you’ll notice she says something like: “Although the licenses may vary, the law is very simple… every program that you buy: that’s one program for one computer.” That seems to be making things a bit more simple than they are. There’s no way to say whether a program may be installed on more than one computer or freely shared without looking at the license agreement, after all. Here is a taste from the lyrics, rapped by M.E. Hart as M.C. Double Def D.P. ["Disk Protector"]:

To do the right thing, it’s really simple for you
The copyright law, it will tell you what to do
Buy one, for every computer you use
Anything else is like going to the store
Taking the disk, and walking out the door
It’s called thiefin’, stealin’, taking what’s not yours
Is that really where you want your life to go?
Think about it, I don’t think so.
Don’t copy! Don’t copy that floppy!

At the end you get a licence to copy the video for the “non-profit purpose of promoting the ethical and legal use of software.” Backups are okay, though.

David Robinson on DRM, iTunes, and Zune

Published on July 24, 2006 in Uncategorized. 2 Comments

Check out David Robinson’s post Rethinking DRM Dystopia over at the ever excellent Freedom to Tinker blog. Da