Category: Legal Theory

7

The Burkean Paradox

burke.jpgEdmund Burke was a big defender of the worth of received institutions and prejudices. If I understand his argument correctly it goes something like this:

Society has lots of traditions, practices, and prejudices that are difficult to justify with clearly stated rationales. Sometimes we do something just because that is the way it has always been done. The fact that we don’t have a clear idea about why we have a particular practice does not mean, however, that we should feel free to change it and rationalize it at will. The fact that something has survived from time immemorial means that it may well be the incarnation of collective wisdom that exceeds our rational understanding. After all, reason is limited and we might be wrong. Accordingly, we ought to afford tradition great respect, tampering with it in favor of rational redesign only when absolutely forced.

I find this line of reasoning — call it the Burkean Argument — paradoxically powerful and utterly unpersuasive. It seems powerful to me because the two central premises of the argument seem to me to be quite clearly true. Reason is a necessarily limited instrument, and there is no denying that our deepest convictions about things could be wrong. Likewise, it seems to me that the importance of social institutions quite frequently exceeds our conscious or common-sense understanding of them. Indeed, most social science is premised on the notion that the proper understanding of human institutions exceeds our common-sense understanding of them. If this was not the case, then social science would have nothing to tell us that we didn’t already know.

The problem with the Burkean Argument is that it also strikes me as equally true that some social institutions and practices are just old. We do them because that is the way that we have done them, but they are ultimately meaningless and stupid. The problem with the Burkean Argument is that it provides us with no way of telling which institutions represent the accumulated wisdom of the ages and which institutions are just old. From the point of view of the Burkean Argument the fact that we can’t see a reason for something is not evidence that it is just old. The accumulated wisdom of the ages necessarily exceeds our attempts at argument and theorization. At the same time, the absence of a clear reason for a practice is also not evidence that it represents the accumulated wisdom of the ages. It may just be old. I don’t really see any way out of this paradox. Hence, I think that the Burkean Argument is both valid and useless.

Accordingly, it seems that we are justified in either ignoring all appeals to the Burkean Argument and blithely going forward based on our own understanding. Alternatively, we can adopt a curmudgeonly conservatism, standing athwart the path of History shouting “Stop!” Down one path lies Robbespiere, and down the other lies the defense of rotten boroughs and segregation. Take your pick.

4

The Puzzle of Altruistic Punitiveness

Let’s suppose that that a jerk does something that, while not criminal, is extremely inconsiderate and mean to me. There is only a slim possibility that I will prevail in a civil suit. Oddly I pursue the civil suit anyway. Am I crazy, stupid, or justified? One thing’s for sure, I’m in good company. Real life and laboratory experimental evidence reveal this again and again: many individuals will seek to impose some cost on the jerk despite a significant cost to themselves.

Because classical deterrence theory depends on the notion that people are rational actors who maximize their selfish returns, the practice seems odd. This is, from a deterrence perspective, a puzzling case of altruistic punitiveness. I punish the jerk at my own expense, and the deterrent benefits generated by my costly punitive action accrue largely to others.

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Island of the Crackberry Readers

lotuseaters.jpgSherry Turkle is an MIT scholar who’s written some fascinating reflections on how humans relate to computers. As director of the Initiative on Technology and Self at MIT, she’s been pretty enthusiastic about artificial intelligence (AI) and machines that (appear to) think. But she’s started to question the acceleration of these developments recently…in ways that might intrigue lawyers and just about anyone in technology-intensive industries.

Turkle’s research began as she watched children and the elderly interact with more and more sophisticated simulacra of animals:

Children approach a Furby or a My Real Baby and explore what it means to think of these creatures as alive or “sort of alive”; elders in a nursing play with the robot Paro and grapple with how to characterize this creature that presents

itself as a baby seal. They move from inquiries such as “Does it swim?” and “Does it eat?” to “Is it alive?” and “Can it love?”

As any fan of the movie AI knows, these are profound issues in themselves. Turkle worries about a society where children no longer appreciate the difference between the born and the made….and busy adults leave their aging parents with an array of sophisticated toys to entertain them, rather than visiting.

But Turkle’s latest work broadens this concern to the array of technological devices that are becoming indispensable to urban professionals. Have you ever been left “holding the bag” as a friend rifles through email messages or texts someone? If manners are “small morals,” such activities actually represent a shift in our moral lives–toward an intense connection with a cybernetwork, and away from the presence of those around us. The devices become an excuse for constant distraction. Even more importantly, we can get on a “positional treadmill” such that a device like the BlackBerry is less a form of advantage than a necessity to avoid falling behind.

Recalling Borsook’s book Cyberselfish, Turkle argues that these devices create a “new narcissism”–not mere self-concern, but narcissism in the technical sense, of persons who are so fragile they are in constant need of being “shored up.”

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Fisking Posner on Inequality

In a recent post on the B-P blog, Richard Posner addresses soaring inequality. In the U.S., “since 1980 the percentage of total personal income going to the top 1 percent of earners has risen from 8 percent to 16 percent.” He concedes a few bad effects from this situation, but ultimately concludes that, aside from upping the estate tax, nothing should be done. My favorite part of the post involves Posner’s speculation that “[m]assive philanthropy directed abroad can interfere with a coherent foreign policy;” fortunately, the administration is already on the case.

It’s astonishing how assiduously Posner ignores the work of Robert H. Frank. In 20 years of rigorous articles and books, Frank has documented over and over the ways that growing inequality harms society. Some of us in the legal profession have applied his theories; Cass Sunstein on cost-benefit analysis, Richard McAdams in Relative Preferences, and my own work on luxury health care and the rise of low-volume, high-margin business models in IP.

But in this post, and even in longer treatments of the subject, Posner ignores the leading American theorist on the consequences of economic inequality. Frank takes his libertarian critics seriously, but somehow falls under the Posner’s radar. (Even in articles published in Westlaw, where a search for [au(posner) and (“robert frank” or “robert h. frank”)] got no hits evidencing engagement with Frank’s work on inequality.)

In what follows, I try to “fisk” Posner’s account of the effects of inequality.

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Song of Jersey City

PATH Map.jpg

Rick Garnett recently wrote on “cities’ hipness competition.” According to a recent article in New York Magazine, my urban home (Jersey City) has recently won some prize:

To live [in New York now] is to endure a gnawing suspicion that somebody, somewhere, is marveling and reveling a little more successfully than you are. That they’re paying less money for a bigger apartment with more-authentic details on a nicer block closer to cuter restaurants and still-uncrowded bars and hipper galleries that host better parties with cooler bands than yours does, in an area that’s simultaneously a portal to the future (tomorrow’s hot neighborhood today!) and a throwback to an untainted past (today’s hot neighborhood yesterday!). And you know what? Someone is. And you know what else? Right now, that person just might be living in Jersey City.

It’s not just Tyler Cowen who’s rescuing New Jersey from punchline status–even the uberhip NYM is recognizing us (even if we’re shunned by NYC Bloggers). Our hospitals may be closing, but at least we’ve got a hot arts scene.

Of course, the NYM piece focuses not on all of the JC, but only on the “downtown” close to the Hudson waterfront. I live a bit further down the PATH line, in Journal Square. I think a comparison between the two areas may help us answer Rick’s question: “what law can do — e.g., zoning laws, liquor licensing, etc. — to make cities / metro areas more (or less) attractive to the young (or the old, for that matter)”? Can big urbanism work?

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Law & Technology Theory

prometheus.jpgI just wanted to plug a new forum that Gaia Bernstein, Jim Chen, and I recently launched–Law & Technology Theory. The big question we’re addressing is whether our experience of past regulation of technologies teaches generalizable lessons for future policy. Gaia has nicely summarized some of the key issues we’ll be considering:

Whether [a theory of law & technology] should have broad principles that apply to all technologies or whether it should offer narrower principles relevant to different categories of technologies?

[Can we] formulate a theory that differentiates on the basis of the social values or institutions a new technology destabilizes?

Our “virtual symposium” will host an international group of scholars with a wide range of theoretical commitments. We’ll be publishing the proceedings in the Minnesota Journal of Law, Science, and Technology this Spring. We hope you’ll consider reading and commenting as the discussion progresses. (Some of us will also be at the IASTS conference in Baltimore this February.)

By the way, on a completely untheoretical note, I have to say that the travel time involved in this symposium is great–zero! By developing a forum somewhere between a blog and a conference, we’re trying to promote a new kind of academic exchange. We hope it ends up being a bit more inclusive than the average conference circuit, which can be inhospitable to those who have a tough time traveling.

Art Credit: Elsie Russell, Prometheus (1994).

From the New Property to the New Responsibility

apple small.jpgJust as Charles Reich was a premier theorist of rights to government largesse, Peter Schuck and Richard Zeckhauser are leading exponents of the responsibilities it entails. In Targeting Social Programs, S&Z focus on the denial of benefits to “bad bets” and “bad apples:”

Bad bets are individuals who are likely to benefit little from social resources relative to other [beneficiaries]. . . . Bad apples are individuals whose irresponsible, immoral, or illegal behavior in the past—and predictably, in the future as well—marks them as unsuitable to receive the benefits of social programs.

This may sound a bit cold-hearted at first, but S&Z make a good case that, behind a veil of ignorance, we’d quite sensibly allocate resources to, say, the transplant recipient who is most likely to benefit, rather than the one who has been on the wait list the longest. They also show how often “bad apples'” worst effects are on the disadvantaged citizens near them. (For an example, see Kahan and Meares on anti-loitering ordinances.)

The West Virginia Medicaid program provides an interesting case study of “bad apple screening.” Consider the fate of one beneficiary who refuses to sign a “health responsibility contract:”

Mr. Johnson. . . goes to a clinic once a month for diabetes checkups. Taxpayers foot the bill through Medicaid . . . [b]ut when doctors urged him to mind his diet, “I told them I eat what I want to eat and the hell with them. . . . I’ve been smoking for 50 years — why should I stop now? . . . This is supposed to be a free world.”

Traditionally, there was little Medicaid could do to encourage compliance. But now, “[u]nder a reorganized schedule of aid, the state, hoping for savings over time, plans to reward “responsible” patients with significant extra benefits or — as critics describe it — punish those who do not join weight-loss or antismoking programs, or who miss too many appointments, by denying important services.” But as the article notes, “Somewhat incongruously, [Johnson] appears to be off the hook: as a disabled person he will be exempt under the rules.”

Critics claim the program is unduly intrusive: “What if everyone at a major corporation were told they would lose benefits if they didn’t lose weight or drink less?” asked one doctor. Certainly in some manifestations it could be; consider this 1997 proposal by Judge John Marshall Meisburg:

Congress should . . . consider legislation stipulating that no one can be granted disability by SSA if s/he continues to smoke against the advice of his physician, and smoking is a factor material to the disability, because such claimants are bringing illness and disability upon themselves. Such a law would reduce the burden of proof now needed to deny benefits to persons who fail to heed their doctors’ advice, and would dovetail with legislation just passed by Congress to abolish disability benefits for persons addicted to drug and alcohol. In many cases, smoking is akin to “contributory negligence” and the SSA law should recognize it as such. [From Federal Lawyer, 44-APR FEDRLAW 56 on Westlaw.]

I think S&Z frame the debate in a nuanced enough way to avoid this kind of draconian proposal. But I do have a few quibbles with the framing of their work, if not its substance.

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3

Posner, Pragmatism, and Precedent

precedent1b.jpgOver at the Chicago Law Faculty Blog, Brian Leiter has a post discussing Judge Richard Posner’s legal pragmatism. He writes:

First: Do judges actually have any obligation or duty to abide by precedents or statutes or constitutions on the pragmatic view? Or do they only have some instrumental reasons to pay some attention to these materials? The pragmatist judge, according to Posner, is “unchecked by any felt duty to secure consistency oin principle” with past official actions, i.e., court decisions and legislative enactments (241). The pragmatist judge, he says, only decides “in accordance with precedent” when that is “the best method for producing the best results for the future.” (241). Judge Posner adds that the pragmatist judge is not “uninterested” in statutes and precedents, but that is because he “regards precedent, statutes, and constitutional text both as sources of potentially valuable information about the likely best result in the present case and as signposts that he must be careful not to obliterate or obscure gratuitously, because people may be relying upon them” (242). Indeed, he refers to these sources of law as “‘authorities'” (in quotation marks) and as “merely…sources of information and as limited constraints on [the judge’s] freedom of decision.” None of this makes it sound as though there is any serious obligation for the pragmatist to abide by precedent or statute.

The pragmatic theory of precedent is actually much stronger than the above characterization. There can be strong instrumental reasons for rigidly adhering to precedent. First, establishing a firm tradition of adherence to precedent promotes consistency and serves as a limit on judicial power. Second, disrespect for precedent might undermine the political capital of the judiciary and may lead to a backlash by other branches or the public, thus undermining the judiciary’s power in the future. Third, departing from precedent gradually undermines the function of adherence to precedent, which helps establish the legitimacy of judicial decisions. Undermining this source of legitimacy renders impotent one of the primary sources of judicial power.

True, under a pragmatic theory, judges have instrumental reasons for adhering to precedent but don’t have an “obligation” to do so. These instrumental reasons may sound less absolutist than a more categorical command to obey precedent, but these reasons can be just as potent and powerful in practice.

Indeed, it is not at all clear that non-pragmatist judges are more likely to respect precedent. Non-pragmatist judges who proclaim their strict duty to precedent can readily cheat and pretend to follow precedent while cleverly manipulating it to get the results they want. A non-pragmatist judge may adopt a rather loose or creative interpretive stance toward prior caselaw or statutes, allowing her to claim adherence to precedent while at the same time taking the law in a new direction. The non-pragmatist judge will claim that this new direction is consistent with prior cases based on interpretive reasons. In contrast, the pragmatist judge might more openly acknowledge the departure from precedent and justify it with instrumental reasons for the departure. But the fact that the pragmatist judge might describe the departure in a different manner does not mean that the pragmatist judge is more likely to depart from precedent. In fact, if a pragmatist judge is committed to honestly acknowledging departures from precedent, then this could make the judge more reluctant to depart than the non-pragmatist judge who believes she can cloak her departures with skillful rhetoric.

In other words, I don’t see why pragmatist judges are likely to be less respectful of precedent or more likely to depart from it than non-pragmatist judges.

There’s also a podcast of Leiter’s discussion with Posner, which I haven’t had the opportunity to listen to.

Grimmelmann: “Is Fashion a Bad?”

mugatuzoolander.jpg

I always enjoy James Grimmelmann’s blog and learn much from his articles. He combines a passion for precision with an unerring sense of the big picture. That’s evident today on the Picker MobBlog discussing Raustiala & Sprigman’s work on IP protections (or the lack thereof) in the fashion industry. Rather than engage the usual dialogue on innovation maximization, Grimmelmann asks flat out: is fashion a bad?

Sure, the fashion cycle may work for the fashion industry, but is that really something we should be glad about? . . . If low IP protection is good for the fashion industry because it enables rapid copying and a quick cycle of obsolescence, and if that cycle involves waste induced by conspicuous consumption, then isn’t a low IP regime a bad thing?

I’m sympathetic with Grimmelmann’s position, and this gap is symptomatic of a larger problem: “most economists believe that the core of economics can be developed with no assumptions at all about what an economy should aim to provide” (Dupre & Gagnier). But I also feel obliged to give the other side its due. And recently, one of the most enthusiastic exponents of laissez-faire here has been Virginia Postrel. Consider this encomium to style:

Even analysts who do not view luxury goods as waste do not [adequately] credit the goods’ intrinsic sensory appeal. . . . [They have] a hard time noticing any qualities beyond status badges and advertising-created brand personas. [But] more is going on. . . . People pet Armani clothes because the fabrics feel so good. Those clothes attract us as visual, tactile creatures, not because they are “rich in meaning” but because they are rich in pleasure. The garments’ utility includes the way they look and feel.

So the challenge for the latter-day Veblen is to disaggregate the “status-conferring” aspect of the fashion from its aesthetic, tactile, and expressive appeal (as Jeff Harrison notes). But as Veblen himself realized, this is an inquiry that has to share in both economic and humanistic approaches. And perhaps it even involves a bit of “norm entrepreneurship” in reinterpreting fashion . . .

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The Beauty-Industrial Complex

There have been a lot of reviews lately of Alex Kuczynski’s Beauty Junkies: Inside our $15 Billion Obsession with Cosmetic Surgery. Kuczynski writes for the NYT’s Thursday Styles section, and has a journalist’s flair for finding the most bizarre instances of consumer trends (such as an $11,000 South African surgery/safari package). I found Rebecca Mead’s take particularly insightful:

“We have begun to think of our bodies as something like an accessory that can be modified when necessary, discarded when it is worn out, and upgraded when required, a leathery sack to transport us from one medical specialist to the next,” Kuczynski writes; and the analogy is apt . . . . The new idea offered by the contemporary culture of cosmetic surgery is that it is the vessel itself that we must value, rather than the soul or spirit that it contains.

Mead also focuses on an underreported aspect of Kuczynski’s analysis: how business pressures and laws governing health care and insurance are spurring the trend:

Kuczynski argues that the soaring incidence of cosmetic surgery—a nearly fivefold increase in the number of cosmetic procedures performed on Americans during the past decade—has been driven by market forces rather than by the measurable health needs of the nation. Surgeons exhausted by the medical-insurance morass are flocking to the field. “If you’re a doctor working in this kind of environment, do you want to spend an hour removing a freckle and get paid $12 in two months by some insurance company? Or do you want to spend fifteen minutes putting Botox into someone’s face and get $1,000 in cash five minutes later?” one attendee at a convention of plastic surgeons asks.

Indeed, many moves to “high end health care” are driven by frustration with insurance providers. Some argue that a move to “free up” the health care field from regulation might help restore a balance. But a book on plastic surgery far more critical than Kuczynski’s suggests there is a deeper “market based” method to the industry. . .

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