In Slate, I criticize the US citizenship-for-investment (effectively, citizenship-for-sale) program, while defending other countries that have dabbled with this approach.

I wasn’t able to find much research on the EB-5 visa program. It’s a good topic for someone to write about.

Many academics consider it a professional obligation to write reviews of new books in their field. The reviews are published in academic journals which are hidden behind firewalls, so that they can’t be read by the public. And because most academics don’t read journals in other disciplines, an interesting book with cross-disciplinary appeal can easily be overlooked.

This is a wasteful legacy from the dead-tree era, and the NRR aims to fix it. The NRR is accessible to everyone with a browser. More to the point, if you read a book and are curious what experts think about it, you can find an NRR review just by googling the book. Not only that, the review is likely to appear on the invaluable first page of the Google search results.

Take, for example, Michael Glennon’s new book, National Security and Double Government. This is a book that anyone might read. If you type “Glennon National Security Double Government” into Google, you’ll find the NRR review of it by Clifford Bob on the first page of the search results. You won’t find this review, which appeared in the academic journal Public Choice. Even if you do, you won’t be able to read it unless you belong to an academic institution with a site license or are willing to shell out $39.95 (!).

So if you see a book that you think the public should know about, would like to review it, and want people to be able to find and read your review, contact us.

I discuss new evidence from the airline industry in Slate, drawing on this terrific new paper by José Azar, Martin C. Schmalz, and Isabel Tecu.

Law professors of a certain age will remember that back in the 1990s, there was a debate about whether courts should impose shaming sanctions on offenders. This debate was caught up in larger discussions about the relationship between social norms, nonlegal sanctions of all sorts, and the law. But there was always an academic quality to this debate. It seemed at the time that shaming could not be an effective tool of social control in a huge, mobile, mostly anonymous society. So we all imagined shame and other social sanctions in confined settings: neighborhoods and communities, merchant and professional groups, and so on.

That was then. One Internet later, everything has changed. I discuss on Slate.

In Slate, I discuss Peter Singer’s new book, The Most Good You Can Do. I like Singer’s utilitarian outlook, and I like the way he follows its logic into all kinds of dark corners, though I like less his attempt to prettify it in order to make it seem appealing to ordinary people.

Despite offering a surprising paean to capitalism (see p. 50 if you don’t believe me), Singer doesn’t take institutions very seriously, which I think is a problem in much of his writing (above all, in One World). Institutions coordinate people’s behavior for the common good; the sort of uncoordinated giving through philanthropic organizations for the benefit of impoverished foreigners won’t work, at least not at a large enough scale to make a difference, or that is at any rate the lesson I take from the foreign aid literature. Foreign countries have their own cultures, institutions, practices, and values. Agency costs exist in charitable organizations just like in for-profit organizations. All of these things spell trouble for “effective altruism” if understood to be committed to searching out those with the highest marginal utility per dollar. That said, by all means give your dollars to GiveDirectly or the other charities recommended by GiveWell if you want to maximize aggregate well-being, conditional on not too many other people doing the same.

There is a tension in the book between Singer’s relentless utilitarianism and human psychology. If you take Singer-the-philosopher seriously, then basically anything you do kills someone in the developing world. X number of ice cream cones means so much money less for malaria nets that will save the lives of children in Africa. Here is a philosopher who finally takes opportunity costs seriously! Singer simultaneously thinks that you should forgo the ice cream cones and somehow absolves people who don’t go this far, recognizing that the psychological burden of effective altruism is immense if taken to the extreme. Everyone has limits, he admits.

It’s clear why he does. Singer is afraid to scare off people who are willing to donate 10 or 20 percent of their income by telling them that they are not acting ethically unless they donate 80 or 90 percent of it. Singer’s style of utilitarianism may be philosophically impeccable, but it is a loser when it comes to motivating people. He tries to get around this by saying that the 10-percenter is more ethical than a purely selfish person, so one can take comfort in that. But people really want to know whether they are behaving ethically or not–yes or no–not where they fall on a scale, and Singer can’t answer that question to their satisfaction.

You can watch a debate about the right to be forgotten between me and Paul Nemitz (pro) and Jonathan Zittrian and Andrew McLaughlin (con) here. Nemitz is a top EU privacy official with extraordinarily deep knowledge of privacy matters, while Zittrain is an internet law expert and McLaughlin is the CEO of Digg with extensive government and NGO experience.

I like to think our side landed some blows, but measured by audience reaction, our clock was thoroughly cleaned (is that the right expression?). Nemitz emphasized the political dangers of a world in which information about everyone is available on the Web, and hence available to the government, which can use it to monitor and control the public. I emphasized the personal costs in a world in which one’s identity is defined by search results that reflect a slip-up from decades ago.

I suspect that Nemitz’s argument made little headway with the New York audience because government repression based on surveillance is just not a part of historical memory in America, unlike in Europe. And my argument was probably too abstract (despite my uncharacteristic effort to pluck heartstrings). Although there are famous examples of people who lose jobs and suffer other harms because of some indiscretion that makes its way on the web, I think this worry seems remote to most people, at least so far, and there is a tendency to blame people for their indiscretions, however minor and whatever the consequences.

On the other side, McLaughlin and Zittrain warned of the dangers of censorship, and the risk that the right to be forgotten would be enforced in an arbitrary fashion. They also skilfully painted a dynamic and optimistic portrait of the Web as self-correcting; the harms that the right to be forgotten would address in blunderbuss fashion will eventually be addressed by the Web itself, as search engines and other institutions respond to public demand for more nuanced and fairer search results. Regulation at this point would short-circuit these developments.

The bottom line is that in America (unlike in Europe), even in the upper west side of New York, people trust corporations more than they trust the government.

Okay, I’ll say it. I predict that the plaintiffs will win  by a vote of 5 to 4. Not that they should. Why?

1. While I agree with the government that Chevron deference is warranted, this doctrine is too squishy to constrain a majority of the Court. Academic research shows that Supreme Court justices don’t take Chevron very seriously.

2. And while I think the government’s interpretation is better than the plaintiffs’, I don’t think the plaintiffs’ interpretation is crazy. This sort of thing–where the relevant statutory language taken in isolation seems clear and is allowed to trump context even if context provides powerful evidence that the language was not intended–happens all the time in the courts. Whatever you think of textualism and how it should be done, the conservative justices won’t have to engage in embarrassing linguistic gymnastics to find for the plaintiffs.

3. And, finally, as I explain in Slate, justices who hate Obamacare and see it as an extension of the hated New Deal administrative state will, even if they try to be conscientious, find the plaintiff’s interpretation more persuasive. This is the well-known power of motivated reasoning. Not that I’m subject to motivated reasoning, or am I?

Announcing The New Rambler, an online review of books. Its mission is to publish high-quality reviews of intellectually ambitious books, in the spirit of The New York Review of Books, The Times Literary Supplement, and the back half of the (old) New Republic.

Our first few reviews are up. We’ll be adding new reviews every day or two for the next few weeks.

Check out the site, and let one of us know if there is a book that you’d like to review or see reviewed.

He redefined non-enforcement of law (which is generally discretionary and non-reviewable) as the conferral of a benefit, namely, “three years of immunity from [the] law” and “legal presence status” (p. 87). While the president can underenforce statutes based on his constitutional authority, he can’t confer these “things,” these benefits, on unauthorized aliens without statutory authority.

But there are no such things. The beneficiaries of the program do not receive “immunity” in a legal sense because the president can change his mind and prosecute or deport them. “Legal presence status” similarly just means non-enforcement.

The grain of truth in Judge Hanen’s opinion is that “legal presence status” does typically trigger a right to a driver’s license under state law. That is a benefit. The government replies that states could refuse to issue driver’s licenses to aliens who are legally present under the program. The judge is (I think, rightly) skeptical of this argument. But he is rightly skeptical only because the Supreme Court has held that the president’s non-enforcement decisions in the area of immigration take precedence over state law. Which gets us back to where we started: legally speaking, the program is a non-enforcement program, unreviewable for that reason.

A new paper, written with my colleague Tony Casey. The abstract is below.

During the height of the financial crisis in 2008 and 2009, the government bailed out numerous corporations, including banks, investment banks, and automobile manufacturers. While the bailouts helped end the financial crisis, they were intensely controversial at the time, and were marred by the ad hoc, politicized quality of the government intervention. We examine the bailouts from the financial crisis as well as earlier bailouts to determine what policy considerations best justify them, and how they are best designed. The major considerations in bailing out and structuring the bailout of a firm are the macroeconomic impact of failure; the moral hazard effect of the bailout; the discriminatory effect of the bailout; and procedural fairness. Future bailouts should be guided by principles that ensure that the decisionmaker properly takes into account these factors.

Adrian Vermeule has argued that under the Chevron rule, the Supreme Court should defer to the government’s interpretation of the relevant portions of the ACA because the disagreement among lower court judges indicates that the statute must be ambiguous. Of the nine judges (six appellate, three district court) who have voted or ruled on the merits of the challenge, six agree with the government and three agree with the plaintiffs. If we believe that the judges acted in good faith, then their disagreement about the meaning of the statute is itself evidence that the statute is ambiguous, triggering Chevron deference to the government’s interpretation if it is reasonable.

But what if we don’t believe that they acted in good faith? The judicial behavior literature sometimes gives the impression that judges are algorithms through which presidents ensure ideological outcomes that they prefer. If judges just vote their ideology, then disagreement does not mean that the statute is ambiguous; it just means that the judges have different ideologies. (N.B.: the literature does not come to such an extreme conclusion, but it gives credence to the widespread view that ideological leanings of judges matter, particularly for high-profile, ideologically charged cases.)

So what do the data show? I compile the relevant information in the table below.

Surprise! All the judges voted consistently with their ideological priors, as measured by the president who nominated them–with one quasi-exception and one real exception.

The quasi-exception is Judge Gregory. Clinton appointed him during a recess, and then Bush nominated him. He voted in favor of the government. The other is Judge Spencer, who was nominated by Reagan and ruled in favor of the government.

One ought to consider the argument that, taking into account ideology, Judge Spencer’s ruling is the only one that is credible because his opinion was the only one that was clearly counter-ideological. Judge Gregory–as someone who was acceptable to presidents from both parties–might also be considered credible for just that reason.

On my version of the Vermeulean vote-counting approach, then, the government also wins. Of course, supporters of the ACA probably shouldn’t take much comfort in this analysis. If judges normally vote their ideology, then more likely than not the Supreme Court will ignore both my and Vermeule’s analysis and vote 5-4 in favor of the plaintiffs.

Not many people liked my Slate piece, which defended speech and sex codes in universities. Here’s a representative response by Robby Soave at Reason. My argument was that college students need protections that adults can do without because they are (usually) young, and (often) not mature enough (yet) to flourish without them. They go to college because they need an education, and one thing they need to learn is how to interact with people. You can find my reasons in the original piece.

Soave admiringly quotes Greg Lukianoff, president of the  Foundation for Individual Rights in Education (FIRE). FIRE has done some good by bringing to public attention many of the abuses that universities engage in, but the group has a bizarre, self-contradictory mission, which is to demand that private universities (as well as state universities) comply with the First Amendment. This mission is self-contradictory because private universities are not governed by the First Amendment. So what we have is an organization that is dedicated to advancing the First Amendment trying to control how universities exercise their First Amendment rights.

The people at FIRE are aware of this problem.  FIRE gives a pass to any university that states “both clearly and consistently that it holds a certain set of values above a commitment to freedom of speech.” But this means that while FIRE holds itself out as a pro-speech organization, it is really a pro-clear statement organization. It says it goes after universities that say they support freedom of speech while also imposing speech codes. Of course, the universities are not lying or pretending; their codes are on the web, and anyone can see them. FIRE doesn’t explain why, if it has no problem with universities that exercise their First Amendment rights by promoting (say) religious rather than free-speech values, it does have a problem with universities that balance free-speech values with other values.

Anyway, here’s the quote from Lukianoff that impresses Soave so much:

MR. LUKIANOFF:  ….  Essentially, just to summarize it, the way I’ve heard it made in the past is essentially that what we’re really saying is that 18- to 22-year-olds are children. And they must be therefore treated the same way as K through 12 are. They can’t handle the real world. They can’t handle the duties of citizenship. It’s an argument that I’ve definitely heard.

And if you’re saying that basically we should—that maybe below-graduate-level study should be ruled the same way high school students should be—I would disagree with you.

But that’s definitely an argument that people should make that straight out, but you run into a couple moral and philosophical problems with that.

One of them is the moral and philosophical underpinnings of the 26th Amendment.  Essentially, we have decided in this country that 18-year-olds… that is considered the age for majority.

We also send our 18-year-olds to war.  Unless you’re actually also willing to make the argument that nobody below the age of, I don’t know, 22 should go to war, and we repealed the 26th Amendment, we’ve got a serious problem.

[…]

MR. LUKIANOFF:  I just want to make one last point, and do not forget that some of the greatest contributions of colleges and universities come out of their graduate and Ph.D. programs. And so what I’ve watched is people try to argue that because of the presence of some 15- to 16-year-old super-geniuses at some of these campuses, that we should be therefore limiting speech on college campuses, forgetting that [that] would also limit the speech of 45-year-old Ph.D.’s.

 There are an awful lot of lapses of logic and factual errors in such a short quotation. The argument that 17-22 year-old students should be subject to restrictions does not entail that those restrictions should be the same ones that apply to kindergardeners or even 12th-graders. The 26th amendment does not establish the age of majority but the voting age. The age of majority remains subject to the discretion of state governments, as do related laws like the age of consent. Although currently nearly all states treat 18 as the age of majority, they don’t have to, and they haven’t always.

“We” did not decide anything through the 26th amendment. It was ratified in a different era, by people in the thrall of the youth movement who were reacting against the authoritarian tendencies of the day. As I argued in Slate, people have been reconsidering some of the unquestioned truths of the 60s. The most obvious manifestation of this is the drinking age, which is 21. “We” may trust youngsters to vote and serve in the military but we don’t trust them to handle alcohol wisely. Finally, universities are perfectly capable of distinguishing undergraduates from graduate students, and relaxing rules for the latter.

It takes a particular type of legalistic mind to believe that some magic number–say, 18, or 21, or whatever–distinguishes “children” and “adults.” And not a very good one. All of law is shot through with rules and exceptions that make presumptions about maturity but allows them to be rebutted, recognizing that people mature at different rates, and may be mature enough to be trusted with some things (votes) but not others (alcohol), depending on their upbringing, their surroundings, and no doubt biological processes as well. The 18-year-olds who enter the military do not enjoy freedom of speech but are subject to extreme discipline and rigorous training that ensures that they act appropriately in a military environment.

I want to make a final, more speculative point. There are many religious universities which impose quite strict codes on their students. Notre Dame, for example, appears to ban premarital sex as well as all kinds of offense-giving that it believes is inconsistent with Catholic teachings. BYU prohibits cursing and regulates clothing and grooming. Students have always been free to self-select into such institutions, and have in great numbers. The current panic about university-imposed restrictions on personal behavior was not a reaction to the religious institutions. It did not begin until secular universities began to worry about offense-giving to racial and sexual minorities. Conservatives who claim to be worried about freedom of expression are really objecting to the corruption of the youth–17-22 year-olds who conservatives believe are too immature to resist bad arguments and influences–by people whose moral values they disagree with.

As for the libertarians at places like Reason, they would do well to reflect on what exactly their libertarianism entails. Freedom of speech or the right to choose how and where to be educated? If students are mature enough to choose universities that subject them to religious or modern hate-speech style restrictions or none at all, then libertarians should cheer them on. If students are not mature enough, then libertarians should agree that university codes are not objectionable. We can then argue about what those codes should be, but my main argument stands unrefuted.

… that pretty much no one agrees with but has the underappreciated merit of being correct. At Slate.

Scalia, right? Nope. Scalia barely cracks the top ten, behind Alito, Kennedy, Thomas, and even Breyer. The actual measure is “friendliness” rather than meanness, and these guys have among the lowest friendliness scores, which is the percentage of positive words used by justices in their opinions minus the percentage of negative words. (Negative and positive words taken from here.)

The friendliness score comes from A Quantitative Analysis of Trends in Writing Style on the U.S. Supreme Court, a new paper by Keith Carlson, Michael Livermore, and Daniel Rockmore, and it contains all kinds of other fun stuff, like the influence of law clerks on judicial writing style. The authors are pioneers in the use of textual analysis to analyze supreme court opinions. One of their findings is that opinions of modern justices are a lot less friendly than the opinions of earlier justices. (They are also written at a lower grade level.)

The friendliest justice–by a long shot–is John Jay, reflecting perhaps his experience as a diplomat. But he wrote very few opinions. I’m therefore handing the title to #2, Oliver Ellsworth. And the meanest? An obscure, one-term justice named Thomas Johnson. [N.B.: an earlier version of this post confused him with William Johnson. The ABA Journal correctly identified him.]

Guest post by Ryan Doerfler, Bigelow Fellow and Lecturer in Law, The University of Chicago Law School:

I too find the position Eric discusses (absolute prohibition against torture plus judicial leniency for justified instances) puzzling, or at least frustrating.

My sense is that there are two explanations for the position.  The first, which Eric discussed, has to do with incentives or, as I would put it, epistemic reliability (maybe these are the same at the end of the day).  The argument here is an application of the more general argument for rule utilitarianism: Because individuals will overestimate systematically the considerations speaking in favor of particular sorts of action (e.g., torture, lying) if allowed to reason on a case-by-case basis, better to adhere to absolute prohibitions as a bulwark against bad reasoning.  As is obvious, one would have to do the math to determine whether an absolutist regime is preferable to a case-by-case regime in a given instance since there will be errors under both.  The suggestion of judicial leniency in the case of torture indicates that even those advocating an absolute prohibition do not think the math comes out favorably if the prohibition is really absolute.

Thinking about non-repeat players, I guess I do not think of the suggestion as arbitrary.  Plausibly, the tendency to overestimate the considerations speaking in favor of torture are greater in the heat of the interrogation chamber than in the cool of the courtroom.  And, so long as would-be torturers are unaware of the prospect of judicial leniency (plausible, in the case of non-repeat players), one might get decent results under this regime (e.g., one would torture only when the apparent need to torture was so great as to warrant personal sacrifice) without human sacrifice.  This is all speculative, of course, but at least not implausible.  The problem is that, in the real world, would-be torturers are almost all repeat players (or at least members of repeat-play institutions).  Hence, the prospect of judicial leniency would be well known.

The other explanation for the position, I think, has to do with the impulse to preserve both absolutist (e.g., ‘Thou shalt not kill’) and non-absolutist (‘Thou shalt not kill, unless …’) moral intuitions.  My sense is that this impulse has not to do with accuracy or expected outcomes but instead with bedrock intuitions about moral decency or something like that (e.g., a common attitude is that one should cringe at images of killing or torture, even if the killing or torture in question is justified).  That impulse manifests in various places in moral philosophy.  Where it is plainest, though, is in discussions of so-called “dirty hands” cases, i.e. cases in which a particular action is justified but somehow morally problematic, regrettable, etc.

I have always found this idea hard to understand (e.g., If an action is justified, how could it be regrettable?).  But, for whatever reason, it has real popular appeal.  One high-visibility, non-scholarly example is the television show 24.  On the one hand, 24 is written in such a way that the audience can be expected to think of Jack Bauer’s actions as justified (as Justice Scalia said, what jury is going to convict him?).  On the other hand, the show is written such that (and the showrunners are expressly of the view that) Jack Bauer must suffer so that the rest of us can be safe.  I suppose one could interpret this as a metaphor for the psychological costs torturers must incur, which are real.  More plausible, though, is that the underlying attitude is that Jack Bauer in some way should suffer for what he has done, even though what he has done is justified.  Again, I think this is confused.  But it is a pervasive sentiment.  What Jack Bauer does is right … but also wrong.  Good … but also bad.  Alas.

[N.B.: there is an ancient literary and artistic theme that the person who saves the community by breaking its norms must himself be expelled from the community, or otherwise suffer and be made an outcast. This person must be a hero who follows a higher morality and accepts the sacrifice. I think philosophers like McMahan unconconsciously reproduce this logic, not realizing that institutions cannot themselves be designed to permit the exceptional act. In real-life institutions, if you tell agents they will be punished for doing X, and they believe you, they won’t do X. — EP]

An interesting article here in the NYT about the “Uber model.” Uber drivers enjoy flexibility–they can drive whenever they want–partly because the app connects them to customers but mainly because there are so many drivers. People who want rides can get them because of the high probability of a nearby riderless Uber car. The author argues that this model can be applied to many other settings, including legal services and medicine. A doc with a bit of spare time can make himself available via app and you might consult him if you happen to be nearby.

The relevant law here is not the law of taxi or doctor licensing but the law of large numbers. It’s what ensures that someone is nearby when you need him, even though drivers and doctors have all kinds of other unpredictable commitments, given a large enough pool. I tell my students that the most important law in banking regulation is the law of large numbers. It’s what makes it possible for a bank to offer money in a steady way to borrowers when the bank’s own lenders–short-term depositors–might need their money on a moment’s notice. The Uber model is, at bottom, the bank model.

In the NYT, the philosopher Jeff McMahan argues that torture is almost always morally wrong, but he believes that in certain cases–when it is used to prevent a greater evil like killing or mass killing–it is morally permissible or even morally obligatory. Yet he believes that torture should be banned even then. That doesn’t seem to follow. If McMahan’s moral position is correct, shouldn’t the law permit torture just in those conditions when it is morally permissible, and otherwise ban it?

As far as I can tell, his answer is that morally justified torture may be so rare that it can be safely ruled out by an absolute ban. That may well be right; maybe that is the lesson of the Bush torture debacle. But it does seem puzzling. Consider shooting-to-kill. Shooting-to-kill is also a horrible thing to do to people (worse than all but the most extreme forms of torture), and it is rarely justified. Yet police officers are permitted to shoot-to-kill in order to prevent greater evils. Even after recent events suggesting abuse  and discrimination in police shootings, no one wants to impose an absolute ban on them.

McMahan, like other philosophers (such as Henry Shue, who is mentioned in the piece) who both want to ban torture but believe that it is sometimes morally justified, can’t bring himself to enforce the absolute ban with absolute strictness. Instead, courts should be allowed to exercise leniency. Yet McMahan appears to believe that the agent cannot be excused. Some punishment (a very light punishment?) must be imposed.

But why exactly? Why would you punish (even lightly, as in this famous German case) someone for engaging in a (by hypothesis) morally permissible or even morally obligatory act of torture? The answer seems to be that if you don’t, then other agents will engage in torture that is morally wrong. I confess I have never understood this argument. Doesn’t the logic of it suggest that we should prohibit the police from morally justified shootings because if we don’t, police will engage in morally unjustified shootings?

Or taken from the other side, if leniency is permitted, why shouldn’t we worry that the prospect of leniency will encourage agents to engage in wrongful acts of torture? After all, if non-punishment of morally justified torture will encourage wrongful torture, as McMahan claims, why wouldn’t lenient punishment of morally justified torture also encourage wrongful torture? The effort to split the difference by banning torture but providing for leniency seems arbitrary.

Let’s go back to police shootings. Possibly, torture can be distinguished. One distinction is that police shootings are usually (almost always?) morally justified, whereas acts of torture are almost never morally justified. But do we actually know this? The reason that police shootings are usually morally justified, or seem to be, is that the police are given training, and police shootings are always investigated carefully. There is no comparable institutional infrastructure for torture. Maybe if there were, acts of torture would seem as morally justified as police shootings (although no doubt much rarer).

Arguments like McMahan’s, which are scattered throughout the philosophy literature, always seem to be based on psychological (about how people respond to incentives) and institutional assumptions (about how organizations operate) that are not articulated.

At Slate. This is based on the paper I’ve written with Cass Sunstein. The Slate piece discusses some surveys that we did (the paper provides more detail). If you have any comments on them (or the paper), please email me. We could do some more surveys if you have ideas.

People constantly accuse politicians, judges, and commentators of flip-flopping on institutional issues. Republicans who objected to filibusters of Bush’s nominees now defend the practice as applied to Obama’s–and the Democrats who defended filibustering then attack it now. Most of the liberal commentators who accused Bush of abusing executive power have now fallen silent, while the earlier Republican defenders of Bush have now, under Obama, discovered the dangers of the imperial presidency. Justices who appeal to the majesty of democratic rule in the course of upholding a statute today turn around and strike down a statute despite majority support for it tomorrow. And so on.

Many flip-flops reflect meaningless political posturing, but so do many of the accusations of flip-flopping. An apparent flip-flop can turn out to be nothing of the sort once one pierces the often sloppy rhetoric. Perhaps real flip-flops can be justified as the result of learning, at least to a limited extent. But beneath the surface, there is much of interest. Flip-flopping can result from an ambiguous or unsettled institutional norm. People are not just posturing but trying to get the norm settled in a way that advances their interests.

Much more can be said, and is said, in a new paper that I have written with Cass Sunstein, available at SSRN.