Law & Society Blog

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.

Technorati Tags: goodbye, and thanks for all the fish

In a recent post, I claimed rather traditionally that consequentialism and deontological ethics are based on two basic moral intuitions that coexist peacefully over a wide range of normal situations but lead to sharply different results in extreme situations. Usually, these extreme situations pit the vital interests of one person or a handful of people against the interests of many others, for example, they present us with the choice to kill one innocent person to save the lifes of many others. The key difference between consequentialism and deontological ethics in these instances is, assuming that killing the one would in fact save the others, that deontological theories picture the agent as having to make a tough moral choice (commit a moral wrong to save the lifes of others?) whereas for a consequentialist the moral answer is clear: the interests of the many trump those of the few. Consequently, the agent is morally required (not just permitted, or excused) to kill one innocent person to save the lives of many. For the consequentialist, no moral wrong is done in these situations. It is that particular feature of consequentialism that I find unpersuasive. In a reply to my post, Ben Nelson writes that my

analysis … is based on a popular error, which is the notion that consequentialist systems are in some way incompatible with duty- or rights- based ones. They are quite compatible, if one has the right meta-ethical account of rights. Rights arise out of dire social conditions which necessitate some social standard, and they arise specifically when somebody realizes that an improvement in social conditions can arise if and only if certain laws were made. In other words, if we have the right understanding of where rights come from, deontology dissolves into consequentialism proper.

I am not convinced. First, the factual question of how rights come into being does not address the normative question of whether the rights of the few should be sacrificed for the many, and whether in extreme situations as I describe them above, there is a genuine moral conflict at all. Second, the recasting of deontological positions in consequentialist terms, e.g., along the lines of R. M. Hare’s “Kantian utilitarianism” or, somewhat less ambitiously, as rule consequentialism, has its own methodological problems. The most significant problem is the collapse of any form of multi-step consequentialism into act-consequentialism.

What does that leave us with? Probably a somewhat messy moral world in which there are properties of actions, motives, and external states of affairs that have moral significance, but that cannot be ordered a priori in any meaningful way. Incompatible prima facie duties, both deontological and consequentialist in character, sometimes require us to make tough moral choices, where in a specific case principle A trumps principle B, but where the general normative force of the defeated principle continues and may well emerge victorious in different circumstances. Central to a meaningful first-order moral theory is therefore an understanding of how to balance competing normative claims, without recourse to a single, unified criterion for correctness. This is an area, where moral theory can probably learn a great deal from the law, because courts have always been cursed with having to make these kinds of messy tradeoffs.

Technorati Tags: consequentialism, deontological ethics, prima facie duties, law, balancing

John Doyle of the Washington & Lee University law library maintains a nice blog with a focus on legal periodicals and legal publishing. The most-cited legal periodicals search engine is an excellent tool for anyone interested in (or dependent upon) legal publishing. Here is a brief overview of the methodology used to generate the rankings:

The single most important point to make about the rankings is that not all citations to the law journals are counted. Counted citations are those which cite journal volumes published in the preceding eight years. The reason for this limit is to prevent a bias in favor of long-published journals. Thus the study is concerned only with citations to current scholarship. The search results give only the number of citing documents, and do not show where a citing article or case cites to two or more articles in a cited legal periodical. Sources for the citation counts are limited to documents in Westlaw’s JLR database (primarily U.S. articles), and in Westlaw’s ALLCASES database (U.S. federal/state cases).

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.

Technorati Tags: economics, stiglitz, patents, prize

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.

Technorati Tags: death penalty

In Cultural Cognition and Public Policy, Dan Kahan and Donald Braman outline their theory of what explains persistent public disagreement over the effects of public policies and certain controversial legal issues, such as gun control, abortion, and the death penalty. (Terrorism should be added to that list.) While there are several influential theories of social constructivism (Kant, Hegel, von Glasersfeld, von Foerster, Berger/Luckman, Luhmann, Willke), few have been tested empirically. Kahan and Braman (in the context of the Cultural Cognition Project) have undertaken that task. Their central claim is that values determine not only our normative attitudes but also the factual universe that is available to us. In other words, as facts are dependent on value orientations, culture is cognitively prior to facts. (That should not come as a surprise to anyone who had been following the last presidential election, where suddenly there were not only red and blue states in terms of social values but also, and as a consequence, red and blue facts.) Kahan and Braman locate cultural world-views within a two-dimensional grid.

On the x-axis are group values, ranging from individualism to collectivism, and on the y-axis are attitudes toward criteria for distribution. Hierarchical societies rely on conspicuous and socially fixed criteria (race, gender, heritage, etc.), whereas egalitarian societies deny that such criteria should be employed. For ease of reference, I assigned four political archetypes to the grid: conservative, libertarian, liberal (= social-democrat, for our non-U.S. readers), and fascist. Kahan and Braman found that

cultural worldviews more powerfully predicted individual beliefs about the seriousness of [global warming, nuclear power, and pollution generally] than any other factor, including gender, race, income, education, and political ideology. (Id., at 13).

It would indeed be a spectacular confirmation of social constructivism if that claim could be verified across a broad range of topics. As indicated in the chart above, beliefs about many contentious policy issues come in familiar clusters. On that basis, Kahan and Braman conclude that the “end of ideology thesis” (that is, most people are rather moderate in their views, as the pragmatic struggle to improve one’s lot trumps principled political affiliations) is wrong. But the “culture war” thesis, while certainly somewhat closer to the mark, is also inadequate because it misunderstands the manner in which culture affects our attitudes toward questions of public policy. Cultural world-views don’t motivate by themselves as most of us are not cultural internalists, rather, they orient (or bias) our process of selecting those who we accept as authorities for the truth of factual propositions. This is because ordinary citizens

lack the capacity to decide for themselves whose [scientific study] has merit. They have no choice but to defer to those whom they trust to tell them which scientists to believe. And the people they trust are inevitably the ones whose cultural values they share, and who are inclined to credit or dismiss scientific evidence based on its conformity to their cultural priors. (Id., at 24).

In other words, because of the cultural biases woven into our engines of perception and world-construction, conclusively establishing the truth of a proposition within the scientific system does not necessarily end policy debates, as demonstrated by the continuing debate (in the U.S.) over one of the most secure elements in all of human knowledge, the theory of evolution. It would be fascinating to see how Kahan’s and Braman’s data relate to the work of the world values survey that maps cultural world-views on a much broader scale within a framework of survival- and self-expression values.

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.

Technorati Tags: economics, capitalism, intellectuals

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!

Technorati Tags: god, argument from design

Is a group blog a partnership? A corporation? An LLC? Do we really need governing documents before we share some thoughts with the world? And trademarks? And copyrights so that no one appropriates our precious thoughts without prior (presumably written) approval? C’mon! This post on Truth in the Market is a good example of property fundamentalism run amok and how overlawyering gets in the way of just having fun. Unless you want to make money with your blog, why not simply license all content under a creative commons (non-commercial) attribution license and be done with it?

Most things can be sold, for example, cars, art, services, sperm, and life insurance; other cannot, such as life, people, and votes. What can and what cannot be sold has been highly contingent in history and geography. Demarcating the line between tradable and non-tradable goods is the goal of the commodification debate. In The Price of Everything, the Value of Nothing, a title inspired by Oscar Wilde’s famous definition of a cynic, I. Glenn Cohen provides a useful overview of the various positions in that debate, and adds another consideration to the essentialist position, namely that the implied expression of equilibrium that accompanies every trade performatively contradicts the fact that the traded goods (e.g., babies for cash) belong to different value spheres.

The problem is, of course, whether different spheres exist and if so, whether their existence is contingent or invariant. It strikes me that the definition of value spheres is directly reflective of a given society’s concept of equality. Equality, once applied, is never abstract; it is always equality with respect to something. We are willing to permit inequality in most affairs, for example, wealth, education, status, access to healthcare. With respect to certain things, however, we insist on equality, for example voting, standing before God, and the notion of basic rights. Similarly, for most things we permit the disturbance of an initial allocation of goods through trade. Some of these trades will lead to greater equality (for example where the initial distribution was exceedingly unequal) but most trades will, over time, lead to a state of increased and, if history is any evidence, persistent inequality. Here is where the notion of banned trades comes in. Wherever a society wants to protect the initial allocation of benefits and burdens, be it by design (e.g., voting) or fate (e.g., our bodies or the family that we are born into), it will seek to restrict trades that are likely to upset the original position. (Gifts have never been as corrosive as trade, because most people prefer to do good where it coincides with doing well. Thus, for example, donating organs is permissible but their sale is banned, as the threat of endemic organ donations is rather remote.) In other words, any inquiry into commodification must begin with, or at least include, an exploration of equality.

By the way, attempts to define and to create non-tradable goods (res extra commercium) has by no means be confined to such fundamental matters as babies, organs, votes, or live religious artifacts. (Dead religious artifacts, of course, are traded as objects of art.) Every manufacturer intent on preserving a predefined flow of goods, which is similar to maintaining an initial allocation of goods, imposes certain restraints on alienation on its wholesalers, such as territorial or customer clauses. In real property law, future interests serve a similar function, the pervasiveness of which gave rise to the rule against perpetuities. One may conjecture that the ubiquity of the underlying commodification problem (that is, the problem occurs even within one and the same value sphere) counsels against seeking a special, invariant status for certain goods based on either their nature or on the nature of trade involving such goods.

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.

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

Technorati Tags: philosophy, youtube

As seen in Chinatown, NYC.

Technorati Tags: NYC, advertisement

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).

Technorati Tags: Knut

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

Technorati Tags: religion

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.

Technorati Tags: move, san francisco, new york

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.

Technorati Tags: Spencer Brown, Fabio Giglietto

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.

Technorati Tags: privacy, surveillance, Big Brother, Stasi

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.

Technorati Tags: hobbes, economics, market