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Saturday, June 26, 2004
Nonunanimous and less-than-12-member criminal juries:
There's been a lot of discussion about the implications of Blakely v. Washington (decided last Thursday) for various sentencing schemes; I have nothing to add to that. But I did want to flag one issue: What does Justice Scalia's opinion suggest about nonunanimous and less-than-12-member criminal juries?
When most people think of the right to trial by criminal jury, I suspect they think of unanimous 12-member juries. But the Supreme Court has held that the constitution generally does not require either a 12-member jury, or that the 12-member jury be unanimous. (Smaller 6-member juries do have to be unanimous.) Oddly, the unanimity requirement has been applied to federal juries, because of a one-Justice concurrence by Justice Powell in the early 1970s. (This is one of the few ways in which the Bill of Rights has been applied differently to states via the Fourteenth Amendment than to the federal government.) For the key cases on this, see Apodaca v. Oregon, Johnson v. Louisiana, and Williams v. Florida; the nonunanimous jury cases were 5-4 (Justices Douglas, Brennan, Stewart, and Marshall dissenting), and the less-than-12-member jury case was 8-1 (Justice Marshall dissenting). In practice, as I understand it, the unanimity requirement is the norm in nearly all states, and most states use twelve-member juries (at least in fairly serious cases). But according to the Court's precedents, that's not a constitutional command.
Justice Scalia's majority opinion in Blakely, though, twice quotes Sir William Blackstone's 1765 formulation of the jury trial right as providing for "the unanimous suffrage of twelve of his equals and neighbours." Both times, the opinion mentions this while discussing what the Jury Trial Clause of the Sixth Amendment (incorporated against the states via the Fourteenth Amendment) commands.
Now the Court is of course only talking about the scope of the jury trial guarantee -- the extent to which it applies to sentencing factors -- and not the size or voting requirements of the jury. Many or all of the Justices in the majority might not have seriously considered whether the "unanimous suffrage of twelve" requirement really should be a constitutional command.
Still, the opinion, especially its references to Blackstone, does stress the importance of the guarantee's original meaning, and does take the view that the Sixth Amendment generally constitutionalizes the common-law jury trial right. This suggests that at least some Justices -- and perhaps a majority -- may be willing to revisit the nonunanimous jury issue (which, as I mentioned, was 5-4 when the Court decided the matter, and on which a change of course would affect only a few states) or even the jury size issue.
Incidentally, for whatever it's worth, at least one news account (by David Savage in the L.A. Times) also thought the unanimity reference was important, though without discussing the details I mention above.
Many thanks to the guest-bloggers:
Many thanks to Cass Sunstein, Glen Whitman, and Neal Whitman for guest-blogging while I was out of town — I much appreciated their posts, and I hope you did, too. Please check out Glen's and Neal's own blog, Agoraphilia. (I'd recommend Cass's blog, too, except he's one of the few law professors who still don't have one . . . .)
Blogging for Monday and Tuesday:
I got over 50 responses to my Jews and "Jewish People" post; I hope to post some brief thoughts on the subject Tuesday (though unfortunately I won't be able to respond individually to each message).
Several people also pointed out that the author of the Slate Kerryisms column has posted a response to various criticisms of the column, including my own criticisms. I'll blog about that Tuesday, too. The response was posted last Tuesday, but I was out of town at a conference from Wednesday to Friday, and thus couldn't react more promptly.
The Supreme Court will be announcing its decisions on Monday, including possibly the military detention cases (Hamdi and Padilla), the Guantanamo cases, and the latest cyberporn case (Ashcroft v. ACLU II), though it's possible that it will save some of these for later in the week. I hope to blog quite a bit about them Monday, which is why I'm saving the other items until Tuesday. (If the Court decides to announce some of the cases Tuesday, I'll bump the other stuff until Wednesday or later.)
Judge Calabresi apologizes:
InstaPundit has excerpts from some news articles on this. I think an apology was indeed warranted (see here and here).
But as I told the New York Sun reporter who first broke the story, I think this is all that can be done and all that needs to be done here. It would surely have been much better if Judge Calabresi hadn't made his statements; but now that they have been made, an apology is the only sensible remedy.
Some people say that he should recuse himself from various cases involving the Bush Administration, but I doubt that this is really called for: The statements didn't tell us more than we already know about many judges, which is that they really don't like George W. Bush -- if we recused all judges who had strong political sentiments from all politically charged cases, we wouldn't have a lot of judges left. Nor do I think that the comments were egregious enough to warrant some more formal reprimand from the court. The apology was thus both the right thing to do, and the tactically smart thing to do. You can accomplish a lot with a prompt apology.
Incidentally, if anyone has a pointer to a copy of the letter of apology, I'd love to post it; I doubt it has anything much more enlightening than what the newspapers say, but I think it's generally good to have the original documents as well as the media-filtered versions.
FDR's Incomplete Success
With or without written constitutions, all nations have constitutive commitments, some codified in some form, others just widely understood as such. Randy Barnett asks, rightly, the sense in which these are "commitments" and "constitutive." They're commitments in the sense that they're taken (politically, that is) to be binding, and not to be subject to change with the political winds. The United States is firmly committed to some kind of social security program, in a way that it's not committed to particular appropriations, or the Toxic Substances Control Act, or Head Start, or Americorps, or the Superfund statute. These commitments are "constitutive" in the sense that they help define, and hence constitute, the nation's self-understandings. The self-understanding of the United States would not allow it to accept a proposal to nationalize the automobile industry or to repeal the laws forbidding racial discrimination by private employers. (If you don't like these examples, choose your own; there are many other possibilities)
The idea of constitutive commitments doesn't serve an argumentative purpose, so far as I can tell, but it might help illuminate a nation's political and even legal culture as it changes over time. It might also help clarify what particular debates are really about. In 1970, the Aid to Families With Dependent Children (AFDC) program lacked constitutional status, but it was a constitutive commitment, and some judicial decisions appeared to be influenced by that fact (the decisions involved statutory interpretation, not constitutional law). By 1990, the AFDC program was a mere policy. Changes in the other direction are also common; the Americans With Disabilities Act has probably moved, in a short time, into the category of the constitutive commitment (not its particular provisions, but the general idea).
FDR wanted the Second Bill of Rights to stand as a constitutive commitment. While it would be wrong to say he failed, he didn't really succeed. The nation is committed, at least in principle, to some of the rights he listed (eg the right to free from domination by monopolies) but not to others (including my least favorite, the farmers' rights provision, which fits uneasily with the right to be free from domination by monopolies),
Thanks much to Eugene for the forum, and to emailers for the many excellent comments, criticisms, and suggestions; I've learned a lot.
Friday, June 25, 2004
SUICIDAL THOUGHTS:
For longer than I care to admit, I've been working on an economic theory of suicide. (If you actually read the paper, I encourage you to skip the empirical section, which still needs lots of work.) Other economists have tackled the issue of suicide, though the field is still dominated by psychologists and sociologists.
Oddly, no economic papers that I know of directly address the question of how suicidal persons choose their suicide methods (though some have addressed it indirectly, by modeling suicidal persons as choosing their probability of death). Yet the choice-of-methods question lies at the center of public policy debates. For instance, would restricting access to guns reduce the number of suicides? Gun control advocates usually say, "yes, obviously," while opponents say, "no, because people who want to kill themselves will just find another way." Who's right? I say neither.
The innovation of my approach is to treat the suicidal person as engaging in a search for suicide opportunities, akin to a job-seeker's search for job opportunities. Suppose a job seeker gets a lousy job offer. Should she take it now, or should she turn it down and continue the search? Naturally, the answer depends on how likely it is that she'll get a better job later. The lower the chances of a good offer later, the more likely she is to settle for the lousy offer now.
Similarly, a suicidal person can be characterized as engaging in a kind of passive search for opportunities to die. Suppose he has the chance to kill himself by a non-preferred method - say, overdosing on pills. But he would prefer to kill himself with a gun (over 70% of male suicides use guns). Whether he's willing to use the pills now depends, among other things, on his chances of getting the opportunity to use a gun later. The lower the chances of a gun later, the more likely he is to use the pills now.
Counter-intuitively, the argument indicates that a policy decreasing the availability of a suicide method (like guns) could actually increase the suicide rate. But to be fair, the model's predicted effect is ambiguous - the suicide rate could go up, go down, or stay the same. On the one hand, suicides increase as people substitute into less preferable but more readily available methods. On the other hand, suicides decrease because they will have fewer opportunities to use their more preferred methods. Which effect predominates? A priori, we can't say. It depends on the strength of the subject's preference for one method over another, the magnitude of the drop in availability in the preferred method, the availability of less preferable methods, and so on.
Past studies have tried to find a statistical connection between availability of guns and suicide rates, with little success. Some show a connection between guns and gun suicides, but few if any show a connection between guns and total suicides. What's going on? The natural response is the old "people who want to kill themselves will find a way" theory. But that theory is implausible, because plenty of evidence shows that suicidal persons have strong preferences over suicide methods. The notion that people will casually switch from one method to another relies on the assumption that they regard different methods as perfect substitutes. I don't buy it.
My theory provides an alternative explanation for the absence of a statistical connection between guns and suicide - an explanation that depends upon, instead of denying, people's preferences about methods. People do prefer some methods over others, but they will expand the set of methods they're willing to use at the margin in response to changes in perceived availability. As a result, any change in availability creates offsetting effects that will at least partially cancel out.
In the future, I hope to blog about the applications of my suicide model to terrorism. But since my blogging stint here at the VC is almost over, you'll just have to visit Agoraphilia to get that part of the story. I want to thank Eugene for the invitation to blog here - it's been great fun, and the feedback has been excellent.
Acronym Stacking
In my posting on almost-recursive acronyms, I noted that the company Cygnus, whose name expands to "Cygnus, Your GNU Support," was not guilty of what I referred to as acronym stacking. This is the name I give to an acronym including a letter that abbreviates a different acronym; as I like to think of it, the first acronym is stacked on top of the second one. The first stacked acronym to catch my attention was the name of an issue-oriented political group called ACT-UP, an acronym for "AIDS Coalition to Unleash Power." Aside from the awkwardness of the phrase unleash power for the sake of having a meaningful acronym, my complaint was that you couldn't tell what the A stood for. Yes, it stood for AIDS, but the A in AIDS stands for acquired. Shouldn't this group more properly be known as AIDSCT-UP? Hard to pronounce, sure, but that's not my problem. If you want to make a clever acronym, you still have to play by the rules; that it's difficult to do is no excuse. It's the same kind of aesthetic that goes for sonnets or haikus. And Cygnus beats ACT-UP in this regard, because its namers were able to create an interesting acronym that respected the acronym of GNU by incorporating it whole into the company name.
That's my prescriptive take on how acronyms should be. From a descriptive standpoint, I'd say that if an acronym (such as AIDS) can be abbreviated by its initial letter, that's just an indication of that the word has become so thoroughly ordinary that speakers hardly remember that it's an acronym. I don't know how I'd test this hypothesis, since there are so few stacked acronyms to begin with, but that's my suspicion.
David Price sent me a good example of a stacked acronym, which is also an example of an almost-recursive acronym. He writes:
I was a little surprised to read your post on Volokh this evening, since I'd just been discussing this very kind of acronym a few days ago with one of my fellow interns at the Electronic Frontier Foundation (EFF).
EFF puts on an annual free concert in San Francisco, called the "EFF Freedom Fest." The name of the event, I'm sure you've noticed, can also be abbreviated as "EFF." The 'E' in this acronym expands to "EFF", but *that* "EFF" stands for "Electronic Frontier Foundation."
"EFF" as an abbreviation for "EFF Freedom Fest" is therefore both almost-recursive and a product of acronym-stacking.
And now that we've wandered back onto the subject of recursive acronyms, Jonathan Ichikawa gave another example in a comment: A Dilbert cartoon in which Dilbert and Wally talked about "The TTP Project." This is another example that's interesting for two reasons. One is that it's a recursive acronym with a letter from the middle (i.e. the second T), not from the front, giving rise to the recursion. The other is that it's a redundantly expanded acronym which is redundantly expanded on both ends. Of course, since it was intended to be a joke, I can't really count it as a real linguistic example, but it was fun nonetheless.
And speaking of "it was fun," I've enjoyed guest blogging here this week. Thank you, Eugene, for the invitation, and Conspiracy readers for your feedback. My future posts will not be appearing on Agoraphilia, but on Literal-Minded ("linguistic commentary from a guy who takes things too literally"), the linguistics-related blog that I'm starting. Cheers!
WORTH TEN SECONDS OF YOUR TIME:
I'm always skeptical about whether petitions - especially online petitions - ever have any effect whatsoever. They're probably even less meaningful than online polls, which is to say, hardly meaningful at all except as a measure of how much publicity they got in certain circles. But at least I agree with this one, which says the presidential debates should be organized by a non-partisan (rather than bipartisan) commission. The aim is to improve the chance of third-party candidates being included and, as Roderick Long puts it, "to make the debates less like press conferences and more like actual debates."
The Real Tragedy of Bill Clinton for Democrats:
On Balkanization Jack Balkin offers an insightful analysis of why Bill Clinton was reviled by so many Republicans:
Clinton understood that the Democrats could get back in the White House if they appealed to parts of the coalition of voters that had elected Ronald Reagan and George H.W. Bush. And so he set out consciously to do that. He fractured the existing winning coalition by producing a combination of economic policies designed to appeal to middle class voters while accepting certain elements of the values agenda that had played so well for the Republicans. He focused on issues like crime and welfare, emphasized his populist roots and religious sensibilities, while at the same time maintaining strong ties to secularism, feminism, and civil rights. In this way Clinton threatened to create a new winning coalition by borrowing the rhetoric of his political opponents and becoming a more "Republican version" of a Democrat. My purpose here is not to enter into a discussion of why some conservatives hated Clinton (and I will refuse to do so). Instead, I note Jack's observation because it is ALSO the reason why Clinton was reviled by the more left-wing constituents of the Democratic base. A Democrat with less personal charisma would have been abandoned by his alienated base, but they were forced to like it or lump it.
Indeed, what made Bill Clinton a potentially transformative president like FDR and Reagan (and so threatening to Republicans) was precisely his personal appeal to the electorate. Like FDR and Reagan, he was simply not beholden to the disparate elements of his own party coalition for his electoral success. They were beholden to him for delivering them to the White House, and potentially beyond (and many in his party resented him for it at the time).
All this is why I believe Clinton's personal weaknesses were so tragic, not for him but for his party, and why he was not the transformative figure he might well have been. When Clinton's character weaknesses crossed the line to leave him both politically and legally vulnerable to his political opponents, he then was forced to abandon this centrist strategy of triangulation and to rely on his base to save his presidency, thereby ending, at least for now, any transformative move by Democrats towards the center.
Even if you deny that he moved left, it is undeniable that the party, after Clinton, abandoned the strategy that Jack so accurately describes in the above quote, thereby preventing it from exploiting the strategy that Clinton proved so electorally effective. Had Clinton not been so slippery about the truth, or had kept his sexual activities outside the vicinity of workplace harassment (about which he could be deposed) or sexual subordination, he would surely have remade the Democratic Party in his image.
As it is, the Democrats have now reverted to their pre-Clinton pattern, with an extra-strength dose of 60's antiwar revivalism for good measure. Note that Hillary is not participating in this tack to the left in foreign policy, and the Democratic base is giving her the same pass they gave Bill, albeit with more enthusiasm perhaps because she is not dissing them on domestic policy and they trust her more. Query, was Hillary really to the left of Bill as she appeared to her supporters and detractors alike, or was she merely the "good cop" to Bill's "bad cop" to Democrats and vice versa to Republicans. (What a team they made!)
Now there is one huge counter argument to Jack's story and mine: Bill and Hillary's early commitment to a radical reform of the health care industry. Now I know it was supposedly short of a "single payer system" and therefore supposed to be "moderate." But it was a major policy shift to the left and, regardless of how reasonable it may have appeared tactically ex ante, it was largely responsible ex post for the Republican take over of the House of Representatives in '94, long before the Clinton personal scandals gained any real traction. I am not sure what to make of this twist. Perhaps Clinton's triangulation strategy only became honed and effective with someone like Newt Gingrich as his foil. In other words, perhaps Bill Clinton's strength was in tactics rather than strategy. I am open to suggestion about this.
Regardless of how the first two years of his administration is interpreted, however, the tragedy remains the same. The difference between Bill Clinton and both Al Gore and John Kerry is that Clinton's political skills transcended his party's coalition, whereas (to date) both Gore and Kerry are entirely dependent upon that coalition and therefore not free to maneuver in a manner that would capture the broad middle of the electorate.
If I am right about all this, then two further mysteries remain. Why did the Democrats, including the left, close ranks around Clinton when his ouster would have meant the elevation of Al Gore to the presidency, clearly giving Democrats a substantial edge going into the 2000 election? Clinton's claim that impeachment was a partisan coup has always neglected how it was against the interests of Republicans to pursue his removal from office successfully--and perhaps this is why they failed in the end to convict him, though this outcome was hardly so likely that Republicans could count on it and it was Republican "moderates" who saved him. Perhaps Democrats are so viscerally averse to permitting any Republican victories that they would cut off their political noses to spite their foes? I really do not know.
The second mystery is why Democrats, especially those on the left, remain so loyal and affectionate towards the man who either betrayed their principles (when triangulating) or betrayed their chance to form a winning coalition (by his solely personal and sexist self-aggrandizement). Why is he not in disgrace with them, just as Gingrich lacks standing with the most partisan Republicans for having "blown it" big time. Is Clinton simply forever "The Man Who Shot Liberty Valance" by winning back the White House while driving conservatives nuts? Or is there some underlying schism in the Democrat psyche? Again, I really do not know.
Perhaps Jack does.
DEPENDENCY? IT DEPENDS ON YOUR DEFINITION:
For the coming school year, home-schooled debaters will be tackling the resolution, "That the United States should change its energy policy to substantially reduce its dependence on foreign oil." I'll be speaking at a home schoolers' debate camp later this summer, which gives me an incentive to become better informed about this important subject.
But for now, I'll present my initial reaction to the wording of the resolution itself - specifically, the ambiguity of the word "dependence." There are two obvious ways of defining dependence: first, in terms of the gross amount of oil we import from abroad (or from a particular region); or second, in terms of the fraction of our oil that we import from abroad (or from a particular region).
The difference matters, because some policies will decrease one form of dependence while increasing the other. Suppose, for instance, that a new energy policy succeeded in substantially reducing American demand for oil. Other things equal, the outcome would be a reduction in the world price of oil. As a result, the marginal oil wells - those that were profitable at the higher price but unprofitable at the lower price - would have to shut down. And where are such oil wells located? Mostly outside the Middle East, in places like the United States and the North Sea. Oil is incredibly cheap to produce in the Middle East, for a variety of reasons. So in the new equilibrium, a larger fraction of the world's oil production would take place there. America would be importing a smaller amount of oil (reducing our dependency under definition 1), but a larger fraction of the oil we still consumed would come from abroad, and from the Middle East specifically (increasing our dependency under definition 2).
So which definition should we care about? There's not a clear answer; it depends on the real goal. Suppose that our goal is to deprive Saudi Arabia and other terrorist-breeding states of oil profits. The proposed policy would decrease the total profits of the oil industry (because of the lower price), but Middle Eastern countries would sell a larger share of it. Put simply, the Middle East would get a larger slice of a smaller pie, with an ambiguous overall effect on profits (at least based on theory alone - better information could possibly allow a more precise prediction). Remember that the next time someone tells you that driving an SUV helps fund the terrorists.
(Incidentally, this post is not intended as a criticism of the debate resolution. Ambiguity of this kind can be interesting fodder for debate.)
Why do "Constitutive Commitments" Matter?
I believe that Cass is describing a very real social phenomenon. There surely are, and have always been, some positions or "norms" that are sufficiently "beyond the mainstream" as to disqualify someone from national office. These norms are "effectively binding" in the sense that one publicly disavows them at one's peril. While these norms remain stable over time, they can also be contested and eventually supplanted. All this sounds perfectly reasonable and plausible as a description of social norms, but I am still left wondering:
(a) In what sense is such a norm accurately described as a " commitment";
(b) In what sense is such a norm " constitutive";
(c) What argumentative purpose is served by invoking the concept of "constitutive commitment"? That is, what does it add to otherwise familiar normative or descriptive claims about rights, law, justice, etc.?
Clarifying these three matters would go a long way to helping me better understand the normative and/or descriptive claim Cass is making about the Second Bill of Rights.
Update: Larry Solum offers his take on constitutive commitments here.
Taking FDR Seriously
Thanks to Randy Barnett, and assorted emailers, for excellent questions and comments about constitutive commitments and FDR's Second Bill of Rights. Constitutive commitments first: They're not part of the formal constitution and they're certainly not for judicial enforcement. They nonetheless matter, because they have sufficiently wide and deep political support that they're effectively binding -- unless and until there's a major transformation in public values.
It would be nice to have a clear sense of necessary and sufficient conditions for constitutive commitments, but lacking these, let's make a rough first cut: A constitutive commitment is in place if over a significant period of time, a presidential candidate could not seriously question that commitment without essentially disqualifying himself. This means that the commitment must have both wide and deep support (and not just among academics, elites, or the media; a strong political majority is needed). We can imagine hard intermediate cases and the definition leaves ambiguities; but the prohibition on racial discrimination in employment, the antitrust laws, and some kind of social security program are evident examples -- and so too, I think, with a ban on the nationalization of industries and on federal taxes above a certain rate (eg Kennedy-era levels). Any nation will have some constitutive commitments that some reasonable people will reject; and reasonable people sometimes get those commitments to change over time.
On the sense in which FDR meant his Second Bill to contain "rights": He wasn't much of a theorist (Trotsky famously criticized him for just that reason; "Your President abhors 'systems' and 'generalities'"), and he saw (positive, in the sense of legally protected) rights as instruments for protecting the most important human interests. Randy asks whether the Second Bill should be seen as protecting "natural rights." To say the least, the natural rights tradition has multiple strands; a good contemporary version is elaborated by Amartya Sen (see his Development As Freedom). A possible position: If we believe that human beings have certain rights by virtue of their humanity, it's plausible to say that those rights include a decent chance to achieve well-being by their own lights and also a minimal level of security if, for one or another reason (eg disability, illness, atrocious luck), that chance is not enough. Roosevelt's focus was on decent opportunities and minimal security, and while his Second Bill of Rights was an innovation, he can claim clear antecedents in Montesquieu, Blackstone, and even Madison.
New Civil Justice Reform Blog:
The Manhattan Institute has launched a new civil justice reform blog, PointOfLaw.com. I will be a contributor, posting occasionally on issues such as the admissibility of expert testimony (while I'm on-topic, if your law firm doesn't have a copy of The New Wigmore: Expert Evidence, now is the time to correct that oversight). My posts on PointOfLaw are likely to be longer, more complex, and perhaps of less general interest than my V.C. posts. Here's an excerpt from the MI press release:
PointofLaw.com is a web magazine sponsored by the Center for Legal Policy at the Manhattan Institute that brings together information and opinion on the U.S. litigation system. Focusing on America's civil justice system, the website includes original discussions featuring some of the nation's top legal scholars, an ongoing forum on liability issues, a bibliography of important books and articles, and links to topical legal news stories. There is no subscription fee.
It is no secret that America is an increasingly litigious place. (Its tort liability system, for example, consumes more than two percent of its gross domestic product, a higher percentage than in any other developed nation.) And as the role of civil justice grows, so does the demand for reliable, timely information and opinion about it.
PointofLaw.com intends to satisfy that demand. Aimed both at experts on civil justice and at newcomers to the field, the magazine incorporates two major components:
Forum - continually updated blog by a group of distinguished contributors, containing thoughts, opinions, news and more
Library - archives of articles, books, and news items, selected and recommended by the editors of PointofLaw.com—an invaluable resource for learning about the civil-justice system
Both components can be organized by topic, so that researchers, journalists, students, and policy-makers can quickly find information on the following issues and others:
asbestos
class actions
employment law
ethics
government litigation
medical malpractice
reform proposals
scientific evidence
Another highlight is the monthly Featured Discussion, in which two experts exchange views on a topic of interest. Next month, Walter Olson of the Manhattan Institute and Michael Krauss of George Mason University School of Law will initiate this series by discussing federal legislation to stop lawsuits against firearms manufacturers.
The magazine's editors are Walter Olson and James Copland, both of the Manhattan Institute. Bloggers and contributors include David Bernstein, Ted Frank, Stephen Bainbridge, Lester Brickman, Michael DeBow, Richard Epstein, Michael Krauss, and Richard Painter.
ECONOMY AND CULTURE:
Last week, I attended a Liberty Fund conference on "Liberty & Diversity," where I met historian David Beito and conspirator David Bernstein, among many others. Interestingly, I was the only economist in the bunch, which may have given me a peculiar perspective (it usually does). These are some of my thoughts, which I expressed at the conference, on the question of whether the interests of cultural groups might justify some kind of state involvement in meeting them. (Just to be clear, I don't claim these thoughts are terribly original; this has been Tyler Cowen's bailiwick for quite a long time.)
Many forms of cultural involvement have the form of an investment, since they involve some personal expenditure of time, money, or effort in return for the benefits of group membership. Examples include becoming fluent in a language that's not in everyday use, learning how to perform a certain dance or make a particular food, or relocating in order to live in closer proximity to other members of the group.
The simple laissez-faire argument for keeping the state uninvolved is that individuals can decide for themselves whether the benefits of cultural involvement are great enough to justify the costs. If a culture withers, it's because individuals aren't gaining enough from the culture to make it worth their while - in which case the culture should wither, just as unwanted consumer products get discontinued.
The problem with that argument is that there may be some cultural products that involve positive externalities, perhaps even rising to the level of public goods (in the economic sense of that term). Suppose my investment in a cultural product - say, relocating to a certain neighborhood - produces benefits to everyone in the group, including myself. But if my private benefit from relocating is smaller than my private cost, I will choose not to contribute, even though the total benefits to everyone involved exceed my private cost. I might choose to free-ride by visiting the neighborhood from time to time, enjoying its ethnic ambience, and then heading back home. If too many people follow their private incentives in this way, the community never develops (or doesn't develop as much as it could), and we are all worse off.
The standard ECON 101 remedy for a public good or positive externality problem is to propose some form of state support, such as subsidies for cultural activities (perhaps in the form of a rent discount). But taking ECON 102 reveals some important objections to the standard remedy:
First, there is the problem of distinguishing between free riders and honest hold-outs. If I refuse to contribute to the community, maybe it's because I'm selfishly collecting the benefits while dodging the costs - or maybe I don't actually value the community that much (or at all). Many people seek to escape their cultural backgrounds, partially or completely, because they actually prefer aspects of other cultures. In some cases, the alleged public good might even be regarded as a "public bad" by subsets of the group (e.g., women in a male-dominated culture). Also, the proposed policy might burden people who were never members of the culture in the first place; this would certainly be true of a subsidy financed out of general government revenues.
Second, it's not true (as some textbooks claim) that public goods never get provided privately. People can be incredibly clever in finding ways to provide public goods without coercion. Probably the best known example is the financing of broadcast TV through advertising. Private housing developments, which create a means of excluding non-contributors, transform public goods into "club goods." The open-source software movement (which, admittedly, I know little about) is arguably yet another example of private provision of public goods. The absence of state intervention need not spell the death of a cultural public good, as long as people are clever enough to search for other institutional devices.
Third, there's the public choice objection: any potential market failure in production of cultural goods has to be weighed against potential government failure if the state becomes involved. There is no reason to think state actors will be neutral arbiters of the value of cultural goods; rather, they will be influenced by the all-too-familiar phenomenon of special interest rent-seeking. Even if a cultural practice does not meet the criteria for being a true public good (say, because non-contributors can be excluded from the benefits), that will not prevent group members from lobbying for subsidies and special protections at the expense of the rest of society, including other cultural groups.
INACTIVITY IN HISTORICAL PERSPECTIVE:
Apropos of my post on the virtue of inactivity in politics, reader Carl Edman emailed me the following quotation: "[Titus Antoninus Pius's] reign is marked by the rare advantage of furnishing very few materials for history; which is, indeed, little more than the register of the crimes, follies, and misfortunes of mankind."
— Edward Gibbon, The Decline and Fall of the Roman Empire, vol I., ch. 3, pt. 2
Watch my Backformation
Someone I know once told me,
- I like to peoplewatch."
In May 2003, a gossip column had a quotation from Ashton Kutcher, concerning a party that George W. Bush's daughters had attended at his place in 2001. Kutcher said,
- The Bushes were underage drinking at my house.
These two sentences caught my ear because of the verbs in them: peoplewatch and underage drink. These verbs are a particular variety of one of my favorite word-formation processes, backformation. Backformation is the reverse of adding an affix (i.e prefix or suffix) to a word (or if we're not just talking about English, doing any kind of derivational operation on a word, whether it's affixing, or repeating a portion of the word, or changing the vowels, etc.). Instead of the affixed word coming into existence after the original word, the affixed one is the original word, and the un-affixed version comes later.
For example, consider first an ordinary case of derivation: the adjective sexual. This is derived from the noun sex by adding the suffix -ual. Now consider the adjective homosexual, and complete the following old-style SAT analogy:
sex : sexual :: ? : homosexual
The answer is homosex, a well-attested noun meaning "sexual activity between members of the same sex." The adjective came first, not the noun, though in a hundred years I'm guessing most English speakers will assume it was the other way around. (Just as they do with the verb edit, which actually entered the language after the noun editor.)
Examples (1) and (2) above are a special case of backformation that I've started to notice. They are backformations resulting from this sequence of events:
First, a noun form of the verb, i.e. gerund or agentive noun, is combined with some other word to make a compound word. The other word could be a noun that would ordinarily appear as the verb's direct object, as in peoplewatching (gerund) or peoplewatcher (agentive). Or the other word could be an adjective modifying the noun, as in underage drinker.
Second, a reanalysis of the compound word occurs, such that [A [B C]] is reparsed as [[A B] C]. Continuing with the earlier examples, [people [watch er]] becomes [[people watch] er], and [underage [drinker]] becomes [[underage drink] er].
Third, the actual backformation itself:
watch : watcher :: ? : [[people watch] er]
drink : drinker :: ? : [[underage drink] er]
And now we end up with the new verbs people-watch and underage drink, as evidenced by the fact that we see them in infinitives ( to peoplewatch) and finite verb forms (that is, verb forms with a tense, such as past progressive, as in were underage drinking). Sweet!
My enthusiasm was not shared when I brought these examples up in an introductory linguistics class I taught last year. One student dared to dispute my claim that underage drink was being used as a verb in (2). Yeah, yeah, she said, it's appearing in a finite verb form all right, but the thing is, in English gerunds and progressive participles sound the same! Ashton Kutcher might have said, "They were underage drinking" just because he's familiar with the term "underage drinking" and doesn't know or care about the difference between a gerund and a participle. He would never, this student argued, say something like "She underage drinks all the time." In short, underage drink may be a verb in a technical sense, but it's not a verb with full rights and privileges of ordinary verbs. She had a good point.
So just now I did a couple of Google searches to see what I found for simple past and 3rd person singular present forms of underage drink and peoplewatch. I found fewer than 50 hits for underage drank, underage drinks, and peoplewatched; zero for peoplewatches. (Compare this to 190K for underage drinking and 450K for peoplewatching.) For some people, at least, these new verbs are starting to do more of the things that verbs can do, but these words have a long way to go before they totally fit in.
My final thoughts on these backformations is that there is an even more special subclass of them: those whose source verb is transitive. Peoplewatch is an example. Aside from seeing these verbs in infinitives or in tensed forms, I've found one more thing that (I claim) immediately gives away that a backformation has occurred: It has to have happened if a new direct object can appear after the verb, taking the place that used to be reserved for the direct object that now appears in front. Here are a couple of examples:
- We can fact-check your ass! (heard in several places)
- We don't just cherrypick the best ones. (heard on a radio commercial)
I hypothesize that any time you see this kind of competing direct-object structure, you will find that the backformed verb has achieved full verb status, and can be used with all tense/person/number suffixes.
Thursday, June 24, 2004
Affirmative Action at Harvard:
Via Matthew Yglesias, this interesting N.Y. Times story discussing the fact that a disproportionately large percentage of "African American" students at Harvard (and other elite colleges) are actually of recent African or West Indian heritage, or are of mixed race.
One interesting aspect of the article is that those who argue that Harvard should be taking more descendants of American slaves do so on the grounds that Harvard has a special moral obligation to help such individuals. The president of Amherst College, for example, is quoted as saying that by not admitted blacks students with predominantly American roots, "colleges are missing an 'opportunity to correct a past injustice' and depriving their campuses 'of voices that are particular to being African-American, with all the historical disadvantages that that entails.'"
One major problem with this argument, not addressed in the article, is that while racial preferences for "diversity" purposes are legal under Grutter v. Bollinger, racial preferences for remedial purposes are not. And it would be hard to argue that, say, the fifth African American student from Harlem adds more "diversity" to a class than the first recent Gambian immigrant. Any college (are you listening, president of Amherst?)that preferred "American" black students over black immigrants would likely be violating the law.
This is just one more example of the perverse consequences of the "diversity" argument for racial preferences. (Another perversity is that a white immigrant from a wealthy family in Peru gets a "Latino" preference, while a poor kid from Appalachia or from a poor Irish immigrant family does not.) While not everyone, to say the least, agrees with the remdial rationale for affirmative action/racial preferences, it is at least coherent, and, as any reasonable preference policy should, suggests targeting preferences as those whose ancestors suffered most, and whose communities currently need the most help. The Supreme Court, if it's going to uphold the legality of racial preferences (and I've argued in You Can't Say That! that it's obligated to do so, at least for certain ideologically driven private schools), should abandon the diversity rationale in favor of the remedial rationale.
Taking "Constitutive Commitments" Seriously:
In his recent post, Cass invokes the concept of a "constitutive commitment," by which he means something more than "a policy" and something less than "a constitutional requirement." I take it that he would distinguish between constitutive commitments and Ackermanian ethereal unwritten constitutional amendments adopted during so-called "constitutional moments." But (rousing myself reluctantly from a well-earned bout of lethargy) I am still wondering about the concept.
Cass writes, "These rights are "constitutive" in the sense that they help to create, or to constitute, a society's basic values." In a pluralist or diverse society (what Hayek called the "Great Society"), however, this brief description of the basic idea gives rise to some obvious questions: who exactly is constituted by which commitments? The claim is probably not that everyone has made this commitment, or is constituted by it, but then who? A majority? A super majority? A critical mass, whether a majority or not? An intellectual elite? The proletariat?
Assuming one of these is specified, in what manner does the "commitment," whatever it may be, constitute the relevant "us"? Are we somehow defined as individuals by a commitment external to us, or is the group to which be belong so defined, and "defined" in what sense?
As a matter of political science, how does one determine the existence of such a commitment? Opinion polls? Opinion polls over time? In other words, if anything of importance turns on the existence of such a commitment (another question I raise below), what reliable means is there for ascertaining its existence, breadth and content?
In short, how is the concept of "constitutive commitment" of an entire "society" less epistemically and metaphysically problematic than the much-maligned collective "intentions of the framers"? The serious problems with discerning collective group intentions are well-known. I am wondering how constituent commitments are any easier either to identify or defend as real.
Then there is the question of how uncontested such a commitment needs to be to be counted as constitutive? Does it matter that a substantial minority dissent? Does it matter if they do not speak up much any more because, however substantial in numbers, they know they are in the minority and would be pummeled by the majority if they did? (Think of the 30-35% of the Massachusetts electorate who are, gasp, Republicans. Given the stability of the Democrat majority among voters, it is as though these 30-35% do not even exist. They certainly lack all representation at the federal level. Would their silent and/or ignored dissent detract from the "constitutive commitment" of the majority?)
Relatedly, how does one distinguish such a constitutive commitment among the general public in practice from one that "constitutes" the world of elite intellectual opinion makers, such as those in academia or in certain media outlets? Another reason why a member of even a majority of the general public who holds a different view from that of the opinion elite might remain silent is to avoid the very real suffering that can be meted out by this crowd with they are crossed. (Someone not as impervious to hostile criticism as, say, Hootie Johnson or Richard Epstein, which describes most people I think.)
What turns on the existence of a constitutive commitment? That those who share it vote or act in certain ways? That the minority who dissent remain silent or acquiesce in some way? That legislators vote in certain ways? Cass says that one advantage of FDR's constitutive commitment "strategy is that it avoids a role for federal judges" so I assume judicial review is more or less out of the picture, which distinguishes a constitutive commitment from an Ackermanian unwritten amendment. But perhaps I am misconstruing him here. I guess this is the eternal "so what?" faculty workshop question that I normally avoid asking.
Speaking of avoidance, is there any way of avoiding the sense that someone who invokes the concept of constitutive commitment is trying somehow to elevate, privilege or reify his or her own commitments or moral judgments--giving these judgments some higher status in the General Will of the Community, rather than that of a mere moral judgment, or even that of a mere consensus or a majority view?
All this does seem to relate to Cass's invocation of a Second Bill of Rights. When he first posted, I had thought to inquire as to the sense in which these claims are "rights" (but as I am trying to be on vacation for a while, I was content to let the matter pass). I was going to ask whether they are natural rights that belong to persons regardless of whether recognized by government--like the freedom of speech? Or are they positive rights that exist because they are adopted as part of the human laws--like the right to a jury trial. As Madison explained, the original ten amendments included both of these two types, though I have concluded that the Ninth Amendment refers only to natural rights. But it now appears that Cass means to claim Roosevelt's list, or some portion thereof, as "constitutive commitments," which are neither natural rights nor positive rights, thereby making a more precise account of this type of animal (or is it vegetable?) important to assessing the exact nature of his current argument.
UPDATE: Rereading my post hours later, it seems far more sharp in tone than I intended. I had meant merely to put these questions that occurred to me about the concept of constitutive commitments but, strung together, they seem more harsh than inquisitive. Rather than edit the original text, however, I thought that I, like the first Congress, would add this rule of construction as an express amendment to the original text: The enumeration in this post of certain questions shall not be construed to disparage the post to which I was responding.
BLACKMARKETS IN EVERYTHING:
Tyler links to an article (warning: as Tyler says, it's PG-13) about Japan's recent ban on the sale of soiled panties by underaged girls. Apparently some Japanese men - enough to create a thriving market - like to acquire the used panties for erotic purposes.
I let the story about a guy auctioning off his virginity pass without comment because I didn't see a real policy lesson there. But in this case, there is a very serious point: banning a practice you find offensive rarely, if ever, means that the practice will disappear. On the contrary, the outcome is typically a more dangerous manifestation of the same practice. How did the law of unintended consequences play out in this case? Read on: "Underage sellers aren't punished under the ordinance, so the girls are pretty composed about the whole thing," says Gomez Yamada, a writer specializing on teen girl topics. "The ordinance may have shut down the burusera stores, but it has only sparked a thriving trade in schoolgirls using mobile phone sites to conduct direct sales to customers without needing a middleman. They'll arrange to meet in some dark spot like a karaoke box or beside a building, then remove and hand over their panties on the spot in exchange for payment. What's more, they're charging 5,000 to 10,000 yen a pair, about five times what they would have got from a burusera shop. Some girls are even happy the ordinance has come into effect because it's done away with the burusera shops that were eating into their profits." In other words, the market has gone underground. Girls used to sell their (under)wares to dealers with established businesses, whose primary interest was in making money. They never even had to meet the adult male buyers. But now, under the wise new policy, young girls are arranging clandestine meetings in dark venues with men who are turned on by girls' underpants. Does anyone else see a disaster in the making?
THE VIRTUE OF INACTIVITY:
As Prof. Sunstein's illuminating posts have reminded us, Franklin Delano Roosevelt was a man of purposeful action and sweeping vision. But is that necessarily a good thing? The lionization of presidents with ambitious policies and ideas biases our historical perspective, as Gene Healy reminds us in this excellent book review. Interesting presidents give us better biographies, but boring presidents may give us better governance.
When I Say Everyone Can't, I Mean It!
One time back in elementary school, I heard a teacher talking about the logistics of an upcoming field trip, and she said something like this:
- Everyone can't fit on the bus.
I was confused. Did she seriously mean to say that not a single one of us could fit on the bus? How was that possible? Oh, wait—she must mean that not everyone could fit on the bus. But even when I'd figured out what she'd really meant, mentally attaching the intended meaning to the actual utterance was like trying to push two magnets together the wrong way.
This happened whenever I heard a sentence with a universal subject (e.g, everyone) and a negated main verb (e.g, can't). The resistance was so strong that for years, I thought the adage "All that glitters isn't gold" meant that by golly, if it glittered, it wasn't gold! Of course, I always thought it would make more real-world sense to say that not everything that glittered was gold, but hey, that wasn't how the saying went, and who was I to try to reinterpret it to suit my own taste?
In formal semantic terms, I was taking the negation to have scope only over the rest of the verb phrase, as illustrated in (2) with the Everyone can't fit example. I balked at allowing the negation to have scope over the whole sentence, as illustrated in (3):
- For every person x, x cannot fit on the bus.
(I.e., No one can fit on the bus.)
every(x, ~fit_on_bus(x))
- It is not the case that everyone can fit on the bus.
(I.e., Not everyone can fit on the bus.)
~(every(x, fit_on_bus(x)))
Through the years, I (in company with many other people with strong opinions about English grammar) remained convinced that anyone who said "Everyone can't" and meant "Not everyone can" was making a mistake, plain and simple, despite the accumulating evidence that for many people, both scopings shown in (2) and (3) were OK.
As a linguist, though, I can't simply dismiss the scoping in (3) as a mistake. If I want to accurately describe how speakers are using a language, I have to respect the fact that Everyone can't is used by many speakers to mean "Not everyone can", and try to uncover the grammar rules that people are following that let them do this. This is not to say I have to like the construction; in writing-instructor mode, I can and do encourage writers to avoid it for the sake of clarity. But in linguist mode, to say that Everyone can't is wrong is just plain irresponsible.
Having recognized the two scopings of (1) as a fact of English, the task is now to write a grammar such that both scopings are generated. In fact, it turns out that it is easy to do this. First consider sentences like (4), similar to (1) except that the everyone is now an object instead of the subject.
- I can't talk to everyone.
(I.e., it is not the case that I can talk to everyone.)
This sentence has two scopings for the negation, shown in (5) and (6), both of which are completely OK for me, and for every other English speaker as far as I know. And once you specify definitions for your negation and quantifiers such as every so that you can generate a sentence like (4) with these two scopings, the two scopings for sentences like (1) are generated automatically.
- For every person x, I cannot talk to x.
(I.e., I can't talk to anyone.)
every (x, ~(I_can_talk_to(x)))
- It is not the case that I can talk to everyone.
~(every (x, I_can_talk_to(x)))
Semanticists have known this for years, and the usual thinking about why some people take issue with saying "Everyone can't" when they mean "Not everyone can" is that it's an issue of avoiding ambiguity: Not everyone can is more specific than Everyone can't, so why not just say that if it's what you mean, and reserve Everyone can't for situations when you mean "No one can"? (Or for that matter, avoid Everyone can't entirely, and say "No one can," if that's what you mean.) I'm pretty sure that this is the position that Larry Horn takes in his authoritative A Natural History of Negation, though I'd have to look it up again just to make sure.
This is the position I have defended in recent years in discussions with my parents and my brother Glen. However, Glen recently raised a telling point. In school we learned the usual prescriptive rules about not splitting infinitives, not starting sentences with because, and the other favorites, and in that way learned (or refused to learn) that we shouldn't do these things that we'd been doing for years. But when I was getting confused by Everyone can't fit on the bus, nobody was telling me that the teacher was making a mistake. My rejection of the "Not everyone can" meaning (and his, too) came from the gut, not from a usage manual. So wasn't it possible that in our dialect of English, it really and truly is ungrammatical for Everyone can't to mean "Not everyone can"?
I've been working on this problem for a week or two, now, and I can say that it is much easier to arrange things so that scopings (2), (3), (5), and (6) are generated than it is so that (2), (5), and (6) but not (3) are generated. It can be done, but at a minimum, it will require that there be two definitions for can't, one of which will give you the narrow-scope negations seen in (2) and (5), and the other of which will give you the wide-scope negation seen in (6), and not allow the one in (3). Probably we'll also have to say that subject-everyone has one syntactic category, while object-everyone has another one. Both these measures are ill-motivated (read: hacky) proposals, good for solving the current problem, but without any independent evidence in their favor.
What would be some independent evidence? If we're proposing that the single word can't (or other negation) is ambiguous between the two relevant meanings, then we could expect that there would be other languages out there in which the two meanings are hooked up to two different words. Likewise, if we're claiming that everyone is ambiguous between a subject version and an object version, perhaps there are other languages out there where there are actually two words for the two meanings, instead of one ambiguous one—not just the same word with different case markings, but actual different words. Of course, if such evidence is never found, it doesn't mean that our analysis is wrong, just that there is not much reason to put credence in it. But if evidence like this did turn up, wouldn't that be cool?
UPDATE:
Several readers have noted that "Everyone can/can't fit on the bus" is ambiguous between a distributive reading (each person is/isn't individually able to fit) and a cumulative one (the group of people can/can't fit), which clouds the issue of the scope of the negation. Here is a better-chosen example: Everyone didn't go. I still can get only the "Nobody went" reading (though I can recognize when people other speakers intend the "Some didn't go" reading).
Some readers have also observed that they get only the "not everybody" reading of (4). I admit, this reading is the much-preferred one for me, though I seem to recall situations in which the other reading was appropriate and grammatical. But even if the "not everybody" (i.e. wide-scope negation) reading is the only one available here, it's still strangely different from the obligatory narrow-scope negation that I have to have for (1).
Constitutive Commitments
It's standard to distinguish between constitutional requirements and mere policies. An appropriation for Head Start is a policy, which can be changed however Congress wishes; by contrast, the principle of free speech overrides whatever Congress seeks to do. But there's something important, rarely unnoticed, and in between -- much firmer than mere policies, but falling short of constitutional requirements. These are constitutive commitments. (We're still talking, or at least not not talking, about FDR's Second Bill of Rights.)
Constitutive commitments have a special place in the sense that they're widely accepted and can't be eliminated without a fundamental change in national understandings. These rights are "constitutive" in the sense that they help to create, or to constitute, a society's basic values. They are also commitments, in the sense that they have a degree of stability over time. A violation would amount to a kind of breach - a violation of a trust.
Current examples include the right to some kind of social security program; the right not to be fired by a private employer because of your skin color or your sex; the right to protection through some kind of antitrust law. As with constitutional provisions, we disagree about what, specifically, these rights entail; but there isn't much national disagreement about the rights themselves. (At least not at the moment.)
We could learn a lot about a nation's history if we explored what falls in the category of constitutional rights, constitutive commitments, and mere policies -- and even more if we identified migrations over time. Maybe some of the commitments just mentioned will turn into mere policies. Sometimes policies are rapidly converted into constitutive commitments (consider the 1964 Civil Rights Act). Sometimes constitutive commitments end up getting constitutional status (the right to sexual privacy is, to some extent, an example, with the line of cases from Griswold v. Connecticut to Lawrence v. Texas).
Back to FDR's Second Bill of Rights: He wasn't proposing a formal constitutional change; he didn't want to alter a word of the founding document. He was proposing to identify a set of constitutive commitments. One possible advantage of that strategy is that it avoids a role for federal judges; another possible advantage is that it allows a lot of democratic debate, over time, about what the constitutive commitments specifically entail.
Johnson and Reagan also tried to redefine the nation's constitutive commitments, but FDR was much more ambitious. He didn't quite succeed in turning the Second Bill of Rights into constitutive commitments; but if you go over the list, you'll see that he didn't exactly fail.
Sunday Song Lyric Update:
I must apologize to the song lyric fans that nothing appeared this past Sunday. I have been traveling and I had thought that I had managed to successfully publish a song lyric for a later date. Alas, I was mistaken, and the song lyric (by Nina Simone) disappeared into the ether. I'm still on the road, but expect two song lyrics to appear this coming Sunday.
Wednesday, June 23, 2004
Almost-Recursive Acronyms
There've been a number of posts about acronyms recently on some of the blogs I read. One was from me, one from Glen, and one from the guy at Semantic Compositions. This last one reminded me of a letter to the editor I wrote some 15 years ago. The post is about recursive acronyms, the cited example being GNU, which expands to "GNU's not Unix." One of the letters in a recursive acronym (theoretically any one of them, but always the first one in the examples I've seen) stands for the acronym itself, leading to an infinite loop when one tries to expand out the acronym. As I read the post, I thought back to my freshman year at the University of Texas at Austin... ah, yes... I remember it as if it were a segment on Letterman...
I was reading in the campus newspaper about a newly formed student organization that called itself QUEERS. That's QUEERS, not Queers. It was an acronym. I was curious what the acronym could stand for, since there aren't that many words beginning with Q, and probably even fewer that would be relevant. What could it be? Quest? Quintessential? I read on. QUEERS, as it turned out, stood for "Queers United Envisioning an Egalitarian Restructuring of Society."
At first I was just disappointed. That was it? The elusive first word of QUEERS was just queers? That wasn't very clever at all. Then I began to be alarmed. You see, I had just read Douglas Hofstadter's Goedel, Escher, Bach, which had introduced me to the concept of a recursive acronym in the name of a genie in one chapter-opening vignette. The genie's name was GOD, which stood for "GOD Over Djinn." When asked to grant a meta-wish for an infinite number of ordinary wishes to be granted, GOD had to initiate an infinite recursion to all the GODs above him to get the required permission for such a wish. This QUEERS organization was flirting dangerously with infinite recursion! The only thing that saved them was the wise decision to have Q stand for Queers, and not for QUEERS.
I wrote a letter to that effect, and was pleasantly surprised to see it printed a week or so later. Returning to the present, though, I wonder how many other almost-recursive acronyms like QUEERS are out there. I found one on this page, though it was listed as a true recursive acronym: Cygnus, standing for "Cygnus, Your GNU Support." This acronym might escape from infinite recursion since Cygnus has a meaning other than the company with this name--specifically, a constellation. However, since Cygnus the company probably doesn't mean for the C to stand for a constellation, I guess this might be a truly recursive acronym after all. (I will give Cygnus credit for one thing: They are not guilty of acronym-stacking! More on that later.) So at this point, QUEERS stands alone in my list of almost-recursive acronyms. Additions to the list are welcomed.
"Jew!":
Regarding Eugene's question as to why some consider it impolite to called Jews "Jews" instead of "Jewish people," I can contribute a little history. By the 19th century, the word "Jew" was thought by enlightened folks to have derogatory connotations. The leadership of the Reform movement led an effort to abandon the word "Jew" in favor of "Hebrews" or "Israelites," I assume because they thought those words had positive Biblical vibes. Indeed, the confederation of American Reform synagogues is still known as the Union of American Hebrew Congregations. If I'm not mistaken, the leading American Jewish periodical before the wave of (decidedly non-Reform) Eastern European migration in the late 19th century was "The American Israelite." And if you read 19th century publications, friends of the Jews would often refer to them as "Israelites," "Hebrews," "Members of the Mosaic Faith," and other euphemisms that avoid the nasty-sounding word "Jew."
Neither Hebrew nor Israelite ever caught on, but discomfort with the word "Jew" remains. And indeed, anti-Semitic discourse seems to always use the word "Jew," not "Jewish people," as in "dirty Jew!"; or "the Jews control (the media, Hollywood, the Bush Administration's foreign policy);" or "Jews or so clannish." Indeed, I'm told that before I arrived at GMU Law School, one professor--who left before I started at GMU--angrily referred to one of my colleagues as "you little Jew." He disingenuously defended himself from charges of anti-Semitism by noting that my colleague is both diminunitive and Jewish.
Update:Several readers have informed me that UAHC recently changed it's name to Union for Reform Judaism, thus finally formally acknowledging the death of the original dream of uniting all American congregations under one umbrella.
MINIMUM WAGE HERESY:
There are plenty of good arguments against the minimum wage, but I'm not persuaded by reductio arguments like this one: Kerry proposes that the legislated minimum wage reach $7.00 per hour in 2007. Why wait until then? If government can increase workers' earnings by declaring in a statute that no worker shall be paid less than $7.00 per hour, why delay this move to greater prosperity?
Indeed, why an hourly minimum wage of only $7.00? Why not $17.00 per hour? Or $70 per hour? The argument works well enough if you've already got a competitive model of labor markets in your head. But clearly enough, the proponents of minimum wage increases are not working with that model. The minimum-wage advocates who have thought much about it (of course, many haven't) usually have in mind some kind of monopsony model - that is, they assume a market in which employers have some degree of monopoly buying power. Under monopsony, wages can in theory be increased within a certain range with no reduction (and maybe even an increase) in employment. But if the wage rises above a critical point, then disemployment kicks in. Thus, a believer in the monopsony model can consistently favor small increases in the minimum wage while still opposing large ones.
Assuming the truth of the monopsony model for argument's sake, the question is whether you trust the government's ability (and incentive) to "fine tune" the minimum wage so that it always falls within the no-disemployment range. I don't, in part because the size of that range differs across markets and regions, and in part because the range is probably small in any case (as competition increases, the size of the no-disemployment range shrinks). And how likely is it that John Kerry's nice round $7 figure is based on anything other than a raw political calculation?
AS TYLER WOULD SAY, MARKETS IN EVERYTHING:
My sister Ellen alerted me to the case of Dave Vardy, who is trying to auction off what many guys would happily give away for free: his virginity. The starting bid is listed at over 6000 British pounds, though I can't tell whether that's his reserve price or someone has actually bid that much. I suppose I could try to squeeze in a lesson about auction theory here, but I think I'll let this one pass without further comment.
What's with those Jewish people?
Why do some people think that it's more polite to say "Jewish people" than "Jews"? I've heard some people say that "Jews" is somehow considered rude, and "Jewish people" is better, but I just don't see why.
Does anyone know the story here? People don't generally say "black people," "Catholic people," or "female people." Why should they call us "Jewish people" rather than just "Jews"? I don't quite get it.
(I'm not saying that "Jewish people" is wrong -- if you want to say that, it's fine with me, though it will sound affected to me and people who think like me, at least until we're persuaded that "Jews" is somehow bad.)
Lochner Article Reprints:
I will soon be sending out reprints of my 2003 trilogy of articles about Lochner v. New York, its origins, and consequences: (1) Lochner's Legacy's Legacy, from the Texas Law Review; (2) Lochner Era Revisionism, Revised: Lochner and the Origins of Fundamental Rights Constitutionalism, from the Georgetown Law Journal; and (3) Lochner's Feminist Legacy, from the Michigan Law Review (see also: Lochner v. New York: A Barrier to the Regulatory State in Michael Dorf, ed., Constitutional Law Stories (Foundation Press 2004).
If you are someone with a scholarly interest in Lochner Era jurisprudence, and are not on my reprint list, shoot me an email and I'll send you these articles (which you can also read in their almost-final versions at SSRN.com).
Holmes' Haiku
Ok, it's not quite a haiku. But as sentences in Supreme Court opinions go, it's not all that far from that: "Property, a creation of law, does not arise from value, although exchangeable -- a matter of fact." That's from Holmes' 1918 opinion in INS v. AP. (By the way, we're still talking about FDR and his Second Bill of Rights. Also by the way, thanks to Eugene for having me, and also to Randy Barnett for his kind words; how well I remember our fun and great discussions when we lived, more or less, next door to one another here at Chicago.)
What Holmes is saying here is that even though property is exchangeable, it doesn't arise from value; it's a creation of law. And that's simply a matter of fact. With these sixteen words, Holmes captured much of the legal realist critique of laissez-faire -- and a key part of legal thinking between 1890 and 1930. A system of free markets isn't law-free; it depends on law. Property rights, as we enjoy and live them, are a creation of law; they don't predate law.
From his first national campaign, Roosevelt made the same point, though less elegantly than Holmes. In 1932, he emphasized "that the exercise of . . . property rights might so interfere with the rights of the individual that the government, without whose assistance the property rights could not exist, must intervene, not to destroy individualism but to protect it." It's a mouthful, but here is the heart of his proposal for a Second Bill of Rights, twelve years before he made the formal proposal. In that same speech Roosevelt called for a "redefinition of rights," including an "economic declaration of rights," which would recognize that "every man has a right to live."
Roosevelt insisted that no one is really opposed to "government intervention." Those who complain about "government" depend on it every day of every year. Their "property rights could not exist" without its assistance (which costs a lot of money). And he believed that further "intervention," designed to protect decent opportunities (recall the right to education and the right to be free from monopoly) and minimal security, could be necessary to protect not equality but "individualism."
What Roosevelt did was to unsettle the distinction between "negative rights" and "positive rights." He insisted that the right to private property and freedom of contract were, in practical terms, created by government. This isn't at all a criticism of property rights or freedom of contract; Roosevelt strongly believed in both of these. (He despised socialism.) But he thought that any judgment about rights should be based on a sense of what would make human lives go well. In his words, "The thing that matters in any industrial system is what it does actually to human beings . . ." (This from our wheelchair-bound president, Reagan's stylistic role model, who liked to end meetings by saying, "I'm sorry, I have to run.")
Now it might be possible to reject some or all of the Second Bill of Rights on various grounds. (I'll be getting to that.) But it isn't sensible to reject the Second Bill on the ground that rights, to qualify as such, call for government's abstinence rather than government's presence. Holmes' haiku helps to explain why.
Higgs Joins Liberty & Power:
The blog Liberty & Power keeps stocking up on libertarian intellectual talent. Now it has added to its impressive and provocative roster Robert Higgs, the author of Crisis and Leviathan and the forthcoming book, AGAINST LEVIATHAN: Government Power and a Free Society. No scholar has thought more seriously about the historical relationship between liberty and power than Bob.
THE RULES OF ABSTRACTION:
In the course of my research, much of which relates to selection of legal and ethical decision rules, I've often pondered the meaning of the word "rule" itself. What does it actually mean to have a rule, or to be guided by one? The more I think about it, the more I think that a rule means a prescription for action that relies on an intermediate degree of abstraction. When rules become either too abstract or too situation-specific, they begin to lose their rule-like character.
Take the rules of etiquette. One rule is to say "Thank you" when someone gives you a gift or performs a service for you; another is to say "Please" when you wish someone to do something for you; and so on. Now, imagine if we replaced these rules with a single, highly abstract directive to just "Be polite." That directive would not provide much useful guidance. Lacking more information, the decision-maker would have to decide for each and every interaction what would be a "polite" thing to do.
On the other hand, what if we had a different prescription for every possible interaction? One directive for when someone passes the butter, another for when someone passes the salt, another for when someone holds open a door, another when someone holds the elevator, etc. The decision-maker's problem would be very similar to that which he encountered under the "Be polite" rule. Any time he encountered a novel situation - and arguably, every situation is novel in at least some infinitesimal degree - he would have to decide the correct action, without much assurance that it's correct. (Would it be okay for him to use the passing-the-butter response the first time someone passed him I-Can't-Believe-It's-Not-Butter?)
The actual rules of etiquette have an intermediate degree of abstraction, neither so broad as to include all situations, nor so narrow as to differ for each and every specific situation. They identify abstractly-defined types or kinds of situations.
The same analysis applies to legal rules. A rule of tort liability that said "Do the right thing" or "Be careful" would not be terribly helpful, unless the decision-maker had some idea of what other people think is right in more narrowly defined types of situation. But if the categories were too narrow, depending too much on the particular characteristics of the particular situation, the decision-maker's dilemma would be the same. A more useful rule of tort liability tells the decision-maker how to act in situations with an intermediate degree of abstraction; e.g., "Always yield to cars already on the freeway when merging."
I surmise that my definition of rule-ness could be applied to the rules of virtually every area of human interaction: the rules of language, the rules of ethics, the rules of games, etc.
One implication of my position is that many so-called rules of law, such as the ubiquitous "balancing rules" and "reasonable man" tests, are not very rule-like at all. They are standards, which have a higher degree of abstraction than rules. Standards can be useful in choosing rules, and in dealing with novel situations that arise in the "cracks" between rules. But they can also create considerable uncertainty if allowed to substitute for, rather than supplement, rules with an intermediate degree of abstraction. A similar problem afflicts case-by-case decision-making, which errs on the side of too little abstraction instead of too much.
I realize that I'm shifting between a descriptive notion of rules (what we mean by the term "rule") and a normative notion (what rules should be like). But I happen to think the entities we call rules usually do have this characteristic of intermediate abstraction, despite some exceptions. If we sometimes apply the word rule to entities that are highly abstract or highly specific, it is because abstraction and specificity are separated by a gradient, not a sharp line.
Too Old To Rock and Roll, Too Young To Die:
The Rockin' Book Tour for Restoring the Lost Constitution: The Presumption of Liberty has finally drawn to a close for the summer. I want to thank all the Federalist Society Chapters at the schools listed below for inviting me and for their gracious hospitality. Meeting the local officers at so many schools was inspiring for me, as was the engagement and enthusiasm of the audiences. Though I am temporarily quite weary, having flown over 60,000 miles and 70 flight segments in 5 months, I will be forever grateful. Even now I am looking forward, after a nice rest, to visiting other schools who have already contacted me about speaking during next school year.
In addition to the student chapters at the following schools, I thank the Lawyers Division Federalist Society chapters in Seattle, Portland, Phoenix, Los Angeles and Santa Monica, the Cascade Institute in Portland, the Discussion Club in St. Louis, and the Goldwater Institute in Phoenix for also sponsoring talks. And of course I thank the Cato Institute for helping promote the book and sponsoring the book forum with Walter Dellinger and Judge David Sentelle that you can view on the web here in Real Video or listen to here in RealAudio.
January:
Georgetown Law Center
George Mason University School of Law
George Washington University School of Law
Catholic University School of Law
University of Virginia School of Law
Washington & Lee School of Law
William and Mary, Marshall-Wythe College of Law
Yale Law School
February:
University of Pennsylvania School of Law
Temple University School of Law
Vanderbilt University School of Law
University of Houston School of Law
South Texas College of Law
St. Mary's University School of Law
University of Minnesota School of Law
William Mitchell College of Law
St. Thomas University School of Law
John Marshall Law School (Chicago)
New York University School of Law
Columbia University School of Law
Cornell University School of Law
Boston University School of Law
March:
University of Nebraska School of Law
University of Michigan School of Law
Indiana University (Bloomington) School of Law
St Louis University School of Law
UC Hastings College of Law
Stanford Law School
University of Santa Clara School of Law
Chapman University School of Law
UCLA School of Law
Pepperdine University School of Law
USC Law Center
Loyola-Marymount University School of Law
University of San Diego School of Law
April:
University of Oregon School of Law
University of Washington School of Law
Seattle University School of Law
Notre Dame Law School
Arizona State University College of Law
University of Georgia School of Law
Emory Law School
Georgia State School of Law
Florida State University College of Law
[My sincerest apologies for any inadvertent omissions.]
Tuesday, June 22, 2004
Parity:
Eugene identified guest-blogger Cass Sunstein as "a constitutional law scholar at the University of Chicago Law School," but he's also Professor of Political Science. That means that, for as long as Cass is here with us, Chicago Political Science will tie UCLA Law and George Mason Law at two co-conspirators each. (This has been true before, whenever Dan Drezner guest-blogged.)
Welcome to the Conspiracy Cass:
The year before I started teaching I took a leave of absence from the Cook County States Attorney's Office to be a Research Fellow at the University of Chicago Law School. Cass Sunstein was in the office next store in his very first year of teaching and we spent quality time together that year. Now Cass is a "Visiting Fellow" of the Volokh Conspiracy. Welcome to the office next door, Cass!
Update:Language Log noticed and commented upon the mistake in the above--and it was inadvertent, not a joke. (More of these bizarre swaps seem to occur as you get older, or at least as I do.)
Glen Whitman and Neal Whitman:
I'm also pleased to report that Glen Whitman and Neal Whitman, who usually blog at Agoraphilia, will be guest-blogging here from Wednesday to Friday.
Glen is a good friend of mine, a solid libertarian (much more so than I am), and an economics professor at Cal State Northridge. Neal is a Ph.D. in linguistics, and, as it happens, Glen's brother (what a coincidence!). It's a great pleasure to have them both here.
To reach them, e-mail Glen at glen.whitman at csun.edu, or Neal at nealwhitman at yahoo.com; their addresses are also available at Agoraphilia.
Cass Sunstein:
I'm delighted to say that Cass Sunstein will be guest-blogging here for the next few days, posting occasionally about his new book, The Second Bill of Rights.
Cass, a constitutional law scholar at the University of Chicago Law School, is one of the most influential law professors in the country (and is in fact the full-time U.S. law professor whose work has been cited the most times in scholarly legal periodicals). He has written over a dozen books and a vast number of articles on a wide range of topics; see here for just a small subset, or here for the whole daunting list. It's a real privilege to have him participating here, even if only for a short while.
Those who know Cass's work know that he and I disagree on many things. I suspect that many of our readers, especially conservatives and libertarians, will likewise disagree with the views he expresses in his new book and in the posts that are based on the book. Nonetheless, I think this is a great |