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Category: Behavioral Law and Economics

The Last Shall Be First

diamond.jpgThe WSJ has a terrific article on “stretch” givers–people who make “donations seemingly out of proportion to the givers’ resources . . . . [which] require donors to make sacrifices or at least live more modestly than their income would allow.” Recent legal changes have helped this “movement,” as “[t]he Pension Protection Act of 2006 allows people 70½ years of age and older to make tax-free donations of up to $100,000 directly from Individual Retirement Accounts.” What’s particularly surprising about the article is that the big givers often end up doing better than stingier peers:

Arthur C. Brooks argues in his book “Who Really Cares,” which identifies the forces behind American charity, that people who give in a way that pinches are happier and, surprisingly, end up wealthier. According to Mr. Brooks’s analysis, a dollar donated to charity led to $3.75 in extra income for the donor in 2000. “They often create great discomfort among their families, but when people give there is substantial personal transformation,” says Mr. Brooks, an economist and professor of public administration at Syracuse University’s Maxwell School. “They tend to work harder,” leading to greater prosperity, and in the long run, he says, “this leads to more success, both financial and nonfinancial.”

I had worried that the “super givers” would Darwinianly be out-competed by greedier peers intent on keeping every penny “in the family.” But as one interviewee says in the article, she doesn’t “believe in inherited wealth” in part because she’s “seen it ruin so many nice families.” If that logic takes hold, perhaps we can expect to see “more aging Baby Boomers are choosing charity to add meaning to their lives — and to get a buzz that lasts longer than the kick that comes from splurging on a designer watch or expensive car.” Such a movement could well be self-reinforcing, as often the only reason people (believe they) need such luxuries is because of the competitive spending of peers. Perhaps diamond taxes can help keep the giving going.

Photo Credit: Flickr/Scottwills.


When Does Jail Fail to Scare?

This past April, a milestone passed with little fanfare: H. Beatty Chadwick entered his thirteenth year in Pennsylvania jail. He has never been adjudicated guilty of a criminal offense, but, rather, continues to face charges of civil contempt related to a 1995 order in divorce litigation. In that proceeding, Chadwick was ordered to turn over $2.5 million in assets that the courts found he had stashed overseas. Twelve years and many appeals later, Chadwick still refuses to comply. The Third Circuit’s dispositive, and standard-setting, ruling came in 2002 in an opinion by then-judge Alito:

“The Supreme Court has never endorsed the proposition that confinement for civil contempt must cease when there is “no substantial likelihood of compliance.” On the contrary, in words that might as well have been written to describe the case now before us, the Bagwell Court stated that “[t]he paradigmatic coercive, civil contempt sanction … involves confining a contemnor indefinitely until he complies with an affirmative command such as an order ‘to pay alimony, or to surrender property ordered to be turned over to a receiver ….’ ” Bagwell, 512 U.S. at 828, 114 S.Ct. 2552 (emphasis added) (citation omitted) . . . Because the state courts have repeatedly found that Mr. Chadwick has the present ability to comply with the July 1994 state court order, we cannot disturb the state courts’ decision that there is no federal constitutional bar to Mr. Chadwick’s indefinite confinement for civil contempt so long as he retains the ability to comply with the order requiring him to pay over the money at issue. “

On one level, twelve years in jail without the full panoply of due process protections that come with a criminal trial seems unjust. Much of Chadwick’s defense rests on the claim that he doesn’t have the money: in a criminal trial, maybe the burden of proof would have made his claim more plausible. And there is a nagging feeling that he would not have seen twelve years for stealing $2.5 million, so maybe he has served his time, however it is constituted.

But, ultimately, Alito’s opinion seems right to me. (I say that even though it reversed a judgment issued by the Judge I clerked for.) If the constitutional status of a civil contempt order depended on its effect on defendants’ will, the resulting rule would produce perverse incentives. Those with greater fortitude and demonstrated willingness to continue to serve time rather than comply would be let out earlier than those who seem afraid of jail. This would promote false confidence and bravado, and reduce the general deterrent effect of contempt sanctions.

Unless circumstances change, Chadwick will die in jail to preserve an idea: even civil law must be obeyed. As Robert Cover wrote, “Legal interpretation takes place in a field of pain and death.”

Vanity Taxes vs. Worthless Competitions

vanity.jpgNew Jersey adopted a “vanity tax” in 2004, levied on “any medical procedure performed on [an] individual which is directed at improving [his/her] appearance and which does not meaningfully promote the proper function of the body or prevent or treat illness or disease.” In a critique of the tax, Michael Duel argues that it is sexist and such surgery is frequently nondiscretionary:

Women can either feel inferior, enjoy a lower quality of life, and be rejected by mainstream society, or else suffer the pain and toil of cosmetic surgery to achieve the exact same ideals society uses to reject them.

Cosmetic surgeons have also railed against the tax, unctuously declaiming that it “discriminates against women” because they buy about 86% of the procedures.

NOW President Kim Gandy has a nice response to that canard:

In general, I’m opposed to most things that impact women disproportionately, but disproportionate use isn’t a good measure if a tax is unfair or not. I can’t imagine someone arguing against having a luxury tax on yachts because more of them are bought by men.

State Senator Karen Keiser is uppping the redistributive ante in Washington state, with a plan to earmark vanity tax revenue for health insurance for poor children. As one tax policy analyst claims, “In this anti-tax climate, these user-based, selective tax proposals are more palatable than broader ones.”

Duel also attacks the vanity tax as a matter of tax policy, but I have a feeling he misses its point. . .

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Politics, Private Space, and Total Persuasion


A lunch today with a colleague at another school, coupled with an article in the Wall Street Journal, has brought me to back to a topic I blogged about back in January: Total Persuasion. As I suggested, there are analogies to be drawn between the government’s defunct secret possibly ongoing program to gather reams of information about its citizens and corporations’ desire to grab consumer mind-share by every persuasive avenue possible. Indeed, we’re rapidly approaching a time when it will be exceedingly difficult for the law to draw lines between advertising and not-advertising; between fraud and persuasion; and between censorship and consumer protection.

These claims are easy to overdraw, so let me give you an example and a theory to help set the stage for the discussion. In today’s Journal, John McKinnon has a interesting article about Sara Taylor’s decision to leave her job as the White House’s political director to join the private sector. Taylor is an expert in microtargeting, a marketing technique developed by corporations to segment their consumer markets by mining data to learn more about the structure of consumer’s preferences. According to McKinnon, microtargeting was “honed” by political operations to “more effectively zero in on voters’ emotion triggers,” and uncover groups of voters that are susceptible to future efforts. Taylor sees a “big future” for taking such political lessons back to the corporate world by “helping corporations focus on potential customers’ . . . feelings about buying a product or service.”

There are some roadblocks in this prosperous path, as the article points out. Most salient, businesses are “more constrained in the claims they can make” than politicians, presumably by the law of fraud (in its various guises). But there is a solution to this problem: encourage consumers to make their own persuasive advertising by creating “social networks around products and brands . . .” In the future, we should anticipate that such social persuasion will become an increasingly prevalent aspect of corporate marketing efforts, just as politicians have worked to co-opt social networking sites for their own ends.

Why? Because consumers have fewer defenses to social persuasion, and aren’t cynical about it yet. Moreover, social persuasion is probably less subject to legal sanction in the general case (indeed, it may be immune under circumstances where the same language if spoken by the corporation would be actionable). It is also, obviously, cheaper to produce. The downside (loss of control over message) is probably something that corporations will learn to live with. (I thank my lunch companion for pointing this problem out to me!)

What’s wrong with a society in which most speech that you hear is designed to persuade you to consume? When framed that way, some might immediately respond: nothing! After all, no one is being compelled to any particular purchase. If the consumer market is efficient, and consumers had a taste not to consume, wouldn’t savvy marketers satisfy the taste with a unpersuasive campaign? (The idea is silly on its face, but isn’t it sort of what Saturn and Berkshire Hathaway were/are up to?) Even assuming that the consumer product market is somehow irrational, marketers would presumably compete to satisfy whatever inefficient desires are extant.

But I doubt that market rhetoric is going to provide satisfying answers to whether the law should work to hinder a total persuasion society. I haven’t fully thought this issue through, but my starting point is an essay by Jonathan Franzen called Imperial Bedroom, in his book How to Be Alone. Franzen attacks privacy advocates for focusing on privacy as just problem of being from free from others’ (corporations, the government, space aliens, the U.N., etc.) prying eyes and grasping hands.

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When Words Lose Their Meaning

I’ve recently been reading James Boyd White’s wise book When Words Lose Their Meaning. His take on Thucydides is particularly relevant to our predicament. Given that it’s graduation speech season, I thought the following lines might be of particular interest:

Imagine you are invited to give a speech in appreciation of a public or private figure you actually admire. How can you do it without sounding like an idiot? (“Unparalleled devotion to public service”; “wonderful family man, loyal friend”; “great personal sacrifice”; “exemplar of American ideals”, etc., etc.). It is not an adequate response to say that one will simply state in plain terms what one means, as if language were a simple intellectual instrument for naming qualities and expressing judgments. (118)

Rather, White argues, “It is the task of the writer on such an occasion to remake his language so that it and his judgments are sound and fresh. . . . ”

But what if this seems impossible? Steven Millhauser has a fascinating short story in the New Yorker about a PR man who loses all faith in the ability of words to communicate. He once celebrated business for “the precision of its vocabulary—a self-enclosed world of carefully defined words that permitted clarity of thought.” But doubt sets in:

I was still able to do some work, during the day, a little work, though I was also staring a lot at the screen. I had command of a precise and specialized vocabulary that I could summon more or less at will. But the doubt had arisen, corroding my belief. Groups of words began to disintegrate under my intense gaze. I was like a man losing his faith, with no priest to turn to.

White’s solution to such a dilemma is to call for the use of language that is “literary–merging fact, value, and reason, fusing the particular and the general, uniting thought and emotion, logic and image–rather than theoretical or conceptual” (229). He insists that “the law is less a branch of the social sciences than of the humanities in that it seeks not to be a closed system but an open one” (273). That may well be an overreaction to the types of Law & Econ and CLS dominant at the time he wrote the book (1984). But it is a good guiding sentiment for how we allow the specialized vocabularies of other fields of knowledge to inform our work. . . . and how much confidence we should have in the degree of fit between our own conceptual apparatus and a messy world.

Scientists Manques?

Ever wonder why Richard Posner has gotten so interested in pragmatism? Well, James R. Hackney’s book Under Cover of Science: American Legal-Economic Theory and the Quest for Objectivity suggests that he’s right to be looking for a post-scientific discourse for the style of law & economics he advances. Here’s an abstract of Hackney’s work:

The current dominant strand of legal economic theory is what is commonly referred to as law and economics (but more appropriately labeled “law and neoclassical economics”). [This movement] gained its claim to objectivity based on the philosophical premises of logical positivism and the analytic philosophy movement generally. . . . In understanding the claim of objectivity in the law and neoclassical economics movement and why that claim can no longer be sustained (in part due to new conceptions of science and developments in philosophy) it is crucial that legal-academics have a fuller understanding of developments in science and how they shape our general cultural ethos.

Hackney synthesizes a wide variety of CLS and socio-economic critiques to show how “law and economics often cloaks ideological determinations—particularly regarding the distribution of wealth—under the cover of science.” Toward the end of the book he tentatively points a way forward for the discipline, urging greater humility about theoretical claims and greater reliance on empirical work. In other words, the cure for scientism is genuine science.

I have some sympathy with this perspective, and new awareness of “uniformity costs” in both law and legal scholarship backs up Hackney’s position. But the problem of “scientism” may extend beyond law and neoclassical economics…

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Ten Smiles Per Hour: Tax on the Dour?

happyface.jpgTaking a break from weighty topics like world hunger, Peter Singer reflects on an Australian City’s decision to encourage cheer among residents:

[T]he city of Port Phillip . . . has been using volunteers to find out how often people smile at those who pass them in the street. It then put up signs that look like speed limits, but tell pedestrians that they are in, for example, a “10 Smiles Per Hour Zone.” . . . . Mayor Janet Bolitho says that [smiling] . . . . encourages people to feel more connected with each other and safer, so it reduces fear of crime – an important element in the quality of life of many neighborhoods.

Singer backs the effort, based on some “happiness research” mentioned in my last post: “promoting friendship is often easy, cheap, and can have big payoffs in making people happier. So why shouldn’t that be a focus of public policy?”

I was reminded of Quentin Crisp’s classic comparison of England and America: the former combines a generous welfare state with icy social mores, while the latter has sunny individuals and comparatively stingy social provision. But we shouldn’t discount the role of happy cultures in creating happy people; as Barbara Ehrenreich has noted, perhaps the rise in rates of depression “can be connected with the decline in opportunities for pleasure, such as carnival and other traditional festivities.”

Some theorists of discrimination might argue that government intervention to change a sticky norm of unfriendliness amounts to a tax on the dour. Why are they being forced to affect sentiments they don’t authentically feel? But I think the problem has less to do with “faking it” than with the systematic substitution of, say, well-founded dread with carefree bonhomie. Consider U.S. teens’ expectations of future earning power:

American teens believe … that when they get older they will be earning an average annual salary of $145,500. Interestingly, boys expect to earn an average $173,000 a year and girls $114,200 … The fact is, only about 14 percent of U.S. households have incomes between $100,000 and $200,000, reports the U.S. Census Bureau. The median household income in the United States is actually $46,326.

Perhaps the boys’ keen understanding of current fiscal policy has led them to anticipate a hyperinflation.

Admittedly, the optimal level of cheer (or optimism) in a society is impossible to assess in the abstract. But I think Port Philip’s strategy may ultimately backfire. It threatens to set in motion a Gresham’s law of public gladness, whereby bad smiles drive out (or at least devalue) the good. Perhaps a certain seigniorage of cheer will increase gross happiness in the short run. But in the end, it may well set us on the road to a situation like that described in Vaclav Havel’s essay on the grocer in Power of the Powerless. Grinning done as public duty may be indistinguishable from a grimace.

Photo Credit: Flickr/TobyLeah.



phanatic.jpgThree recent events got me to thinking about our reactions to improbable events.

1. Last Friday, I hit the hard-six twice in one roll at an excursion to Atlantic City, the first five dollar bet having been parlayed. The odds of this happening are long (9:1 x 9:1). In retrospect, it is pretty obvious that the dice came down as they did because I had shut my eyes once they left the shooter’s hand. I repeated this same maneuver the rest of the trip.

2. Yesterday, as I sat waiting for the Phillies game to begin, the team held a celebration for the birthday of its extraordinarily strange mascot. The Phillies, for no good reason, decided to tie-in the birthday with the local King Tut exhibit. Six dancing “Egyptian priestesses,” four “Temple guards,” a fire eater, a hula hoop artist, the Phanatic’s “Mummy,” and a belly dancer led the six-foot-six, 300 pound, green monster onto the field. Riding on a camel. I was so horrified by this sight that I put my nose back in a book, hoping that it would disappear. Alas, King Tut himself emerged, painted gold, from a pyramid that had been placed on the pitcher’s mound, and did a loud Steve Martin impression.

3. The Phillies four-four year old pitcher, Jamie Moyer, then proceeded to throw 7 2/3 innings of no-hit ball. An out into the seventh, a young child sitting nearby was reprimanded by a neighbor for whispering the possibility that we were watching history in the making. The bid was broken at the next at bat.

Coincidence? Inconceivable!

(Photo Credit:Mark Robinson )


Self-Handicapping and Managers’ Duty of Care

I have recently posted my symposium essay Self-Handicapping and Managers’ Duty of Care on SSRN and Selected Works. You can read the abstract when you click through, so to convince you to download the essay, I’ll give you a taste of the introduction:

Authors commonly introduce their works in symposium issues with a few disclaiming words. They identify their scholarship as a “symposium essay,” not an “Article”; a “sketch” of an answer, not a fully-fleshed out argument. Casual readers might conclude that law professors are unusually humble and resist trumpeting the novelty and sophistication of their scholarship.

Social psychologists might instead believe that symposium authors seek to avoid reputational sanctions for publicizing arguments they have not fully dressed. Scholars try to signal an excuse for underdeveloped pieces: “I haven’t worked as hard on this paper as I would have if it were a ‘real’ article.” The goal of this excuse-making is simple: disappointed readers will attribute blame away from the author’s perceived acuity and professional reputation.

This is a symposium essay about the psychology of creating such pre-excuses for failure. Rather than focus on academics, I will examine the failings of overconfident corporate managers . . .

The piece grew out of a post I wrote here over a year ago, and will appear in the Wake Forest Law Review’s Business Law Symposium Issue.

Libertarians Against Subjectivism

Some commenters on my post on the Value of Pets took me to task for being too quick to discount individuals’ extraordinary attachment to their companion animals. I found some support in unlikely quarters–Will Willkinson’s critique of “happiness research” which recently appeared on the Cato Institute’s website. This is the most comprehensive recent comment on the literature of subjective well-being that I’ve seen, and raises all sorts of interesting questions for those who are trying to expand the boundaries of economic analysis.

A little background: A growing number of economists have begun to question traditional measurements of well-being, such as GDP or income, and have focused instead on self-reported “subjective well-being” from interviewed subjects. “Happiness research” has come up with some counterintuitive findings, reporting extraordinary levels of life dissatisfaction in apparently prospering liberal democracies.

Wilkinson takes these social scientists to task for failing to fully describe “the dependent variable—

the target of elucidation and explanation—in happiness research.” He claims there are four main possibilities:

(1) Life satisfaction: A cognitive judgment about overall life quality relative to expectations.

(2) Experiential or “hedonic” quality: The quantity of pleasure net of pain in the stream of subjective experience.

(3) Happiness: Some state yet to be determined, but conceived as a something not exhausted by

life satisfaction or the quality of experiential states.

(4) Well-being: Objectively how well life is going for the person living it.

Wilkinson provides some great arguments for questioning 1 and 2 as hopelessly subjective desiderata for public policy. He quotes Wayne Sumner, a Toronto philosopher, on 2: “Time and philosophical fashion have not been kind to hedonism . . . Although hedonistic theories of various sorts flourished for three centuries or so in the congenial empiricist habitat, they have all but disappeared from the scene. Do they now merit even passing attention[?]” “Life satisfaction” also comes in for heavy criticism, as epiphenomenal of various uncontrollable variables: “people have different standards for assessing how well things are going, and they may employ different standards in different sorts of circumstances.”

Of course, Wilkinson and I go entirely different directions at this point: he tries to argue that the whole line of research is useless, while I think inconsistencies like the ones he points out demonstrate the necessity of more objective and virtue-oriented accounts of well-being. (Or, to be more precise, Wilkinson (like Freud) appears to believe that debates over happiness may ultimately best be settled by brain analysis, while I tend to think the direction of Aristotelian theorists like Seligman & Nussbaum is the way to go.) But his perspective does demonstrate that even those most committed to the idea of individual liberty as a public policy goal are not necessarily wedded to the type of subjectivity in value that would underlie societal recognition of the more extreme claims of pet-owners mentioned in that post.