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Saturday, June 18, 2005
Is McConnell Off the Short List?:
In an article on possible replacements for Chief Justice Rehnquist if he ends up retiring at the end of the Term, the Sunday Washington Post reports: Bush and his inner circle have had tightly held deliberations and no one can say for sure whom he might pick for chief justice, but outside advisers to the White House believe the main candidates are federal appeals Judges John G. Roberts and J. Michael Luttig and possibly Attorney General Alberto R. Gonzales. It's hard to know what to make of views expressed by unnamed oustide advisers, of course, but it's interesting nonetheless. Thanks to Howard for the link.
It's Official:
I'm now a Dartmouth Trustee.
The final meeting of the outgoing board was this past weekend and I am now officially a member of the board.
Chief Clerk Reunion:
Charles Lane of the Washington Post has the scoop on last weekend's reunion of Rehnquist's former law clerks.
Eight Circuit Judge Takes on the Community Rights Council:
Doug Kendall of the Community Rights Council filed an ethics complaint against Sixth Circuit Judge Danny Boggs for serving on the board of FREE, a Montana-based free market environmentalist group that, among other things, runs education seminars for federal judges. Chief Judge Loken rejected the complaint, and wrote, "Reasonable people, unlike the complainant, do not presume a lack of integrity and impartiality from a judge's association with legitimate judicial education, no matter how controversial." And later (alluding also to related allegations against D.C. Circuit Judge Doug Ginsburg): "there is no factual foundation to support an inference of wrongdoing by anyone ... Rather these allegations typify the character assassination that is all too common in our nation's capital.... By use of this tactic, it is the complainant who is undermining public confidence in the integrity and impartiality of the judiciary, not the judges complained of." Ouch!
[Full disclosure: the president of FREE once asked me to draft a memo for him on Daubert, noting that he was considering inviting me to speak on that topic at one of their judicial seminars. I did the work for "free", but never got invited to speak. CRC has been critical of George Mason's Law and Economics Center, which provides Summer research money to me, and from which I have received other remuneration, though never related to the judicial education programs CRC criticizes. Judge Ginsburg is a faculty colleague at George Mason, where he serves as a Distinguished Adjunct. Doug Kendall and I were summer associates and associates together at the same law firm; we had relatively little, but cordial, contact.]
Gitmo No "Gulag":
Former Soviet dissident — and gulag prisoner — Pavel Litvinov rejects the comparison in today's Washington Post. By any standard, Guantanamo and similar American-run prisons elsewhere do not resemble, in their conditions of detention or their scale, the concentration camp system that was at the core of a totalitarian communist system. Litvinov, an Amnesty supporter who was himself a "priosoner of conscience," was solicited by Amnesty to defend the "gulag" charge and refused, as there is no basis for the comparison -- a fact at least some Amnesty officials acknowledge off the record.
Litvinov further echoes the claim that Amensty's reckless comparison can only hurt the organization. There is ample reason for Amnesty to be critical of certain U.S. actions. But by using hyperbole and muddling the difference between repressive regimes and the imperfections of democracy, Amnesty's spokesmen put its authority at risk. U.S. human rights violations seem almost trifling in comparison with those committed by Cuba, South Korea, Pakistan or Saudi Arabia. . . .
Words are important. When Amnesty spokesmen use the word "gulag" to describe U.S. human rights violations, they allow the Bush administration to dismiss justified criticism and undermine Amnesty's credibility. Amnesty International is too valuable to let it be hijacked by politically biased leaders.
Asking the Wrong Question on Global Climate Change:
Ellen Goodman writes today:
The climate is equally apparent in the struggle over what the Bush administration calls "climate change" — and everyone else calls global warming. The only way to justify doing nothing about global warming now is to deliberately muddle the science. It's not an accident that Philip Cooney, the White House official caught editing reports on greenhouse gases, left for Exxon Mobil, which has indeed funded doubts.
Is it true that the only way to "justify doing nothing about global warming now is to deliberatly muddle the science"? I think the answer is quite plainly "no." Even if it is true that global warming is occurring, this is only the first of many questions regarding whether we can justify doing nothing about global warming.
Embedded in Goodman's assertion seems to be the implicit argument that if the scientific evidence shows that the global climate is warming, and if it is the result of human-induced factors, it follows that we must do something to try to reverse (slow?) global warming. Leave aside the scientific debate on the subject, and assume for a moment that the scientific predicate is correct. (the world is warming because of human influences). Even if this were true, the implicit syllogism still seems incorrect to me on several levels.
First, assume that the Earth were warming for wholly natural causes, and that the effect was as dire as the worst-case predictions under the current scenario--the apocalyptic stories we read of famine, pestilence, and natural disaster. Would the fact that this warming were "natural" make any difference at all with respect to whether we should do anything? The answer seems obviously no. We never stand by and simply permit wholesale disaster simply because the cause of the disaster is natural. Floods, hurricanes, cancer, smallpox, polio, starvation, wild animals, influenza, AIDS, etc.--all of these things are natural, yet that fact does not stand in our way of trying to alter nature to prevent their harm to humans. So, if global climate change is occurring, the quetion of whether we should do something seems largely irrelevant whether it is caused by humans or naturally-occurring.
So the real question to ask here is whether on net, the costs of doing something about global climate change outweigh the benefits of doing it. This is the same question we ask (or should ask) about every other intervention into nature--should we kill the parasites in water so that we can drink it, should we drain a mosquito-infested swamp to eliminate the risk of malaria, should we provide a vaccine to kill naturally-occurring smallpox. To imply that if the science shows we are changing the climate we must do something about it is as wrongheaded as it would be to say that if we are not contributing to global warming we should not do anything about it.
On the question of whether global warming would be a net benefit or detriment to the planet, the evidence I have seen to date suggests that it is inconclusive. There will be impacts on crop yields, growing locations, forests, energy consumption, etc., that cut in many different directions. The question of whether the warming will occur equally throughout the world, or whether it will occur more strongly in the coldest parts of the world appears to also be unsettled, and has powerful normative implications for policy. To get bogged down in the science, and especially in causal questions, seems to me to be largely beside the point.
Of course, this also shows why the "precautionary principle" is a non-starter as an intellectual construct. As I understand it, if the Earth was warming for natural causes and would nonetheless have the same effect as anthropocentric global warming, then the precautionary principle would tell us that we should not intervene to do anything about it, regardless of whether it might destroy us all. How can that possibly be an intellectually coherent position?
Moreover, note that like global climate change, economic growth is path-dependent, so that if we make ourselves poorer today, we will be forever poorer as a result, and as a result will have less of the good things in life that we acquire through wealth (health, education, medicine, safety, terrorism control). So some number of people will die either way.
I think we need to remind ourselves that the questions of whether the Earth is warming, and if so, why, are just the first question we need to ask ourselves. The real question is, if so, what should we do about it.
From what I can tell from reading the literature by Rob Mendelsohn and others, it is quite possible that based on the best predictions of global climate change over the next century at least, the net benefits of global warming may very well turn out to exceed the costs. (Beyond that time frame the predictions are largely irrelevant--recall that a century ago there were no cars, for instance, which should give us pause about the reliability of long-term models). But even if the benefits exceed the costs, there will be substantial distributional effects, primarily favoring wealthier countries that also tend to reside in more temperate climates (in part, the two are related, as the net beneficiaries of global warming also tend to have higher levels of economic productivity).
If this is true, I want to suggest one way we can think about this is the "Box 4" that is familiar to Property professors in teaching the Coase Theorem (Spur Industries v. Del Webb). This would be to recognize the right of the net "losers" of global warming as having suffered a global nuisance from the net "winners," but to enforce it with a liability rule that entitles them to compensation, rather than a property rule that would entitle them to an injunction. The transaction costs seem too high to give them a property rule. Forcing the winners to pay compensation would also ensure that the net gains from global warming to the winners do in fact outweigh the net losses to the losers.
Update:
Glen Whitman has pointed out that I have incorrectly labeled this a "Box 4" problem, when, in fact, it is merely a traditional liability rule. Jonathan Adler has also noted that it might be fruitful to think about global climate change through the lens of a liability rule, rather than property rule, remedy (assuming, of course, that it is thought that a remedy or property right is appropriate in the first place). He also excerpts a comment from the Sierra Club's Carl Pope on the liability rule idea (and responds) himself here.
Friday, June 17, 2005
Code Is Law, Or Is It?:
One of the buzzphrases often heard in cyberlaw circles is that "code is law," an idea popularized by Lawrence Lessig. The basic idea is that computer code can shape the experience and options available to Internet users. Because law is also a means of attempting to shape human experience and options, code and law are in essence trying to do the same sort of thing. They are both ways of regulating environments. I confess that I have never been particularly enamored of the "code is law" formulation. It seems to me that "code is law" only to the extent that lots and lots of things are law. If the test for law is what regulates human behavior and experience, then it seems that physics is law, chemistry is law, fear is law, greed is law, human eyesight is law, etc. At such an abstract level, saying that something is "law" doesn't seem to have a great deal of meaning. Indeed, in my experience "code is law" has become a shorthand used among cyberlaw types to remind ourselves that code is important. Law professors naturally look for legal answers to human problems, and "code is law" reminds us that techie solutions may work just as well as or better than legal ones. So if code is not law, what is it? If you're interested in that question, I recommend that you check out Yale Law student James Grimmelmann's just-published law review note, Regulation by Software (.pdf). Grimmelmann has a somewhat similar skepticism about the "code is law" formulation, and he offers an interesting and quite useful discussion of the differences between regulation by law and regulation by software. Here is the abstract: This Note builds on Larry Lessig's famous formulation that "code is law" to argue that Lessig was wrong to equate computer software with physical architecture. Although software resembles both law and architecture in its power to constrain behavior, it has features that distinguish it from both. The Note identifies four relevant attributes of software: It is ruleish, potentially nontransparent, impossible to ignore, and vulnerable to sudden failure. By assessing the impact of these characteristics in a given context, one can decide whether software is a good or a bad choice to solve a regulatory problem. While I'm at it, kudos to the editors of the Yale Law Journal for their smart and helpful way of publicizing their latest issue. I knew that the Grimmelmann note was published and online because I signed up for the YLJ's online mailing list. The list sends out an e-mail whenever a new Journal issue is published; the e-mail contains abstracts of each piece in the issue together with links to .pdf copies posted on the Journal's website. It provides a very easy and convenient way for readers to follow, read, and even blog about new scholarship. I hope other law reviews follow the YLJ's lead.
If Watergate Had Happened in 2005:
The recent disclosure that Mark Felt was "Deep Throat" of Watergate fame led me to wonder recently what the Watergate scandal would have looked like if it had happened in 2005. There's at least a chance that Felt wouldn't have leaked to Bob Woodward & Carl Bernstein at the Washington Post, or their 2005 equivalents. Instead of taking elaborate steps to meet in garages and make signals with flower pots, Felt could have just started an anonymous blog. It might have looked something like this: http://watergatebreakin.blogspot.com.
The Sort of Thing That Drives Economists Up a Wall:
A comment related to my technology and birth rates post below says:
I cannot help but think that you are treating people like a commodity (reduce costs and increase demand).
I think a big barrier to childbirth is actually our culture, which cannot see why investing into another is more important than investing in one's self.
Child creation is like a commodity in that if you reduce the price, you'll increase demand. Cost matters. Culture matters, too, of course. But even if you hold constant — as a supposedly culturally dictated factor — the amount that a person is willing to invest in a child, as the per-child decreases, the number of children in which the person is willing to invest increases.
If a family feels that they can't spend more than $50,000/year on children without doing things that are too painful to them (e.g., getting a high-paying but misery-inducing job), and the cost of having a child rises from $15,000 to $25,000, they'll be likelier to have 2 children rather than 3. If the costs decline from $25,000 to $15,000, they'll be likelier to have 3 rather than 2. Likewise, if each extra child produces nine months worth of pretty serious discomfort and some amount of health problems stemming from the pregnancy, then on the margins some women will choose to have fewer children, even if you hold culture and willingness to invest in others constant.
Moreover, people's willingness to invest in others may change over time. Twentysomethings may want to play around and have fun; fortysomethings may be more willing to invest in having children; but by then, having children may be medically impossible or too difficult. If technology changes to allow people in their 40s to have all the kids they then want, then — again, keeping culture constant — they may end up having more kids.
Perhaps I'm mistaken, but my sense is that many people resist economic analysis because they find it distasteful: People shouldn't be treated like commodities (as if I'm suggesting that I be able to sell my wife on the open market). We should be paying attention to the grand plan of making people more unselfish rather than to technocratic matters such as cost and incentive (as if campaigns to make people unselfish have enjoyed notable success).
Yet these sorts of gut reactions, and the slogans attached to them, aren't going to change human nature. With very few exceptions, as tasks get less costly — or, if you prefer, get less painful and uncomfortable — people will undertake those tasks more. One can debate how important the cost savings that I describe are compared to all the other costs of having children. But it's a major mistake to just close one's eyes to costs and how people react to them. Related Posts (on one page): - The Sort of Thing That Drives Economists Up a Wall:
- Technology and Birth Rates:
Technology and Birth Rates:
My post expressing skepticism about birth rate forecasts for 45 or 100 years in the future led me to think: What changes might substantially increase birth rates in the developed world?
Here's my candidate: A combination of (1) cheaper, less painful, and more reliable egg extraction and freezing, which would let 20-year-old women routinely bank eggs for the future, and (2) the invention of incubators that can safely grow a child from a fertilized egg to a live baby. It's of course impossible to be sure that development 2 will happen within the next 45 years, but I suspect that it will. Let's say for our purposes that it does. Why is this likely to substantially increase birth rates?
It seems to me that many couples have fewer children than they'd like, for several reasons. First, both the increase in women's educational and professional opportunities and changing sexual mores have led many women to marry later, and to have children later. They may still want to have 2, 3, or more children, but it becomes harder to do if you start in your mid-30s.
Second, pregnancy is hard work, especially if you also have one or two kids running around and contributing to your tiredness. Pregnancy and childbirth can also cause various health problems. Some women apparently really enjoy pregnancy and even childbirth, but I suspect that most don't. I doubt that this deters many would-be first-time mothers -- but it may deter some women who already have two kids, have experienced the unpleasantness of pregnancy, are older and thus more likely to find physical burdens more taxing, and feel less of a need to have that extra kid.
Third, I suspect that quite a few families might want to have another kid as their first batch gets older. Today, it's just not an option, at least without a great deal of work. (Adopting is of course always possible, but many people are reluctant to do that.) But if it becomes easy, I suspect a significant number of older couples may take advantage of it. Here I'm less certain, and of course as someone with two small kids I fully understand that many older couples may have no interest in going through all that again. Yet if even a substantial minority (say, 10%) do take advantage of new technology to do this, the birth rate may go up nontrivially.
So if age-related fertility decline stops being a problem, and the physical burden of pregnancy and childbirth is eliminated, two important deterrents to having more children would be eliminated. Naturally, there are plenty of other deterrents; technology won't make having children cost-free. But it will reduce the costs (I speak here mostly of nonfinancial costs) and thus increase the demand.
This is all guesswork on my part, and it may be skewed by the circles in which I travel. It would be interesting to see if there have been surveys that try to measure (however imperfectly) the extent to which people would have more children if the problems I describe were solved. Still, my suspicion is that this could easily drive up the birth rate by 0.2 or 0.3 per couple, or perhaps even more.
I have enabled comments.
The Importance of History:
David Gelernter has an op-ed on the importance of history in today's LA Times. Here's a brief excerpt:
I was amazed to hear about teenagers who don't know Fact 1 about the Vietnam War draft. But I have met college students who have never heard of Pol Pot and the Khmer Rouge — the genocidal monsters who treated Cambodia in the 1970s to a Marxist nightmare unequaled in its bestiality since World War II.
And I know college students who have heard of President Kennedy but not of anything he ever did except get assassinated. They have never heard JFK's inaugural promise: that America would "pay any price, bear any burden, meet any hardship, support any friend, oppose any foe to ensure the survival and the success of liberty." But President Bush remembers that speech, and it's lucky he does.
To forget your own history is (literally) to forget your identity. By teaching ideology instead of facts, our schools are erasing the nation's collective memory. As a result, some "expert" can go on TV and announce (20 minutes into the fighting) that Afghanistan, Iraq or wherever "is the new Vietnam" — and young people can't tell he is talking drivel.
As Glenn might say, read the whole thing. While portions of the essay frame the issue in right-left terms, I think it transcends ideology. The loss of historical knowledge in society at large -- in a sense, the collective amnesia of our age -- is deeply troubling.
Hot News from Andy Borowitz:
SADDAM REQUESTS JACKSON’S JURY
Asks Accuser’s Mom to Testify Against Him
Former Iraqi dictator Saddam Hussein startled the international legal community today by requesting that the jury in the Michael Jackson child molestation trial be empanelled to sit in judgment of him when his trial gets underway in Baghdad. . . .
In addition to requesting the Jackson jury, Saddam also requested that the mother of Mr. Jackson’s accuser be called upon to testify against him in his trial.
Read more of this breaking story here.
Mopery:
WordSmith reports on this legalish word that I'd never heard of before. According to the Oxford English Dictionary, it's "The action of committing a minor or petty offence, such as loitering, etc.; contravention of a trivial or hypothetical law, esp. when used as an excuse to harass or arrest a person against whom no more serious crime can be charged."
More on Filibuster Deal Fall-Out:
I noted the other day that I had heard some rumors of criticisms of home-state backlash against some of the architects of the filibuster deal fall-out. Some have raised the fair point that some of the criticisms that I linked to in that post may actually be more about ideological views on votes on judges than the filibuster deal itself, especially for Democrats who signed onto the deal.
A reader from Columbus sends along word of another possible casualty of the filibuster deal on the Republican side, Pat DeWine, who this week was defeated in a stunning upset in the primary election to replace Congressman Rob Portman for the congressional seat from the Cincinnati area. Earlier reports indicated that his father's role in the filibuster pact might come back to haunt him. And, in fact, although he was a prohibitive favorite in the weeks preceding the election, DeWine finished a distant fourth in the primary field.
News reports indicate that DeWine had several problems, including some personal issues, that may have led to his fall from grace in the primaries. But some news reports indicate that his father's role in the filibuster deal played a substantial role in his reversal of fortune, and that primary voters were attacking him as a means to get at his father:
The name became something of a curse last week, when his father, the senior senator from Ohio, became part of a bipartisan group of centrist senators who brokered a deal on judicial filibusters.
That move angered many conservative Republicans nationwide and in the 2nd District, despite the younger DeWine's repeated statements that he did not agree with his father's actions.
"The apple doesn't fall far from the tree,'' said Boyd Piper Jr., a Republican voter from Clermont County.
Piper was so upset with Sen. DeWine's action that he printed a bumper sticker for his car: "1 DeWine in Congress is 1 too many.''
In fact, De Wine tried to distance himself from his father's role in the filibuster deal:
In an effort to make sure the "sin'' of the father isn't visited on the son, Republican candidate Pat DeWine made it clear Thursday he doesn't approve of the role his father, Sen. Mike DeWine, played this week in brokering a deal with Senate Democrats over judicial filibusters.
"I wouldn't have voted the way he did,'' the Hamilton County commissioner said Thursday. "If a person is appointed to the federal bench, he or she deserves an up-or-down vote.''
The elder DeWine was one of seven Senate Republican moderates who came together this week with seven Senate Democrats to hammer out a deal that allowed some of President Bush's judicial nominees to be confirmed but gave Democrats the power to block others.
Many conservative Republicans are furious at Sen. DeWine; and, on Thursday, the Hill, a Capitol Hill newspaper, speculated that conservative voters in Ohio's 2nd Congressional District might take their frustration out on the younger DeWine, who is generally considered the front-runner in a field of 11 GOP candidates running in the June 14 special election primary.
There was some evidence other candidates for the 2nd District GOP nomination were ready and willing to try to tie Pat DeWine to his father's actions.
"He seems to have no problems riding his father's coattails when it comes to raising money and getting name recognition; he's willing to take all the good from it and none of the bad,'' said GOP candidate Tom Brinkman Jr. of Mount Lookout. "I don't know if I believe him when he says he wouldn't have done what his father did.''
It is certainly premature to conclude whether in the long run there will be any negative (or positive) impact on the electoral fortunes of the filibuster dealers. In Cincinnati, DeWine appears to have had enough other problems that it is difficult to determine what role, if any, his father's role in the filibuster deal played in his defeat. But on the Republican side at least, it appears that conservative voters may have taken notice of the filibuster deal. It will be interesting to follow the story as it develops. Related Posts (on one page): - Filibuster Deal:
- More on Filibuster Deal Fall-Out:
Comment on Contracts Conference:
I did not receive very much feedback on my live blogging of the AALS conferences on contract law. So I decided, as an experiment, to open comments on this post so readers have a single place where they can react to the previous posts on all six panels (which are chained to this post). Did you find such blogging to be worthwhile? (Negative opinions on this are welcome, if civil.) Do you have any reactions to the topics of the various panels? Etc.
Blogging LawProf Census Update:
Daniel Solove has updated his list of blogging law professors; the latest list includes 130 people. I wonder how many law professors will be blogging in a year from now. 200? 300?
Thursday, June 16, 2005
Environmental Law Blogging:
J. Bishop Grewell rounds up recent environmental cases in federal appellate courts on The Commons Blog here, here, and here. Some of these decisions, such as the 4th Circuit's ruling against the EPA in United States vs. Duke Energy, are quite significant.
Meanwhile, the Environmental Law Prof Blog is the newest member of the Law Professors Blog Network. Welcome to the blawgosphere!
Sensitivity:
From a UK Web site:
U2 frontman BONO was horrified during a visit to Ethiopia, when he saw local women pelting a breast-feeding aid worker with stones.
The American woman was oblivious of the offence she was causing, and had to escape the angry onslaught from female Muslims who had no qualms about injuring her or her baby.
InstaPundit puts it well:
Bono: "She didn't mean to be insensitive." But they did.
Will Rehnquist Stay On?:
Gina Holland offers an interesting take here.
Evolution, Creationism, and Godwin's Law:
Clayton Cramer correctly faults Michael Shermer for writing:
The primary reason we are experiencing this peculiarly American phenomenon of evolution denial (the doppelganger of Holocaust denial)....
Cramer argues that evolution is less well-supported than the Holocaust, but I think there's a deeper error here: The main reason that people dislike Holocaust deniers isn't just that they're factually wrong, methodologically wrong, or even foolish.
Rather, it's that we strongly suspect that the deniers either dislike Jews, or want to make apologies for Nazis. That's not logically necessary -- one can imagine someone denying the Holocaust for perfectly decent reasons, no matter how factually misguided he will be. But it does seem psychologically likely that most people who deny the Holocaust in the face of very powerful contrary evidence are indeed pro-Nazi or anti-Jewish.
Analogizing deniers of evolution with denials of the Holocaust is thus unfair: Not only is there this huge difference here, but it's a difference that goes to the core connotation of the phrase "Holocaust denial" (sympathy for Nazis or anti-Semitism). If you want to suggest that creationists are foolish, that's great -- but analogize them to those who are likewise merely foolish, rather than to those whose folly likely stems from sympathy for evil. Related Posts (on one page): - Evolution, Creationism, and Godwin's Law:
- God and the Universe:
John Derbishire on the Space Shuttle:
I am often in disagreement with John Derbyshire, so if you are like me you are likely to miss his lively NRO article on The Folly of Our Age: The Space Shuttle Program. Here is how it ends:
My experience of pointless make-work, which is much more extensive than I would have wished when starting out in life, is that people engaged in it know they are engaged in it. Whether they mind or not depends on the rewards. For a thousand bucks an hour, I’d do make-work all day long — aye, and all night too! Astronaut salaries don’t rise to anything like that level, of course; but there are rewards other than the merely financial. I hope no one will take it amiss — I am very sorry for the astronauts who have died in the shuttle program, and for their loved ones — if I quietly speculate on whether, being engaged in such a supremely thrilling and glamorous style of make-work, one might not easily be able to convince oneself to, as Astronaut Bowersox says, “believe in the program.”
None of which is any reason why the rest of us should believe in it, let alone pay for it. There is nothing — nothing, no thing, not one darned cotton-picking thing you can name — of either military, or commercial, or scientific, or national importance to be done in space, that could not be done twenty times better and at one thousandth the cost, by machines rather than human beings. Mining the asteroids? Isaac Asimov famously claimed that the isotope Astatine-215 (I think it was) is so rare that if you were to sift through the entire crust of the earth, you would only find a trillion atoms of it. We could extract every one of that trillion, and make a brooch out of them, for one-tenth the cost of mining an asteroid.
The gross glutted wealth of the federal government; the venality and stupidity of our representatives; the lobbying power of big rent-seeking corporations; the romantic enthusiasms of millions of citizens; these are the things that 14 astronauts died for. To abandon all euphemism and pretense, they died for pork, for votes, for share prices, and for thrills (immediate in their own case, vicarious in ours). I mean no insult to their memories, and I doubt they would take offense. I am certain that I myself would not — certain, in fact, that, given the opportunity, I would gleefully do what they did, with all the dangers, and count the death, if it came, as anyway no worse than moldering away in some hospital bed at age ninety, watching a TV game show, with a tube in my arm and a diaper round my rear end. I should be embarrassed to ask the rest of you to pay for the adventure, though.
The Richness of Contract Theory:
I have now fixed the link to my review of Bob Hillman's book, The Richness of Contract Law (not that anyone complained). The review is called, The Richness of Contract Theory, and here is the abstract:
In his book, "The Richness of Contract Law," Robert Hillman criticizes "highly abstract" or "unifying" contract law theories that, he says, fail to reflect adequately the complexities of existing contract law. In his review, "The Richness of Contract Theory," Randy Barnett takes issue with this claim and identifies the generational dispute between legal "realists," whose approach is shared by Professor Hillman, and legal "theorists" of whom Hillman is critical. Professor Barnett's thesis is that the very purpose of modern legal theories is to simplify a complex reality so as to better understand, cope with, and reform legal doctrine. Barnett then discusses Hillman's recent important empirical research on promissory estoppel. Hillman's findings represent a partial corrective to the previous consensus against a "reliance theory" of promissory estoppel insofar as they establish that reliance is a necessary element of promissory estoppel. However, his data also support the Willistonian conception of promissory estoppel by showing that a promise is also required. Ironically, Hillman is, Barnett claims, insufficiently sensitive to the complexity of the cases he surveys and the need to distinguish "reasonable" or "justified" from "unreasonable" or "unjustified" reliance. A more sophisticated analysis of these cases is provided by Professor Sidney DeLong who also is, not coincidentally, more receptive than Hillman to the richness of modern contract theory. While supporting Hillman's finding concerning the requirement of reliance, DeLong also notices courts frequently distinguishing "performance" from "enforcement" reliance. Enforcement reliance is reliance accompanied by a manifested intention by the promisor to be legally bound, or what Barnett has previously called consent.
Update:My apologies. I had not realized that there was only an abstract on SSRN, rather than the entire article. The final published version can be found on my website here. Sorry for any inconvenience.
Originalism:
Stuart Buck on originalism:
One of the common objections to originalism is that it's too hard. All of these overworked judges and Justices don't have the time or expertise to do real historical research into the original meaning of a constitutional provision.1 It is usually liberals who make this charge. While I don't have any specific person in mind, it is curious that the latest liberal cause du jour has been to urge judges to consider the opinions of foreign courts. How are judges supposed to be capable of accomplishing that task? If a judge, despite American legal training, finds it too difficult to understand the history and context of the American Constitution, how likely is it that the judge will be capable of understanding all that is relevant about decisions written in another language and in a completely different context?
There's more in his post.
God and the Universe:
I've often heard Einstein's supposed line expressing skepticism about quantum mechanics: "God doesn't play dice with the universe." I somehow hadn't heard, though, Niels Bohr's supposed response: "Einstein, don't tell God what to do."
It's a funny commentary, I think, on the role of intuitive judgments of plausibility in evaluating scientific theory. Thanks to Damien Sorresso (in the Huffington Post comments) for the pointer.
Contract Across the Curriculum:
At lunch Dick Speidel (Northwestern) gave a tribute to the late Allan Farnsworth that asked, would an aspiring jobs candidate who said that he wanted to emulate Allan’s career be hired? Good question. Speidel characterizes Farnsworth’s approach as “Law and Law.” At the end of his talk, he asks the audience to candidly answer the question for their own school and, if the honest answer is “no” this is a failing of American legal education. The heart of his talk is a remarkably accurate, though brief, overview of the intellectual developments in contract law scholarship during Farnsworth’s long career, from legal realism, to law and economics, to critical legal studies to rights theories (he includes my approach of “manifested intention to create legal relations” in the latter category). Afterwards I commend him for his accuracy. I could not find fault with any of his story. Neither could Jay Feinman or Chuck Knapp with whom I spoke immediately afterwards.
The last session of the day is called “Contract Across the Curriculum.” Speakers are Margaret Friedlander Brinig (Iowa), Einer Elhague (Harvard) and Jody Freedman (UCLA). Turn out is much lower than “Critiquing Contract Law” before lunch--people may be sight-seeing--so I have a much better seat.
Einer is first up. He says he is trying to finish two books this summer. One on contract default rules and the other on statutory default rules. Both books are based on the distinction between “preference eliciting” default rules and “preference estimating” default rules.
In contracts, he says, we normally want default rules that efficiently achieve the preference of the parties. This does not extend to statutory default rules which are not solely meant to serve efficiency grounds, and you cannot identify the group that is the "parties" to the statute. The public are not true parties within the legislative process. Nor are legislators who must take into account their constituents’, not merely their own preferences. So how does this affect the difference between default rules in contract and default rules in statutory interpretation? [ to read the rest click on show]
What we are really looking for with interpreting statutes is "enactable preferences." This assessment is a probabilistic judgment. (And I would add somewhat more speculative than with private contracts.)
The second difference between contracts and statutes is that you are not bound by contracts unless you consent, whereas with statutes you are bound by acts of previous legislatures. So whose preferences do you look to? The enacting legislature or the current polity? He says that, paradoxically, previous legislators would want statutes interpreted according to evolving preferences--as this would increase the reach of the prior legislature into the future.
He favors using a preference eliciting default rule for statutory interpretation (like a penalty default rule in contract law). In other words, adopt interpretations that will provoke a legislative override that will make it clear what the (current) legislature really wants today. This contrasts with a default rule that tries to guess what today's legislators would want (a "preference estimating" default rule). He then provides some examples of this approach in statutory interpretation. I am not doing his argument complete justice, but this is in part because the bulk of his analysis is in his articles and book draft and is only cursorily summarized here.
Next up is Margaret Brinig (Iowa). Iowa is home to two great contract scholars: Steve Burton and Eric Anderson. Bob Hillman began his career at Iowa too. She begins by identifying the similarities between contracts and family law. She mentions how many casebooks start with family law cases like In Re Baby M (which is indeed the second case in my casebook). Family law cases are not only more relevant to students, she notes, but are more fun. Lee Marvin may be dead, but it is interesting to read about his palimony travails.
Marriages begin with contracts. She then shows a clip from Princess Bride (one of my favorite films). It is the hysterical marriage scene. "Man and wife, say man and wife!" Wesley later says the marriage "never happened" because the princess never said "I do." "If you didn't say it," he tells her, "it never happened." What a great illustration of formalities. (In class I always use the breaking of the glass in Jewish ceremonies to illustrate the formality of assent.)
After a lengthy discussion of how contracts play a role in family relationships and family law, she then asks why not simply contractualize the conception of marriage. (This is an approach to which I have been attracted to for a long time, as are many libertarians.) Here she thinks--citing my BU colleague Kate Silbaugh--commodifies the relationship and undermines the trust that should form the basis of the marital relationship. [Me: This is a topic in which (some) feminists and (some) social conservatives have common cause, as they also have with regard to pornography.]
She concludes by discussing many aspects of the family that cannot be reduced to contractual terms, and how the legal enforcement of implied contracts may change the basic nature of family law. In the end, she affirms the difference between contracts and family law, despite their overlaps and similarities. This is a nicely delivered and nuanced talk–much more so than this cursory summary suggests.
Jody Freeman (UCLA) is the last speaker. She is a very well-regarded younger scholar. This is my first opportunity to hear her speak. Indeed, this is one of the reasons to attend conferences like these. She is going to discuss how contracts overlap administrative and environmental law. She does not want to talk about “contracting out” government services or how regulations can be challenged as a taking of private contractual arrangements, but these two areas reveal an image of government regulation as contractual in nature.
Many view regulations as "command and control," but she notes that regulation often begins with negotiation between the regulators and the regulated. So does the enforcement process. There is a lot of informal contract behavior within the so-called command and control system of regulation. There are significant limits to the extent that government ever commands or controls anything.
So what she wants to examine is "agreement-based approaches to regulation." She says that Bush II uses negotiated regulation more than the Clinton administration did (and there is no pejorative tone in her voice when she says this). One example is negotiations over endangered species between the agency, developers, and environmental and municipal groups. These can lead to agreements that extend beyond the authority granted by the Endangered Species Act. The “consideration” for this agreement is a "no surprises" policy which promises landowners that they can rely on these agreements when making and acting on their development plans. Some more examples of negotiated regulations follow, but I think you get the idea.
One reaction to these "consent decrees" is how the nature of the consent deemed acceptable here is completely different than that demanded of ordinary contracts between business or with consumers. Consent obtained with the coercion of government regulation and enforcement is legitimate. Consent obtained by the "coercion" of refusing to do business on any other terms is deemed to be oppressive and a contract of "adhesion."
I do not attribute this contradiction to Jody. She has repeatedly stressed that she is not a contracts person. (After the panel we talk, she tells me she wants to pursue this issue, of which she had not previously been aware.) But the contrast between the previous 2 panels ridiculing the meaningfulness of private consent, and the virtues of "consent decrees" is striking, if only to me. Appropriately she concludes her talk by asking whether this is really contract-like or an overextended metaphor? A good question indeed. This was a very interesting, substantive and engaging talk. She's a terrific speaker.
During the brief question time, Carol Sanger (Columbia) notes that contracts are circumventing administrative agencies, which fits the tenor of the previous panels about the insidiousness of contract in other fields.
From the floor, I suggest (as I do above) that, if she wants to pursue her metaphor, Jody needs to confront the contracts scholarship that contest the meaningfulness of consent between private actors--especially in light of the coercion brought to bear on private parties to obtain "consent decrees."
Gillian Hadfield USC) agrees with this (though from the other direction) and adds that in the public sphere more classical contract principles are being used than are acceptable among contract scholars.
Blogging is tiring. But maybe it is just being forced to pay close attention that is tiring. Or maybe it is the wonderful meals in Montreal. Whatever it is, I am tired.
Critiquing Contract Law
I am late for the program on Critiquing Contract Law--again because I was uploading the last blog post in my room. Since I now know someone is reading these posts, I decided to proofread it albeit quickly.
Jay Feinman (Rutgers) is almost done with his talk. I like Jay a lot, ever since we both visited at Northwestern teaching contracts. He's a nice guy. He is both describing the Critical Legal Studies (CLS) movement and how it came under attack and went into somewhat of a decline in favor of the New Formalism and the New Conservatism. It is interesting that he attributes the decline of the political critique of law to politics. This is consistent. What is not entirely consistent is why a rational critique offered by Crits is supposed to be evaluated on its merits as an effort in reason, but its rejection cannot be based on any deficiencies in their argument. It is just politics. But I suppose proponents of every school of thought (including libertarians, of course) attribute its lack of more general acceptance to a misunderstanding of the audience rather than to weaknesses of their arguments.
Jay closes on the pessimistic note that the contributions of the other scholars are unlikely to have much influence. He says "don't shoot the messenger." I do think Jay's gloominess from the Left is a social phenomena worth noting.
Deborah Waire Post (Tauro) opens with a PowerPoint slide with David Rosenberg's in class statement dismissing the contribution to torts of critical race theory and feminism. It gets a laugh. Her talk is about "critical outsider theory." The project is to construct alternative paradigms of the rules. . . . [ to read the rest click show]
She confesses an ambience towards contract law. On the one hand, contract promises to be a tool in contesting subordination and oppression. On the other hand, since assent is often lacking without “antisubordination” rules, contract law becomes an instrument of oppression. Examples of this can be found in intimate contracts, IP, and civil procedure. She says that the idea of contract has become all pervasive as a means of people asserting their rights. Examples are litigation against schools, employers and government agencies.
I am finding her presentation to be interesting and engaging, but a little too disjointed to report faithfully here. She is jumping from one point to another (apologizing for going so fast), while interjecting anecdotes, so it is hard to summarize fairly. As a result, I am doing a bit more listening than writing. She gets cheers for her presentation. The moderator Blake Moran (a really wonderful guy from Washington & Lee) notes on how fast she spoke and attributes this to the fact that she just flew in from China and is probably high on caffeine.
I am looking forward to Neil Williams' (Loyola) talk as it is based on the case of Bailey v. Alabama. Bailey is a case in which the Lochner-era court struck down a statute criminalizing breach of labor contracts as a means of establishing a system of peonage in Alabama. Justice Holmes (“The Great Dissenter”) dissented and would have upheld the statute.
I included the case in my contracts casebook (the first time this was done), and now learn that Murphy, Speidel & Ayres now has it in theirs. I cannot complain, as I "borrowed" from other casebooks when writing mine. For me, all this borrowing is an argument against intellectual property.
Neil asks whether it is appropriate for law professors to take into account the race of the parties when teaching cases? This is a very interesting and important question. He starts by telling the story of Alphonso Bailey. He took an advance for his employment contract, and when he left his job he was charged with a crime of fraud.
The Supreme Court mentioned Bailey's race to claim (unpersuasively to Neil) that his race did not matter. He says that the Lochner era court was reluctant to confront racial oppression head on but, to its credit, it struck down the statute for violating the 13th Amendment that prohibited involuntary servitude. Neil notes that Holmes dissented, which he thinks is inconsistent with others of his opinions. He cuts Holmes a bit of slack for his criticizing the court for failing to consider the case race neutrally as it claimed to be doing. I don't think that was Holmes's beef. Instead, Holmes himself insists upon the race neutrality perspective (which no one made him do) to assert his view that he could see no reason why the state can throw its weight on the side of contract performance by use of he criminal law.
The presentation raises but does not acknowledge how protecting freedom of contract ostensibly neutrally served to help blacks, whereas Holmes's majoritarianism hurt blacks. (This is David Bernstein's bailiwick.) If faithfully adopted, freedom of contract is valuable as a means to various ends. Perhaps one of these ends is the protection of disfavored minorities from oppressive majorities.
Neil is now talking about another interesting and classic case of Glover v. Jewish War Veterans. I won't summarize his interesting discussion of this case, which involved the refusal to pay a reward for information leading to the capture of the murderer. It has long been assumed that the claimant was black, but the case does not say. Williams' research confirms that she was, and he asks whether the refusal to pay Mrs. Glover was racially motivated. He says the black letter rules of contract shut down this relevant inquiry. He contrasts Glover with the recent effort to obtain reward for Ashley Smith despite the fact that she may not have been aware of the reward when she provided the information.
He closes by affirming that race is relevant to teaching otherwise abstract doctrines. I agree, which is why I include so much material on race (and gender) in my contracts casebook, including In re Mary Clark (involving involuntary servitude)--which is now finding its way into other casebooks--Bailey, and a background section on the role of race in the Chicago Coliseum v. Dempsey case, among other material. So too in Constitutional Law, I stress the role of slavery without which you cannot fully appreciate the original form of federalism adopted by the founders. Of course, race is also needed to understand the 14th Amendment that altered that original structure.
The challenge is to distinguish when race and gender is truly relevant and when it is not. Relevance will often be in the eyes of the beholder, but it is important for students to be aware that abstract rules and principles do not apply or enforce themselves. Indeed, this relates to the previous panel. Acknowledging our cognitive biases is one way we counteract those biases. On the other hand, what makes sense while studying law may not be as desirable when courts are applying it. We may want to critique decisions by taking race into account, while still contending that courts should strive to be as race neutral as they can.
The Bailey court (unlike Justice Holmes) was conscious of Alphonso Bailey's race as it needed to be to recognize peonage when evaluating the constitutionality of this "race neutral" criminal statute. Yet it still justified its decision by "race neutral" principles that could be used to protect any citizen. It is not obvious to me why this is not the appropriate use of race along with the appropriate use of neutrality. But only if race can be raised in the classroom can we consider whether this defense of Bailey is warranted.
Keith Rowley (UNLV) asks why Mrs. Glover could not be white which is why she turned in her daughter's black husband. Neil had proven Mrs. Glover's race by showing a picture of her son-in-law, who was clearly black. A nice point that is not inconsistent with Neil's basic thesis, as he himself raised the prospect that he might falsely be assuming that Mrs. Glover was black, which is why he did his research.
Charles Knapp, asking the last question from the floor, confesses that he has been hard on Jay Feinman in his writings, which he justifies now on the ground that he was equally hard on your humble blogging correspondent. That got a big laugh too.
All in all a very interesting and provocative session, but I am now late for the afternoon session.
Is Evolution a Threat to Religious Belief?
Michael Shermer -- with whose views I often agree -- posts at Huffington Post about the evolutionism/creationism debates; and in the process he says two things that strike me as worth considering together: The primary reason we are experiencing this peculiarly American phenomenon of evolution denial (the doppelganger of Holocaust denial), is that a small but vocal minority of religious fundamentalists misread the theory of evolution as a challenge to their deeply held religious convictions.
OK, sounds plausible on its own (though I’ll say some more about it later) -- the theory of evolution doesn’t speak to whether God exists or what he has done, but simply aims to explain how things likely happened, and if you believe that God made them happen that way, that’s something the theory just doesn’t discuss. But here’s another quote from earlier in the piece (emphasis added): In March of 2001 the Gallup News Service reported the results of their survey that found 45 percent of Americans agree with the statement “God created human beings pretty much in their present form at one time within the last 10,000 years or so,” while 37 percent preferred a blended belief that “Human beings have developed over millions of years from less advanced forms of life, but God guided this process,” and a paltry 12 percent accepted the standard scientific theory that “Human beings have developed over millions of years from less advanced forms of life, but God had no part in this process.” (For more on this poll, see here.)
Well, if “the standard scientific theory” is that “God had no part” in the process of evolution -- not just that human beings developed in a particular way, but that God didn’t guide this -- then it seems to me that the theory of evolution is a challenge to many people’s deeply held religious convictions. And that’s so not just as to the young-earthers who believe the Earth was created several thousand years ago, but also to people who are willing to embrace the scientific evidence but see the guiding hand of God in the process.
What’s more, how exactly do scientists come to the conclusion that “God had no part in this process”? What’s their proof? That’s the sort of thing that can’t really be proved, it seems to me -- which makes it sound as if scientists, despite their protestations of requiring proof rather than faith, make assertions about God that they can’t prove.
And on top of that, if the standard scientific theory is that “God had no part in this process,” then the opponents of evolution are right -- the standard theory of evolution may not be taught in the schools. The Court has repeatedly said that the Establishment Clause bars both government endorsement and disapproval of religion. Teaching that God exists and teaching that God doesn’t exist are both unconstitutional in government-run schools. Likewise, if teaching that God created humans is unconstitutional, so is teaching that God had no part in creating humans.
Now here’s what I think Mr. Shermer is driving at by saying that “God had no part in this process” is the standard scientific theory: The standard theory tries to explain how humans might have evolved without calling on God as an explanation. This isn’t because scientists can prove that God doesn’t exist in any logical or even empirical sense of “prove.” Nor is it because assuming that God had no part in the process is more consistent with the facts than assuming that he did have a part in the process; the God assumption is perfecty consistent with the facts. Nor is it even because in some abstract sense omitting God yields the simplest explanation; “God did it” (3 words!) is a much simpler explanation than the theory of evolution.
Rather, looking for naturalistic causes is standard scientific operating procedure because it seems more likely to produce more useful results, and has in the past produced useful results. Science can’t prove to us that there are no angels pushing planets around the sky; maybe they do push the planets around, though in extremely regular patterns. But if you look for a naturalistic explanation, you’re more likely to come up with useful, predictive explanations of the world than “the angels are doing it.”
In that sense, the theory may be described as “Human beings have developed over millions of years from less advanced forms of life, and we can explain that without bringing in God’s intervention.” Many scientists conclude that this explanation makes it more plausible that God had no part in the process. Others may conclude that if there’s no evidence supporting the existence of some influence, it’s methodologically more useful to assume that the influence doesn’t exist until some supporting evidence is found. Still others may use “God had no part in this process” as shorthand for “God had no observable part in this process.”
Nonetheless, the phrasing that the poll used -- and the one that Mr. Shermer endorsed as the scientifically proper theory -- didn’t include these subtleties. It essentially asked people to decide whether, given that they thought that humans evolved from less advanced life forms, “God guided this process” (which could include the most indirect sort of guidance, perhaps guidance that yields results identical to the naturalistically predicted results, or guidance in the form of having created the world that yielded this process) or “God had no part” -- not an indirect part, but no part at all -- “in this process.” Small wonder that many religious Americans, even those who are quite happy to accept evolution, preferred the approach that’s consistent with the theory of evolution but that let them acknowledge their religious faith. And small reason, it seems to me, to complain. (The “created in the last 10,000 years” group, on the other hand, is definitely reason to complain.)
In fact, science is deeply subversive of religious belief in what one might call “descriptive religion” (religious claims that purport to describe what exists, what happened, what is happening, or what will happen, as opposed to purporting to make normative assertions about what’s morally right and morally wrong). This is not because science in some logical sense disproves such assertions. Rather, the scientific mindset, for better or worse, leads people to find descriptive religious claims less plausible.
The more science explains processes that were once thought to be divinely or supernaturally operated (the movement of the planets, the spread of disease), the more likely it is, I think, that people will be skeptical of other claims of divine or supernaturally operated processes; that’s not a logical mandate, but it is a psychological effect. The more science trains people to be skeptical about descriptive claims in the absence of evidence that leads us to endorse those claims, the more people will question things that they are asked to take on faith. There are certainly scientists who are religious (even in the “descriptive religion” sense); it is possible to have a scientific worldview but believe in descriptive religion. But the spread of scientific habits and principles makes it less likely that people will accept descriptive religion.
Yet scientific popularizers and educators have to deal with the fact that in our society, many people are still religious, and still accept descriptive religion (at least ostensibly). If the popularizers and educators describe science as taking no stand on the existence or influence of God, and as leaving such questions to others, I think they’ll have great success; and, whether they want to or not, they will indeed further undermine descriptive religion. But if they insist, in my view unnecessarily, that the standard scientific theory does take a stand that God is not influencing the world -- and that accepting evolution as the best scientific hypothesis while seeing God’s hand in its operation is an inferior conclusion that is worthy of scientific criticism -- then they will encounter much more resistance.
I have turned on comments; please, keep them polite, substantive, on-topic, and nonobvious.
House Vote on the Patriot Act:
A big item in the news today is that the House of Representatives voted to block the part of the Patriot Act that allows the government to get library and book store records. I'm having a hard time figuring out exactly what the House voted on — as usual, the press coverage is devoid of the details needed to tell you what actually happened — but as best I can tell the actual issue was a bit narrower, and the vote is likely to be mostly symbolic. It seems that the bill approved by the House would block federal funding for any effort to use Section 215 of the Patriot Act to obtain records from libraries or bookstores relating to actual book purchases or borrowing. I'm not sure if this would actually stop Section 215 from being used in such contexts, as I don't know enough about the appropriations process to know how directly the funding question links to the practice. More broadly, it's my understanding that the bill would still allow Internet records to be obtained from libraries and bookstores under Section 215, and would still allow records of libraries and bookstores to be obtained under traditional criminal authorities and also under other provisions of FISA beyond Secton 215. Finally, it helps to keep in mind that this is just a House vote. It seems unlikely that the Senate will go along with this, and the President's promised veto if this passes means it is not likely to make it into legislation (something that I assume the House members knew when they voted on it). Still, an interesting development. Stay tuned.
Cognititive Psychology and Contracts:
One of the reasons I came to the AALS was to hear Steve Ware and Marcus Cole speak. I have known both since they were law students. Unfortunately Marcus, who was supposed to be on this morning's panel became ill, so is not here. I had thought of skipping the first session, but my duty to you, dear VC reader, impelled me to return to (almost) liveblog the session, which is on the Implications of Limited Rationality for Contract and Commercial Law.
Reliance on cognitive psychology to understand how people make decisions has lately been fashionable among contract scholars. This panel is designed to introduce these ideas. The panelists are Danielle Kie Hard of Southwest University and Manuel Utset of Utah (and formerly of BU).
I am sitting next to Jay Feinman, one of the founders of the Critical Legal Studies movement back on the 1980s. He wrote some pioneering scholarship back then on critical approaches to contract law, the topic of the second panel of the morning.
Bob Hillman is calling for the session to begin. (I should note that I reviewed Hillman's book on contract law here). I rarely get a chance to plug my writings on contract on VC. Consider this the commercial you must sit through to get to the "free" programing.) Hillman explains that this is a joint panel with the commercial law professors who are meeting along with we contracts folks. He is identifying questions he raised about the use of psychology in an article of his. The first question is whether the psych lab tests really apply to contacting situations? Second, do they provide a good account of contracting? He seems to be trying to stretch to make up for the absence of Marcus, but I would rather just hear from the 2 remaining speakers and leave more time for discussion from the floor, which has been rather truncated in previous sessions. But that's just me. (PS: The session ended up going 5 minutes over with very little time for audience participation,)
Danielle starts right off criticizing what she calls the “freedom of contract ideal.” Her complaint this morning is that "disclosure statutes" to correct bargaining imbalances and asymmetric information actually conceal the real problem with freedom of contract, which is disparity of power These statutes assume the classical conception of contract law which assumes that parties are able to make welfare enhancing choices that merit enforcement, provided they are given the relevant information. . . . [ To read the rest, click on show]
She is now summarizing what she calls classical contract theory. She is reading pretty fast so it is hard to keep up. It is the familiar description of the rational actor model. (This is the model that Marcus was going to critique.) Now she is summarizing the standard critique of the unrealistic nature of the rational actor model based on informational asymmetry, the failure to consider all salient information, and the absence of rationality in the marketplace. She says behavioral economics underscores this critique (which I am incompletely summarizing because she is speaking so fast--not too fast for the audience, just too fast for me to keep up).
Human cognitive abilities are limited, says the literature that she is now summarizing, so people use shortcuts. They ignore the statistical data in favor of other less perfect markers. Now she is describing framing effects in which preferences are changed solely because of how the information is presented to her, which puts power into the hands of those who are presenting choices to market actors. Other studies show that people are not truly rational self-maximizers. The example is that people tip though it is not in their interest to do so (a claim that is widely criticized BTW). Market forces require businesses to manipulate information to stay in business, she says. She says the assumptions of the rational actor model underlying classical contract theory are "arguably contestable."
All this undermines the feasibility of disclosure statutes because consumers will not process the information accurately and the resulting transaction will still not be wealth maximizing for consumers, which is the classical justification for enforcing contracts. By relying on disclosure statutes we are privileging the classical conception of freedom of contract which, on its own terms, is incoherent. Freedom of contract is only workable as an ideal if its underlying assumptions are sound, and they appear not to be. Freedom of contract, stripped of its underlying justifications leads to the "draconian" conclusion that "contracts should be kept." So what we have instead is a naked abuse of power. "Freedom of contract is essentially being used as a front for the use of contract as power."
One problem with this critique is that it is what philosopher's call "radical" which means essentially that it applies so broadly that it equally undercuts the position of the person making the critique. In this case, these inabilities to process information and make value maximizing choices equally (if not more so) undermine democratic theory by which voters choose leaders to pass laws to protect them from unscrupulous businesses. How are THESE choices to be made given the claims of cognitive impairment? The same would apply to the experts like contract law professors who posture that THEY know what the rules should be to compensate for consumer ignorance. What makes them able to transcend the weaknesses of human cognitive abilities. After all, they too are only human. Just attend a faculty meetings some time.
The truth is that the so-called classical model of contract is unrealistic, but a more realistic economic model nevertheless supports the decentralization of decisions down to the level of individual, rather than allowing some imperfect persons make choices for others--choices about which they lack knowledge. In addition, it is the individual who has the interest to make better choices for themselves than do enlightened rulers. All this is the thesis of my book, The Structure of Liberty: Justice and the Rule of Law. There I defend "freedom of contract" based, not on perfect information, but on highly imperfect knowledge.
But returning now to our program, now it's Manuel Utset's turn to speak. He is using Powerpoint, which may make it easier for me to keep up. His talk is about the time-inconsistent preferences...--oops he changed ths slide! Too late to write down his whole thesis. The next slide is about 5 contract law issues, Optimal levels of Reliance, Opportunism, incomplete contracts, damn, the slide is gone now. I better stop reading the slides. Talk about informational impairment!
Well that does not help either. The problem is that he is throwing too many concepts at me so I cannot explain them to you and still keep up. (This is what I feared about live blogging.) On the other hand, this illustrates the problem he and Danielle are discussing. I doubt that most in the audience are internalizing much of the information he is throwing at us. Yet these are the very experts upon which Danielle would rely to make value enhancing choices for others. The reality is that the audience is deferring to the knowledge of the speakers, but most of the speakers are deferring to the knowledge of the researchers upon whom their papers are based.
Which is how we ALL make a good portion of our decisions. The main difference is that mistakes individuals make primarily harm themselves, whereas the mistakes made by rulers harm many others far and wide. And rulers lack the same incentives to make value maximizing choices for others, that we have for making them for ourselves.
Manuel is now discussing the difference between my present self and my future self. My present self wants to commit to do something but my future self will undermine my present choices. At this moment, I can identify with this as my present self wants to stop blogging. No wait, that is my future self who wants to stop and my present self wanted me to blog. Which means that my present-now-past self wanted me to blog but my future-now-present self wants to stop. (Well that's the difference between ex ante and ex post. Got that?) All this is what he means by “time inconsistent preferences.”
So I am now just listening until I can figure out what it is possible to report. The presentation is actually pretty effectively summarizing the cog psych argument for why individual decision making is not "optimal." Once again, however, this resort to optimality creates a straw man. If you took this critique seriously, you would conclude that individuals are incapable of making value maximizing choices--as Danielle seemed to suggest--which we know is not the norm, and we cannot explain why either democratic rule or rule by (human) experts will perform any better given that democratic or expert rulers with highly imperfect information and weaknesses in processing this information rationally will be able to make better choices for others than they can make for themselves.
There are possible answers to this challenge of course, but most of these responses (as we shall see) would serve to relax the assumptions on which the critique of individual choice is based, thereby reducing the problem for which democratic rule or rule by experts is supposed to be the solution.
I need to stress that, to the credit of its organizers, this panel was originally designed to be balanced. These two speakers were supposed to present the cog psych critique, which both did effectively--despite my inability to keep up with them in this blog--and Marcus was going to provide the response. Which makes it all the more unfortunate that his illness prevented him from attending.
I asked the panel about why this cog psych critique does not apply equally to rule by experts or democratic rule. Danielle freely concedes that it does apply across the board, but that larger institutions have the resources to devise and adopt strategies to compensate for these cognitive impairments that individuals and even small business lack. Fair enough, though I think the original critique unduly discounts the strategies that individuals employ to compensate for their cognitive deficiencies. That these strategies are imperfect (as they are) does not mean that they are not still preferable to rule by (imperfect) others.
Leaks in DOJ Tobacco Case:
Today's New York Times offers an unusually public perspective on Justice Department infighting in the context of recent developments in DOJ's anti-tobacco suit. I haven't been following the case, but it seems that two weeks ago, at the end of a nine-month racketeering trial against the major tobacco manufacturers, DOJ changed the scope of the penalties it was seeking from $130 billion to $10 billion. The speculation was that this was a politically motivated decision imposed by DOJ political appointees, but in a USA Today editorial Associate AG Robert MacCallum denied the charge and offered other reasons for the change in policy. The latest development appears to be a leak by DOJ career lawyers indicating that the career lawyers involved in the case strongly opposed the decision but were overruled by DOJ political appointees who became actively involved in the litigation. The Times story is a bit cagey about saying that the career lawyers leaked the documents to them; the story refers to the documents as "newly discovered" documents "reviewed by" the Times. But I think I'm on fairly safe ground when I assume that DOJ career lawyers were behind the leak. A number of factual claims in the article are expressly based on anonymous sources within DOJ, and the story features the money quote by "a Justice Department employee involved in the case who insisted on anonymity for fear of retaliation": "Everyone is asking, 'Why now?'" the employee asks. "Why would you throw the case down the toilet at the very last hour, after five years?" I confess I don't know anything about the tobacco trial or its merits, or whether the change in the damages sought was proper or improper. (On one hand, the fact that DOJ politicals made the final call isn't suprising, as in my experience major litigation decisions are often made by DOJ bigwigs who are political appointees. On the other hand, this story says that the DOJ Office of Professional Responsibility is investigating the case, which suggests that political interference if it happened was a no-no. But beyond that I have no sense of the merits here.) Either way, it's pretty rare for DOJ career lawyers to be so ticked that they leak internal documents to the New York Times, which makes me think that we probably haven't heard the last of this story. Comments enabled. As always, civil and respectful comments only. Related Posts (on one page): - More on DOJ Anti-Tobacco Case:
- Leaks in DOJ Tobacco Case:
Filibuster Deal Fall-Out:
I am reading increasing reports about home state, grass roots fall-out from the filibuster deal. This column criticizing Sen. Ken Salazar of Colorado and this one about Sen. Lidsey Graham are illustrative. Especially interesting is the difference in perception of the deal back home versus inside the beltway. Consider this passage from The State newspaper in Columbia, SC:
WASHINGTON — In Washington, South Carolina’s Lindsey Graham is being lauded for helping pull the U.S. Senate back from the partisan brink of a filibuster crisis.
In South Carolina, the Seneca Republican is trying to control the damage.
“The calls won’t quit, and they’re almost all against Lindsey,” state Republican Party chairman Katon Dawson said.
Dawson counted more than 900 phone calls to party headquarters in 36 hours — mostly from people who helped elevate Graham from the House to the Senate in 2002.
If the deal isn't playing very well at home, and if pushed to the constitutional/nuclear option eventually, I wonder if the long-term fall-out from the filibuster deal will be to actually increase the size of the majority voting in favor?
Antiquarian Law Books:
Occasionally I think it would be cool to purchase some antiquarian law books. Classic treatises, first editions of famous books, that kind of thing. I usually don't, however, as I know nothing about the market in antiquarian law books and worry I'll get fleeced. (I have bought a few things via alibris.com, including a really cool signed copy of Henry Friendly's Benchmarks, but they were all small-ticket items.) It occurs to me that there are probably some VC readers that are experts in this market, however, and many others who might be interested in it if they knew where to start. I am hoping that some of the experts would be willing to post a comment in the comment thread with advice for the newbies among us. What is the smart way to go about buying antiquarian law books? Are there good online sites, or do you really need to go to auctions or rare book dealers? What do you need to know to avoid egregiously overpaying? Thanks in advance.
Wednesday, Ju |