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

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.

Technorati Tags: politics, libertarian, liberal, corporate governance

In The Nature of Legal Philosophy, Ratio Juris Vol. 17 No. 2 (2004), Robert Alexy defines philosophy as

general and systematic reflection about what there is, what ought to be done or is good, and how knowledge about both is possible. (Id, at 157).

In other words, the object of philosophy is ontology, ethics, and epistemology. The activity itself, that is reflection of a general and systematic nature, gives rise to the critical or normative character of philosophy, because every philosopher has to make claims as to what’s true and false, which implies the reliance on a normative framework. General reflection accounts for the analytic character of philosophy, that is, the attempt to grasp and to make explicit the fundamental structures of what is, what ought to be done, and what we can know. Systematic reflection accounts for the synthetic or holistic character of philosophy, as an attempt to “unite all of this into a coherent whole.” (Id., at 158). Legal philosophy shares the critical, analytic, and systematic dimension of philosophy in general. However, its object, the law, is more limited. How does legal philosophy relate to philosophy in general? Alexy captures the connection in four theses:

1. All problems of general philosophy can arise in the context of legal philosophy (”general nature thesis”)
2. There are problems specific to legal philosophy, due to the nature of its object (”special character thesis”)
3. There is a special relationship between legal philosophy and ethics and political philosophy (”special relation thesis”)
4. Legal philosophy is successful only if it accounts for (1), (2), and (3). (”comprehensive ideal”).

Thesis (4) is a meta-criterion and stands in contrast to the “restrictive maxim.” The “restrictive maxim” holds

first, that legal philosophy should never get involved in any genuinely philosophical problem, second, that legal philosophy should concentrate its efforts on the institutional or authoritative character of law, and, third, that legal philosophy should delegate critical normative questions to moral and political philosophy. … The choice between the comprehensive ideal and the restrictive maxim is a fundamental choice. The character of legal philosophy is determined by it much more radically than by the choice between legal positivism and non positivism … [which is] a choice inside the realm of legal philosophy (Id, at 161).

The main question of legal philosophy is: “What is the nature of law?” or in more contemporary terms “What are the necessary properties of law?” The two necessary properties are coercion and correctness, which has important consequences for the concept of law and for a paradoxical normative problem that is specific to the law. (Of course, each of these claims is highly contested.) Alexy describes the concept of law as the relation among three elements:

1. Proper promulgation (e.g., by a legislative body)
2. Social efficacy (e.g., people, by and large, follow the rule)
3. Acceptable content (e.g., the rule is not extremely unjust).

I have briefly discussed the Alexy triangle in a previous post. Prongs (1) and (2) relate to the coercion property of the law while (3) relates to the correctness property. Virtually every theory about the nature of law, for example in the context of the discussion positivism versus natural law debate can be analyzed within this framework. Positivists rely solely on (1) and (2) for their definition, natural law theorists include (3). One of the critical questions with respect to coercion is, whether conceptual reasons for its necessity (e.g., we wouldn’t call a normative system that in no instance authorizes coercion law) are backed up by practical necessities (e.g., law, as a social practice, cannot fulfill its functions, unless there is an element of coercion). The second necessary property of the law, correctness, stands in significant opposition to coercion. The necessity of coercion owes to practical necessity, defined by a means-end relation. In contrast:

The necessity of the claim to correctness is a necessity resulting from the structure of legal acts and legal reasoning. It has a deontological character. To make explicit this deontological structure implicit in law is one of the most important tasks of legal philosophy. (Id., 164).

I doubt that a concept of law that fails to take into account the tension between coercion and correctness is adequate to its object; this is an instance of the special character thesis. Of course, identifying correctness as a necessary property of law implies the rejection of positivism, which, in turn, requires us to make explicit in what way legal philosophy relates to moral philosophy (”special relation thesis”). In that context, we encounter virtually every problem of philosophy in general (”general nature thesis”). Alexy identifies three problems that the inclusion of morality can help to solve

• the problem of basic evaluations underlying and justifying the law (e.g., are the ends that laws are designed to serve external to the law)
• the problem of realizing the claim to correctness in the creation and the application of the law, and (e.g., reasoning in hard cases)
• the problem of the limits of law (e.g., invalidating extremely unjust laws).

But including morality into the law also creates a number of serious problems. For example, there are many instances in which moral claims cannot be settled by consensus. In fact, moral reasoning, because of its strongly discriminatory and “judgmental” nature, is often outright dangerous. The law as a functionally differentiated social system is a reaction to a society that could no longer be governed by moral and religious codes but required a “non-judgmental” authoritative and institutionalized decision making process. Importing moral reasoning into the law thus threatens to weaken the foundations of the law itself. Similarly, importing moral reasoning into the law confronts the law with serious epistemological problems of moral knowledge and justification. (Here is an overview of the main positions in contemporary meta ethics. See also Larry Solum’s entry on this topic.)

Alexy, as always, is insightful, and highly readable. His writings combine the best of both worlds, analytical rigor and a continental sensibility for what the problems are that really matter.

Technorati Tags: philosophy, Alexy, law, morality

We’ve made the point before that the distinction which systems theory draws between the observer’s perspective and the participant’s perspective relates to the distinction between realists and formalists. In system’s theory, the observer [or second-order observer] of a social system (such as law) understand the system by observing the participants [or first-order observers] as they apply the system’s defining dichotomy: in the case of law, this dichotomy is lawful/unlawful. Unlike the participants of the law (such as judges), the observer derives no guidance from the lawful/unlawful distinctions. Realism (at least in its most radical form) also posits that the judge derives no guidances from the law (but rather from socio-economic circumstance, politics, or breakfast). Formalism on the other hand maintains that rules give at least some guidance and that they do provide an answer to the judge’s question, “how should I rule?” That’s the participant’s perspective.

Here is how this distinction maps onto one of the favorite slurs of the day: judicial activism. The question is: how do we tell that a a decision is an instance of judicial activism?

First, judicial activism is sometimes taken as the court’s work of striking down legislation. In that sense, the Rehnquist court was the most activist court in history, invalidating more acts of congress than any court before it. But the court’s invalidation of federal statutes is only a problem when those statutes shouldn’t be invalidated: perhaps Congress, during the years of the Rehnquist court passed more unconstitutional statutes than any US Congress before it? Just by counting how many statutes were struck down, we can’t tell, one way or the other. This view of judicial activism (perhaps more properly called judicial activity) is a view strictly from the observer’s perspective. It is external to the law, and does not consider the lawfulness/unlawfulness (constitutionality/unconstitutionality) of either the invalidated statutes or the invalidating rulings of the Supreme Court.

Usually, of course, judicial activism is not used in this sense of “judicial activity” but entails a value-judgment: the charge that judges legislate from the bench, or become revolutionaries in robes, or otherwise exceed their judicial mandate by taking as reason for their decisions matters that they are barred from considering. Judges are to apply the Law, and not their political agendas (or other extra-legal criteria). (Kermit Roosevelt has related post on Judicial Activism Part One and Part Two) This view of judicial activism contains a two-fold claim: first, that the judges decided the case wrongly, and second, that they did so in order to achieve an extra-legal end or by applying extra-legal criteria (for convenience, I’ll call such criteria “political” from now on).

Consider this graph, which lays out the two prongs of judicial activism: First, the question whether the decision was correct as a matter of law or doctrine. This is an application of the internal perspective, the perspective of one who seeks guidance from the rules and principles of the law. Since the charge of judicial activism entails the charge of legislating from the bench or otherwise exceeding the proper role of the courts (which is, of course, to apply the lawful/unlawful distinction), a decision that is internally correct-that isn’t wrong as a matter of doctrine-can’t be an instance of judicial activism.

The second prong, called here “political agenda,” represents the external criteria. It represents not the lawful/unlawful distinction, but rather the distinction of the political system (or some other, non-legal system, such as religion or aesthetics). The political system’s fundamental dichotomy might be seen as “public welfare/public detriment.”

A charge of judicial activism is structured like this: (1) In Roe v. Wade, the court misapplied the Constitution (by, for example, subscribing to a “nonexistent right to privacy”) and (2) the judges imposed their views of public welfare upon society (that is, the balancing of the woman’s interest and the fetus’s interest according to stages of fetal development).

The interesting point is that the judge remains a first-order observer even when he or she applies a political criterion. Take Brown v. Board of Education. The court imported into the law a questions that had not been there before: the socio-psychological effect of segregation (represented in the opinion by the weight given to the studies with the dolls). The court was therefore activist, by leaving settled doctrine which controls which facts matter to the law and which don’t. But note that such extra-legal considerations became legal considerations in the process, and that the Brown-court still ultimately applied the lawful/unlawful distinction. The recent and much-maligned decision in Kelo on the other hand was not activist: It merely extended the definition of “public use” using the internal criteria of the law (not a radical extension either, to my mind, but that is beside the point).

Kelo and the reaction to it show that people who disagree with the political impact of a decision don’t hesitate to call the court’s decision (internally) wrong, often in a naked assertion. There is a contradiction in such an argument, if the argument reads “the court got it wrong, because I disagree with the political effect.” The critique should make explicit some way in which such political considerations are relevant or should have been relevant under “the law.” Otherwise the charge of judicial activism simultaneously demands and deprecates the political malleability of court decisions. Posing as an argument that “the court shouldn’t legislate from the bench,” the argument really says “the court should legislate from the bench, but my way not their way.” And here is an opportunity for a moments introspection: To what extent do we want the court to legislate from the bench? Lochner came before the backdrop of forty years of settled precedent and was probably represents the correct application of the internal lawful/unlawful criterion at the time. The charge of “mechanical jurisprudence” was the demand that the legal system should incorporate aspects of the political system: that some political or social considerations should be legally relevant.

It follows from the structure of judicial activism proposed here that the proper response to the charge of judicial activism is to show the defensibility of the decision as a matter of law, and not as a matter of politics. Whether the court in Brown, Roe v. Wade, or Kelo was activist or not turns on whether they got the law right, and not on whether the decision is right for society and our times.

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.

Technorati Tags: law, cia

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.

Technorati Tags: llm, law, law firm, hiring, jobs

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.

Technorati Tags: spam

Along the ceiling of the long walkway connecting the Port Authority and the Times Square subway stations runs a poem: “Overslept, so tired. If late, get fired. Why bother? Why the pain? Just go home. Do it again.”

Who put this exquisitely depressing statement of alienation on M.T.A. property? Given the official looks of the signs, could it have been the M.T.A. itself, which would raise a fundamental question indeed: Are complex organizations capapble of irony? Apparently they are! Here is an excerpt from the FAQChest’s Railroad edition, quoted from Scribbling.net:

The sign is not meant as a cruel joke but rather to relay an artist’s empathy for the commuting public. The sign was commissioned 10 years ago through the M.T.A.’s Art for Transit program as a temporary work. The artist, Norman B. Colp, said the work was inspired by the old Burma Shave advertisements that were seen along highways from 1927 to 1963. The signs were spaced a few hundred yards apart and were to be read one line after the other as you traveled along. The piece in the walkway combines the Burma Shave model with Mr. Colp’s experience as a commuter, one who recalls that he “made it to work barely on time.

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.

Technorati Tags: war crimes, von moltke, lawyers

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

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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).

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

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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.

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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