Category: Legal Theory

Objective Harms from Inequality

stretchlimo.jpgMy last three posts (on doctor rankings, SUV’s, and family-obligation discrimination) all have a common thread. They involve what economist Robert Frank calls “positional arms races”–efforts to attain a ranking or relative position whose value depends on how well others are doing.

Driving around in a small car isn’t so scary if everyone else has a small car–but if you’re in litte sedan and you’re surrounded by Escalades, you’re in trouble if there’s a crash (to put it precisely, at least four times more likely to die than if hit by a small car). Similarly, the workplace can often be a rat race with success judged by hours worked–and not necessarily quality of work, a far more difficult thing to measure. Finally, the doctor rankings are a purely positional good: no matter how good the bottom half gets, as long as the top half is better, it will always be known as the bottom half. Similarly, there are only 20 “Top 20″ law schools on any given ranking system; no matter how good the teaching & research gets among schools generally, there is an absolute limit on top spaces.

The mere fact of a positional arms race says nothing about the desirability of a given state of affairs. A well-designed doctor-ranking system might well lead to pay-for-performance rather than pay-for-procedure. Similarly, most law schools rely on a grading “curve” as a spur to excellence–even if it causes some anxiety.

But Robert Frank identifies a number of “arms races” that have hidden costs–both to those participating in them and those left behind.

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Are Survivors’ Costs a Pro-Life Issue?

The conservative Manhattan Institute recently commissioned a study of a gap in life-expectancy gains over the past 20 years. The data that inspired the study are startling:

While U.S. life expectancy increased by 2.33 years from 1991 to 2004, some jurisdictions — the District of Columbia (5.7 years), New York (4.3 years), California (3.4 years) and New Jersey (3.3 years) — led the way, while others, such as Oklahoma (0.3 years), Tennessee (0.8 years) and Utah (0.9 years), trailed the national average by significant margins.

To make a long story short, the researcher found that found that “longevity increased the most in those states where access to newer drugs . . . in Medicaid and Medicare programs has increased the most.”

Unfortunately, budgetary rules often make the federal government concentrate more on the costs of such interventions than their benefits. For example, the CBO counts “increased costs to the Medicare program for extending the life of its beneficiaries” as “survivors’ costs.” Tim Westmoreland’s fascinating article on the topic (95 Georgetown L.J. 1555, June 2007) calls this “euthanasia by budget:”

In describing why its model included costs but no savings from new access to pharmaceuticals, the Congressional Budget Office said, inter alia, “ [T]o the extent that a drug benefit helps people live longer, they may consume more health care over their remaining lifetime than they would have without the benefit.” In other words, it is still cheaper for Medicare beneficiaries to die.

One wonders if the same reasoning was behind a Texas law that permitted hospital authorities to cut off life support to a conscious woman.

I admit that Daniel Callahan has eloquently questioned the “research imperative,” and perhaps his reasoning could be extended to health care more generally. But it strikes me that in our accounting the costs and benefits of health care in this country, budgetary savings arising out of early death ought to be suspect.

RIAA’s Turn to Be a Defendant

Matthew Sag has convincingly argued that RIAA’s litigation war against downloaders is rational for the industry: it’s basically self-financing, as just about every defendant is too terrified of massive statutory damages to put up a fight. But the record industry’s declining fortunes may make its court victories Pyrrhic.

Moreover, a scorched earth litigation strategy against infringers is getting less viable as a few defendants fight back. For example, one litigant has found a creative way of subjecting RIAA’s tactics to public scrutiny:

Former RIAA defendant Tanya Andersen is now suing the major record labels and the RIAA for negligent and illegal investigation and prosecution. In a thirteen count civil suit filed in Oregon District Court, she alleges that record labels didn’t use properly licensed investigators and violated her privacy.

I’m still waiting for someone to bring the antitrust lawsuit that was forestalled by Bertelsmann’s purchase of Napster a few years ago. As Napster-slaying Judge Patel said of the RIAA’s distribution strategy then, “These ventures look bad, smell bad and sound bad” from an antitrust perspective.

Of course, given the lassitude of federal authorities, the antitrust case will be hard to make. But I look forward to more privacy challenges. As Sonia Katyal has argued,

recent developments in copyright law. . . have invited intellectual property owners to create extrajudicial systems of monitoring and enforcement that detect, deter, and control acts of consumer infringement. As a result, . . . intellectual property rights have been fundamentally altered—from a defensive shield into an offensively oriented type of weapon that can be used by intellectual property creators to record the activities of their consumers, and also to enforce particular standards of use and expression. . . .

If agencies fail to police these tactics, perhaps only individuals can fight for themselves. But as Bruce Scheier asks, why doesn’t the US have a privacy commissioner?

Hat Tip: BoingBoing.

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Rosen’s Crabbed View of Judicial Temperament

RosenBook.jpgI recently finished Jeffrey Rosen’s The Supreme Court (can you say “read” if you listened to it on your iPod?), and I found myself rather underwhelmed with Rosen’s analysis of what he took to be his central theme: judicial temperament. In many ways Rosen’s book is very good. It makes the springes of constitutional law approachable for a general audience, and provides a chatty and gossipy look at the Supreme Court that manages to provide a real sense of some of the personalities of the justices, as when he describes William O. Douglas as “a judicial lounge act.”

Rosen presents us with a white hats vs. black hats vision of the Supreme Court. The good guys are genial institutionalists like John Marshall, Hugo Black, William Rehnquist, and — most of all — John Roberts. The bad guys are brilliant loners like Oliver Wendell Holmes Jr., William O. Douglas, and Antonin Scalia. In Rosen’s book judicial temperament refers to the ability to husband and increase the legitimacy of the Supreme Court by behaving in a statesman like way and refusing to allow abstract philosophies dictate imprudent results.

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Beware of Geese Bearing Gold

goldenegg.jpgThe NYT Mag. had a tricky dilemma yesterday: how to devote an issue to rising inequality without spooking the advertisers who hock multi-million-dollar vacation condos with space for “mega-yachts.” An old bromide came to the rescue: don’t kill the goose that lays the golden egg. Echoing Arthur Okun, Roger Lowenstein warns us of a tragic choice: “how can you promote equality without killing off the genie of American prosperity?” He reminds us that the most egalitarian time in American history was that quagmire of stagflation, the seventies:

Remember that while the decade may have been a high-water mark for American egalitarianism, the country was also in its worst economic funk since the Great Depression. Unemployment and inflation were raging, growth was tepid and the stock market was depressed. An economist named Alan Greenspan termed it “the Great Malaise.”

Lowenstein argues that the “cures” for the seventies (deregulation, free trade, and financial speculation) all accelerate inequality. And if we try to look a bit more like a European social democracy, watch out: “the price for being Belgian is steep: [its] median disposable income — what people have left to spend after they pay taxes and collect welfare-type payments — is only 72 percent as high as ours.” But don’t worry–we can educate ourselves out of the gap, since “college grads make more than 40 percent more than high-school grads[, and] those with postgraduate degrees earn twice as much.”

The NYT editorial page, under a bit less pressure to sell ultraluxe adspace, has a more sober view:

New college graduates . . . have been told repeatedly that a college degree is an open sesame to the global economy. But that’s not necessarily so, according to new research by two economists at the Massachusetts Institute of Technology, Frank Levy and Peter Temin. . . . [A] college degree does not ensure a bigger share of the economic pie for many graduates. . . . [Rather,] an outsized share of productivity growth, which expands the nation’s total income, is going to Americans at the top of the income scale. In 2005, the latest year with available data, the top 1 percent of Americans — whose average annual income was $1.1 million — took in 21.8 percent of the nation’s income, their largest share since 1929.

That’s income, not wealth–and the latter measure is far more skewed. Moreover, asset inequality has grown since the housing boom put a chasm between families who bought last century and those who have to face the market now.

I’ve got a few more bones to pick with Lowenstein beneath the fold. . . .

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No Obituaries for Rorty: Where’s the Mainstream Media?

All across the blogosphere, bloggers are writing about the passing of Richard Rorty, a major American philosopher and public intellectual. He died on Friday, yet I still have been unable to find a story or an obituary by any major mainstream media entity. The lack of one made me think that perhaps the story of Rorty’s passing was in error, yet I’ve found nothing in the blogs and commentary to indicate that the story is false. Thus, I’m quite perplexed at the slowness of the mainstream media to report this story. We know within seconds that Paris Hilton has gone back to jail and we have up-to-the-nanosecond updates. Millions of words have been uttered about it. Yet hardly a word about Rorty. This is a very sad commentary about the mainstream media today.

UPDATE: Finally, three days after his death, the MSM mentions it. As pointed out in the comments, the Washington Post and New York Times have good obituaries.

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My Lunch with Richard Rorty

Like Dan, I am saddened to learn that Richard Rorty has passed away. Dan is right to praise Rorty’s Philosophy and the Mirror of Nature, a genuinely important book in English-speaking philosophy. But as an eager undergraduate, I was more fond of Rorty’s essays in Contingency, Irony and Solidarity and Consequences of Pragmatism. I think I was drawn to the elegance with which Rorty could modulate from the formidable abstractions of “core” Anglo-American analytical philosophy to a humanistic discussion of topics like literature and politics. (It is not hard to see this now as foreshadowing my eventual career as a law prof rather than a philosopher.)

I met him once. In 1994, my senior year of college, I flew to Charlottesville, where Rorty then taught, to interview him for a college philosophy journal I worked on. Beautiful place in the fall. We met in his office and talked, then had lunch at a local spot. He was retiring but pleasant, with a personality that led him to seemingly turn inwards, formulate his response to his interlocutor, and then come up again to deliver it. (I do this too.) He fielded my good questions as well as my not-so-good ones with courtesy.

(To save funds, I had crashed the night before on a mattress in a UVA frat house, after attending their Halloween party. It was a good trip.)

You can actually read this interview. I was surprised to see it published by Routledge several years ago as part of a collection of our journal’s interviews with leading philosophers. (I also did the W.V. Quine interview, with the help of a friend who is now a corporate lawyer in Tokyo. I like the Rorty one better.)

I didn’t agree with Rorty about everything then, and disagree with him about more now. I think his more belletristic essays will also prove his most lasting. It was actually Rorty’s criticism that first introduced me to the novels of Nabokov. His autobiographical essay “Trotsky and the Wild Orchids” (available online, though I am not quite certain about its public status) is a fine memoir. And Rorty’s prose is a model for any American academic who wants to develop an accessible and perspicuous style. But I remain grateful for the stimulation of all of his writings, and for his kindness to a callow undergraduate.

UPDATE: My interview with Richard Rorty can be found here.

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Richard Rorty, R.I.P.

rorty-richard.gifFrom Crooked Timber, I have learned that the philosopher Richard Rorty (1931-2007) has passed away. An early announcement of his passing is here. Rorty helped revive pragmatism and spark a renewed interest in the work of John Dewey and other pragmatists of the first part of the twentieth century. He developed a brand of neo-pragmatism that fused some of the ideas of the classical pragmatists with a postmodern skepticism. I personally find myself more in agreement with the classical pragmatists, though I owe a great dept to Rorty’s attempt to reinvigorate pragmatism. I also celebrate his attempt to bring literature and narrative into his philosophy, his clear and engaging writing style, and his desire to be relevant, addressing many key questions in law and politics. Moreover, Rorty’s Philosophy and the Mirror of Nature (1979) remains one of my favorite works of philosophy. He will be missed.

The Appeal of Anti-Heroes

sopranosreading.jpgAs The Sopranos draws to a close, I’ve been impressed by its loyal following. I watched it for the year or so I had a TiVo, and it had a certain appeal. But when you look at devotionals like Sopranos Sue’s Sightings, it’s clear that this Sunday’s finale is on a lot of people’s minds. It’s but one of many shows with heroes who consistently break the rules–from the impatient House to the hip robbers in Ocean’s 11 to 13 to recent “stop snitching” campaigns. What accounts for all these anti-heroes? Are they part of a larger cultural trend toward suspecting all institutions?

I’m afraid I can’t answer that, but I am a bit concerned about the allure of outlawry in pop (and cyber) culture. Consider this passage from an Andrew Koppelmann article on the concept of moral harm:

Any work of literature promotes certain desires and projects in the reader. Wayne Booth observes that narratives, when we are paying attention to them, tend to reshape us. As we read “a large part of our thought-stream is taken over, at least for the duration of the telling, by the story we are taking in.” Any text will imply an

author, possibly different from the real historical author, whose presence can be felt by the reader. As I read, my

thinking becomes that of the implied author: “I begin to see as he or she sees, to feel as she feels, to love what

he loves, or to mock what she mocks.”

I believe an essay in Reading the Sopranos suggests that Tony is more a reflection of his time than an outlier in an age of rampant “amoral familism.” But I ultimately find myself resisting Booth’s suggestion here. Are we really in danger of becoming bad people by reading about (or watching) bad people? Is literature that powerful? And if so, should we worry about reading so many legal cases involving sharp dealing, trickery, and crime?

Expensive Tastes and Bitrates

PrincessPea.jpg“Expensive tastes” pose a problem for egalitarians. If we want to make everyone equally happy, we’ll have to devote far more resources to the “pea-phobic princesses” than to hardier folks inured to suffering. On the other hand, if someone isn’t responsible for their expensive tastes, how different are they from the “eggshell skull” plaintiff so protected by tort law?

Perhaps the key moral issue here is to avoid cultivating expensive tastes. That might lead us to applaud China’s new discouragement of luxury goods:

Xinhua, the government’s official mouthpiece, warned that big spenders risked becoming “intoxicated with comfort” and sinking “into depravity”. Last week the mayor of Beijing, Wang Qishan, went a stage further by calling for controls on outdoor advertisements that promote . . . “ultra-distinguished” products, on the grounds that they “encourage luxury and self-indulgence, which are not conducive to harmony.”

It’s “glorious to get rich,” but not to flaunt it. Just think of how many Americans thought of folksy Sam Walton as being “just like them.”

On the other hand, the expensive tastes of the overrefined can subsidize the rest of us. Though a declining model in the airline industry, it might reemerge in music. Consider this news on Apple’s new DRM-free files:

The Apple iTunes store, the largest seller of music downloads, began selling tracks from EMI Music yesterday without any restrictions on copying, for a slightly higher price than usual, $1.29 instead of 99 cents. To sweeten the deal, those tracks have better sound, with a bitrate of 256 kilobits per second (kbps), up from the standard 128 kbps. Apple has gone so far as to say that this results “in audio quality indistinguishable from the original recording.”

Hooray for the “golden ears,” whose supersensitivity to quality music may end up buoying an industry driven to distraction by declining sales.

But before we get too comfortable with that model, consider this cautionary tale quoted by James Boyle:

It is not because of the few thousand francs which would have to be spent to put a roof over the third-class carriages or to upholster the third-class seats that some company or other has open carriages with wooden benches ….What the company is trying to do i s to prevent the passengers who can pay the second-class fare from travelling third class; it hits the poor, not because it wants to hurt them, but to frighten the rich . . . . And it is again for the same reason that the companies, having proved almost cruel to third-class passengers and mean to the second-class ones, become lavish in dealing with first-class passengers. Having refused the poor what is necessary, they give the rich what is superfluous.

Having just endured another terrible Amtrak travel experience, that seems as true today as it did in 1962.

Illustration credit: Edmund Dulac.