Category Archives: MISC.

New Rambler Review

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.

How Judge Hanen was able to rule against President Obama’s immigration program

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 Framework for Bailout Regulation

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.

King v. Burwell and ideological voting

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.

Judge Winner Nominating Pres. Court
Spencer Government Reagan E.D. Va
Friedman Government Clinton E.D.C.
White Plaintiffs Bush E.D.Ok
Griffith Plaintiffs Bush D.C. Cir.
Randolph Plaintiffs GHW Bush D.C. Cir.
Edwards Government Carter D.C. Cir.
Gregory Government Clinton/Bush 4th Cir.
Thacker Government Obama 4th Cir.
Davis Government Obama 4th Cir.

 

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.

More on speech and sex codes in universities

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.

Guest Post: Evelyn Blacklock on King v. Burwell–text and context

Evelyn Blacklock, a student at Harvard Law School, writes in with these insightful comments on statutory interpretation in King v. Burwell.

Although it involves a complex statutory scheme, King v. Burwell asks the Court to answer a relatively straightforward question: is the IRS’s interpretation of the ACA reasonable?  The Court’s task is to identify the statute’s range of reasonable interpretations and determine whether the IRS’s interpretation falls within that range.  If it does, the IRS wins, even if the Court thinks it is a second-best interpretation.

As many have noted, King will therefore test the Court’s approach to contextual interpretation.  To identify the statute’s range of reasonable interpretations, the Court must consider the contested provision, § 36B, “both on its own and in relation to the ACA’s interconnected provisions and overall structure so as to interpret the Act, if possible, ‘as a symmetrical and coherent scheme.’”  So much is not controversial.  The real question is how the Court will use context.  As the lower court opinions demonstrated, there are different ways to approach contextual interpretation.

One way is to consider how the relevant context might inform the meaning of the contested provision.  The Fourth Circuit in King v. Burwell took this approach: the court admitted that a “literal reading” of § 36B seemed to favor the challengers’ interpretation (limiting tax credits to state Exchanges), but it also examined related provisions to see if they “shed any more light” on the question.  Both § 36B(f), the “reporting” provision, and section 1312, the “qualified individuals” provision, seemed to assume that tax credits would be available on state and federal Exchanges.  Given those and other contextual signals, King concluded that the IRS’s interpretation—allowing tax credits on both kinds of Exchanges—fell within the statute’s range of reasonable interpretations.

The D.C. Circuit in Halbig v. Burwell, meanwhile, took a different approach.  The court considered the same context, but inverted the inquiry: rather than ask whether context “shed any more light” on § 36B, Halbig asked whether the literal reading of § 36B—limiting tax credits to state Exchanges—would render those other provisions, which arguably assumed the availability of credits on federal Exchanges, absurd.  The court concluded that the challengers’ reading might render related provisions odd, but not utterly absurd, and rejected the IRS’s interpretation.

Halbig’s approach seems a strange way to go about determining interpretive reasonableness.  As a (very simplified) example, suppose I live in an interpretive community where “milk” usually means “whole milk.”  I have a recipe that calls for “milk.”  It so happens that this recipe appears in a cookbook of low-fat recipes.  I interpret this particular recipe as calling for “skim milk.”  Is my interpretation reasonable?  To answer that question, it would be natural to consider whether the rest of the cookbook seems to assume the use of low-fat ingredients; that contextual information might not be conclusive evidence of the meaning of “milk,” but it would surely be a point in favor of the reasonableness of my interpretation.  It would be odd, on the other hand, to gauge the reasonableness of my interpretation by starting with the assumption that “milk” must mean “whole milk” unless that reading would render the rest of the cookbook absurd.  The first approach uses context to determine whether my interpretation might fall within the total set of all reasonable interpretations; the second instead uses context only to confirm that a presumptively ideal interpretation is not unreasonable.  The second approach actually tells us nothing about whether my interpretation is reasonable—it tells us only that at least one other interpretation is acceptable.

Put another way, rather than use statutory context to test the reasonableness of the IRS’s interpretation, Halbig found a point estimate of statutory meaning and then effectively imposed a presumption against finding any wider range of reasonable interpretations beyond that point unless outright absurdity resulted.  As the government put it in its petition for rehearing en banc, “‘absurdity’ was the wrong test.  The majority erred by purporting to discern the plain meaning of one provision before considering all relevant provisions of the Act.”  (Or as a recent brief noted: “[C]ourts must interpret a provision in the first instance in light [of] its context and place in the statutory scheme. . . . [T]he question here isn’t just whether Petitioners’ reading of Section 36B renders absurd the various [related] provisions . . . . Rather, the question is this: What does the ACA, read as a whole, say about tax credits when you take into account all its provisions?”)  Halbig’s approach shifts the inquiry from whether there is a range of reasonable interpretations to whether the court’s initially favored interpretation—what it perhaps sees as the best interpretation—makes the rest of the statute unreasonable.  So long as it doesn’t, the court’s interpretation wins.  The court will not accept second-best, but still reasonable, interpretations unless the agency can rebut a presumption in favor of the court’s point estimate by clearing absurdity doctrine’s high bar.

None of this is to suggest that the statute is simple or that the IRS must necessarily win.  The suggestion, rather, is that when courts face a question of interpretive reasonableness, and when reasonable meaning depends on context, courts should not short-circuit the inquiry by examining context only after establishing a preferred interpretation, and then only in order to gut check that preferred interpretation.

Who is the meanest supreme court justice of all time?

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: More on absolute bans on torture

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]

Uber and the law of large numbers

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.

If torture can ever be morally justified, why should the ban on it be absolute?

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.

More flip-flops

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.

Institutional flip-flops

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.

The Charlie Hebdo attack and liberty-liberty tradeoffs

Terrorist attacks generate a familiar pattern in public debate. First, conservatives (and often middle-of-the-road types) argue that the government’s failure to stop the terrorist attack shows that counterterrorism policy is too weak. Then, liberals (and often other middle-of-the-road types) argue that we should not strengthen counterterrorism measures if doing so will sacrifice our civil liberties to security. This sets up a debate about security versus liberty. Typically, civil libertarians argue that there really is no tradeoff (an argument I have never understood), or (more plausibly but I think wrongly) that the government will inevitably put too much weight on security and not enough on liberty. An important subtheme, one that resonates with American historical experience and mythology, is that the people who put more weight on security are cowards who sell our liberties too cheaply.

Thus, the rhetoric. In truth, there is liberty on both sides of the equation. People who fear terrorist attacks lose some of their liberty as they avoid airplanes and public places; and the people who die in those attacks lose their liberty along with their lives. Nonetheless, it is undeniable that the civil libertarian position is understood to place greater weight on due process than on security, and that position has very powerful resonance in our society, perhaps because of distrust of the government.

The Charlie Hebdo attack has not followed this pattern for an interesting reason. The attack, both by design and in effect, was targeted at a liberty–freedom of expression. In this respect, the attack is unique among all the terrorist attacks since 9/11, none of which singled out freedom of expression as a target among all the western vices. The planned French crackdown on civil liberties thus sets up a clearer, harder-to-deny, liberty-liberty tradeoff: liberty from surveillance, arbitrary detention, and the like, versus liberty to speak one’s mind. It’s harder for a civil libertarian to argue that “mere” security is at stake, that principled people must oppose stricter counterterrorism measures.

This tradeoff has not yet received much attention, though it is implicit in the debate about whether Charlie Hebdo’s speech was really worth defending. Civil libertarians should ask themselves: if greater censorship in France made the French safer, with the result that they don’t need to give police greater surveillance and detention powers, would they be better off or worse off?

This is the most important policy question that has emerged from the attack. Why has no one asked it?

The case for Uber-regulation

I make the case in Slate, which is that the market for short-term, on-demand car rides is inherently monopolistic. That is in fact why taxi regulation exists, and always has, virtually everywhere. The Slate piece arose from some initial thoughts in this blog post, further stimulated by Ilya Somin’s criticisms of that post. One point of disagreement centers around how to interpret people who consent to and then complain about surge pricing. Somin thinks they are irrational. I think they are reasonably concerned that they are being overcharged. The underlying problem is the high cost of search in this market, as explained in the Gallick & Sisk JLEO paper I cite. There is an interesting sense in which Uber’s disruption of the taxi market replays an earlier disruption in the 1920s when mass-produced automobiles threatened to unravel taxi pricing with the introduction of part-time drivers who skimmed off the best fares.

Is opposition to Uber’s surge pricing irrational?

Everyone says it is. Here, for example, is a representative statement from Ilya Somin. The argument is just that unregulated markets are efficient and therefore price caps are inefficient. Somin concludes that everyone opposed to surge pricing is irrational or ignorant.

I don’t oppose surge pricing but I don’t think Somin is right.

1. Although a practice may be efficient, it doesn’t follow that everyone is made better off by it. People rationally oppose surge pricing as long as they value the dollar savings resulting from a price cap more than the extra time they spend waiting for an Uber car or taxi to show up. These people oppose an efficient practice that happens to harm them. What’s so irrational about that? In fact, the contrary view would be irrational.

2. When surge pricing comes into effect, there is an undersupply of cars. This means that Uber has market power. Taxis can’t raise their prices, and Lyft apparently won’t match Uber’s price above a threshold. This means that for the class of people who will pay the surge price, there is no meaningful competition. It doesn’t take much imagination to believe that Uber–which takes infantile pride in its ruthlessness–will charge a price that eats up as much of the consumer surplus as possible, in the process pricing some passengers out of the market.

This is not an argument for banning surge pricing or even regulating it. It’s possible that Uber’s monopoly profits will bring in additional competition, or that the threat of additional competition keeps Uber in line, and that’s what we usually assume in antitrust law, so we let the Ubers of the world charge supracompetitive prices except in egregious circumstances. But people’s efforts to shame Uber into lowering its surge prices may not only be in their self-interest; they may serve social welfare as well.

3. Everyone thinks of Uber as an app that allows drivers and passengers to match. But also think of Uber as an efficient way of cartelizing drivers and obtaining and analyzing the data of passengers so as to maximize revenues. (Can Uber determine your price sensitivity based on past trips? Probably. Does it exploit that information by varying prices by passenger type? Maybe not. Yet.) True, Uber is a better cartel than the taxis. True also, many Uber drivers did not offer services before Uber organized them. But not everything Uber does is by definition a good thing.

Is the “norm” or taboo against torture dead (continued)?

torture bubbleAs I noted a few days ago, Christopher Kutz argues that the anti-torture norm is (or might be) dead. Another way of putting this claim is that the longstanding taboo against torture has lapsed. A practice is taboo if not only it is forbidden but open debate about it is forbidden. Anyone who challenges the taboo will be regarded as tainted or contaminated, as outside the community. Contrary to what we like to think, hundreds of taboos flourish in American society, as many I’m sure as in any of the tribal societies studied by early anthropologists from which the term was adopted. Our taboos surround not only religion, but also race, gender relations, and the treatment of children. Free speech is firmly entrenched in the law but anyone who thinks that one can speak freely about these topics without risking significant social sanctions hasn’t been paying attention. Taboos constantly change (many sexual taboos have lapsed, just in the last few decades), but while they prevail they are extremely powerful.

The process by which taboos break down is mysterious; Kutz doesn’t really explain why the torture taboo has eroded if it has. At least part of the explanation must lie with technological change that causes people to question traditional prohibitions. The invention of modern forms of birth control made many of the taboos surrounding sex, which may at some earlier time have been broadly functional (in the sense of protecting people from the burdens of unwanted children or quelling social conflict), seem nonsensical. Yet the erosion of those taboos (not yet complete) was complicated. People had to be motivated to challenge the taboos and endure social sanctions. Sexual desire is a potent motivation, and eventually the arguments could not be ignored. But if there is no strong incentive to challenge taboos–as may be the case with taboos that don’t ban behavioral anyone really wants to engage in (like cannibalism)–then they are likely to persist.

If the torture taboo is eroding, then the explanation must be different from change in technology. The torture technologies used by the CIA are decades, even hundreds of years, old. And as is common with many taboos, the prohibition was never complete–U.S. government has committed torture before (just as incest takes place despite the incest taboo); what’s new is that torture is openly discussed as a legitimate policy option, by some people. In the 1990s and earlier, the U.S. engaged in torture through proxies, and no one talked about torture used by American combat soldiers in wartime. What seems to have happened is that an unusual configuration of events–the 9/11 attack, the earlier enactment of torture laws that forced the CIA to seek legal cover through a Justice Department opinion, relatively new norms of government openness, and so on–forced torture out into the open, where it could no longer be ignored.

You can see the persistent taboo-like character of torture in the debates surrounding the CIA’s interrogation practices. Many of the critics feel compelled both to argue against torture (“it doesn’t work,” “it violates our values”), and to argue that this argument is unnecessary because torture is plainly wrong or off the table (“it’s not who we are”). But the mere making of the first argument, which often requires elaborate claims about how institutions work, contradicts the second. Torture (unlike, say, cannibalism or incest) then becomes a matter of debate, perhaps like any other policy. The real force of the much-derided ticking time-bomb hypothetical is not that it provides a policy justification for institutionalized torture, but that it explodes the taboo. If you agree that torture may be acceptable in this setting, then you can argue against its expansion to less extreme scenarios only by making complicated empirical and institutional arguments that can be debated by people who have different intuitions.

I wonder whether the prosecutions that the CIA’s critics desire would have the perverse effect, even if they are successful, of further unraveling the taboo. In a court of law, defense lawyers will argue that their clients acted reasonably, and to do so, they will elicit testimony that some interrogation practices that amount to torture are actually effective. Whether or not this testimony is persuasive, the mere fact that it is introduced and debated will help remove torture from the realm of the taboo. Like so many (actually nearly all) police practices, there is just no reliable evidence of efficacy, in one direction or the other, and in such cases courts tend to defer to the judgment of experts. Whatever the outcome of the prosecutions, the efficacy of torture becomes merely an empirical question, deserving of further study perhaps, one about which reasonable people may differ–in which case it can’t be taboo.

This is, I think, what happened in the gay marriage cases, which helped destroy another taboo that until recently was extremely powerful. The importance of the evidence introduced in those cases was not so much that it supported the case for same-sex marriage but that it showed the question of same-sex marriage is an empirical one. Once empirical doubts are recognized, they cannot displace powerful equality norms.

Vermeule replies to Baude: A Pre-Chevron mind?

From Adrian Vermeule:

Thanks to Will Baude for his thoughts on our paper project (see here and here for our puzzles and conjectures). It’s interesting that the proposal for judges to take into account the votes of other judges provokes a kind of instinctive resistance. But it’s not clear what exactly the objection is. Some possibilities:

(1) Will seems implicitly to assume that “textualists” and “purposivists” inhabit different methodological universes, so that judges in one camp would obtain no information from considering the views of judges in the other. That’s not how interpretation works, however. Purposivist judges are certainly interested in text and canons, in part because those things supply evidence of the purposes that a reasonable legislator might have. Conversely, many textualist judges, like Holmes, have been willing to examine legislative history and other extra-textual sources as evidence that might shed light on the ordinary meaning of text.

But even when textualist judges eschew legislative history altogether, that does not mean there is no overlap between their approach to interpretation and that of purposivist judges. Schematically, it is not the case that textualist judges consider sources or arguments {A, B, C} while purposivist judges consider sources or arguments {D, E, F}. Rather closer to the truth is a schema in which textualists consider {A, B, C} while purposivists consider {B, C, D}, or even {A, B, C, D}. This implies that judges in both camps will often gain relevant information — relevant even on their own theories — from observing the votes of other judges, even judges in other camps. And, of course, most judges are not theoretical at all, and just consider all sources and arguments in a sort of promiscuous jumble.

(2) Will also seems to think it important that judges in each camp think their own theory “correct” (Will’s italics). Under the Chevron framework, however, even if I think I am correct, the question I have to answer is whether I think the other person’s view is not only wrong, all things considered, but is actually unreasonable. The whole point of Chevron is to create space for that distinction. It is a symptom of a pre-Chevron mind (sub-Chevron mind?) to conflate these two questions, assuming that if my view is correct, yours must be beyond the pale. There is an interesting, under-explored question whether Chevron implies that agencies should have a kind of meta-discretion to choose among reasonable theories of interpretation. But the fact that proponents of competing views think their views correct will not help us figure that out.

(3) Yet another separate question, which we flagged in our opening posts, is whether and under what conditions it is systemically desirable for a given judge to take any of this information into account. We think that is the critical question for the paper, which will attempt to sift out the conditions under which it is or is not desirable. Will points out that sometimes it is better for decisionmakers not to attempt to consider all available information; certainly that is true. But he seems to assume that throwing away this particular category of information is necessarily desirable in all settings. His confidence in that approach seems to outrun the available evidence and theory, as far as we can see. It’s an interesting puzzle why our proposal provokes such a reaction.

How norms die: Torture and assassination in American security policy

That’s the title of a paper by Christopher Kutz in Ethics & International Affairs. Kutz argues that that there was a “norm” against torture and assassination in American policy until 9/11. Although these norms were violated from time to time, this was done so surreptitiously, and generally speaking policymakers believed that torture and assassination were off the table as policy options rather than choices that could be subject to moral balancing. (I think he is more likely right about torture than assassination so I will confine myself to torture henceforth.)

Kutz believes that the anti-torture norm is (probably) dead; the best evidence of this is that public opinion polls suggest that most Americans think that torture is now acceptable in limited cases. There is no public pressure to punish the Bush administration torturers. Kutz makes the interesting point that in government the greatest opposition to torture came from the military and FBI where an honor-based ethic prevails. Civilian policymakers overruled or worked around these “professional cadres,” based on a utilitarian approach in a panic atmosphere where the consequences of failing to capture terrorists were thought to be catastrophic.

As I interpret Kutz, the anti-torture norm could prevail as long as there was no major threat to U.S. security. Once this threat materialized, all bets were off. But on this view, the anti-torture norm was not a very strong norm. Torture was just not an issue, it was never thought to be needed, and so anyone who proposed it as a policy would have been regarded as a sadist, and so no one did.

I think Kutz misses another dimension. In the nineteenth century, the Great Powers made a distinction between civilized powers (themselves) and “savages” (the rest of the world). The humanitarian norms that they observed applied only to limited wars among themselves; they were suspended when dealing with tribal groups, which they sought either to wipe our or to subordinate. In the twentieth century, the norms collapsed even among the Great Powers when wars became unlimited.

Thus, as I have argued in various places, what keeps norms in place is a strategy of reciprocity. Great powers fight limited wars with the expectation that peace will return; all sides gain if the war can be kept as a test of strength and a descent into barbarism is avoided. Governments abandon those norms in two cases: (1) when they see themselves as fighting to the death; and (2) when they confront opponents that don’t comply with them themselves. Al Qaeda was a toxic combination of both of these factors.

So another way to see the change in moral psychology that Katz describes is as a recognition that norms thought be universal–at a time (really, only the 1990s) when the United States considered itself fully secure–were in fact restricted to those the United States regarded as “civilized.” (“Terrorist” has become a quasi-synonym for “savage” as that word was used in the nineteenth century: a person who does not follow certain norms that restrict the use of violence.)

Kutz makes another interesting observation; I quote from the abstract:

While democracies surely do better than authoritarian regimes in adopting and internalizing certain kinds of constraints, in part because of a greater sensitivity to public mobilization around normative questions, that same sensitivity makes the long-term survival of these norms precarious. But in a democracy the values and arguments of those cadres [the military, etc.] are susceptible to being undermined by a combination of public panic and the invocation by policymakers of a public interest that can override the claims both of law and pragmatic restraint. Democracy, hence, can be at the same time both fertile and toxic: fertile as a source of humanitarian values and institutions, but toxic to the very institutions it cultivates.

I don’t think this is right. Authoritarian regimes routinely use torture against domestic political opponents; democracies hardly ever do. What the two regimes share is that they place little weight on the interests of people who live beyond their borders.