Posted by: captainfalcon | October 21, 2014

What’s the point of constitutional scholarship if law is politics?

This was bracing repartee between Orin Kerr and Erwin Chemerinsky.  I particularly liked the last exchange:

[KERR:] Chemerinsky’s answer led me to wonder about why we bother with constitutional law scholarship. If arguments about the Constitution are just thinly-veiled policy positions that cannot be separated from the author’s personal prefernces, what is the point of constitutional law scholarship? If everyone is just following their policy preferences, then academic arguments about the Constitution can’t change anyone’s mind. If that’s right, why bother writing or reading constitutional law scholarship? Chemerinsky replied:

[CHEMERINSKY:] I do not accept your characterization that arguments about the Constitution “are thinly-veiled policy positions.” Sometimes they are about text and original understanding and structure and history and precedent. But sometimes they are about policy, not thinly veiled at all, such as in what is a compelling or an important or a legitimate interest. The constitutionality of affirmative action turns, in large part, on a judgment over whether diversity in the classroom is a compelling government interest. That can be argued about and people can be (hopefully) persuaded. The constitutionality of laws preventing marriage equality turns on whether there is any legitimate (or important or compelling) interest in denying gays and lesbians of the right to marry. That can be argued over. People can change their minds, as society clearly has done as to marriage equality.

Here’s a restatement of what I understand Chemerinsky to be saying: debates about constitutional doctrine often center on disputed political issues.  Scholarship can help change people’s minds about disputed political issues and otherwise illuminate what is animating a particular dispute.  Doctrinal constitutional scholarship is valuable insofar as it does this.

As it stands, I don’t think this is an adequate reply because it doesn’t explain why constitutional scholarship is an especially good way of analyzing these political issues.  Why not recur to political philosophy, or economics, or some other field immediately focused on policy analysis to analyze what the government ought to do about an issue that falls within constitutional law’s domain?  And why not recur to sociology, or empirical legal studies, to explain what is animating different parties to a constitutional debate?

Here are three possible responses:

First, it is possible that one of the things we value politically is decisional consistency: we demand that a subset of political decisions cohere (in some sense of what it is to cohere) with past political decisions that we have made.  Constitutional law provides a useful framework with which to analyze whether this coherence obtains.  Constitutional scholarship — which tests different ways of understanding how a political decision coheres with prior political decisions — helps to ensure that this sort of coherence is respected.  It also (a more traditionally scholarly task) helps to elucidate the sort of coherence that is politically relevant.

Second, it is possible that there are certain political questions that we want to resolve not through a process of interest-group haggling, but by assimilating whatever answer we end up settling on to values that the nation accepts as legitimate, i.e. constitutional values.  (We might want to do this if it turns out that there are certain political questions that, resolved through a process of haggling, will leave groups feeling disenfranchised and thereby erode the polity’s political legitimacy.)  Constitutional scholarship plays an important role in exploring the different possible ways to connect contemporary political decisions to constitutional values.  It thus helps increase the chance that we settle on answers to political questions in ways that most stakeholders in the nation will accept as legitimate.

Third, it is possible that some political questions simply cannot be disentangled from doctrinal analysis.  It is possible, in other words, that we have so internalized constitutional rhetoric when it comes to certain political questions that we cannot effectively communicate with each other about how to resolve those questions without articulating our positions in doctrinal terms.  Constitutional scholarship could then serve to frame and make intelligible a political debate that cannot proceed in any other way.  It would also add something distinctive to our understanding of these debates that political philosophy and sociology would not, viz. an understanding of the underlying (doctrinal) interests that they implicate.


Posted by: captainfalcon | September 13, 2014

Moral Guidance versus Moral Reaction

This post draws a helpful distinction between moral guidance and moral reaction.  You look for moral guidance when you ask what you ought to do.  You engage in moral reaction when you praise and blame.

Looking for moral guidance can be a separate enterprise from engaging in moral reaction if A’s doing x is wrong does not entail A is morally blameworthy if he does x.  It seems plausible that this entailment doesn’t hold.  Somebody is morally blameworthy if they act for condemnable reasons: to cause gratuitous pain or without regard to the potential harm caused to others, etc.  But if somebody makes a moral mistake despite trying to do the right thing they don’t seem morally blameworthy — it would be harsh to condemn somebody for making their best efforts to do right.

If looking for moral guidance is a separate enterprise from engaging in moral reaction then you can look for moral guidance without committing yourself to a disposition to condemn whoever acts contrary to the moral guidance you accept.  This, in turn, makes the whole enterprise of moral reasoning much more attractive.  It means you can make a sincere effort to figure out what you ought to do without perpetually (and obnoxiously) standing in judgment of your fellows.

Posted by: captainfalcon | September 1, 2014

Fun Facts About Early Criminal Appellate Procedure

I commend this article by David Rossman about the history of appellate review of criminal convictions in America as (among other things) a trove of fun facts.  Three of the best:

1.  It is well recognized that courts were more hidebound back in the day, and would e.g. dismiss lawsuits or prosecutions based on what we would now regard as harmless technicalities.  A good example from the article is an 1802 North Carolina case, State v. Carter.  Apparently the defendant was indicted for murder for stabbing the victim in the breast.  After conviction he moved to “arrest the judgment” on the grounds that the indictment had misspelled the word “breast” at one point (spelling it “brest”).  The reviewing court (which I believe was the same court that oversaw the defendant’s trial) granted the motion and dismissed the indictment despite the fact that, as they recognized, the conclusion “could not easily . . . be reconciled to good sense or sound understanding.”  [The court does not appear to have entertained the possibility that the defendant backstabbed his victim in Brest, which would have presented a very different case.]

2.  Nowadays we tend to think that the more serious the crime of which you stand accused, the greater the legal protections you ought to enjoy.  The opposite held in pre-Revolutionary America and England.  Then a defendant had an automatic right to file a “writ of error” [the forerunner to an appeal] in misdemeanor cases, but had to petition the attorney general for permission to file a writ of error in a felony.  According to Rossman, the reason relates to the result in State v. Carter — there was less of a cost in a reviewing court’s granting a frivolous writ of error in a misdemeanor case than in a case involving a serious crime.  (That this rationale undermines the legitimacy of early criminal appellate review altogether does not appear, at least from Rossman’s article, to have disturbed the jurists of the day.)

3.  It remains the case that a criminal appeal ordinarily does not stay the execution of judgment i.e. once a defendant is convicted he usually begins to serve his sentence, even as he pursues his appeal.  The obvious exception is capital defendants; we do not typically execute those who have been sentenced to death until they exhaust all possible avenues of post-conviction relief (we have a strong interest in finality, but not finality).  Apparently the same did not hold in the 1800s.  Thus a prosecutor could credibly argue that an appellate court should not allow a capital defendant to appeal his conviction because “it would be useless, as the judgment would be executed before the decision here.”  [However, another fun fact, it might not actually be useless.  As Rossman explains, “At common law, the fact that a defendant already may have been executed would not have ended the review process.  The defendant’s heirs could still maintain a writ of error in order to avoid the consequences to them of an attaint and a corruption of the blood, which would have deprived them of their inheritance.”]

I’d add that the point of the article is to argue against the consensus view, supported by Supreme Court case law, that there is no constitutional due process right to appeal a criminal conviction.  It does a very good job pointing to features of our early criminal justice system that, in combination, were functionally similar to a right of appellate review, even if they were not a separate proceeding by an appellate court with power to review and correct errors and problems in the trial below.  This mode of argument — that a practice was so deeply embedded in preconstitutional custom as to have been “received” into the Constitution — has been successfully pursued in the past.  See, e.g.Tafflin v. Levitt, 483 U.S. 455, 459 (1990) (noting a constitutional presumption in favor of concurrent state and federal court jurisdiction to entertain federal causes of action because “[c]oncurrent jurisdiction has been a common phenomenon in our judicial history, and exclusive federal court jurisdiction over cases arising under federal law has been the exception rather than the rule”).  Of course, at best what Rossman can establish (still a significant point) is that there is a right to something that is functionally like appellate review, which would leave it up to the legislature exactly how to implement that right.  There is support in the academic literature for an analogous position with respect to the limits of the power to suspend the writ of habeas corpus — specifically, some academics reading the terrorism / Gitmo cases think that they stand for the proposition that the writ of habeas corpus may be suspended in certain circumstances as long as a sufficient degree of legal process is provided through alternative mechanisms — but I can’t find the article that lays this position out right now.

Posted by: captainfalcon | August 17, 2014

No vehicles in the park

“No vehicles in the park” is the foundation of a classic legal thought experiment first proposed by HLA Hart that’s supposed to test various theories of legal interpretation.  (Here’s an overview; here’s the ABA using it in a lesson plan.)  Basically you run through “borderline cases” — cases that it seems, for one reason or another, intuitively wrong for the law to cover (e.g. rollerblades, a WWII truck memorial, an ambulance) and then rule out or refine interpretive theories that yield counterintuitive results (e.g. that rollerblades, a WWII truck memorial, or an ambulance is covered by the rule). 

Everyone who likes to collect natural examples of the “no vehicles in the park” problem should follow this case.  There are notable disanalogies — the issue in the linked case is whether a bicycle with a small motor attached to it is a “motor vehicle” and, most importantly, the linked case is a contract dispute (with special rules for resolving irreducible ambiguities) as opposed to a dispute over statutory interpretation — but it remains a possible source of hermeneutical hijinks on remand.

Posted by: i82much | August 10, 2014

Catch 22

One of the better cake wrecks I’ve seen in awhile

Posted by: captainfalcon | August 9, 2014

Libertarian Paternalism and Divorce [updated]

The US divorce rate remains roughly 50%.  Because divorce is costly and carries social stigmas, the percentage of unhappy marriages is likely well over 50%.  Apparently the two peak periods for divorce are 4-5 years into a marriage and 25 years in.  Assuming this is right, and focusing only on preference-maximization, shouldn’t a libertarian paternalist prefer a default rule on which marriages expire after 4-5 years?  At that point a couple could, of course, opt to remain married (by filing a form or an affidavit or something like that), but they would have to take affirmative steps to do so.  This regime should have the effect of shifting the divorce rate from 50% to a higher, more preference-maximizing, rate.

One possibility is that the 50% divorce rate actually reflects rational decisions made by couples who weigh the costs (including social stigma) of remaining married against the benefits.  There are two reasons to be skeptical that this is true.

  • Behavioral Economics.  The first reason, near and dear to a libertarian paternalist’s heart, is that multiple cognitive biases should be at play in undertaking a cost-benefit analysis of whether or not to get divorced, with the upshot that many people are overestimating the costs of getting divorced and underestimating the benefits.  People unduly weight short-term costs and benefits over longterm costs and benefits.  Additionally, “optimism bias” means people are likely to underestimate the costs of remaining married overall — optimistically believing that things will get better.  Finally, a marriage’s unhappiness is often the product of small aggravations building over the course of years; according to behavioral economics, people tend to unduly discount small costs.
  • The effect of law on social norms.  The second reason is that creating a new default rule according to which people are automatically divorced after 4-5 years, absent their taking affirmative steps to remain married, is likely to itself go some way toward legitimizing divorce and thereby diminishing the social stigma associated with it.  This is the “normative power of the actual” (see here, footnote 154, for a discussion of the etymology of the phrase).  By implementing this policy — actualizing it — we would be taking a step toward removing the social stigma obstacle to preference-maximization.

Of course preference-maximization is not the only goal of public policy.  There are a variety of reasons a policymaker might want to keep the divorce rate as low as possible even if it results in a higher incidence of unhappy relationships.  But the utilitarian case for a legal presumption that marriage is not for life seems strong to me.

Posted by: captainfalcon | August 8, 2014

Michael Huemer’s Post at Cato Unbound is Insane

This post at Cato Unbound by Michael Huemer is nuts.  Let’s say that there are only two achievable options: (a) implement a basic minimum income or (b) forebear from implementing a basic minimum income, with the consequence that the status quo is preserved.  Let’s also say — as Huemer allows us to say — that implementing a basic minimum income is a better option than preserving the status quo.  Finally, let’s say (Huemer’s claim) that it is ethically impermissible to implement a basic minimum income.  What is one to do?  I guess under these assumptions one is required to forebear from implementing a basic minimum income even though the result is that a morally worse state of affairs will obtain.  I don’t pretend that this criticism is original, but that’s just crazy.

I recognize there are some people out there who will bite the bullet and say rights, rights — we must sometimes accept a morally worse state of affairs for the sake of rights.  But think about what you’re saying: you’re saying that we must accept a state of affairs that’s worse — so, if all you care about is rights, that’s a state of affairs in which more rights are violated overall — because of rights.  I know the response: but that’s just what rights are — they are side-constraints, conversation-stoppers, they preclude you from acting no matter the consequences.  Which to my mind is just to underscore the point we ended with last paragraph: it’s completely nuts to believe in rights thusly understood.

Of course there are also more recherché objections to the deontological logic underlying Huemer’s position that have been tried from time-to-time, such as arguing that there is no such thing as the action / inaction distinction because (roughly) you act whenever you make a decision (including to forebear from taking a particular course) and thereby bring about consequences.  Thus, given that it is possible that by forbearing from implementing a basic minimum income you act in a way that could violate others’ rights (cause them to be violated), that is also impermissible by Huemerous deontological logic, so Huemer’s position must be that it is, at least, possible that you be forbidden from both acting and forbearing from acting, which simply cannot be right: ethics fails to satisfy the conceptual requirement that it provide practical guidance whenever it tells you don’t do anything but don’t not do anything either.  This argument trades on too many controversial conceptual analyses and otherwise reeks of chicanery.  It is, in any event, beside the key point, which is that the whole idea that you might not be permitted to implement a better state of affairs over a worse state of affairs is insane.

Posted by: captainfalcon | August 6, 2014

McMahon on Israel

This article is generally good but not waterproof.  Its basic argument is that Israel’s military offensive in Gaza is disproportionate and immoral even on the favorable-to-Israel assumptions that (1) Israel may kill an infinite number of culpable Palestinians in order to save Israeli life and (2) Israel may kill two non-culpable Palestinians (or Palestinians whose killing is otherwise excused) per one Israeli saved.

The claim that the article seeks to defend is that even assuming that 1,000 non-culpable Palestinians have been killed (the number, the article suggests, is likely higher), in order for Israel’s action to be justified 500 Israelis need to be saved.  Because well under 500 Israelis are likely to be saved, Israel’s action is unjustified.

The article defends two lemmas underlying this claim: the two-to-one proportionality rule and its conception of Palestinians whose deaths should count in the proportionality calculus.

A) Two-to-one proportionality rule

First, it defends the proposition that proportionality requires, at minimum, that a state forebear from killing any more than 2 innocent foreigners in order to prevent 1 of its innocent civilians from dying.  It seeks to do this by showing that, intuitively, this same principle applies in the case of individual self defense: maybe I can kill two innocent bystanders in order to save myself from a murderer, but surely I am not morally permitted to kill three. 

Even accepting that this proportionality rule applies to the case of individual self defense, more is required to show that it applies to the case of a state’s defense of its civilians.  As Richard Chappell has pointed out (unfortunately I can’t find the post where he does so), we accept that states may act in ways that individuals may not.  I may not deport someone who has entered the country unlawfully but the state may.  I may not imprison a criminal in my basement, even if I give him a state-of-the-art trial, but the state may imprison him.  The point is that conduct that is outrageous if undertaken by a person is not necessarily outrageous when undertaken by a state, so the proportionality rules that apply to individuals (because we’d think it outrageous if they did not) do not necessarily apply to states.  Thus, while it may well be that a 2:1 proportionality rule applies to states exercising their self defense (and while it may well be outrageous to think that such a rule does not apply to states), McMahon hasn’t shown this.    

B) Palestinians whose deaths should count in the proportionality calculus

Second, while it never defends 1,000 as the number of non-culpable Palestinians killed, the article defends its conception of non-culpable Palestinians / Palestinians who oughtn’t to be harmed.  It is particularly concerned to rebut the claims (1) that Palestinians are culpable because Hamas are their elected representatives; and (2) that Israel is excused from killing otherwise non-culpable Palestinians who do not “heed the pamphlets, the phone calls, the text messages, and the warning shots [from the Israeli army] telling you to evacuate a building.”

I.  Palestinians are not culpable simply because Hamas are their elected representatives

According to McMahon, Palestinians are not culpable merely because Hamas are their elected representatives for three reasons.  First most Palestinians in the Gaza Strip didn’t vote for Hamas and so cannot be held responsible for Hamas’s wrongdoing; it is not enough for them merely to be ruled by Hamas.  This seems obviously correct.

Second, even those who did vote for Hamas cannot be held responsible for its wrongdoing to the extent that they didn’t vote for it in order to enable it to kill Israeli civilians.  This is not as obvious.  It is not clear, for example, that people who voted for the Nazi party because they accepted its fiscal policy (but rejected its racial and military policies) are non-culpable.  To the contrary, it seems commonsense that they are morally blameworthy.  Whether their moral blameworthiness makes them culpable in the sense that their deaths do not count in a proportionality calculus related to self defense against aggression perpetrated by the representatives for which they voted is a question that needs to be answered — the answer to it may well be no — but McMahon doesn’t give an answer. 

He does suggest a companions in guilt argument: Osama bin Laden claimed that al Qaeda was justified in attacking American civilians because they were culpable for having voted for a government that implemented anti-Islamic policies; only if you accept bin Laden’s claim can you also accept the parallel claim that Israel is excused from killing Palestinian civilians because they voted for Hamas.  But this argument is susceptible to multiple possible responses.  The most sympathetic rendering of the pro-Israel claim is not that Israel is excused from killing any civilian who voted for Hamas no matter the circumstances of the killing, but that Israel is excused from killing civilians who voted for Hamas when the killing is in furtherance of Israel’s self-defense.  While it appears from bin Laden’s letter that 9/11 was intended in part as self defense (though also in part as retribution), a non-state actor such as al Qaeda arguably doesn’t have a right to self defense.  Additionally, 9/11 was not in furtherance of al Qaeda’s self defense or the self defense of the people it purports to serve: with the exception of the attack on the Pentagon, 9/11 did not dismantle any American military infrastructure or end American military support to Israel, etc.  Finally, it is arguable (though not indisputable) that al Qaeda is simply wrong that any American conduct has authorized military measures in defense of the people al Qaeda purports to represent (whereas Israel is not wrong that Hamas’s conduct has authorized military measures in Israel’s self defense).

Finally, McMahon posits that Palestinians who do not actively aid Hamas in its terrorist activities — by willingly helping to dig the tunnels or smuggle or store rockets — are non-culpable and their deaths should count in a proportionality calculus; thus culpability does not attach merely from voting for Hamas.  This seems reasonable to me but it is not argued for.

II.  Israel is not necessarily excused from killing Palestinians to whom it gives notice and an opportunity to escape

As for the claim that deaths of Palestinians who do not evacuate their homes in response to Israeli warnings do not count in the proportionality calculus, the article points out that at the very least Israel is not absolved from killing Palestinians who cannot — whether from physical inability or ignorance or threat of violence — evacuate their homes in response to Israeli warnings.  This seems obvious but, within the four corners of McMahon’s article, it is an open question how many Palestinians fall into this camp.

C) Necessity

Finally, McMahon argues that Israel’s campaign is not necessary in that there is an “equally effective [and] less harmful way of achieving the defensive aim.”  Specifically: “The war is necessary for defence only if Israel continues to quarantine the citizens of Gaza and to occupy and maintain settlements in the West Bank. If Israel were to abandon the aim of controlling territories to which it has no right, and to respect the right of Palestinians to a fully self-determining life in the lands allotted to them in the UN settlement of 1948, those who now fire rockets into Israel and conduct raids on Israeli forces would lose what sway they now have over the Palestinian people.”  Seems possible and has narrative appeal, but I’m not sure if that’s enough to assign a probability to this prediction.

Update: This is sound assuming, as (Chappell points out) we must if we reject nationalism and tribalism, that a nation is not morally permitted to give greater weight to saving its own citizens’ lives over the innocent lives of others.

Posted by: captainfalcon | August 4, 2014

Chris’s Problem With Jacobin Magazine

Chris complained in conversation that articles in Jacobin often don’t engage with obvious counterarguments.  I’m basically sympathetic to Jacobin’s take on the way the world works but I take Chris’s point and thought I’d point out that this article (which is, in fairness to Jacobin, below its usual standards) is a remarkable example of how articles in Jacobin fail to engage with obvious arguments from the other side.  The article’s thesis is that all kinds of bad consequences have flowed from the Bayh-Dole act, which, according to the article, permitted universities to sell patents and give exclusive licenses to private companies for (among other things) medical inventions (call this situation the Bayh-Dole Regime).  What’s astonishing about the article is that it cogently and sympathetically sets out the case in favor of the Bayh-Dole Regime [this might in fact be its most cogent part] but barely even attempts to rebut it.

The case for the Bayh-Dole Regime:

At the time of its passage, the 1980 Bayh-Dole Act was intended to drive innovation in academic research. By removing restrictions on what universities could do with their scientific discoveries, it would ostensibly bring more money to the university system. To pay for their work, academic research facilities could now sell off their patents,or hand out exclusive licenses to private industry. With a monopoly on intellectual property provided by the patent, the private sector would be incentivized to quickly develop those patents into advanced consumer products and services.

The supporters of Bayh-Dole claimed that the opportunity to make more money would push academic science to make more discoveries and encourage private industry to bring more of those discoveries to market. Not long after its passage, the financial repercussions were already being realized. Researchers at Columbia University applied for patents on the process of DNA cotransformation, known as the Axel patents, that would eventually earn the university hundreds of millions in licensing fees.

. . .

Previously, discoveries made by public universities could only be given out to private industry through non-exclusive licenses. Private entities could develop new drugs and new inventions based on groundbreaking research, but so could any other company. The supporters of Bayh-Dole argued that this grace period was essentially a disincentive to innovate. If one company didn’t have exclusive rights to an invention, then there was little money to be made in its development. Why bother innovating if the competition could do the same and eat away at the potential profit margin? Inventions would be left to “rot on the shelf.” 

Nowhere does the article give any reasons to reject these claims.  In fact, the paragraph after implies that defenders of the Bayh-Dole Regime were right:

The public-license restriction protected academic research from descending into an intellectual-property gold rush. Removing it has unleashed a flood of capital from private industry eager to possess a monopoly on cutting-edge scientific advancements. Private bodies now help fund academic institutions in return for priority in the process of “tech transfer” — the exclusive licensing of publicly-funded research to private industry. Giant pharmaceutical conglomerates like Merck and GlaxoSmithKline fund partnerships with private and state universities on projects to research currently incurable diseases, with the explicit stipulation that those companies will reap the benefits by obtaining exclusive licenses on any forthcoming discoveries. Those discoveries, whether they are related to the original aim of the project or not, are then turned into overpriced, brand-name pharmaceutical drugs.

The only criticism here is that private capital has resulted in “overpriced” drugs.  But why are they overpriced?  Why is the cost not worth paying in exchange for the innovations?  It may well be ugly that intellectual property protection and resultant high prices can (and do) exclude poor people from cutting-edge medicine, but should we really be so strongly committed to egalitarianism that we’d be willing to accept a situation where everybody’s health is some degree poorer in the long-term in exchange for making sure that all medical innovations are more affordable immediately?  And, in any event, is the BDR the villain here or is it the lack of subsidies for health care?  There are obviously possible responses to these questions.  Possibly a presupposition of my hypothetical — that eliminating the BDR would mean that everybody’s health would be some degree poorer in the long-term — is false.[1]  Possibly we are so strongly committed to egalitarianism that we’re willing to accept (slightly?) poorer health in the long-term for everybody in exchange for more equal access to healthcare.  But both of these possibilities need to be argued for and Hinkes-Jones doesn’t make the argument — he doesn’t even make the claims.

Hinkes-Jones does go on to list some other regrettable effects that flow from the BDR:

  • Patents are costly to both consumers and researchers.  “Not only do patents push higher prices onto consumers, they burden the research world with the increased costs of paying for the intellectual property needed to do further research. Research labs have to pay thousands of dollars for the strains and processes needed to build upon current developments, adding more costs to cutting-edge research.”
  • As more private money is invested in universities private influence grows and corruption results as academics begin to shill for pharmaceutical companies.  This contributes to bad science: “The privatization of academic research not only hinders the scientific process, it also means that direct corruption — where scientists are paid off by private industry to deceive the public about toxins in their food or pollution in their air — has more opportunity to continue unabated. Researchers desperate for funding to maintain their positions and sustain their work are more susceptible to financing from industries eager to distort science to their own whims.”
  • Private funding distorts research incentives.  With tenure* and public funding, researchers could speak freely and focus on topics that avoided short-term, consumer-based, money-making propositions.”  *This sentence comes in a part of the article where Hinkes-Jones is also concerned about the demise of tenure, which he does not link to the BDR.

The first two problems are problems that it seems plausible to me would flow from incentivizing, and allowing for, a greater role for private money in academic research.  I’d be happy to concede for purposes of argument that private funding also results in diverting research efforts away from more speculative research (with potentially profound implications) toward research that is less likely to open up new frontiers but more likely to result in a moneymaking innovation quickly — although that doesn’t seem as obviously plausible to me (though nor does it seem deeply implausible).  But again, unlike, say, allowing human testing, these are problems to be traded off against potential gains.  And Hinkes-Jones nowhere does the trading-off.

In fairness to Jacobin, Hinkes-Jones’s article also veers off into non sequiturs, noting other problems that are not obviously related to the BDR at all:

  • Universities are going into debt in order to attract talent and money which is causing tuition to balloon.  Even with limited public funding and an increased dependence on private financing, universities haven’t stopped spending, particularly on new facilities. A McGraw-Hill Construction survey estimated that over $11 billion had been spent on construction by higher education institutions between 2010 and 2012. By floating massive bonds to pay for new biomedical research facilities and state-of-the-art gymnasiums, schools hope to attract the students, star researchers, and funding that will help pay for it all. But these schools have wildly overcommitted themselves, and by doing so they’ve entered into the vicious cycle of a debtor’s beauty contest.”
  • It’s hard to get a tenured position.  The flood of private money coming to the research system hasn’t made its way to expanding academic careers. Instead of employing more staff scientists, underpaid post-doctoral students are hired for half the cost to produce the eye-catching research that attracts grant money. Those students then go on to graduate into a science field flooded with other post-docs who are in direct competition for the dwindling number of established research positions available. The result is a highly competitive job market where too many are left fighting for fewer positions.”
  • There is an overpowering incentive in academia to publish groundbreaking research quickly which results in a lot of bad science being published.

Defenders of Jacobin could, of course, deny that this article is representative in its failure to engage with ideas from “the other side.”  Or they could say that it’s simply obvious that the benefits of privatization do not outweigh the costs (although in that case why write an article in such detail about the effects of privatization — a quick tweet that such-and-such is an instance of privatization would be enough to tell us all we need to know about where society’s ills are located).  Or they could say something else.  But I’d be interested to hear what they say because, as I said, I’m sympathetic to left politics — particularly in its diagnosis, I think a lot of what the left says about the way capitalism works, the goals of the right, the connection between incarceration and the economy, etc. is true — but even I stand unpersuaded.

[1] It could, of course, be false even if proponents of the BDR are correct that it causes medical innovation to occur more rapidly.  It could be that returning to the pre-BDR days would slow innovation slightly but vastly increase the rate at which poor people gain access to cutting-edge drugs such that, net, poor people are always better off under the older regime.

Posted by: captainfalcon | July 24, 2014

The Latest ACA Litigation

There are two parallel debates concerning whether, under the ACA, participants in health exchanges created by the federal government, as opposed to a state government, are eligible to receive subsidies.  Unsurprisingly, in light of the way legal interpretation works, they concern the ACA’s text and the ACA’s purpose.

The first debate is textual.  One position, represented by the DC Circuit’s recent opinion, is that the participants in federally-created health exchanges are ineligible for subsidies because §36B of the ACA provides that subsidies are only available to participants in health exchanges that are “established by the State under § 1311.”  The contrary position, represented by the Fourth Circuit’s recent opinion, reasons from the fact that § 1321(c) provides that if a state fails to set up a health exchange the federal government may create a §1311 exchange, i.e. an exchange “that is established by a State” to the conclusion that subsidies are available to participants in federally-created exchanges because, under the linguistically tortured regime of the ACA, federally-created exchanges are exchanges “established by [a] State under §1311.”

The second debate concerns the purposes of the ACA and, depending on your taste, may inform the textual debate.  One side of this debate argues that prohibiting participants in federally-created exchange from receiving subsidies furthers one of the ACA’s purposes: to incentivize states to create their own health exchanges by making it so that citizens in states where the federal government has to create such exchanges do not enjoy federal subsidies.  The most compelling point on the other side [for the other side see here and here] is that the structure of the ACA makes no sense as an incentive to states to setup health exchanges because failing to provide subsidies to participants in federal-exchanges undermines the risk-pooling that is essential to the functioning of Obamacare.  Why provide for federally-created exchanges that, whenever they are created, will not work properly?  Instead, as Abbe Gluck argues, why not just provide for a “lose it or use it” structure a la Medicaid?

Other arguments on this side depend on observations about what congressmen actually intended / expected to occur e.g. absolutely nobody had any idea that the ACA’s text left it open to an interpretation on which participants in federally-created exchanges could not receive subsidies.  (And, as noted here, this is not surprising because, due to Ted Kennedy’s death, the version of the statute that passed the Senate and would ordinarily have gone through a linguistic cleanup process had to be passed as it was.)  I find this argument persuasive, but it has some suppressed premises — the actual expectations / intent of a statute’s drafters can be discerned and are relevant to statutory interpretation — that not everybody finds acceptable.

Ultimately, I think both text and purpose favors the conclusion that participants in federally-created exchanges are eligible to receive subsidies.  But non-frivolous arguments can be mustered for the contrary conclusion.*  So those who think Obamacare is bad have legal cover to prefer / argue for the DC Circuit’s point of view.

* Non-frivolous in the sense that (1) those who make them will not be subject to any professional sanctions and (2) if they are ultimately implemented the judiciary / the government more generally will not lose legitimacy.

Update: Will Baude makes a similar point about the different types of argument at play here.

In the United States, criminal defendants who cannot afford a lawyer have a constitutional right to competent counsel paid out of the public fisc. They have a constitutional right to free counsel during trial. They also have a constitutional right to free counsel on appeal. And, of course, they have a constitutional right to trial, and to an appeal.

The right to free counsel was recognized by the liberal wing of the Supreme Court and it is usually grounded in egalitarian considerations. Here, for example, is Justice Douglas in Douglas v. California, 372 U.S. 353, 357-58 (1963) recognizing the right to counsel on appeal: “There is lacking that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel’s examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself. The indigent, where the record is unclear or the errors are hidden, has only the right to a meaningless ritual, while the rich man has a meaningful appeal.”

Justice Douglas’s suggestion is that the rich criminal defendant enjoys an unfair advantage over the poor criminal defendant, and the poor criminal defendant thus labors under an undue disadvantage, if the rich criminal defendant has access to a lawyer on appeal, but the poor criminal defendant does not; accordingly, because this undue disadvantage offends against the Fourteenth Amendment, poor criminal defendants have a constitutional right to free appellate counsel.  I take it this argument should not be persuasive to a libertarian: the rich son enjoys an unfair advantage over the poor son in access to medicine, for example, but that does not justify paying for the poor son’s medicine from the public fisc.

But the right to free counsel can be defended on libertarian grounds. Libertarians accept that it is legitimate for the state to use tax money to prevent, redress (and maybe to punish) rights-violations. Wrongful adjudication — imposing criminal (or, for that matter, civil) burdens on the innocent — is a category of rights-violation.  If providing free counsel to the indigent will prevent or redress these rights-violations, it is presumably legitimate, under libertarianism, for the state to use tax money to pay for indigent counsel. And there is no a priori reason why the right to free counsel, thusly grounded, should not extend to the right to free counsel on appeal: free appellate counsel, indeed, serves the critical role of ensuring that lower courts do not systematically violate rights by misreading or distorting the (presumably well-designed) libertarian laws that ensure that redress is had against only those who violate rights.

This may be an obvious point, but I thought it was prima facie surprising that, even in a libertarian paradise, the Legal Aid Society would still enjoy its contract with the state to provide free legal services to indigents.

Posted by: Chris | February 17, 2014

Another Germ of the Gaps Eradicated

Last year, when discussing the mythical gay germ, we noted that its proponents pointed to similar examples of conditions probably not caused by infections, but about which we know sufficiently little that the charlatans can pretend they are:

But wait, you might think, the gay germ theorists do attempt to defend their position with reference to certain other diseases that at least validate the plausibility of their claim.  The examples though, if you give them more than a cursory review, prove entirely irrelevant.  Cochran, for instance, repeatedly refers to narcolepsy as way of backstopping the gay germ hypothesis:

My model – not the only possible  model based on a pathogen,  but reasonable  – leans on a couple of natural examples.  One is narcolepsy.  We now know that narcolepsy happens when a particular kind of neuron, concentrated in a little region in the hypothalamus, somehow gets zapped.   99% of narcolepsy cases happen in the 25% of the population that has a particular HLA type – which suggests that something, probably a virus, triggers an overenthusiastic immune response that zaps a neuron subpopulation that produce a particular neurotransmitter (called hypocretin or orexin) that regulates appetite and sleep patterns.  And it doesn’t do anything else: narcoleptics aren’t stupid.

If you read closely, though, you realize that there is no evidence for the narcoleptic germ either; its just another germ of the gaps for another somewhat vexing neurological disorder (for those curious, most actual scientists believe narcolepsy is caused by an auto-immune reaction with a genetic component).  It is also worth noting that Cochran used to point to autism as the third neurological condition, along with homosexuality and narcolepsy, as likely candidates for a pathogenic cause.  However, one presumes that as scientists filled in the gaps and worked out a coherent explanation for autism (which resembles the going mainstream explanations for the other two), Cochran’s alternative lost its only leg to stand on and was quietly excised.

Score another victory for actual scientists.  A review article in Nature last month summarized a series of recent twin studies that pretty strongly suggest that narcolepsy is an auto-immune reaction with a genetic component, isolating the specific group of cells affected.  One suspects that professional  non-scientist and amateur mountebank Greg Cochran will neglect to admit to the error.

Posted by: Chris | February 8, 2014

State of Naturism

“In such condition, there is no place for industry; because the fruit thereof is uncertain: and consequently no culture of the earth; no navigation, nor use of the commodities that may be imported by sea; no commodious building; no instruments of moving, and removing, such things as require much force; no knowledge of the face of the earth; no account of time; no arts; no letters; no society; and which is worst of all, continual fear, and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short approximately four inches.”

Posted by: Chris | January 15, 2014

Big Dicks and Bipedalism

A spiritual successor to one of our more popular posts:

Kidnapped by horny, ape-like creatures in Mt. Hood National Forest, Porsche, Shelly, and Leslie find themselves in a lusty situation, as a tribe of Bigfoots use their willing, nubile bodies to satisfy their monster cocks.

Posted by: Chris | November 11, 2013

Who is Anti-Science?

Not really anyone, but certainly not Republicans:

It is on this subject that many on the political left deeply hold some serious anti-scientific beliefs. Set aside the fact that twice as many Democrats as Republicans believe in astrology, a pseudoscientific medieval farce. Left-wing ideologues also frequently espouse an irrational fear of nuclear power, genetic modification, and industrial and agricultural chemistry—even though all of these scientific breakthroughs have enriched lives, lengthened lifespans, and produced substantial economic growth over the last century.

Matters are more nuanced—or just plain favorable to Republicans—when it comes to the business of actually governing. Comparing the two parties’ proposed funding levels for the major scientific research agencies doesn’t lend itself well to narratives about who’s “pro” or “anti” science. For every cheap shot a Republican member of Congress like Senator Tom Coburn has taken at National Science Foundation grants (see the unfairly maligned robo-squirrel), there are areas where Obama has undercut American leadership in basic science by favoring loan guarantees and industrial subsidies to the alternative-energy industry at the expense of science elsewhere.

We’ve seen this in his proposed cuts to high-energy physics, nuclear physics, planetary science, and other areas of research. Even in the much-maligned “Tea Party-dominated” House of Representatives, the GOP budget proposals provided more funding for the NSF than those of the Senate Democrats for the current 2013 fiscal year.

My point is not to help Republicans shed the “anti-science” label and simply apply it to the Democrats. It’s more important that we collectively recognize that reason and critical thought, the joy and excitement of discovery, the connection between research and economic growth, and the beauty and awe of science are accessible to people of all religious and political stripes—just as people of all stripes are capable of rejecting them.

Posted by: Chris | October 18, 2013


Are not scientists or even “scientists”:

In the THISDAY article, misleadingly titled “Science of Gay Marriage,” Amalaha shares some of his past scientific discoveries and breakthroughs. For example, he says he rejected a theory attributing skin cancer to acid rain, proved that the mathematical symbol π is not actually equal to 22/7, and was the “first person in the world” to prove that watching television in a dark room hurts your eyes. (The uses of the term “prove” in all these cases are his, not mine.)

But this “scientist” clearly didn’t have science on the brain when developing his most recent project, in which he sought to invalidate marriage equality altogether.

I work with a bunch of engineers and, while they are great people, the extent to which this sort of “empiricism” goes unchallenged sometimes exasperates me.

Posted by: captainfalcon | October 12, 2013


I had a conversation about Hell with a Christian recently.  Her conception of Hell was that it’s the state in which you are eternally barred from a personal relationship with God.  “Personal relationship” is not used, at least by her, as a term of art.  Rather, a personal relationship with God is the same kind of personal relationship you might have with anybody else, and it can become deeper (or more remote) depending on how much you do to cultivate it.

The question then arises (and arose) whether those who do not currently have a personal relationship with God — presumably I and others who don’t believe God exists — are already in a state phenomenologically (if not temporally — we can, presumably, still cultivate a relationship with God if we want to) identical with being in Hell.  In other words, on this account of Hell, is my life what Hell feels like?  I pointed out that, if so, Hell’s not so so bad.

For non-theological reasons, this turned out to be a tactical error in the dialectic, and I was unable to further plumb this conception of Hell.  But I don’t see an easy way out for somebody who accepts this conception, which is not (I don’t think) a totally idiosyncratic take.

Of course, it is possible to bite the bullet, and insist that my life — one in which I have never had a personal relationship with God — is genuinely hellacious.  It’s only because I don’t know how good it is to know God that I don’t know how bad I’ve got it.  But I don’t think this fits with the broader Christian conception of the good life, which includes, in addition to the cultivation of a personal relationship with God, a syndrome of other important goods that people like me can access.  Not just food and other arguable preconditions for a personal relationship with God, but also a profession, a family, and so forth.  It’s hard to imagine, if these other independent goods are also important, that a personal relationship with God is “off the charts” great [because if it was that great wouldn’t it be enough by itself?*].

In any event, I would be interested to know (a) whether this conception of hell is widely shared, (b) whether I’ve understood it properly, and (c) whether Christians (or other sympathetic interpreters of this conception) have any replies to my reductio.

* There are various possible responses to this undeveloped thought, but I think the ones that work do so at the expense of watering down the importance Christians attach to a personal relationship with God.

Posted by: Chris | October 7, 2013

Zelda as an Enemy of the Oppressed

I genuinely cannot tell if someone tried to Sokal Salon.  A representative sample:

Some may interpret the fate of the wealthy family, who are transformed into spiderlike creatures, in the House of Skulltulla as a condemnation of an exploitive class system, but that would be a mistake.

“Folks around here tell of a fabulously rich family that once lived in one of the houses in this village,” an elderly character in Kakariko confides. “But they say that the entire family was cursed due to their greed! Who knows what might happen to those who are consumed by greed.”

By focusing on the greed of individuals, the game ignores how private property incentivizes and even mandates such behavior. And with this moralizing focus comes a belief that society’s economic ills are intractable because of humanity’s flawed nature.

I am surprised the article neglects to mention that the end goal of the Ocarina of Time is to turn back time to the era of the protagonist’s idyllic youth (just like the Tea Party!).

Posted by: Chris | September 23, 2013

Privilege, Reductio ad Absurdum

Not too different from a pretentious lack of pretense, I present the privileged lack of privilege:

I’m sick of feeling self-conscious every time someone brings up the burden of student loans. I dread being asked what I plan to do after graduation about paying them back. Sometimes I lie. Sometimes I make up a line about praying I find a great job or can pay off my loans by working for the government.

But I’m sick of lying. I’m sick of feeling ashamed for being privileged.

I am in graduate school and am debt free. I have Baby Boomer parents who work hard and did much better than they ever expected in their careers. They wanted to pay for my college and graduate school. They demanded to pay for my college and graduate school.

I work hard. I earned partial scholarships in college and graduate school. I work a part-time job, babysit, and go to school full-time. I am earnestly applying for jobs and I look forward to a career in public service.

I want to stop lying about the suits I buy for my internship. I want to stop saying they are hand me down’s from my cousin. I want to be able to say thank you when I receive a compliment on them. I was taught that you should always dress for the job you want, not the job you have. I want to be taken seriously at my internship and look professional—and I have the resources to buy nice-looking suits and have my hair professionally highlighted.

I’m tired of justifying my address and the backlash I receive when I tell people I am a student and live in a high-rise apartment. I’m tired of the looks my doorman gives me when he hands me my package (of work clothes) delivered from J.Crew.

So stop making me feel like I’ve done something wrong. Stop making me feel like I am less deserving. I didn’t ask to be born into this kind of circumstance and I’m tired of being judged for it.

I’m not asking for sympathy, I’m asking for people to lay off. There is always enough money in my bank account and I’m not sorry that is my situation. I understand the value of a dollar. I am not wasteful. I understand the overwhelming financial burdens of others and I highly encourage people to openly bitch about it. That blows. But your situation doesn’t change my situation. I am responsible and fortunate for the resources I have. I’ll respect your background if you respect mine.

Because it is our privilege to never feel bad about anything, ever.

Posted by: Chris | July 29, 2013

The Other White Meat

This is either one of the craziest things the internet has ever produced or a revolution of Kuhnian proportions.  Everything I know says it cannot be true, but isn’t that what the Aristotleans said to Copernicus?  If true, Mrs. Garrison understands evolution better than any of us:

H/T: Andrew

Posted by: maroonmaurader | June 25, 2013

Closing a national border in style

Footage from a documentary about the 45-minute ceremony closing the India-Pakistan border every night.

This is an interesting essay on path dependency in markets.  Its basic claim is that  even competitive markets can sometimes find themselves in a inefficient equilibria, and that passing temporary law isa low-risk way for government to shift them from those equilibria to more efficient ones.*  It is thus an argument for regulation of competitive markets that is consistent with the view that promoting efficiency (or something in its ballpark) is the only legitimate purpose of market regulation, which is what makes it interesting.

Competitive markets can find themselves in suboptimal equilibria as a result of path dependency — i.e. as a result of the happenstance of how the market was configured — for several reasons.

First, it could be that the coordination costs of reconfiguring the market are too high.  It might be that certain goods in the market are only in demand if others of the same good are also on offer in the market, e.g., to use the example in the essay, it might be that bar-goers in a college town are overwhelmingly bar-hoppers, so they are only interested in nonsmoking bars if there are other bars that are also nonsmoking (as what could possibly be the value of nonsmoking bars — no breathing in carcinogens, no clothes that smell of smoke in the morning — can only be realized by bar-hoppers if there are multiple nonsmoking bars).  If that’s the case, the switching costs for a bar to go from smoking to nonsmoking could be too high unless multiple bars make the switch simultaneously, and the coordination costs for getting multiple bars to make the switch could be too high to incentivize the simultaneous switch.  This could be the case even though the new equilibrium that would result would be more efficient than the old. 

Second, if the behavioral economic literature on the subject is sound and we really do regularly deploy the “availability heuristic” in assessing probabilities, it could be that publicans give undue weight to present customers over future potential customers.  Simply because of familiarity with their present customers, they misestimate the odds that shifting from smoking to nonsmoking will give rise to a greater or more lucrative customer pool.  The happenstance that their present customers are smokers leads to an inefficient equilibrium.

Alternatively, another behavioral economic explanation, it could be that publicans are “hyperbolic discounters,” such that “even though the benefits discounted by their ordinary discount rate (the one . . . use[d] when comparing the costs or benefits of two future events) exceed the costs, the immediate costs loom larger.”  As a result, the could be discouraged by the immediate costs of switching from smoking to nonsmoking even though, ultimately, the benefits outweigh the switch by their economically rational counterpart’s lights.

The essay lists a few other possible explanations why an inefficient equilibrium might arise, and then proposes as its (clever) solution temporary laws.  The idea is that, if we have reason to think that a market is in an inefficient equilibrium, we should pass a law meant to eliminate the possible path dependency that has trapped it.  (In the smoking case, a temporary ban would solve the switching costs problem, as well as the various systemic irrationalities that could otherwise explain an inefficient equilibrium.)  The law should then be repealed so that market forces can settle on the more efficient equilibrium.

The essay is sketchy as it stands — especially glaring is its failure to address the possibility that temporary law could force a suboptimal equilibrium [although it does note rough proxies by which we could check for that, e.g. comparing revenue levels before and after the temporary law].  Also, its putative real-life example of a temporary law’s forcing a more efficient equilibrium is simply inconclusive.  But it’s a nifty idea nonetheless, especially because it argues from a premise that a great many default opponents of regulation in competitive markets accept [that market efficiency is an important or overriding goal] to the conclusion that regulation is sometimes appropriate even in competitive markets.

* I’m roughly following the usage in the essay when I say “inefficient equilibrium.”  Roughly, a market is in an “inefficient equilibrium” for our purposes if, once the market is shifted from it, the market will settle on a new equilibrium where, in aggregate, suppliers’ and consumers’ market-ends are better served than they were previously, so “wealth is maximized.”  This may be an idiosyncratic definition of efficiency — I don’t actually know what efficiency means, in large part because it is sloppily bandied about in the economic literature — but it seems like a property that we’d want a market to instantiate.

Posted by: Chris | June 14, 2013


Slate writer Jeremy Stahl gets a little too counterintuitive for his own good:

It’s true that children of Democrats can be just as wretched as children of Republicans and can do equally idiotic, terrible things. (See the news of Louisiana Sen. Mary Landrieu’s son, Connor, being arrested on charges of drunk driving and hit-and-run driving or any one of Al Gore III’s repeated arrests for driving under the influence and reckless driving.) But when bad Democratic kids behave badly, they’re way more likely to drive 100 mph while drunk than to say the president chucks spears. Likewise, you rarely ever see Democratic officials getting in trouble for passing on horrible, racist chain emails or making horrible racist remarks. This has everything to do with the political differences between the two parties and their voters.

In case you can’t tell, this passage is meant to praise the Democratic offspring.  The rest of the article is equally silly.

Posted by: Chris | June 14, 2013

Glenn Greenwald is a Credulous Tool

So it seems increasingly likely that Glenn Greenwald got himself snookered by a egoistical liar.*  In addition to his exaggerations about his own background, it appears Snowden either did not understand or deliberately mislead Greenwald about the nature of the PRISM program.  Snowden claims in his video interview with Greenwald and Greenwald himself claims repeatedly in his original reporting that the NSA had direct access to Google and others’ servers which they could rifle through completely without notifying the companies involved or even without a judicial warrant (Guardian):

The National Security Agency has obtained direct access to the systems of Google, Facebook, Apple and other US internet giants, according to a top secret document obtained by the Guardian.

The NSA access is part of a previously undisclosed program called Prism, which allows officials to collect material including search history, the content of emails, file transfers and live chats, the document says.

The Guardian has verified the authenticity of the document, a 41-slide PowerPoint presentation – classified as top secret with no distribution to foreign allies – which was apparently used to train intelligence operatives on the capabilities of the program. The document claims “collection directly from the servers” of major US service providers.

The program facilitates extensive, in-depth surveillance on live communicationsand stored information. The law allows for the targeting of any customers of participating firms who live outside the US, or those Americans whose communications include people outside the US.

It also opens the possibility of communications made entirely within the US being collected without warrants.

Companies are legally obliged to comply with requests for users’ communications under US law, but the Prism program allows the intelligence services direct access to the companies’ servers. The NSA document notes the operations have “assistance of communications providers in the US”.

When the FAA was first enacted, defenders of the statute argued that a significant check on abuse would be the NSA’s inability to obtain electronic communications without the consent of the telecom and internet companies that control the data. But the Prism program renders that consent unnecessary, as it allows the agency to directly and unilaterally seize the communications off the companies’ servers.

The Prism program allows the NSA, the world’s largest surveillance organisation, to obtain targeted communications without having to request them from the service providers and without having to obtain individual court orders.

With this program, the NSA is able to reach directly into the servers of the participating companies and obtain both stored communications as well as perform real-time collection on targeted users.

Unfortunately, this looks likely to be false.  According to statements put out by the affected tech companies and by original reporting by the NYT among others, it seems that Greenwald (and possibly Snowden) misinterpreted what was meant by accessing servers.  These sources say the process works as such: the government makes a specific request of a tech company to hand over a defined amount of information about foreign nationals living overseas (backed by a FISA warrant), the tech company’s lawyers review the request and determine the extent to which the company must comply, and finally the tech company uploads the information it wishes to share with the NSA onto a special-made secure server for NSA to access.  That’s PRISM, folks.  It is Dropbox with better encryption and a larger data limit.

The Washington Post has since edited its story to reflect this reality without issuing a correction.  The Guardian has not edited Greenwald’s reporting but has since published a new article that concedes its falsity:

The Guardian revealed last week that seven technology companies – Google, Facebook, Skype, PalTalk, Microsoft, Apple and Yahoo – were involved in the Prism surveillance scheme run by the NSA.

The Guardian understands that the NSA approached those companies and asked them to enable a “dropbox” system whereby legally requested data could be copied from their own server out to an NSA-owned system. That has allowed the companies to deny that there is “direct or indirect” NSA access, to deny that there is a “back door” to their systems, and that they only comply with “legal” requests – while not explaining the scope of that access.

Greenwald, however, appears to be under the misimpression that he is Malcom Fucking Tucker and is still claiming the program is as he reported it, even as his own newspaper retreats from that position.  This points to the real problem with this sorry story: Glenn Greenwald is not a journalist, he is an activist.  Journalists seek to report the truth as best they can, while activists try to build support for their cause and wrest the national discussion in their favor.  A journalist is rightly embarrassed when her reporting does not align with the facts, an activist is less concerned because he has other metrics for success.  Thus Greenwald felt no compunction to fact-check any of Snowden’s story (the compressed timeline of the Guardian’s reporting corroborates this) because it fit his agenda and thus served his purposes regardless of its veracity.  Now that the report appears to have been less than true, Greenwald is in a similar position: any concession now would detract from the momentum his agenda has been building over the past week.

To recap: Glenn Greenwald reported that the Prism program allows NSA direct access into Google etc. main servers.  It does not do anything remotely like this.  Greenwald likely accepted Snowden’s faulty story initially and continues to stick by it to the present because it played to his biases and served his policy agenda.

However, perhaps it is not politics that draws Greenwald to a fanatical, delusional hypocrite with a martyr complex and a fathomless sense of self-importance.  He may have simply found a kindred spirit.**

*For the record, Edward Snowden made half the salary he claimed at Booz Allen, did not work there for as long as he claimed, did not have the job or access he claimed while there, likely did not have the job he claimed at the CIA, never trained for the Special Forces, pretended to be a member of the foreign service on the internet (when at the time his official biography has him stationed as a security guard at the NSA), and is now giving US secrets to the Chinese, despite his prior assurances that he would not (I guess the good news is that these might be fabrications too).

**This might explain why Greenwald has stuck by Julian Assange as well.

Posted by: Chris | June 13, 2013

E3 Thoughts, in Brief

Yes.  No.  Meh.  Largely unenthused by what I saw.  Did I miss something worthwhile, or has age diminished the appeal of everything that isn’t Smash Brothers?

Posted by: Chris | June 6, 2013

Rush Holt!

My old congressman is challenging Corey Booker for the NJ Senate special election!  I wish I could vote for him.

Posted by: Chris | June 5, 2013

Why Can’t Everything Be Good and Nothing Be Bad?

George Packer laments:

There are many, many things about the year 2013 that I would not want undone, and many other things about the year 1978 that I would not want back. It’s worth remembering them, as a kind of fact-check exercise, before considering whether—as so many Americans I’ve interviewed over the past few years believe—something has gone wrong.

Recent additions to American life that I would fight to hang onto: marriage equality, Lipitor, a black President, Google searches, airbags, novelistic TV shows, the opportunity for women to be as singlemindedly driven as their male colleagues, good coffee, safer cities, cleaner air, photographs of the kids on my phone, anti-bullying, Daniel Day Lewis, cheap communications, smoke-free airplanes, wheelchair parking, and I could go on…

The bottom line in all these improvements is freedom. In America, that’s half the game.

The other half is equality. Not equality of result—no successful political tendency or President in this country, not even F.D.R.’s New Deal, has promised that. As Richard Hofstadter shows in his great 1948 book, “The American Political Tradition,” the deal in this country has always been equal opportunity. That was Jefferson’s meaning when he inscribed in the annals of our civic religion the conviction that “all men are created equal.” Even a populist like Andrew Jackson demanded only “the classic bourgeois ideal, equality before the law, the restriction of government to equal protection of its citizens.” But when the results are distributed as unequally as they are at this moment, when the gap between promise and reality grows so wide, when elites can fail repeatedly and never lose their perches of privilege while ordinary people can never work their way out of debt, equal opportunity becomes a dream. We measure inequality in numbers—quintiles, average and median incomes, percentages of national wealth, unemployment statistics, economic growth rates—but the damage it is doing to our national life today defies quantification. It is killing many Americans’ belief in the democratic promise—their faith that the game is fair, that everyone has a chance. That’s where things have unquestionably deteriorated over the past generation. The game seems rigged—and if it is, following the rules is for suckers.

The short answer is that many of the things Packer celebrates are either causes or symptoms of the growing inequality he rightly bemoans.  The rewards that the past thirty or so years have granted the upper-most quintile to the exclusion of others have created a market for things like $6 coffee and Mad Men and given them the clout to push their bourgeoisie values more broadly.  That inequality itself links back to an assortment laudable trends (some of which Packer mentions), like globalization, gender equality in the workplace, the growth of the internet, and greater meritocracy in hiring and college admissions.

Take meritocracy for example.  Judging people based on their aptitudes for jobs and for college admissions, rather than based on their parents or their gender or wealth, is an unquestionably good thing.  It results in better outcomes for companies and greater productivity for the economy as a whole, which redounds to everyone’s benefit.  Plus, as beneficiaries of merit-preferences, I suspect most of the Lure feel fairly positively about them as well.

But using merit as a metric is not without negatives.  Most obviously, the qualities we find meritorious (some mixture of intelligence, creativity, and diligence) are not distributed equally or even randomly across the population, resulting in greater and more intransigent socioeconomic inequality as people sort according to these attributes.  In addition, as a number of conservatives have pointed out, the emphasis on merit leads to a narrowed and isolated worldview amongst the nation’s elite.  For instance, Megan McArdle writes:

But I think that we are looking at something even deeper than that: the Mandarinization of America.

The Chinese imperial bureaucracy was immensely powerful. Entrance was theoretically open to anyone, from any walk of society—as long as they could pass a very tough examination. The number of passes was tightly restricted to keep the bureaucracy at optimal size.

Passing the tests and becoming a “scholar official” was a ticket to a very good, very secure life. And there is something to like about a system like this … especially if you happen to be good at exams. Of course, once you gave the imperial bureaucracy a lot of power, and made entrance into said bureaucracy conditional on passing a tough exam, what you have is … a country run by people who think that being good at exams is the most important thing on earth. Sound familiar?

All elites are good at rationalizing their eliteness, whether it’s meritocracy or “the divine right of kings.” The problem is the mandarin elite has some good arguments. They really are very bright and hardworking. It’s just that they’re also prone to be conformist, risk averse, obedient, and good at echoing the opinions of authority, because that is what this sort of examination system selects for.

The even greater danger is that they become more and more removed from the people they are supposed to serve. Since I moved to Washington, I have had series of extraordinary conversations with Washington journalists and policy analysts, in which I remark upon some perfectly ordinary facet of working-class, or even business-class life, only to have this revelation met with amazement. I once had it suggested to me by a wonk of my acquaintance that I should write an article about how working-class places I’ve worked usually had one or two verbally lightning-fast guys who I envied for their ability to generate an endless series of novel and hilarious one-liners to pass the time. I said I’d take it under advisement, but what on earth would one title such an article?

And like all elites, they believe that they not only rule because they can, but because they should. Even many quite left-wing folks do not fundamentally question the idea that the world should be run by highly verbal people who test well and turn their work in on time. They may think that machine operators should have more power and money in the workplace, and salesmen and accountants should have less. But if they think there’s anything wrong with the balance of power in the system we all live under, it is that clever mandarins do not have enough power to bend that system to their will. For the good of everyone else, of course. Not that they spend much time with everyone else, but they have excellent imaginations.

In a similar vein, James Poulos remarks:

For the wonk in the hipster glasses, there’s nothing literary about politics, and people who babble poetically about policy are basically idiots. Washington isn’t a place where self-respecting professionals go to transform either the system or themselves. It’s a place where everyone goes to transact.

It’s hard not to recall, if you’re sufficiently literary, Alexis de Tocqueville’s own recollection about China. “I remember reading a Chinese novel,” he wrote, “in which the hero, after many vicissitudes, finally touches the heart of his mistress by doing well on an examination.” This is not precisely the world of the wonk in the hipster glasses, but is close enough to freak me out, and it’s getting closer all the time.

There are two other even greater greater dangers. One, they become closer and closer to the people they aren’t supposed to serve—those not just with lots of authority but with tons of power. Two, and worst of all, they become more and more removed from their own human possibilities. Our ‘meritocratic’ system for producing political writers heavily favors people either without any significant life experience or without any hesitancy to segregate whatever life experience they have from their writing. In the wonkocracy, your human being is little more than a wisp of poetry, something that might be nice to whisper about tipsily over a plate of sea urchin foam, but something no professional would try to make room for in their work on policy. Everything is what you—and we—know. Nothing is who you or we could be. Knowledge is transacted, and nobody is transformed.

That epically narrows the possibilities for political writing—and political writers. Then it does so again, as out-of-power and out-of-fashion conservatives who angrily react to the situation descend into anti-literary, anti-wonktastic anti-journalism. Conservatives ridicule the wonks in the hipster glasses; the wonks in the hipster glasses ridicule the conservatives; the American reader seeks solace in sideboob.

Interestingly, criticisms of meritocracy on the left tend to resemble their counterparts’ response to Soviet communism from a half century ago, that there is nothing wrong with the idea, just the execution.  For instance, Chris Hayes, the newly minted MSNBC anchor, argues, leaning on the “iron law of oligarchy” promulgated by a German anarchist (who later joined up with Mussolini),  that meritocracy has been perverted by the power relationships involved.  Here is Hayes’s summary from the Nation:

Michels’s grim conclusion was that it was impossible for any party, no matter its belief system, to bring about democracy in practice. Oligarchy was inevitable. For any kind of institution with a democratic base to consolidate the legitimacy it needs to exist, it must have an organization that delegates tasks. The rank and file will not have the time, energy, wherewithal or inclination to participate in the many, often minute decisions necessary to keep the institution functioning. In fact, effectiveness, Michels argues convincingly, requires that these tasks be delegated to a small group of people with enough power to make decisions of consequence for the entire membership. Over time, this bureaucracy becomes a kind of permanent, full-time cadre of leadership. “Without wishing it,” Michels says, there grows up a great “gulf which divides the leaders from the masses.” The leaders now control the tools with which to manipulate the opinion of the masses and subvert the organization’s democratic process. “Thus the leaders, who were at first no more than the executive organs of the collective, will soon emancipate themselves from the mass and become independent of its control.”

All this flows inexorably from the nature of organization itself, Michels concludes, and he calls it “The Iron Law of Oligarchy”: “It is organization which gives birth to the dominion of the elected over the electors, of the mandataries over the mandators, of the delegates over the delegators. Who says organization says oligarchy.”

But this ideal, appealing as it may be, runs up against the reality of what I’ll call the Iron Law of Meritocracy. The Iron Law of Meritocracy states that eventually the inequality produced by a meritocratic system will grow large enough to subvert the mechanisms of mobility. Unequal outcomes make equal opportunity impossible. The Principle of Difference will come to overwhelm the Principle of Mobility. Those who are able to climb up the ladder will find ways to pull it up after them, or to selectively lower it down to allow their friends, allies and kin to scramble up. In other words: “Who says meritocracy says oligarchy.”

Hayes’ marquee example is the changing demographics of his old high school, Hunter College, in NYC:

But social mobility, by most counts, is on the decline. How can that be true in a functioning meritocracy? 
The mechanisms of mobility and of equal opportunity are inevitably subverted by unequal power and wealth. We want to make a neat division between equality of opportunity and equality of outcome, but in practice, we can’t. I use my high school, Hunter College in New York City, as an example. It’s a public school, free, open to students from all five boroughs, but it’s highly selective. When I went there, in the 1990s, you took one test to get in, in sixth grade. If you scored high enough you got in, if not, not. And if you were the mayor’s kid and you didn’t score high enough, you didn’t get in. That’s the kind of democratizing promise of the meritocracy.

But that was then …
Right. What’s happened over time is you’ve seen a decline in black and Latino students in the school — who were always underrepresented, but are even more so now — at the same time as there’s been this growth of a test prep industry. Parents are paying thousands of dollars for cram schools to prepare their kids for the test, and now the majority of kids getting in are products of the test-prep regime. So the test prep industry has been this perfect parable: You have this scarce resource — a spot at an elite school — and people with money in a very unequal city have a clear advantage over those who don’t.

He brings Hunter up in the Nation article as well:

But the problem with my alma mater is that over time, the mechanisms of meritocracy have broken down. In 1995, when I was a student at Hunter, the student body was 12 percent black and 6 percent Hispanic. Not coincidentally, there was no test-prep industry for the Hunter entrance exam. That’s no longer the case. Now, so-called cram schools like Elite Academy in Queens can charge thousands of dollars for after-school and weekend courses where sixth graders memorize vocabulary words and learn advanced math. Meanwhile, in the wealthier precincts of Manhattan, parents can hire $90-an-hour private tutors for one-on-one sessions with their children.

By 2009, Hunter’s demographics were radically different—just 3 percent black and 1 percent Hispanic, according to the New York Times. With the rise of a sophisticated and expensive test-preparation industry, the means of selecting entrants to Hunter has grown less independent of the social and economic hierarchies in New York at large. The pyramid of merit has come to mirror the pyramid of wealth and cultural capital.

Of course, Hayes’s story is on the whole misleading, plus inaccurate in parts as well.  He elides that the enrollment of rich white students has fallen roughly commensurate with the decline in black and Hispanic students, all three of which have fallen to the exclusion of Asian students, many of which are recent immigrants and not entrenched elites distorting the system for their kids benefit.  Further, the test prep argument, by far the hollowest of those used by left-wing test skeptics, has no purchase here, because African-American and Hispanic students use test preparation at high rates than do white students.  Plus, as someone with quite a bit of experience in the test prep market, I can assure Hayes that there is little correlation between money spent and the outcome on test day.

But I think the larger contrast between Hayes’ response and that of the conservatives is more important.  Hayes observes many of the same phenomena as the conservatives (meritocracy producing greater income inequality and an insular elite) but cannot allow that a salutary arrangement like meritocracy can be anything but a universal good.  Thus, something must be corrupting meritocracy, something we can fix and by so doing reroute the march of progress back onto the path to a perpetual Elysium.  The same occurs with the other drivers of income inequality I cited above; their proponents cannot acknowledge the truth to Taft’s observation that “substantial progress toward better things can rarely be taken without developing new evils requiring new remedies.”  I suspect our old friend Raymond Geuss has something to say about this.

Posted by: Chris | June 5, 2013

Partisanship and California

The median voter theorem states that, in a majority rule voting system, the preferences of the median voter are expected to win.  One consequence of this theorem is that vote maximizing parties in a two-party system will tend to coalesce around the median voter (because the other party will eat their lunch if they move too far from the center).  Boris Shor from the Harris School leverages this theory and some data on state legislator preferences to predict that the Republican that Chris Christie appoints for the late Sen. Frank Lautenberg’s seat will likely be quite moderate relative to national Republicans, as the median voter in NJ is more left-leaning than the median voter nationally:

Looking at their data, it seems the predictions about party behavior largely coheres with the expectations of the median voter theorem with one massive outlier: California.  According to Shor’s calculations, the average Democratic legislator in California is more left-wing by a wide margin than the average Democratic legislator in any other state.  Indeed, the average Democrat in California appears to be more extreme than the most left-wing member in Massachusetts for instance.  This outcome might be justifiable under the median voter theorem (I would not be surprised if the median voter in California were the most left-leaning of all the states) if the average California Republican were not simultaneous more conservative than the average Republican of any other state.

How can one state plausibly contain both the left-most state Democratic delegation and the right-most state Republican delegation without invalidating the median voter theorem?

Firstly, one must remember that legislators appeal to the median voter in their district, not the median voter in their state.  If the partisan makeup of districts deviates wildly from that of the state (e.g. due to gerrymandering), it can lead to intense partisan differences amongst lawmakers.  It does not seem that gerrymandering is to blame in this instance, as California constructs its Congressional districts using a nonpartisan citizen panel rather than a partisan system.  However, these panels construct these districts to be compact and geographically sound, rather than competitive, which means they can do nothing about political segregation (leftists living by leftists and conservatives by conservatives).  Indeed, one of the complaints the California Republican Party issued in 2012 against the citizen board is that it tended to make districts less competitive, not more, than the partisan process largely due to the amount of political segregation that exists in California.  Thus, even non-gerrymandered districts could be pushing California towards extremism, though likely not to the levels that Shor observes.

Another plausible hypothesis is that the California Republican Party has priorities other than vote maximization.  Remember that one of the conditions of the expectation that parties would converge on the median voter is that they do so with the intention to win the majority of the votes.  Perhaps the California Republicans, dispirited by how far they would have to compromise their principles to appeal to the median voter in California, have given up entirely on the prospect of winning a majority in the California legislature.  They instead could have consolidated their support in the most right-leaning districts and adapted the posture of a permanent principled opposition party, contended to win the ~30% of the seats virtually guaranteed to them and shoot spitballs at the majority from the gallery.  The lack of competition for the median voter would simultaneously free the California Democrats from any obligation to moderate their positions, leading to an outcome analogous to what Shor finds.  However, if true, it means there is a huge political opportunity for a moderate Republican or a third party to truly clean house in California, as both parties have effectively abandoned vote maximizing postures.  This seems to be Mark Zuckerberg’s operating assumption, and the success of his group in influencing California politics might give us an insight into how correct this explanation truly is.

Finally, there is a more systemic explanation for both parties’ behavior: they have given up on legislating rationally because state legislators themselves have lost any real power.  The government of California long since given up on the ideal of representative  democracy, settling major policy issues through yearly plebiscites instead.  With no real consequences for their votes, legislators can freely make symbolic stands for their respective bases and funders without suffering at the ballot box.  In effect, Shor could be comparing apples to oranges by using the same input (the voting records of individual legislators) across states where legislators have varying levels of power.  New Jersey legislators vote to engage in policymaking (with the requisite compromises and trade-offs that entails), while California legislators vote to engage in theater, leaving the true policymaking in the hands of the governor and the public.  There is some preliminary support for this hypothesis.  I took Shor’s state level data and combined it with data on ballot initiatives from the National Conference of State Legislatures.  Using the total number of ballot initiatives from 2008-2011* as a proxy for how strong direct democracy is in a given state, I performed a simple bivariate regression using the ballot initiative total to predict the mean difference between individual legislators in a given year and the difference between the mean legislators from both parties.  For each of these four regressions (two for each the state House and Senate), the effect of direct democracy on partisan difference was sizable, positive, and significant (p < 0.001 in all cases), and explained roughly 20% of the total variation in legislature partisanship (a little less in state Senates and a little more in state Houses).  Obviously, this is just one variable and there are a variety of other factors that other researchers could and should control for, but it does lend some credence to the idea that direct democracy could be pushing California legislators towards extremism.

If true, that last explanation also offers some insight for grappling with the increase in partisanship at the national level.  Congressional  legislative authority has been progressively delegated to the executive and the bureaucracy, including, most recently, proposals to allow the president to determine how to apportion the (already power-limiting) sequester.  This could be a vicious cycle too.  The more Congress debases itself with petty partisanship, the more the delegation of power to super-committees or executive agencies appears necessary, which only increases the incentive for further empty partisanship.  Perhaps it might be necessary to entrust Congress with more power and resist efforts to tie them to the mast in order to break this cycle and bring sanity to the governance of the largest non-profit in the world.

*To give you sense of the distribution, the median state had 10 initiatives over these 5 years, with Delaware having 0 and California having 54.

Posted by: captainfalcon | May 25, 2013

Shun The Gay Germophobes

I have two disagreements with Chris’s criticism of Freddie DeBoer’s attitude toward those who think race helps explain IQ-level (and a pathogen helps explain gayness).

1. I don’t think the attitude Chris takes DeBoer to be defending — that one has reason to discount an argument if its promoters are propounding for it for ideological reasons — is wrong.  Chris seems to think that this is a straightforward instance of the genetic fallacy.  (Hence his reply: “Factual arguments should be able to stand on their own, independent of the repute of those who put them forward.”)  But the genetic fallacy is over-diagnosed.  As Brian Leiter has pointed out in a post on ad hominem arguments (which are a species of the genetic fallacy):

[A] fact about the speaker–his malice and willingness to “do anything” for personal advantage . . . arguably implicates his epistemic reliability as well:  someone motivated mainly by malice and personal gain is probably not a reliable source of information about any subject that implicates his personal advantage and/or might satisfy his malice.

DeBoer is not urging that we discount arguments made by people who we find credible but personally detestable — that’s an example of the genetic fallacy.  Rather, he’s saying we should discount arguments made by people who lack credibility because they are motivated to make disingenuous arguments.*  That seems right.  (Of course, an incredible source could make a sound argument, but, unless you’re a radical skeptic, the bare possibility of discounting a truth is not enough to justify declining to discount.)

Now, it is plausible that a theoretician’s lack of credibility is never the best reason to discount what he says, better to have direct evidence of its falsity.  But I take Chris to be making the stronger claim, that a theoretician’s lack of credibility is never a reason to discount what he says.  I’m happy to concede that, ideally, we would never have to rely on proxies for getting at the truth.  But in non-ideal circumstances (where one lacks the resources — time, expertise, etc. — to pursue direct evidence) a theoretician’s lack of credibility is a reason to discount his argument.

2.  I also disagree with Chris view that “censoriousness only abets the bigots” and (its unstated corollary) that it is always counterproductive to set moral or social limits to argumentation.  If we were talking about any realm other than thought, it would be uncontroversial even to Chris that the net effect of social norms is often to cause individual behavior to conform to them.  True, social norms also often give rise to (and enable) deliberately transgressive acts — the taboo is alluring — but that doesn’t show that, overall, they are counterproductive, increasing the incidence of the behavior they target.

Assuming there’s nothing special about the theoretical realm (is there?), shouldn’t a similar dynamic play out there?  If it comes to be seen as impolite or immoral to think that there is an intellectual difference between the races, or something pathologically wrong with gay people, then the net effect of that will be to cause a reduction in those attitudes (coupled with communities of transgressive racists or homophobes, but so what?).

* Note that one might be motivated to make a disingenuous argument even for a proposition that one has a good faith belief is true.  If one thinks it is particularly important to get others to agree that the proposition is true then one might deploy persuasive sophistry instead of the argument one actually thinks is correct.

Update:  Not only does a speaker’s credibility bear on whether we have reason to buy his arguments, but I’d wager that everybody reading this already accepts as much.  Anybody who chooses to read a better-pedigreed source as opposed to some other theoretician operating in the field has decided to discount an argument based on the credibility of its promoter.  We all do this, and it is perfectly reasonable that we do.  As there’s no difference between discounting a source qua declining to read it and discounting a source qua reading it and then remaining skeptical of what it had to say — in both, ultimately, you are discounting based on credibility — this practice presupposes the principle that DeBoer advances and Chris attacks.

Posted by: Chris | May 25, 2013

There is No Gay Germ

During the aftermath of the Jason Richwine silliness, Andrew linked to this post by Freddie deBoer, who analogizes the kinds of people who discuss race and IQ to those who make the gay germ argument, in that the proponents of both are draw to these arguments because they confirm bigoted a priori assumptions (and thus their less-than-pure motives are reason enough to dismiss the arguments without considering the facts):

I’ve seen this blog post get passed around a few times. It’s about the origins of homosexuality. The post argues that there are good reasons to doubt the straightforward genetic theory, that gay men and women possess a specific gene or genes that cause them to feel sexual and romantic attraction to members of their same sex. I possess nothing resembling the expertise to make that determination. In my own limited way, though, I’m sympathetic to questioning the purely genetic hypothesis, as it’s always seemed overly simplistic…

Yet when I read an argument that homosexuality is caused by a pathogen, it gives me pause. I read it with defensive skepticism. Why? Because, of course, the notion of “homosexuality as disease” is old, and has been used for a long, long time in the oppression of gay people. I read the post, and it has superficial plausibility to me. But there’s no proof, yet. And when I read the comments, or find blogs that have linked to the post, my worst fears are confirmed: the commenters are repeatedly and explicitly comparing homosexuality to pedophilia, they are talking about gay sex as “wanton sex,” they are using the language of deviance and disorder. The author of the blog post himself says: “Of course it’s a mental disease: a Darwinian disease, which is the only reasonable definition of disease. Curable? Who knows? Preventable? Likely.” Whatever the truth of the origins of homosexuality, I want nothing to do with the people who are arguing that the origins are pathogenic.

It turns out that people who are inclined to see homosexuality as caused by a pathogen are also people who are inclined to see homosexuality as disordered, deviant, and wrong. Could any functioning human intelligence be surprised by this? And yet if I apply the kind of thinking Andrew endorses when it comes to race and IQ, I would have to ignore this connection and suspend skepticism, as though doing so is somehow in service to science.

This is bullshit.  Factual arguments should be able to stand on their own, independent of the repute of those who put them forward.  What more, this censoriousness only abets the bigots, as deBoer himself aptly noted only a couple days prior:

Racism thrives on conspiratorial thinking and the self-definition of racists as an oppressed group. When you say things that are true aren’t, and especially when you do so in a way that treats the other point of view as forbidden, you play directly into their hands. I cannot imagine an easier way to give them fuel for their argument than to say that certain test results don’t exist when they do. Perhaps it’s easier to argue that way, and perhaps it’s more emotionally satisfying, but it hurts the antiracist effort in the long run. More to the point: what are you so scared of? It amazes me how often I interact with white liberals who, despite being perfectly correct on the merits, talk about race in a state of absolute panic. I hate to cast aspersions but I sometimes suspect people I know secretly find the case against racism to be weak, and are afraid that if they have to argue, somehow, the racists will win.

Bullshit. The case against inherent racial inferiority is correct. The moral and analytic argument is on our side. You have to have the guts to confront the facts and make the case. Just as no one supposes that the racial achievement gap in grades, graduation rate, and college are somehow proof of racial inferiority, no one should mistake the perceived IQ gap as meaning something when it doesn’t. Don’t be afraid, and don’t play their game. Stop getting panicky about race talk and engage. It’s your moral responsibility.

I endorse this iteration of deBoer wholeheartedly and I hope to take up his challenge to rebut the previous deBoer.  I know we’ve been down this road before here, but I want to state the case as clearly and as jargon-free as possible, so that future deBoers need not discuss the issue “in a state of absolute panic.”

The gay germ theory is wrong.  It has no truth to it and its transparent falsity should be what causes one to cast aspersions about its defenders’ motives, not the other way around.  One suspects its proponents recognize this too: for instance, if you read the argument laid out by Greg Cochran that deBoer linked to or the Cochran’s article we cited earlier, you note that he avoids making a positive case for his own preferred explanation.  Instead, both articles spend most of their ink attacking various genetic or sociological explanations only to slot in “some virus probably caused it” at the end.  It is simply a germ of the gaps, a raft of magical thinking and hand-waving that avoids scrutiny based on the flaws of its competitors.  As with the Discovery Institute‘s intelligent design sham, when the argument is shorn of its critique of the mainstream explanations and judged on its own merits, it collapses.  In particular, the gay-germ theory betrays an ignorance about how viruses actually operate and how our bodies act in response to them.

Read More…

Posted by: captainfalcon | May 15, 2013

Skowronek versus Neustadt on the Presidency

The crib sheet on Skowronek’s The Politics Presidents Make, a book on which we periodically post, would have it that Skowronek’s theory of the presidency’s role in American politics stands opposed to the analysis advanced in Richard Neustadt’s Presidential Power in that they advance competing conceptions of “political time.”  I think, to the contrary, that Skowronek accepts that something like Neustadt’s premodern / modern divide operates in tandem with his own cyclical conception of political time.  But Neustadt got the implications of presidential modernity and premodernity exactly backwards.

Neustadt, at least on Skowronek’s telling, argued that there was a fundamental disjunction between the premodern presidency (the presidency prior to the 1940s) and the modern presidency.  Premodern presidents could adequately discharge their responsibilities by acting like clerks.  Because “vital national interests were only sporadically to the fore,” the president was not called upon to decide between a number of (contested) programs of political action; he could, instead, simply administer a political system on whose legitimacy and shape there was basically a consensus.  By contrast, modern presidents were confronted with a politically contentious landscape, and were therefore called upon to “strik[e] bargains among independent interests and institutional actors who were themselves possessed of a stubborn tendency toward gridlock.”

The crib sheet has it that Skowronek, by contrast, articulates a cyclical conception of political time.  The presidency is not divided into the “modern” and the “premodern.”  Instead, our constitutional commitments entail that presidents have both an “order-affirming” and “order-shattering” function: as chief magistrate of the United States, the president is tasked with maintaining the stability of the nation, but, as the most visible focal point for politics, his job is to blaze a new trail.  Out of this dynamic, Skowronek argues, recurring patterns arise.  Sometimes, when a set of ideological understandings and interest-alignments is robust, order-affirmation calls for a president who acts as a steward of the predecessor who presided over the construction of those understandings and alignments (this is the “affiliated” president).  Other presidents (“disjunctive” presidents) are in power during the demise of an outmoded calcification of interests and ideologies; they are followed by a president who “reconstructs” a new political consensus, carrying out his constitutionalized order-affirming purpose by reaching back into history for a (perhaps mythologized) ethos, which, he will argue, his reconstruction serves to restore.  Finally, “preemptive” presidents are presidents who are opposed to, but operate within, the prevailing political consensus, securing what gains they can within the contextual limits of their mandate.

On this telling, Skowronek’s theory stands opposed to Neustadt’s in positing a continuity between the presidency’s present and past.  But this telling elides a noteworthy, and I think correct, passage in which Skowronek assimilates the insights of Neustadt and his epigones to his framework.  Skowronek argues that the growth of the administrative state — a central fact of modern American politics — has given rise to a “paradox . . . As the power of all presidents to get things done has expanded, the authority of those best situated to reproduce political order has constricted.  The “rise” of the presidency as an instrument of government has delimited its political range as an instrument of reconstruction.”  There appear to be two interrelated reasons for this.  First, as presidential administration has expanded, the ability of a single agent — the president or the office of the president or whatever unit is capable of acting coherently — to control it has diminished.  Whereas Thomas Jefferson could ensure that the vision he articulated was actually implemented, the last reconstructive president, Ronald Reagan’s, reconstruction “was, relatively speaking, more rhetorical than institutional.”  He controlled only his voice.  Second, and related, the expansion of presidential administration has resulted in the accretion of, to borrow a phrase from the law, “reliance interests.”  As the presidency expands, more constituencies become more invested in the presidential status quo, and effective political action becomes commensurately more challenging.

So, even on Skowronek’s telling, there is a premodern / modern divide in the presidency.  But, politically, modern presidents are impotent relative to their premodern counterparts — the opposite of Neustadt’s view that the premoderns were mere clerks.

Posted by: Chris | April 24, 2013

The Libertarian Case Against Gay Marriage

Is pretty silly:

The gay-liberation movement started as a protest against state oppression. The earliest gay-rights organizations, such as the Mattachine Society and the Daughters of Bilitis, sought to legalize homosexual activity, then illegal per se. The movement was radicalized in the 1960s over police harassment. A gay bar on New York City’s Christopher Street, known as the Stonewall, was the scene of a three-day riot provoked by a police raid. Tired of being subjected to continual assault by the boys in blue, gay people fought back—and won. At the time, gay bars were under general attack from the New York State Liquor Authority, which pulled licenses as soon as a bar’s reputation as a gay gathering place became apparent. Activists of that era concentrated their fire on the issues that really mattered to the gay person in the street: the legalization of homosexual conduct and the protection of gay institutions.

As gay activists grew older, however, and began to channel their political energy into the Democratic Party, they entered a new and more “moderate” phase. Instead of celebrating their unique identity and history, they undertook the arid quest for equality—which meant, in practice, battling “discrimination” in employment and housing, a marginal issue for most gay people—and finally taking up the crusade for gay marriage.

Instead of battling the state, they began to use the state against their perceived enemies. As it became fashionable and politically correct to be “pro-gay,” a propaganda campaign was undertaken in the public schools, epitomized by the infamous “Rainbow Curriculum” and the equally notorious tome for totsHeather Has Two Mommies. For liberals, who see the state not as Nietzsche’s “cold monster” but as a warm and caring therapist who is there to help, this was only natural. The Therapeutic State, after all, is meant to transform society into a liberal utopia where no one judges anyone and everyone listens to NPR.

These legislative efforts are largely educational: once enacted, anti-discrimination ordinances in housing, for example, are meant to show that the state is taking a side and indirectly teaching citizens a lesson—that it’s wrong to discriminate against gays. The reality on the ground, however, is a different matter: since there’s no way to know if one is being discriminated against on account of one’s presumed sexuality—and since gays have the choice not to divulge that information—it is impossible to be sure if such discrimination has occurred, short of a “No Gays Need Apply” sign on the door. Moreover, landlords, even the bigots among them, are hardly upset when a couple of gays move in, fix up the place to look like something out of House & Garden, and pay the rent on time. The homosexual agenda of today has little relevance to the way gay people actually live their lives.

Even granting various libertarian premises, I do not see how this argument holds.  One of those things is clearly not like the others.  Gay marriage (and, relatedly, DADT) involves explicitly, not implicit, discrimination and it is done by the state, which is bad, not the individual, which would be good.  Good on Lure hero Jon Rauch for civilly pointing this all out.

Posted by: Chris | April 23, 2013

Are the Tsarnaevs White?

Salon and the conservative internet apparently responded to the Boston bombings by having a weeklong slapfight over race.  David Sirota kicked things off by writing a confused article that openly hoped that the bombers were white  so that we can start profiling against white men and denude them of their “privilege.”  This of course had the intended effect of trolling the conservative media: Drudge put out an APB and Limbaugh promoted the piece as the way all liberals think.  When the identities of the bombers were revealed, these same conservatives declared victory.  I was flitting through the radio on the way back from the doctors Friday morning and Laura Ingraham, for instance, was weirdly jubilant and attacked people like Sirota who were speculating the bombers would be right-wing or anti-government extremists.  But today Salon has also declared victory in this pointless mini-feud, with Joan Walsh arguing that the Tsarnaev brothers are in fact white and therefore everything Sirota wrote was absolutely right.  However, aside from Walsh, ineptly, no one seems to stop and define their terms.  What exactly does it mean to be white?

There are, unsurprisingly, numerous answers to that question and the operative response is: as opposed to what?  As Walsh notes, the Census Bureau uses the term Caucasian, which encompasses individuals descending from “the original peoples of Europe, the Middle East, and North Africa.”  This definition is as opposed to the other race classifications offered by the Census Bureau (being of African, Asian, Native American, or multiracial descent).  Walsh and many others (including the Daily Show) also note that Chechnya, from which the Tsarnaevs ultimately emigrated, is literally in the Caucasus region.  But the term Caucasian can be misleading.  It stems from an archaic and vaguely racist division of humanity into five categories: Negroids (i.e. Africans), Mongoloids (i.e. East Asians, Pacific Islanders, and Native Americans), Australoids (i.e. Australian aborigines), Capoids (the native people of Southwestern Africa), and Caucasoids (i.e. everyone else).  The name Caucasoid refers to the hypothesis that the proto-Indo-Europeans originated from the Caucasuses and from there displaced and repopulated much of Europe, the Middle East, and South Asia.  Modern genetics has significantly complicated this picture even if the general thrust holds.  In addition, not all current residents of Caucasia originated from there: Azers and the many of the people of Chechnya’s neighbor Dagestan are Turkic and migrated to the region from near Mongolia roughly a millennium ago.  But the origin of “Caucasian” points to a much broader definition of “white” than I think any of Salon or the conservative media used.  Until just recently, for instance, all people from the Indian subcontinent were considered Caucasian rather than Asian by the Census Bureau (as they also hypothetically originate from the Caucasus region).  Further, by the current definition, all 19 9/11 hijackers would be Caucasians, and it is relative to these men that Sirota initially defined “whiteness.”

So it seems all participants are using some definition of white that excludes Arabs and potentially others from the Middle East.  But which?  The obvious one is religion (e.g. Muslims as non-white), but this seems immediately deficient, given for instance, Muslim Bosnians and Eygptian Copts.  Another would be language: groups that traditionally speak of Indo-European (or some class of Indo-European) languages are white and all others are not.  But this runs afoul of the same problem that “Caucasian” did: one imagines Sirota would not have counted an Urdu-speaking Pakistani or a Farsi-speaking Iranian terrorist as his hoped-for white suspect.  Further, it introduces problems with the Finns, Basques, and Hungarians, who do not themselves speak Indo-European languages.

Geography offers a more promising definition: those who originate primarily from the continent of Europe are white and all others are not.  This definition works well in most instances and probably most approximates the common usage of “white.”  Unfortunately for our purposes, Chechnya lies in the one area where the definition of “Europe” is still unsettled.  Commonly, the eastern extent of Europe runs from the Ural Mountains to the Ural River and from there to the Caspian Sea and the southern extent runs through the Mediterranean, the Bosporus Straits, and then into the Black Sea.  However, these two lines do not meet directly and a connection must run through the Caucasus region.  Depending on where one draws that boundary, Chechnya is either European, Asian, or split between continents.  Even if this issue is resolved, using geography just kicks the definition issue over to the word “originate.”  Human populations are inherently transient and no one group has been in any location forever.  One would suspect the Russians of Novosibirsk or the Mayflower descendants in Boston would still count as European, despite their 400 year or so tenure outside Europe.  But what of the Turks of European Turkey, who have only been residents of Europe some 200 years longer?  Or the Hungarians, who migrated from the central Asian steppe over a millennium ago?  Are they European?

Genetic markers, by tracking people and not places, at first seems to circumvent this problem.  The aforementioned Boston brahmin, for instance, have more in common genetically with the English their ancestors fled than the Native Americans their ancestors wiped out.  European Turks are still identifiably Turkic while Hungarians appear to have mostly assimilated with the native Slavic and German people they displaced.  But the Chechens remain problematic.  Though the data are scarce, Chechen mitochondrial DNA (which are inherited almost entirely from the  mother) appear to show a large number of polymorphisms in common with other Eastern European populations but their Y-chomosome DNA (which are inherited entirely from the father) show a large number of polymorphisms in common with Middle Eastern populations.*  This hybrid pattern is common and typically indicative of repeated invasion/subjugation of the mtDNA population by the Y-DNA population: it is, for instance, common in Mexico and the Caribbean.  This also accords with history, as Chechnya has been the site of repeated incursions of Turkic, Iranian, and Arabian peoples into Europe.  It does not, however, make the initial question any easier.  One would have to take SNP samples of both Tsarnaev boys to see whether they tend more “European” or more “Middle Eastern” (and you might even get the unsatisfactory answer that one but not the other counts as “white”).

So then, are the Tsarnaevs “white?”  It depends on what you mean, though the most appropriate response is still “it shouldn’t matter.”  Sirota, Walsh, and their various right-wing interlocutors are all wrong for making ill-informed and poorly-examined conclusions about an unknowable irrelevancy.

*mtDNA and Y-DNA experience no recomination unlike autosomal DNA and are thus excellent sources for molecule clocks and tracking genetic ancestry.

Posted by: Chris | April 23, 2013

On the Lack of Openly Gay Athletes

A recent study undermines one potential explanation for the paucity of gay men in sports, noting that closeted gay men are more likely to be competitive or overachieving than their like straight peers:

In a study recently published in the journal Basic and Applied Social Psychology, researchers interviewed 195 male colleges students who identified as either heterosexual or a “sexual minority.” They found that the sexual minority men based their sense of self-worth on “academics,” “appearance” and “competition” more so than the straight guys. Interestingly, the amount of time the gay men had spent hiding their sexual identity positively predicted their investment in these areas. The researchers also developed a way to objectively measure the amount of stigma each participant faced in their particular environment by evaluating their home state’s general stance toward sexual minorities. That measure of stigma also positively “predicted the degree to which young sexual minority men sought self-worth through competition.”

Granted, the sample size is not all that high and there is some potential for self-selection in participation in the survey, but an interesting result nonetheless.
Interestingly, Andrew seems to have independently picked up on the same dichotomy between team and individual sports (and between gay men and lesbians therein) we did:
But there’s also the issue of team sports versus individual sports. Openly gay male athletes are more common in, say, swimming and diving than in football or baseball. The culture of heterosexuality in all-male teams, especially teams united by a common goal of winning games, can be overwhelming – especially given the dynamics Joyner notes.
Posted by: Chris | April 2, 2013

Legos, Boys’ and Girls’

After receiving a ridiculous amount of abuse from the darker corners of the Internet for simply proposing the idea in 2012, Anita Sarkeesian published her first video on  sexism in video games last month.  As it is the first in a many part series, I intend to give Sarkeesian the benefit of the doubt and wait for the remainder of the videos to be produced before posting my thoughts, though, as it stands, the first entry is problematic.  However, she is nothing if not prolific and her series on the invidiousness of Legos has a separate set of problems worth expounding on.

Here are the two videos on Legos, so you can judge them for yourselves:

Sarkeesian opens by criticizing the rather unappealing Lego Friends sets aimed at preteen girls and contrasting them with those sets targeted towards boys (also known as Legos in the generic).  While I agree with Sarkeesian that the Lego Friends collection looks godawful (though I doubt either of us is in the target demographic), I find myself disagreeing with Sarkeesian’s reasoning for why it exists.  Boiled down, Sarkeesian blames Lego itself and in particular its marketers for their presumed-to-be retrograde attitudes on gender roles for the disparity between “boys’ Legos” and “girls’ Legos.”  She notes that Legos were initially conceived of as a unisex toy for the whole family but that the design and marketing of Legos has shifted in an increasingly male-oriented direction.  Parallel to this trend, she records the various stillborn attempts that Lego has made to appeal to female consumers in more explicitly gender-charged terms.  Where Sarkeesian’s videos fail, though, is in their attempt to explain why these trends might occur.  She makes no attempt to grapple with the possible motivations of Lego executives; the existence of a disparate outcome is sufficient evidence for malice and an insidious conspiracy against women.  However, I think another explanation better accounts for Sarkeesians observations while also trying to consider Lego executives as rational actors.

On its face, Sarkeesian’s explanation is absurd.  Why would a firm intentionally cut out 50% of its potential customers, especially one that began with the assumption that its product had universal appeal?  Is the appeal of keeping women out of engineering so strong as to overwhelm a company’s profit motive and their initial design philosophy?  I think part of the problem is the belief, in certain segments of the left, that human nature is a blank slate, molded for good or ill by powerful external forces.  Thus, advertising does not appeal to innate desires but manufactures them, operating as the functional equivalent of mind control.  Thus when one sees a correlation between marketing and revealed preferences of consumers, the obvious interpretation is that the advertisers are to blame (and then the task simply reduces to riffling about for a reason why the advertisers would do such a thing to the impressionable public).

Without that assumption, a different narrative arises.  Perhaps Lego’s initially universal product did not have an equitable appeal across genders.  For whatever reason (an greater affinity for abstract play? better innate spacial reasoning?), boys tended to play with Legos more than girls.  The effect needed not be large either.  Behavorial economists have discovered that people gain utility from engaging in identity affirming activities and this can magnify minor disparities in interest across genders as more and more potentially Lego-curious girls shy away from the product until the primary consumers are boys and a handful of identity oblivious girls.  How can a firm maximize returns when market research reveals an unexpected gender gap of this magnitude?  By rejiggering the product and advertising to better appeal to their primary consumers, while spinning off another brand that lacks the male taint and configuring it to appeal to the 50% of the public not buying their product.

This course of action perfectly reflects the evolution of Lego’s design and marketing as recounted by Sarkeesian, but she insists, based on no evidence but her own self-righteousness, that the causality flows in the other direction.  Indeed, in a telling segment, Sarkeesian dismisses the “four years and millions of dollars” market research that motivated the Lego Friends collection because it came to the wrong conclusion, quoting another Lego-skeptic who wrote that facts merely “give the company an excuse for reproducing the same old gender stereotypes that we see throughout our culture” and amazingly contending that Lego’s research, if anything, proves just how powerful the mind control of Lego’s previous ad campaigns have been.  Lego’s methods may work in practice, but they do not work in theory and that’s likely where Sarkeesian’s real problem with the company lies.

Posted by: captainfalcon | March 23, 2013

Obamacare and Same Sex Marriage

A common argument for the constitutionality of Obamacare under the Commerce Clause was that because, virtually everybody was going to require medical care at some point Congress wasn’t forcing people to enter the healthcare market (and its derivative health insurance market).  Instead, Congress was merely regulating the timing and manner of their payments for healthcare of which they would eventually partake.  Sure, some people — hermits, those who die suddenly, medical skeptics — would never enter the healthcare market, but the essence of a national legislature is that it has the power to solve national problems even when those problems don’t affect a few outliers.  (The hook on which this idea about the essence of national legislative power was hung is the line in Wickard v. Filburn about how Congress can reach activity that in aggregate substantially affects interstate commerce, but that hook should not be confused with the idea itself, which is an overwhelmingly plausible claim about national legislative power generally.)  Moreover, courts should defer to Congress because it is the branch with the democratic legitimacy and institutional competency to identify and develop solutions to national problems.

Now consider § 3 of DOMA, defining marriage as a union of one man and one woman.  Proponents say that this is a rational decision by Congress to incentivize stable procreative unions and thereby ensure that the population continues to grow and children continue to be raised by their parents.  Opponents argue that DOMA must be motivated by animus as opposed to an interest in incentivizing procreative unions in large part because DOMA’s definition of marriage covers non-procreative couples (those who are sterile, those who don’t’ want to have children, etc.).  Thus, DOMA plainly cannot be about incentivizing procreation and the raising of children by their parents — protecting heterosexual marriage is simply inapposite to that goal.

Doesn’t this argument against the constitutionality of DOMA run directly contrary to the principles underlying the argument in favor of the constitutionality of Obamacare with which this post began?  If Congress has the power to define and solve national problems without regard to whether there are outliers who won’t benefit from those solutions, then shouldn’t its definition of the problem of incentivizing procreation and its traditional marriage solution stand?  At the very least it should survive rational basis scrutiny, which is still the law under Lawrence v. Texas.

There is obviously one principled way out here — reject our ideology of liberal democratic proceduralism and form your own independent substantive judgment (the bleeding obvious) that the goods flowing from requiring the recognition of same sex marriage outweigh the (paranoiac’s) “risks” it poses, just like the goods flowing from requiring universal health insurance coverage outweigh the costs to liberty imposed by the individual mandate.  But I don’t see a way out from within the liberal democratic proceduralism that most proponents of Obamacare and opponents of DOMA purport to embrace.

Related see here.  I particularly recommend Eastman’s essay detailing the procedural abuses and doctrinal sleights of hand committed by proponents of same sex marriage.  I say hear, hear to them, but one can see how somebody who values unthinking adherence to the letter of the law in all circumstances would be distressed.

Posted by: i82much | February 27, 2013

Celebrities in classic pictures

Mr Bean

Some of these are really good. See the rest at

Posted by: Chris | February 14, 2013

The Blackhole of DCPS

Did you know that the District spends more than double per student than Fairfax County  ($29,000 vs. $13,000), even though:

FCPS Graduation Rate (2011): 91%

DCPS Graduation Rate (2011): 53%

FCPS average M+CR SAT scores (2011): 1104

DCPS average M+CR SAT scores (2011): 819

I knew DC had worse outcomes than Fairfax on average, so I was surprised to find out per student spending is so lopsided in the other direction.

Posted by: Chris | February 10, 2013

Anthropology and Science

Roughly two years ago, the American Anthropological Association caused a commotion when it excised references to anthropology from its mission statement and long range plan.*  Some of practicing anthropologists were understandably appalled by this decision and the AAA eventually walked back the implications of the change to amount to “abortions for some, miniature American flags for others.”  But perhaps the initial stance (or at least the initial interpretation) was correct: many anthropologists do not operate as if their field were a science and the change simply reflected this reality.   Science is concerned with the “why,” understanding how processes operate and seeking unifying explanations for natural phenomena.  It is also definitionally positivist and dispassionate.  A good swathe of anthropology, on the other hand, concerns itself merely with the “what” with an ample helping of the “should,” simple travelogues of disconnected anecdotes used to motivate advocacy and normative harangues.

I bring this up because Jared Diamond has once again upset the anthropology community with a major publication.  Razib Khan and subsequent links have a good summaries of the issue.  I think part of the dispute boils down to linguistics.  Diamond is an evolutionary biologist (to a certain extent) and discusses other subjects in the same fashion.  Thus, traditional societies are treated like the coelacanth or the crocodile: living fossils that shed light on past societies.  In a certain respect, this is quite literally true.  Hunter-gatherer groups have changed less than agricultural ones over the past 10,000 years and thus better resemble human societies as they existed until recently.  But to the ears of an anthropologist, this cold analysis comes of as judging and precipitates worries that it could lead, through a series of convoluted steps, to the repression of native peoples.  Which is of course why those segments of anthropology are not scientific.  Facts are not to be disputed, but their motives maligned.

The best example of this comes from a review of Diamond’s previous book Guns, Germs, and Steel that was billed and bills itself as a thorough factual debunking of Diamond’s work.  But on examination, no contrary facts are ever leveraged by the author, Jason Antrosio, a professor of anthropology at Hardwick College, and much of the dispute boils down to ethics rather than truth.  I should admit at this stage to rather liking Guns and, to a lesser extent, Collapse, which the review also attacks, despite their occasional falsehoods.  But none of those questionable facts (like Diamond’s inaccuracies about Norse Greenlandic diets) are ever brought up.  Instead, against Diamond’s geographic arguments for why Eurasians had the titular guns, germs, and steel, Antrosio rants about the evils of imperialism:

What Diamond glosses over is that just because you have guns and steel does not mean you should use them for colonial and imperial purposes. Or handing out smallpox-infested blankets from sick wards. One of the supposed values of Western civilization is to care for the sick, not to deliberately spread disease. “Pizarro had the capacity and resources to behave with remarkable brutality in the New World. But the mere capacity to behave brutally does not absolve him from having done so” (Errington and Gewertz, Excusing the Haves and Blaming the Have-Nots in the Telling of History, 2010:340).

Diamond has almost nothing to say about the political decisions made in order to pursue European imperialism, to manufacture steel and guns, and to use disease as a weapon.
He also accuses Diamond of glossing over the role of Cortes’ etc. native allies in their conquest of the Americas, which (a) Diamond mentions repeatedly and (b) is not even remotely germane to the question the book seeks to answer, namely why Cortes was landing in Mexico in the first place.  Most revealingly, he also calls Guns a “one-note riff” because it focuses so completely on the downstream effects of “early adoption of agriculture, the big domestic animals, and the longitudinal gradient facilitating trade and interaction,” which is of course exactly what a scientific endeavor is supposed to do.
But Antrosio seems to prefer obscurantism and politicization to understanding.  He praises, as an alternative to Diamond’s macro-history, a similar book by Marxist historian Eric Wolf called Europe and the People Without History, which he argues better answers the question “why Europe” than does Diamond.  That Antrosio repeatedly elides (or misunderstands?) that Diamond’s book actually is actually investigating “why Eurasia” and thus ends right as Wolf’s book picks up is another hint that his review is actually a polemic against European colonialism rather than Diamond or his work.  But even his treatment of Wolf in a separate review is cursory and politicized.  He argues that Wolf demonstrates that political consolidation in Europe between 800 and 1400 explains why Europeans, long residents of the backwater of Eurasia, stood astride the globe within 500 years:

The second factor Eric Wolf turns to is political consolidation. Here after A.D. 1000, there was an

intensification and extensification of cultivation. This was particularly true of areas north of the Alps, where the introduction of triennial rotation by means of the heavy horse-drawn plow resulted in an absolute increase of the surplus product. Clearing of the dense forest cover of continental Europe and plowing up of the European plain expanded the arable from which surpluses could be taken. Both processes took place under the aegis of tribute-taking overlords, and both, in turn, increased the political power of the dominant class. Increased production of surpluses further enhanced the military capability of this class, which rested upon the ability to sustain the high cost of war horses and armor. (1982:105)

Here Wolf is obviously discussing things related to Diamond’s Guns, Germs, and Steel: horse-drawn plows, agriculture, war horses and armor. And it is true that you need non-human animal muscle power and certain technologies to increase surplus production. However, Wolf explains this all under the heading of “political consolidation”: the key factors are political and economic. Plows, non-human animal muscle power, and armor were available across Eurasia. What needs to be explained is how they were coming together in the northwest part of the continent during this period, and under the aegis of relatively small-scale polities. Here again, the key motivations were political and economic–Wolf describes how these polities used war abroad, commerce, and enlarging the central domain…

Wolf proceeds to discuss state making and expansion. Interestingly, this seems driven in part by what has been called a crisis of feudalism around A.D. 1300: “Agriculture ceased to grow, perhaps because the available technology reached the limits of its productivity. The climate worsened, rendering the food supply more precarious and uncertain. Epidemics affected large numbers of people debilitated by a poorer diet. . . . The solution to the crisis required an increase in the scale and intensity of war” (1982:108-109). In other words, to a certain extent there were both internal strengths–and weaknesses–that spurred increased militarization and the search for new frontiers.

Wolf’s thesis, at least as filtered through Antrosio, certainly seems meritorious.  But Antrosio is unconcerned with the merits of Wolf’s argument, except insofar as it provides cocktail anecdotes to impress the uneducated (“did you know Muslim conquerors took Europeans as slaves?!”).  Instead, his review descends into a meta-analysis on Wolf’s place in anthropology and other writers with similar thoughts and how they are more pure than the popular heretic that is Diamond.  This all might be true, but a more scientifically-minded person would continue to probe, to try to understand.  For instance, why did Europe experience such remarkable political consolidation and expansion of capital between 800 and 1400?  Why were did these processes not occur with the same effects in China or India or Turkey?  Charles Tilly, who literally wrote the book on the determinants of state-making in Europe, argues that incessant conflicts between polities spurred political and economic development in Europe during the first half of the second millenium AD.  As to why Europe had much more inter-state wars than comparable regions of Eurasia, Paul Kennedy blamed the continent’s rough geography, which prevented the formation of a hegemonic empire in Europe as had occurred in the remainder of littoral Eurasia, the same argument cited, by the way, in the epilogue of, yes, Guns, Germs, and Steel.  The combination of Wolf, Tilly, and Kennedy help elucidate for instance why, despite the cannon being invented in China and quickly adapted by the Islamic empires, by 1453 Mehmed II had to hire European engineers to design his bombards for the siege of Constantinople and by 1500 the cannonry on Spanish galleons far outclassed that of anything that plied the East China Sea.

But, like many of his cultural anthropologist colleagues, Antrosio is more concerned with non sequitor obscurantism and open political advocacy to want to understand the world as it is or was.

*Among other things, the elevation of science dismisses other ways of knowing like shamanism and reading goat entrails:

These facts alone, however, do not explain the entire picture, and I am leaning toward a quiet applause for the distancing of the discipline from “science” – especially as a cultural anthropologist. This is not to say that we should ignore the rigorous methodologies that we utilized, but instead, to include others not traditionally represented. When we examine the term “science”, we uncover a distinctly Western framework for explaining the world around us. “Science” has become privileged globally, and for many, represents the pinnacle of human achievement.
Historically not included under the rubric of “science”, however, are the thousands of distinct indigenous knowledge systems that exist around the world. Indigenous knowledge is only recently being understood and accepted by those in the West (and in anthropology) as the equally complex (and equally valid) indigenous counterpart to Western science. For the AAA, maintaining the use of the term “science” in their mission statement serves to maintain the colonizing, privileging, superior positionality of anthropology that continues to plague the discipline.
The “science-free” mission statement allows for the inclusion of a number of perspectives and approaches that have been and remain marginalized, not only in anthropology, but in much of their social and economic existence. In short, the old mission statement privileged “science” over and above the knowledge systems of the very people we have been studying and working with for generations. It is well past the time for this to change. Do anthropologists still use science? Of course, and science may well offer the most appropriate methodology for many. Still, we must also recognize that there are other means to knowing, exploring, and explaining.
Posted by: Chris | January 23, 2013

The Geography of Abortion

The Daily Beast has an article commemorating the fortieth anniversary of Roe v. Wade that opens with this interesting observation:

To understand more fully the complex state of access to abortion services in America, The Daily Beast identified and confirmed the location of the country’s remaining 724 clinics and calculated the distance from every part of the country to its closest clinic. We compiled our list using data available from abortion advocacy groups and anti-abortion-rights sources, and then we called each clinic to verify their information to create as comprehensive a list as possible. We also took care to obscure exact address data. Here is some of what we found:

The Panhandle-Dakotas Divide

The clearest trend on the map is the dearth of clinics through the center of the country—from northern Texas through Kansas, Nebraska, South Dakota, Wyoming, and North Dakota. Roughly 400,000 women of reproductive age (between 15 and 44) live more than 150 miles from the closest clinic in this region. The county farthest away from an abortion clinic is Divide, N.D. All of these states except Wyoming require 24-hour waiting periods between the time a woman schedules an abortion and the procedure.

Often, the states with the fewest clinics also have more restrictions. These are six of the many states that recently curtailed access to medical abortion—also known as the abortion pill—by banning telemedicine, a method doctors use to prescribe medication to terminate a pregnancy over a video chat, a convenience to people who live in rural areas.

The piece was accompanied with this map, demonstrating the middle American abortion desert:


Which is strikingly similar to this map of the US:


Except the second map doesn’t represent the density of abortion clinics or Emily’s List donors, but McDonald’s franchises.  Despite this, the resemblance is clear.  For instance, the greatest abortion clinic and McDonald’s lacunae both overlap out in western North Dakota:

FOR MAXIMUM MCSPARSENESS, we look westward, towards the deepest, darkest holes in our map: the barren deserts of central Nevada, the arid hills of southeastern Oregon, the rugged wilderness of Idaho’s Salmon River Mountains, and the conspicuous well of blackness on the high plains of northwestern South Dakota. There, in a patch of rolling grassland, loosely hemmed in by Bismarck, Dickinson, Pierre, and the greater Rapid City-Spearfish-Sturgis metropolitan area, we find our answer.

Between the tiny Dakotan hamlets of Meadow and Glad Valley lies the McFarthest Spot: 107 miles distant from the nearest McDonald’s, as the crow flies, and 145 miles by car!

Suffer a Big Mac Attack out there, and you’re hurtin’ for certain! For a coupla hours, at least, unless graced by the tender blessings of “manna from heaven” – that is, a fast food air drop from the Medi-Copter.

The similarity stems not from any connection between McDonald’s and Planned Parenthood’s clientele nor because abortion restrictions cause people to eat healthy, but because both maps are simply reflections of population density.  North Dakotans have to drive far to fill their stomachs and empty their uteri because few people live in that part of the country (for a variety of reasons) and both locations tend to locate themselves where people cluster (for a variety of reasons).  So the causal argument that the Beast put forward, about abortion restrictions discouraging abortion clinics is interesting but baseless.  What they actually observed is that sparsely populated states tend to vote Republican (for a variety of reasons) and thus tend to have more abortion restrictions and fewer clinics (for a variety of unrelated reasons).

Correlation does not equal causation.

Posted by: Chris | January 15, 2013

House Republicans Now Basically John Hinckley

And not just because they wish the Reagan administration ended in 1981.  From Politico:

That will be a tough sell, says Chris Chocola, president of the conservative Club for Growth. “What’s more irresponsible: continuing on this path to fiscal ruin, or changing the path?” he said. “There is a high level of frustration, and a willingness to do something dramatic. They think this is the only way to get Obama’s attention.” [emphasis mine]

Lest you think Count Chocola is exaggerating, Politico also quotes a member of the House leadership:

“I think it is possible that we would shut down the government to make sure President Obama understands that we’re serious,” House Republican Conference Chairwoman Cathy McMorris Rodgers of Washington state told us. “We always talk about whether or not we’re going to kick the can down the road. I think the mood is that we’ve come to the end of the road.” [emphasis again mine]

So we have moved from the realm of hostage taker with coherent goals to deranged shooter hoping to catch the President’s attention with “something dramatic.”  I imagine the gesture will be about as inviting to President Obama as Hinckley’s was to the now openly sapphic Jodie Foster.

H/T Jon Chait.

Posted by: i82much | January 15, 2013

Feed me all your money.. and souls

Posted by: i82much | January 11, 2013

Not the Onion

Screen shot 2013-01-10 at 10.31.57 PM
I think this is the strongest argument I’ve seen yet.

I did like the Onion’s recent take.

Posted by: captainfalcon | January 6, 2013

Skepticism and Conservatism: A View from 1956

I was browsing JSTOR for articles on the connection between skepticism and conservatism and I came across “The Conservative Implications of Skepticism,” a prescient (if flawed) piece in the 1956 edition of The Journal of Politics written by Norman R. Phillips (byline: “Mr. Norman R. Phillips has lectured on political problems in the Chicago area, where he has been active in the Republican Party organization.”).

His thesis is that the prevailing skepticism of the day — engendered by “the military catastrophes and social dislocations of the recent past . . . psychological irrationalism, the Heisenberg principle of indeterminacy, the linguistic subjectivism of the general semanticists [and] the ethical relativism implicit in the work of many cultural anthropologists and social historians” — would result in “a revival of traditional conservatism with a force comparable to that which led to the spread of intellectual radicalism under the stimulation of the Great Depression.”  Interestingly, he believed that this position was in need of defense because “most conservative writers today profess to see in skepticism the arch-opponent of conservatism.  Thus Peter Viereck . . . treated the ‘nihilists’ who denied that we could obtain absolute truth as the arch-enemies of conservatism.  To cite another case, Russell Kirk . . . refused to classify Bolingbroke as a conservative because of his skepticism in religious matters and mentioned David Hume’s philosophy as constituting one of the five major schools of radical thought.”

Phillips’s defense of the conservative implications of skepticism is similar to Khan’s, but crisper in its distinction of conservatism from skepticism (no blurring of the doctrines into the neologistic “epistemic conservatism”) and purged of the patina of modern-sounding empiricism.  Phillips defines skepticism as “the spirit of doubt, caution, and intellectual humility . . . the doctrine of the uncertainty of knowledge due both to the subjective nature of human mental processes and the imperfections in the conditions of knowing.”  Conservativism, meanwhile, is “the attitude which stresses the value of authority and tradition.  By authority is meant that something which the individual respects as being superior to his own private judgment . . . By tradition we mean the beliefs, customs and accumulated knowledge which are transmitted from generation to generation . . . The conservative emphasis upon authority and tradition is due to the act that these are super-personal forces, above the whims characteristic of a capricious human nature.”

Hence the connection between conservatism and skepticism.  They are:

[B]ased upon a common basic assumption concerning human nature.  Initially, of course, skepticism signifies a repudiation of the myths, dogmas, and illusions which the conservatives so zealously defend.*  But skepticism is such an extreme negation of human standards that it places man with his whole vast repertoire of passions and motives in the same cynical light in which the Tories customarily view human nature . . . From this common foundation, skeptics and conservatives are led to a common emphasis upon custom and tradition as the means whereby human nature may be ennobled . . . One of the clearest contemporary examples of the traditionalist nature of skepticism is the philosophy of Oswald Spengler, who maintained that skepticism points up sharply the meaninglessness and ineffectiveness of theoretical reflection and rational planning . . . [T]he meaning is clear.  The liberal and the socialist believe in a planned economy, whereas the conservatives tend to emphasize slow cautious changes in accordance with the organic character of society and the rate of social change characteristic of that society in the past.  In other words, the liberal is rationalist and scientific in his approach; the conservative, traditionalist and historical-minded.  Obviously, the skeptic, if he is to be logically consistent, should be a conservative.

Three aspects of this are interesting.  First, the fact that Phillips thought the connection between skepticism and conservatism needed to be defended to conservatives shows how far we have come toward realizing Phillips’s view that skepticism and conservatism are joined at the hip.  Second, Phillips underscores that the connection between skepticism (and scientism) and conservatism is cynical; skepticism harshly rejects the verities that conservatism seeks to conserve, but accepts their conservation because we can do no better.  Finally, Phillips demonstrates that, rhetorically powerful though it may be, Khan-style conservatives can do away with the science-talk in which they couch their conservatism; it’s old wine in new bottles.

*  This underscores how interesting it is that Phillips was active in the Republican Party.

Rule-consequentialism holds that people should always act in accordance with rules that will promote the best results overall if generally followed even if, in the particular case, the good-maximizing alternative is to violate the rules.  Act-consequentialism, by contrast, holds that people should always act to maximize the good.  Rule-consequentialism is a species of consequentialism because its rules are justified on the grounds that they maximize good consequences; it is different from act-consequentialism in that the two theories direct actors to do different things in the same circumstances.

John Rawls supplies a rule-consequentialist justification for punishment that is meant to avoid Boonin’s punishing the innocent objection.  It has two lemmas.  The first lemma is that the rule that will promote the best results overall — the “ideal punishment rule” — is a rule that only authorizes punishment of offenders.  The ideal legislature will thus draw a line between offenders and non-offenders.  The second lemma is that the “ideal judge” will invariably follow the ideal legislature’s rule; in light of the fact that the ideal punishment rule does not authorize the punishment of innocent people, the fact that sentencing a non-offender in a particular case will do more to promote the good than not sentencing him does not license a judge to punish the non-offender.

The First Lemma

Rawls supports the first lemma — that the ideal punishment rule will only authorize the punishment of offenders — by imagining an alternative practice, “telishment,” that allows a judge to “telish” an innocent person if “there is, at the time, a wave of offenses similar to that with which they charge him and telish him for” (that is: if the conditions are ripe for deterrence . . . assuming deterrence works) (Boonin, 65; quoting Rawls).  It could well be that punishment plus the wise application of telishment would promote more good consequences than just punishment, but Rawls thinks that an ideal legislature still will not enact a rule allowing for punishment + telishment: “Once one realizes that one is involved in setting up an institution, one sees that the hazards [of telishment] are very great” for, basically, two reasons: (1) the risk that judges telishing under conditions of secrecy will abuse their discretion is too high, and (2) telishment will undermine the legitimacy of punishment in the eyes of the citizenry.

Boonin disagrees.  He challenges the first lemma — that the ideal punishment rule authorizes only punishment because it does not authorize punishment + telishment — in two ways.

First, he imagines a practice superior to telishment, which he calls “u-telishment.” U-telishment authorizes punishing the innocent in cases where the deterrent effect is likely to be greater than the cases where telishment applies (e.g. vicarious punishment of children for crimes committed on their behalf by parents) and which has an effective set of procedural safeguards cabining the judges’ discretion (e.g. high standards of proof, judicial review, a culture of professionalism among the judiciary, etc.).  Boonin argues that, when we focus on these reasonably implementable technologies, we see that the ideal punishment rule authorizes punishment + u-telishment.

Second, he argues that even if the ideal punishment rule only authorizes punishment, this fact is contingent and so not the kind of reason for which we are properly inclined to reject u-punishment.  (That is: we think it is wrong and regrettable to punish the innocent, but the consequentialist thinks it is a shame that we do not have the ability to effectively punish the innocent in cases where it will promote the best results overall.)

Read More…

Posted by: captainfalcon | January 6, 2013

The Punishing the Innocent Objection

One strategy David Boonin makes use of repeatedly in The Problem of Punishment is to show that putative justifications for legal punishment justify more than legal punishment: they justify punishing the innocent.

Boonin deploys this strategy against the act-utilitarian defense of legal punishment, which holds (as you might expect) that legal punishment is justified because punishing all and only offenders brings about more beneficial consequences, net, than any alternative approach to punishment. For punishing the innocent, Boonin imagines a scenario in which a riot will occur unless an innocent person, who everybody except the state believes to be guilty, is imprisoned.  Punishment will bring about more good consequences than no punishment here, but it seems wrong to punish.  At the very least, act-utilitarianism fails to show that the line between offenders and non-offenders is morally relevant.

Boonin also deploys this strategy against the rights-forfeiture defense of legal punishment, which holds that, in offending, offenders give up their moral rights against a certain range of punishments.  For punishing the innocent, Boonin imagines a scenario in which a husband scrupulously studies the laws against spousal abuse and then, short of breaking the law, does everything he can to abuse his spouse.  It is hard to see why this person fails to forfeit his moral right against punishment if an offender — just on the other side of the legal line — would not.

The punishing the innocent objection is powerful because it simultaneously (1) shows that a putative justification for punishment does not, in fact, entail that punishment (as opposed to what one might term “punishment+”) is justified and (2) points out an implication of a putative justification for punishment that runs contrary to most people’s moral intuitions, and thus spells its moral doom.  However, a (at least rhetorical*) problem with Boonin’s emphasis on the punishing the innocent objection is that it both relies on jerry-rigged, eccentric cases where punishing the innocent seems justified and leaves our intuitions about the moral permissibility of intentionally inflicting authorized reprobative retributive harm on a core class of offenders undisturbed.  We are therefore motivated to find a fix instead of to give up our commitment to the moral permissibility of punishment.

* I say “at least” because it could well be that the rational reaction to an argument that attacks a strongly held position using jerry-rigged, peripheral cases while leaving core cases untouched is to continue to hold the position while looking for a fix.

Posted by: captainfalcon | January 6, 2013

Antitrust for a Fallen World

Here is Herbert Hovenkamp’s argument in favor of under-deterrent antitrust rules (taken from The Antitrust Enterprise).  The insight underlying it — that antitrust intervention is only justified if the costs of “false positives” (i.e. mistaking pro-competitive for anticompetitive conduct) are not too high — comes from Frank Easterbrook’s article The Limits of Antitrust.

When a particular form of behavior is too complex for reliable analysis, then the only defensible antitrust rule is to let the market rather than the courts control.  Of course, Congress can always intervene, and further development in our tools of analysis may permit more definite conclusions later.  But a court is in hazardous territory when it assumes that it can make society wealthier by condemning a practice whose competitive effects are poorly understood.  The basic rule should be nonintervention unless the court is confident that it has identified anticompetitive conduct and can apply an effective remedy.

Antitrust is not good at transferring wealth, and cannot be defended on that basis in any event.  Nor does it have any moral content of its own, and is not well designed to provide rules of business ethics.  To be sure, we may wish the jury’s values about fairness to trump the harsher business judgments made by firms in competition.  But the whole purpose of antitrust is to make markets work better, and “better” means more efficiently,  Furthermore, antitrust as an enterprise is dedicated to the proposition that markets work tolerably well as a general mater, and enduring failures are the exception rather than the rule.  So intervention must be justified.  If the judge does not hear a fairly robust theory explaining why certain behavior is anticompetitive . . . then intervention is not justified (Hovenkamp, 47-8).

Note that this is not an argument against market intervention or wealth transfers generally.  It is, instead, an argument against accomplishing these goals using the antitrust laws.  Hovenkamp’s argument for the underlined portion, which is the crucial premise, is that because antitrust is devoted to protecting the market from abuses — i.e. deviations from the norm — “[o]pting to have antitrust at all entails a belief that in most cases the market will produce the correct amount of competition and innovation” (Hovenkamp, 15).  Hovenkamp’s view therefore does not follow from any kind of dubious skeptical conservatism.

Note also that Hovenkamp recognizes his argument is contingent: “[t]o the extent that it rets on grounds of administrability, antitrust’s reluctance to advocate a general use of post-Chicago economics [i.e. economics that does not presume that all markets are basically competitive because barriers to entry are low] is a contingent rather than immutable truth.  There is nothing inherently wrong with much of post-Chicago antitrust analysis.  The problem is that in many cases the analysis has not yet been transformed into rules that a court can apply with confidence that it is making markets work better” (Hovenkamp, 49).

In light of these two nuances, Hovenkamp’s view seems sensible.

Posted by: captainfalcon | January 3, 2013

Monopoly Leveraging

Theoretically, “monopoly leveraging” is the process by which a firm with a monopoly on a product seeks to extract monopoly prices on related products.  An example, for which I am indebted to Herbert Hovenkamp’s The Antitrust Enterprise, arises in a 1931 Supreme Court case called Carbice in which the producer of a patented icebox included a term in its licensing agreement requiring users of the icebox to purchase ice from the producer as well.  The Court held that this practice of “tying” a non-monopoly product to a monopoly product — the Court assumed that the patent on the icebox allowed for monopoly pricing —  was a violation of the antitrust laws on the grounds that it meant that the icebox producer could charge monopoly prices for the ice as well.

According to Hovenkamp, antitrust scholars working at the University of Chicago during the 1950s developed a persuasive argument against the possibility of monopoly leveraging (at least in the context of complementary products).  The basic idea is that one should think of complementary products — such as ice and an icebox — as a single product for which one monopoly price can be charged.  The price can be divvied up between the two products — one can charge a competitive price for the ice and a monopoly price for the icebox, or one can charge super-competitive, but sub-monopoly, prices for both — but a monopolist derives no extra value from tying his monopoly product to a non-monopoly product; he just gets the flexibility of apportioning the monopoly price among two products instead of one.  In fact, as Judge Easterbrook explained in the Seventh Circuit’s 2006 opinion Schor v. Abbott Laboratories, for a would-be monopolist, an equivalently good strategy  to tying his seeming monopoly product to a complementary product is to encourage perfect competition among producers of the complementary product so that he can charge monopoly prices for his product (because, absent perfect competition in the complementary market, the producer is effectively in an oligopoly situation).  This dramatically demonstrates that a monopoly on one complementary product plus tying does not give a firm the ability to extract monopoly prices on the tied product as well.

Chris does that seem basically right to you (particularly the bolded portion)?

Posted by: captainfalcon | January 1, 2013

Puzzle of Failed Compromises

Inspired by reading The Problem of Punishment (which is hard-nosed analytic philosophy, albeit on a pretty intellectually light topic) and for old time’s sake, a post in the analytic style.

Assume a scenario reminiscent of the current negotiations over the fiscal cliff.  (1) Assume two parties, A and B.  (2) Assume three options: A’s preferred option (pA), B’s preferred option (pB) and the status quo (sc).  (3) Assume that pA cannot be enacted without B’s support and pB cannot be enacted without A’s support.  (4)  Finally, assume that pA is better than pB which is better than sc.

Given (1)-(4), these two propositions seem true: (a) B should support pA.  (b) A should support pB if B does not support pA.

Now, if sc eventuates then both A and B have acted contrary to their obligations.  And they would seem to be equally to blame for bringing about sc because each had equal power to avert it.  So, it might seem, they are equally blameworthy.  This is the puzzle of failed compromises; at least in a bilateral situation, parties to the failure seem to be equally to blame for the failure, but we don’t think they are equally the blame.

I think this puzzle can be resolved by correcting a misidentification of what A and B are to blame for.  They are not both to blame for bringing about sc.  They are to blame for bringing about the difference in value between sc and what they could have brought about.  This means that A is to blame for the difference in value between sc and pB, and B is to blame for the difference in value between sc and pA.  B is thus more to blame because the difference in value between sc and pA is greater than the difference in value between sc and pB.

This same approach also entails that if B does not support pA but A supports pB then only B is to blame.  The options A could bring about were pB and sc; the options B could bring about were pA, pB or sc.  A brought about the best option A could and so is blameless.  B could’ve brought about a better option, and so is to blame for the difference in value between pA and pB.

Does this seem right?  Test it against a simplified representation of the fiscal cliff scenario.  Assume three options: the Democrats’ preferred reform (pD) which is preferable to the Republicans’ preferred reform (pR) which is preferable to the fiscal cliff (fc).  If the Republicans are spoilers would you blame them more than the Democrats if the Democrats were also spoilers (making them, together, total spoilers) and we went over the fiscal cliff?  If the Republicans are spoilers and the Democrats accept their proposal would you blame only the Republicans?

I don’t have any clear intuitions here, but that’s because my capacity for formulating other-regarding reactive attitudes — including blame — is underdeveloped because I have almost fully internalized Galen Strawson’s picture of life.

Posted by: captainfalcon | January 1, 2013

Adler on Seidman

Jonathan Adler’s response to Seidman is realbad.  First, as we warned would happen, he is lured into confusing Seidman’s label for his view with what that  view actually is.  Consequently, he thinks Seidman is proposing that constitutional actors routinely ignore or disobey constitutional provisions they do not like.

Unlike Seidman’s actual proposal — do away with public justifications of the policy that cite constitutional values — this actually strikes me as quite a sensible thing for constitutional actors to do.  Specifically, they should not take the Constitution into account in their deliberations exceptinsofar as they need to draw on it for political legitimacy.  Jonathan Adler gives five stupid objections:

1. “[T]he Constitution itself provides for its own revision to cure deficiencies: Article V.  This amendment process has allowed for dramatic changes to the document, from the Bill of Rights and the Civil War Amendments to women’s suffrage and changes to election procedures.”

This objection is incomplete — more, obviously incomplete — without an assessment of whether Article V works well.  The fact that it has been used to make some amendments does not prove that it works well, only that it has sometimes been used.  To evaluate whether it works well one needs a baseline, which Adler does not bother to supply.

2.  “Seidman conspicuously ignores the various policy measures throughout our nation’s history that would have remained the law of the land were it not for the Constitution, including numerous restrictions on the freedom of speech and the detention policies struck down by the Court in Boumediene.”

Seidman’s argument, even on Adler’s misunderstanding of it, does not depend on the proposition that the Constitution has never been used to promote desirable policy, so he has no need to deal with these historical examples.  Instead, Seidman’s argument (misunderstood) is that we should now replace scrupulous fidelity to the Constitution with a mixture of fidelity to those constitutional policies that are valuable — “[f]reedom of speech and religion, equal protection of the laws and protections against governmental deprivation of life, liberty or property” — combined with a far larger dollop of constitutionally unimplicated moral and prudential decisionmaking by constitutional actors.

3.  “Seidman suggests that liberal constitutional values such as the freedom of speech and religion, equal protection, and due process ‘are important, whether or not they are in the Constitution’ and that ‘we should continue to follow those requirements out of respect, not obligation.’  But our political history shows quite clearly that the political process is more than willing to trample such principles . . . the whole point of a constitution is to prevent such abuses.”

Yes, and as Seidman indicates he would retain those parts of the Constitution and “something like the Supreme Court” in order to enforce them.  When he says we should follow those requirements “out of respect, not obligation” what he means is that we should continue to enforce those requirements because they are desirable, not just because they appear in the Constitution.

4.  “Seidman writes that if we followed his advice: “The Supreme Court could stop pretending that its decisions protecting same-sex intimacy or limiting affirmative action were rooted in constitutional text.” So supreme court opinions would be nothing more than policy briefs and appeals to moral principle? It seems to me that is a recipe for undermining the legitimacy of judicial review and ultimately relegating all such questions to the political process — and producing quite a few results I doubt Seidman would much like (e.g. greater limits on expression, lesser protection of criminal defendants, and more expansive national security authority).”

This comes closest to rejecting Seidman’s actual argument and so is the least objectionable of Adler’s complaints, but it is still incorrect. First, eliminating appeals to constitutional text, or even to the ancient Constitution more broadly conceived, does not foreclose appeals to constitutional tradition or communitarian values or some source other than abstract moral principle or policy that resonates with the American ethos.  Second, policy arguments and moral arguments routinely appear in Supreme Court decisions already (albeit alongside constitutional arguments) and the legitimacy of judicial review is still strong.

5. “[Seidman] seems to want to keep judicial review, but just for those constitutional provisions he likes, but that’s hardly the basis for a principled argument for “constitutional disobedience,” as such.”

The principled argument for Seidman’s position — judicial review to enforce only a certain subset of current constitutional values — is that only those constitutional values promote a good society.  You can disagree, but that doesn’t mean that what you disagree with isn’t rooted in principle.  This is obvious.

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