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.

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

I posted a draft review article of Michael Pawlik’s book Person, Subjekt, B??rger (Person, Subject, Citizen) on SSRN. Here is the abstract:

It is a hallmark of modernity that the protection of individual freedom, however defined, has replaced justice as the primary criterion for the legitimacy of government. Criminal punishment, as one of the most drastic exercises of governmental authority, must therefore also be held against that standard. The resulting problem is that the diminution of freedom through punishment must at the same time be justifiable as a realization of freedom. As long as the loss of the freedom of the criminal is traded off against gains in the protection of everyone else’s freedom, consequentialist accounts provide an intuitively appealing justificatory strategy (vicarious justification). But if we require that for complete justification, freedom must not only be realized for everyone else but also in the person of the criminal, a more sophisticated and inclusive strategy is required. Michael Pawlik’s theory of punishment, as presented in his book Person, Subjekt, B??rger (Person, Subject, Citizen), responds to that challenge by presenting a retributive theory of punishment, rooted in an original reading of Hegel and Fichte, whose concepts of the subject and of recognition Pawlik recasts in the framework of a theory of communication. Pawlik succeeds in presenting an original, philosophically sophisticated and practically useful three-prong concept of the criminal wrong, grounded in a theory of the subject and of society that should be attractive to both consequentialists and non-consequentialists.

More on the critically important questions of interpersonal and institutional recognition can be found here (in German). The article will be published in the next volume of the Buffalo Criminal Law Review, so if you have any comments or suggestions, please send me an email.

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]

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.

Commenting on Larry Solum’s Legal Theory Lexicon entry on Formalism and Instrumentalism, drhfk recommends recasting the debate as the distinction between first and second order oberservation. This distinction derives from systems theory (particularly Luhmann), and rests on the concept that a social system (such as law) is marked by a fundamental dichotomy (such as “lawful/unlawful”) and that this fundamental dichotomy is applied by first-level observers (lawyers, judges, etc). To find out what law is, you would observe what lawyers and judges etc. are doing: how they apply the fundamental dichotomy and when. That is second-level observation.

I agree that formalism vs. instrumentalism can be recast as first-level vs. second-level observation. Deciding a case, by asking what the law is, is first-level observation; asking what law is, what the law should be, and what effect it has in society, is second-level observation. But it gets fuzzy quickly, and I think the distinction cannot take us as far as drhfk envisions:

In practice, every lawyer oscillates between first and second order observation. However, it remains a requirement of the legal system that every decision be issued and every claim be made on the basis of the code of the legal system: lawful/unlawful. And that requires us to assume the internal perspective of a first order observer. A plaintiff may, in fact, win because his or her victory is efficient, just, or politic. But a court could never say so, or else its ruling would be extra-legal communication. The plaintiff wins because (extra-legal) considerations of efficiency, justice, or national security (visible to the judge as a second order observer) have convinced the court (as a first order observer of the law) that, based on statute or precedent, the plaintiff has a right to the remedy.

What does it mean that the court could never say so? Is it “cannot” or is it “must not”?

To see what “cannot” looks like, imagine a game of chess. One of the players moves his bishop forward on the vertical column and takes his opponent’s piece. Bishops only move on the diagonal in chess. Moving the bishop like a castle is not only a wrong move, it is no move at all: The rules of chess define not only correct/incorrect moves, but also moves/non-moves. Consistently moving the bishop like a castle is meaningless. The game is over, or it is not chess.

Is that how law works? Are there impermissible moves in a judge’s opinion that render the argument extra-legal, such as handing one side the victory based on extra-legal (instrumentalist) considerations and saying so? Or is any argument, simply by virtue of having been written by a judge in his opinion in a formal legal proceeding, a legal argument? The latter is the case from a systems-theory standpoint, but I am not sure that this helps much in explaining the differences between formalism and instrumentalism.

First notice here a subtle stylistic difference between code-based legal systems and the common law. Code-based legal systems tend to incorporate instrumentalist arguments into their legal considerations, by slapping the label “law” on them, if you will. Instrumentalist arguments are viewed as being legal, but of a different order. For example, legal argument may be both de lege lata or de lege ferenda (”law as it has been laid down” or “law as it should be made”). The thrust is to consider everything a judge does legal.

The common law has resisted this move, and has done so long before realism. Equity is an example: It is conceived as a separate normative system, and the premise of equity is that an outcome at (common) law is wrong or otherwise unsatisfactory and requires fixing in a manner the (common) law cannot provide. There were other such separate “legal” systems: ecclesiastical law, the law of the manorial and mayoral courts, the law merchant. In modern times, realism has insisted not only that a formalist legal argument may hide instrumentalist considerations (and other factors), but also that doctrinal and instrumentalist considerations cannot be distinguished. The radical realist position is that there is no law, that the judge should make reference only to instrumentalist considerations, and that the legal form of arguments is at best harmless and at worst serves to obscure the real meaning of the decision behind a cloud of transcendental nonsense.

Here is an example of how internal and external perspectives play out in real life. In Planned Parenthood v. Casey, 505 U.S. 833 (1992), the Supreme Court faced the question whether to overrule Roe v. Wade. In considering stare decisis, the Court states that “a decision to overrule should rest on some special reason over and above the belief that a prior case was wrongly decided.” What special reason could this be but an external, instrumentalist reason? Any internal reason would merely make the prior case wrongly decided. The Court goes on to consider its own prestige and reputation:

In two circumstances, however, the Court would almost certainly fail to receive the benefit of the doubt in overruling prior cases. There is, first, a point beyond which frequent overruling would overtax the country’s belief in the Court’s good faith. Despite the variety of reasons that may inform and justify a decision to overrule, we cannot forget that such a decision is usually perceived (and perceived correctly) as, at the least, a statement that a prior decision was wrong. There is a limit to the amount of error that can plausibly be imputed to prior Courts. If that limit should be exceeded, disturbance of prior rulings would be taken as evidence that justifiable reexamination of principle had given way to drives for particular results in the short term. The legitimacy of the Court would fade with the frequency of its vacillation.

Consider the following problem, which was presented by Paul J. Ferraro and Laura O. Taylor of Georgia State University to about 200 Ph.D. economists at the 2005 annual meetings of the American Economic Association:

You won a free ticket to see an Eric Clapton concert (which has no resale value). Bob Dylan is performing on the same night and is your next-best alternative activity. Tickets to see Dylan cost $40. On any given day, you would be willing to pay up to $50 to see Dylan. Assume there are no other costs of seeing either performer. Based on this information, what is the opportunity cost of seeing Eric Clapton? (a) $0, (b) $10, (c) $40, or (d) $50.

The correct answer is (b). As with all problems involving opportunity costs, we first need to ascertain the value of the forgone alternative, here, the Dylan concert. I would have been willing to pay $50 for a Dylan ticket (reservation price). If the price of admission was $40, my benefit is $10. That’s what I’m giving up by going to the Clapton concert (or by staying home, etc.) Even though this isn’t a particularly tricky question, most of the respondents got the answer wrong.

[T]he most popular answer was $50, with 27.6% of respondents choosing this answer. The second most popular answer was $40, with 25.6% of respondents choosing this answer. The third most popular answer was $0, with 25.1% of respondents choosing this answer. The correct answer, $10, was the least popular, with only 21.6% of respondents choosing this answer.

Is this “a professional embarrassment?” Does it really warrant the conclusion that

[t]he inability of most PhD economists to answer a simple opportunity cost question implies that students at colleges and universities are unlikely to learn this crucial concept in a way that allows them to apply it in their daily lives.

I don’t know… If anything, the more or less random distribution suggests that the respondents weren’t paying attention. Had this test been administered in a classroom setting, I am certain that most respondents would have gotten the answer right. (And no, I am not making excuses! I wasn’t anywhere near that conference!) But will I sure take solace in the 78.3% error rate, next time that a professional economist makes me look stupid.

Socrates was offside!

[tags]philosophy, soccer[/tags]

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]

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]

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.

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

[tags]philosophy, youtube[/tags]

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]

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]

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]

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]

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]

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]