LawProf as Philosopher-King

Carlin Romano's fascinating profile of Harvard Law Prof Roberto Unger should prove inspiring for any academics who long for a policy role. Here's a taste:

His political involvement in Brazil dates to the late 1970s, when military dictatorship gave way to a "political opening." Unger offered his services to the united opposition party. In 1978 he became that party's chief of staff . . . . In those days, he says with a grin, he consoled himself "during solitary evenings … with readings and translations of Chinese imperial poetry, one of the themes of which is the presence of the exiled intellectual in the dusty steppes." . . .

In April 2007, [Socialist President] Lula invited Unger for two long conversations in Brasília, then offered him a new position running a "Secretariat for Long-Term Actions." Unger accepted, informing Lula that he'd start after finishing his Harvard semester. . . .

"I have the only position in the government that is about everything, except for the position of the president," Unger exults. "He has all power, and I have none. But I have one advantage over him. I don't have to manage daily crises. I'm therefore free — as he is not — to deal with the future and to deal with our direction. It's been fantastic."

Unger's ideas for change are interesting, though the scholarship that underlies them has gotten a mixed reception in the American academy.

[Cornel] West, an admirer of Unger's "fascinating" books despite some reservations, praised his project as "the most significant attempt to articulate a Third-Wave Left romanticism that builds on the best of the Jefferson-Emerson-Dewey and Rousseau-Marx-Gramsci legacies." Jerome Neu celebrated Unger in his Times review of Passion for "some of the most brilliant writing of this kind since Hegel." Fish tipped his hat to Unger's "distinctive" voice. Rorty wrote admiringly, "He does not make moves in any game we know how to play."

In contrast, Stephen Holmes blasted Unger's 1,140-page Politics in a New Republic review headlined, "The Professor of Smashing: The Preposterous Political Romanticism of Roberto Unger." In that treatise, Unger argued repeatedly for a "radical project" of "context-smashing" that would usher in a "complete remaking of society." Holmes groaned that "a more repetitive attack on repetitiveness is difficult to imagine." Holmes savaged Unger for a "riot of inconsistency" and "overdose of rhetoric," as well as out-of-control Nietzscheanism . . . .

I share the mixed feelings that Romano reports. I found his big article on CLS a real eye-opener, exposing how major trends in legal scholarship were efforts to cloak an ideological agenda in the guise of objective science. On the other hand, I found much of Politics, a Work in Constructive Social Theory virtually unreadable--partly because of my own deficiencies in social theory, partly due to the abstractness of the "super-theory" he was trying to construct. I've also been disappointed by Unger's appropriation of "plasticity" as a summum bonum--a rejection of the idea of an innate human nature and a desire for "change for its own sake" that can easily lose its emancipatory potential. As Noam Chomsky reminds us,

If in fact man is an indefinitely malleable, completely plastic being, with no innate structures of mind and no intrinsic needs of a cultural or social character, then he is a fit subject for the 'shaping behavior' by the state authority, the corporate manager, the technocrat, or the central committee [or the blind forces of competition in any contemporary capitalist society]. Those with some confidence in the human species . . . will try to determine the intrinsic human characteristics that provide the framework for intellectual development, the growth of moral consciousness, cultural achievement, and participation in a free community. [For Reasons of State, 404, quoted in Michael Perry, Morality, Politics, and Law.]

Nevertheless, I find the following ideas at the close of Unger's Knowledge and Politics inspiring:

Within its province, philosophy is sovereign. But this province is limited, and the experience of running up against its limits is indispensable to our knowledge of it. When one thinks philosophical problems through, one comes at last to the outer frontiers, politics and religion, at which the philosopher's pride is cast down, and other kinds of striving come to the fore. . . . So is man's meditation on God a final union of thought and love--love which is thought disembodied from language and restored to its source.

Academics and lawyers are prone to overvalue the power of words and reason. Unger helps us see the place of dreams, desire, and passion in politics. Given Brazil's current state, his courage in entering politics there is extraordinary.

Photo Credit: Biblioteca Nacional, Brasilia, by Luiz Castro.

Posted by Frank Pasquale at 02:07 PM | Comments (5) | TrackBack

Defense Spending as Self-Fulfilling Prophecy

In a recent editorial, Robert Scheer wonders "Why is U.S. military spending at the highest point, in inflation-adjusted dollars, than at any time since the end of World War II?" Scheer further wonders:

Maybe one can make a case that it is appropriate that more than half of the discretionary funds in the 2009 budget go to defense, and all the other federal programs for science, education, infrastructure, global warming and nonmilitary international programs compete for the rest. But isn’t it bizarre that the biggest peacetime military budget in U.S. history — 35% higher than when Bush came into office and larger than the military budgets of all other nations combined — is not even discussed in the current presidential contest?

I found Scheer's questions particularly interesting as I read another article (this time from economists) challenging the view that the US can afford to spend 30% of its GDP on health care in 2050. If health spending reached such a level, the authors predicted a productivity crisis that would drag down the US economy in comparison to other countries'. We see glimmers of such arguments in periodic panics over the Medicare and Medicaid budgets at Washington think tanks.

I think it's helpful to think about defense and health spending together because they reveal there is no objectively correct answer as to how much public spending there should be in any given category. In a world of escalating military tensions, military budgets may well have to rise. When a general "pax" prevails, there can be more investment in health and safety. Sadly, the perception of rising military tensions (and ensuing buildups) may well become a self-fulfilling prophecy. If your neighbor gets more arms, you're well-advised to arm yourself. In such cases, the wasteful and destructive potential of positional competition is most evident.

Posted by Frank Pasquale at 09:10 AM | Comments (4) | TrackBack

The Ideology of Privatization

When a majority of doctors back a national insurance plan, how do we keep getting health care that is more fragmented, private-insurer-driven, and risky? Zygmunt Bauman offers an insightful look at the ideology of privatization that cripples "collective responses" to problems like these:

The call to ‘work more and earn more’, a call addressed to individuals, and fit only for individual use, is chasing away and replacing past calls to ‘think of society’ and ‘care for society’ (for a community, a nation, a church, a cause). . . . This ideology proclaims the futility (indeed, counter-productivity) of solidarity: of joining forces and subordinating individual actions to a ‘common cause’. It derides the principle of communal responsibility for the wellbeing of its members. . . .

Individuals are called upon to invent and deploy individual solutions to socially produced discomforts, and they tend to respond in kind. Thus any turn of events that plays havoc with the expectations suggested by a person-focused ideology is perceived and ‘made sense of’, in the same ideology of privatisation, as a personal snub, a personally aimed (even if randomly targeted) humiliation; self-respect, as well as feelings of security and self-confidence, are its first casualties.

Has your "health insurance" left you with huge debts? The privatization ideology responds, "Should have read the contract, sucker." Never mind if the person who signed the contract doesn't have training as a lawyer, or didn't have the funds to buy a better alternative.

What I particularly like about Bauman's article is how he traces the mutual influences between the privatization ideology and pop culture. Consider this analysis of Big Brother:

In Big Brother, someone must be excluded each week: not because, by some curious coincidence, regularly, every week, one person shows themselves as being inadequate, but because it has been written into the rules of ‘reality’ as seen on TV. Exclusion is in the nature of things, an un-detachable aspect of being-in-the-world, a ‘law of nature’ - and so to rebel against it makes no sense. The only issue worthy of being thought about - and intensely - is staving off the prospect of myself being excluded in the next round of exclusions.

A few posts from now, I'll examine how this cultural Social Darwinism affects social science. But for now I'll just note one of Bauman's fascinating insights on the culture of luxury at the "top" of the hierarchy the ideology of privatization celebrates:

One of the permanent contributors to [the] ‘How to spend it’ [column in the Financial Times] explains that what makes some exorbitantly costly perfumes ‘so beguiling’ is the fact that they ‘have been kept under wraps for loyal clients’. As well as an unusual fragrance, they offer an olfactory emblem of magnificence, and of belonging to the company of the magnificent. As Ann Rippin suggests, this and similar kinds of bliss offer the combination of belonging to an exclusive category and the badge of supreme taste and connoisseurship - the knowledge of being among the selected few. Delights of the palate, eye, ear, nose and fingers are multiplied by the knowledge that so few others savour them. Is it the sense of privilege that makes the high and mighty happy?

Rippin finds such ways of reaching the state of happiness to be at best only half successful: the momentary joys they bring dissolve, vanishing quickly into long-term anxiety. The fantasy world spun by the editors of ‘How to spend it’ is marked by fragility and impermanence: ‘the struggle for legitimacy through magnificence and excess implies instability and vulnerability’. The occupants of the fantasy world are aware that they can never have enough, or be good enough, to be safe.

‘Consumption leads not to surety and satiety but to escalating anxiety. Enough can never be enough’. As one of the ‘How to spend it’ contributors warns, in a world in which ‘everyone’ can afford a luxury car, those who really aim high ‘have no option but to go one better’.

Positional goods strike again.

Posted by Frank Pasquale at 09:33 AM | Comments (13) | TrackBack

"In much wisdom there is much grief . . ."

Conservative pundit Arthur C. Brooks has been discussing his book Gross National Happiness in a number of venues, including the NYT Freakonomics blog. Having criticized the progressive Robert H. Frank for using such data to support egalitarianism, I'll now question Brooks's subjectivism (which has led him in exactly the opposite direction as Frank on the inequality question).

Brooks is happy to report that his political allies are "winning the happiness game hands down." He gives several hypotheses for conservative joy; stronger religiosity, more time with family, a preference for "simplicity" over "complexity," and less likelihood to see oneself as a victim. Brooks occasionally concedes Mill's argument that it is "better to be Socrates dissatisfied than a pig satisfied." But he appears most amenable to the view that liberals are likely to be whiny, complaining, resentful people, while conservatives resolutely consider themselves in control of their fate and satisfied with their lives.

Brooks's research raises a number of interesting policy questions. First of all, what's his root concern--happiness or virtue? We might map the classic tension between freedom and virtue to the present case: is it good action or the subjective feeling (Brooks alleges) it creates the desideratum here? If the latter, why not just provide people with soma? If the former, it's a bit odd to introduce the "happiness evidence" as a reason for being, say, conservative, or good. Who's Brooks's audience? Exhausted hedonists just on the brink of giving up their Don Juan days to find more lasting pleasure at anti-tax rallies?

Brooks concedes that political extremists on both ends of the political spectrum are happier than moderates. Is their good feeling an indication of the truth of their beliefs, or their opioid quality?

I'm surprised reviewers haven't yet connected Brooks's work to Myrna Blyth's Spin Sisters: How the Women of the Media Sell Unhappiness--and Liberalism--to the Women of America. As one unsympathetic (but accurate) reviewer of that book puts it,

Blyth argues that the magazines turn women into victims because of the emphasis [they] put on stress, health, men, the environment. Victims, she says, are what liberals need to enact their policies. . . .

In attempting to explain his happiness data, Brooks similarly suggests that liberalism seduces losers with the siren song of victimhood. Never mind that the "economic freedom" his political allies promote often leads to situations like these:

[M]any corporations have cut costs by violating wage-and-hour laws. Managers at Wal-Mart, Pep Boys and Family Dollar . . . secretly erased hours from employees' time records because of fierce pressures to minimize costs. At many companies, managers strong-arm employees into working off the clock; hourly employees who clock out at, say, 5 p.m., are ordered to work an hour or two extra unpaid. . . ..

[M]any companies also squeeze workers by treating them with a shocking lack of dignity. A Wal-Mart cashier in Kansas City told me that managers were so stingy about bathroom breaks that some cashiers ended up soiling themselves. RadioShack had the gall to fire 400 workers at its Fort Worth headquarters by e-mail, the message saying, "Unfortunately your position is one that has been eliminated." Corporate executives told Myra Bronstein, a software engineer in Seattle, that as long as the company did well and she worked hard - she put in many 14-hour days - she would have a job. But one day the company suddenly fired Bronstein and 17 other engineers. . . .

The biggest squeeze has been on wages and benefits. During the economic expansion that began in November 2001, corporate profits soared, while productivity per worker rose more than 15 percent. Nonetheless, hourly wages for the typical worker have inched up by just 1 percent since then, after inflation, while median income for working-age households has fallen nearly $2,400 to $54,726 since 2000, according to the most recent Census Bureau report on poverty and income.

Perhaps some of these workers "win the happiness game" by, say, wearing Depends to work and just being satisfied they can get to the bathroom at lunch time. Perhaps they whistle through their 14-hour days while the sword of Damocles that is employment-at-will swings over their heads. If that blithe "pleasure wizardry" happens to correlate with conservative political beliefs, the relationship tells us very little about the latter's ultimately validity. As Carl Elliott would remind us, "On Prozac, Sisyphus might well push the boulder back up the mountain with more enthusiasm and more creativity."

PS: As for the title; here's Ecclesiastes.

Posted by Frank Pasquale at 11:18 PM | Comments (4) | TrackBack

Department of Self-Fulfilling Prophecies, Women in Science Edition

Recently Ben Barres, a professor of neurobiology, gave a fascinating talk at Harvard titled "Some Reflections on the Dearth of Women in Science." His talk was based on his Nature article "Does Gender Matter" (to achievement in the sciences). I found the talk an extraordinary confirmation of my earlier worries about self-fulfilling prophecies and bias in the blogosphere.

Barres was responding to Steven Pinker's book The Blank Slate: The Modern Denial of Human Nature, which, according to Barres, argues that men are innately "more aggressive and ambitious" and women innately "feel emotions more strongly" and "prefer to take care of children." Barres explored how Rosalyn Barnett and Carolyn Rivers' book Same Difference: How Gender Myths are Hurting our Relationships, Our Children, and Our Jobs extensively undermined such ideas, exploring the numerous "nurture" based rationales for differences Pinker saw as innate. Barres recited several studies evidencing "gender prejudice" that influences choices from the very earliest stages of child development. His slide show (available here) also raised serious questions about Pinker's neo-Darwinian agenda, tracing bias in it all the way back to Darwin's 1871 Descent of Man, which argued that "The chief distinction in the intellectual powers of the two sexes is shown by man's attaining to a higher eminence, in whatever he takes up, than can woman." (In 1985, Richard Lewontin responded that "biological determinists have never found any credible concrete basis for such differences.").

After punching various holes in Pinker's scientific program, Barres concluded that "When faculty tell their students that they are innately inferior based on race or gender they are crossing a line that should not be crossed –the line that divides responsible free speech from verbal violence." His comments bring to mind a struggle for the soul of academia--whether the university is defined by either a) a libertarian willingness to entertain *any* idea or b) a communitarian belief that academics are part of a larger process of social inquiry designed to improve the world. The former idea is a tempting for many, but when we try to recognize the range of research programs that are actually worthwhile to accomplish, we quickly see that such rules of recognition are themselves parasitic on situated concepts of what is important to us and what aspects of our tradition are most worth promoting. Barres points out that the mere act of setting an agenda of inquiry can itself not merely manifest, but also promote, the very biases the inquirer claims merely to be exploring.

Consider, for instance, an academic department set up to explore Pinker's hypothesis that "Religion is a desperate measure that people resort to when the stakes are high and they have exhausted the usual techniques for the causation of success." Or the question of whether academics should study the propriety of torture in the service of national security. We may all want to pat ourselves on the back for being brave enough to consider such inquires. (In the same manner as, say, Pinker appears to be proud to consider dangerous ideas.) Yet as Raimond Gaita has argued, sometimes an "open mind" can also be a (morally) empty one. Gaita argues that "Society is in fact defined by what is undiscussable."

Posted by Frank Pasquale at 09:55 AM | Comments (11) | TrackBack

Stopping the Spin Cycle: Recognizing Bent Science and Stealth Marketing

American University's conference last Friday "Does Red Lion Still Roar?" (about the past and future of media regulation) featured a number of great speakers, including Tara Malloy of the Campaign Legal Center, Andrew Jay Schwartzman of the Media Access Project, and Gigi Sohn of Public Knowledge. My talk focused on the type of social science considered by regulators, as did those of Catherine Sandoval and Philip Napoli. I think their perspectives could help us sort through a number of recent controversies in the media.

Sandoval highlighted some deeply troubling practices at the FCC, including decisions based on deficient data. Napoli noted that given government retrenchment in basic recordkeeping, and copyright challenges for private archives, it's sometimes easier to study media of the 1920s than to get a good sense of what is going on today. Napoli noted that Europe has established "cultural observatories" which make such efforts easier. Both speakers suggested that it is essential for there to be some separation between data-gathering and policy-making arms of administrative agencies.

Their work reminded me of the pervasiveness of the phenomenon Ellen Goodman has deemed "Stealth Marketing"--and its power when combined with "bent science." Just today the NYT reminds us of the degree to which we may be mis-evaluating biased data as "objective:"

Consider this reporting from David Barstow on the Pentagon's management of opinion regarding the Iraq War:

[In response to Guantanamo], administration’s communications experts responded swiftly. Early one Friday morning, they put a group of retired military officers on one of the jets normally used by Vice President Dick Cheney and flew them to Cuba for a carefully orchestrated tour of Guantánamo.

To the public, these men are members of a familiar fraternity, presented tens of thousands of times on television and radio as “military analysts” whose long service has equipped them to give authoritative and unfettered judgments about the most pressing issues of the post-Sept. 11 world.

Hidden behind that appearance of objectivity, though, is a Pentagon information apparatus that has used those analysts in a campaign to generate favorable news coverage of the administration’s wartime performance, an examination by The New York Times has found.

Perhaps something like the principles of disclosure and objectivity proposed in this JAMA editorial (for medical publications) should be adopted more generally by government and the journalists who cover it. We deserve to know exactly who is behind the views and studies that inform public debate and policy.

Posted by Frank Pasquale at 04:10 PM | Comments (1) | TrackBack

Should Public Intellectuals Appear on YouTube?

Leiter Reports notes a new Danish television program on philosophy, which reminds me of this review of a book on French programs on similar topics. The French were apparently way ahead of the curve in worrying about the future of philosophy as mere written words:

[In] the thirty years after the radio broadcast of Jean-Paul Sartre’s 1944 essay “Republic of Silence,” philosophers in France were peculiarly concerned with their changing media. Declaring the book inert—“written by a dead man about dead things,” Sartre wrote in 1947, “it no longer has any place on this earth”—he advised contemporary writers to “learn to speak in images” and to work for newspapers, radio, and film.

Tamara Chaplin’s vivid, thorough, and irreverent cultural history Turning On the Mind: French Philosophers on Television presents [programs featuring philosophers]. . . from [the] point of view . . . of a Parisian couch potato. . . . .The most charming scene in [one such program, The Teaching of Philosophy] is the attempt by the show’s director, Jean Fléchet, to capture “the philosophical event” in the “act of its becoming,” by putting Jean Hyppolite and Georges Canguilhem together in a taxi, where they debate the nature of truth.

Should philosophers (and public intellectuals generally) take to the airwaves? I think a few schools of thought on the topic are developing.

Back in 1995, Robert Hughes argued that

TV favors a mentality in which certain things no longer matter particularly: skills like the ability to enjoy a complex argument, for instance, or to perceive nuances, or to keep in mind large amounts of significant information, or to remember today what someone said last month, or to consider strong and carefully argued opinions in defiance of what is conventionally called ‘balance’ . . . and . . .its content lurches between violence of action, emotional hyperbole, and blandness of opinion”

Will YouTube make things better? Andrew Sullivan has his doubts:

You don’t want to watch a programme, let alone a full-length film or lengthy documentary, or even a half-hour news broadcast, on a computer screen. What endures online is the quick hit, the short impression, the visual punchline that requires a minimal set-up. For drama or in-depth journalism or even an interview that can actually get beneath the surface of a subject or beyond the spin of a public figure: television still has the edge. . ..

So if you’re still reeling from the impact of blogs on journalism, sit tight. Blogging with words was simply the beginning; blogging with video has only just begun.

I'm reminded here of the website BigThink, which I initially thought of as a good idea. Though I haven't watched much, I have yet to see a short clip on it that I find truly compelling. I've also felt that appearances on BloggingheadsTV tended to diminish, rather than enhance, the bloggers it's featured. Perhaps the title of the site itself plays a role there; as James Grimmelmann has noted in another context, "using such a silly title is like starting off a lecture by hitting yourself in the face with a cream pie." Or perhaps the Supreme Court's reluctance to be televised reflects an awareness of the odd relationship between authority and notoriety: a ubiquitous media presence can garner you fame, but it only takes one slip to lose respect.

On the other hand, YouTube is allowing some commentaries to flourish that would probably never see the light of day on even a community access channel. Regardless of the quality of the YouTube experience, I predict that those who want their ideas to influence public affairs are going to need to develop an audiovisual web presence. Though I have a very high tolerance for reading text, I'm getting an increasing amount of information from podcasts. People who don't read text at leisure (an increasing percentage of the US population at least) are going to be influenceable, if at all, via audiovisual media. Market-driven media are not going to be picking up philosophy programs; YouTube (and podcasting like Philosophy Bites) are a low-cost alternative.

Posted by Frank Pasquale at 06:26 PM | Comments (3) | TrackBack

The Epiphenomenal Soul

Jeff Lipshaw has a good discussion of the recent journalistic obsession with experimental philosophy (x-phi). He also promotes a less modish work by Susan Neiman, entitled Moral Clarity. The x-phi crowd is very interested in recording the brain activity of subjects who are asked questions about whether, say, they would divert a trolley that was going to kill two persons onto a track where it would only strike one person. Neiman asks the following questions (among others):

What kinds of heroes are modern heroes? How do we talk about evil without slinging curses and mud? Learn to make moral judgments without clear instructions? Where does optimism end, and hope begin?

Having skimmed Neiman's introduction, I hope her questions get at least the level of attention that the x-phi crowd gets.

Consider a recent transcript from the radio show Justice Talking, where a leading x-philer (Joshua Greene) discusses the implications of his research.

MARGOT ADLER: Brain scans are showing up in the courts for all kinds of cases, sometimes to raise questions about diminished capacity to form intent to commit a crime. Does brain imaging really show this?

STEPHEN MORSE: It couldn’t possibly show this. There are two points to make clear right at the beginning: The criteria in law for responsibility and competence are all behavioral, broadly speaking, to include mental states and actions, and unless there was an absolute precise correlation between the behaviors the law was concerned with and particular brain findings, brain findings can’t show diminished capacity. All they can show is a state of the brain. A stateof diminished capacity is a state of diminished rationality. That’s a behavioral state.

MARGOT ADLER: Josh, do you agree with that?

JOSHUA GREENE: I suppose that I come to this from psychology and philosophy as well as neuroscience. And I have some doubts about whether or not the letter of the law really conforms to people’s intuition about who’s responsible and who’s not. So the law says that you’re responsible for this bad thing, that you did — if you were rational at the time, that you committed the act. And that’s a consistent standard that one can attempt to apply. But I think that it’s not necessarily what people really deeply intuitively have in mind.

Was it this person? This mind? This soul that committed this crime? Or was it just some mechanical thing, like a brain tumor or something they couldn’t control, like their genes or something like that? And the reason why we’re prompted to ask this question — can brain imaging change the way we think about the law — is because what neuroscience does is it gives us a mechanical picture of a human agent. And I think that that mechanical picture — even though I think it correct, is not compatible with our ordinary intuitions about, responsibility. And so I think that’s where this tension comes from, and that’s why the questions about neuroscience and its implications arise. (emphasis added)

Greene is a scrupulous scientist, and I have no little doubt that he accurately conveys the "mechanical picture of a human agent" that his studies suggest. But every research program is driven by a particular agenda, and it's useful to elucidate Greene's:

MARGOT ADLER: Even if we don’t understand all of that, the fear, I think, that many people have is that as this goes forward all of our notions of free will are going to be sort of thrown out the window. Is that where we’re going? Josh?

JOSHUA GREENE: I think that what’s exactly going to happen, eventually, and this may take 500 years or 1,000 years, but eventually is that our major notions of free will are going to go out the window. That is, free will as we ordinarily conceive it as, the behavior of an unmoved mover, as a mind that is separate from the causal flow of the universe.

I'm perfectly willing to entertain Greene's metaphysics here, but it's important to see how much it may be driven by his theory of ethics. For example, consider his discussion of a hypothetical derived from a MASH episode in the last five minutes of this radio show (sorry, no transcript!).

To summarize very briefly, Greene posits a scenario whereby a mother in a village hiding from a vicious enemy faces a tragic choice: allow her baby to cry and thus alert the enemy to their hideout (leading to the death of the whole village), or smother the baby and save the village. Greene finds that the persons who make the traditional utilitarian choice (smother the baby) have more activity in the "rational calculating" part of the highly evolved human brain; those who resist that option are more attuned to their inner chimp--the visceral, emotional side of thought. Though Greene hedges a bit, the direction of his thought is clear: as we understand the brain better, perhaps we'll be less enslaved to the counterproductive relics of evolution some deem central to their ethical thought.

The narrative of progress here reminds me of Martha Nussbaum's take on Agamemnon's self-justification in the face of killing his daughter in order to advance his war aims:

We notice two points in this strange and appalling utterance. First, his attitude towards the decision itself seems to have changed with the making of it. From the acknowledgment that a heavy doom awaits him either way, and that either alternative involves wrongdoing, he has moved to a peculiar optimism. . . . An act that we were prepared to view as the lesser of two hideous wrongs and impieties has now become for him pious and right. . . .[Fragility of Goodness, 35].

My sense is that Greene's peculiar optimism lies in an expectation that if he can convince enough people that certain inconvenient or inefficient moral responses are simply artifacts of evolution, the world can be made a much better place. My pessimism lies in an awareness that the more a "mechanized" view of the human mind becomes widespread, the more likely we are to be subject to (or enthusiastically embrace) the "shaping mechanisms" that make us more efficient economic competitors.

Finally, here is a review of Anthony Appiah's response to the x-phi trend:

[S]cientists around the world are exploring how we reason about right and wrong, looking not only at the usual pool of undergraduate volunteers but also at specialized populations like hunter-gatherers, children and psychopaths. And there is a rich body of theoretical work in behavioral economics and evolutionary psychology that attempts to explore the rationale behind our moral thoughts and feelings.

If I were a philosopher, I’d find this flattering but also a bit worrying, particularly since some of the scientists see their work as ultimately replacing traditional philosophy. For them, it is not a collaboration; it is a hostile takeover.

In the short and brilliant “Experiments in Ethics,” the Princeton philosopher Kwame Anthony Appiah discusses this research and what it means for ethics. Appiah isn’t worried at all. He starts by pointing out that philosophy has almost always had an experimental side. David Hume, for instance, was adamant that moral philosophy had to be grounded in facts about human nature, in psychology and history. Even Kant, among the most abstract and abstruse of scholars, mixed his moral philosophy with practical observations and suggestions, on topics including child raising (“games with balls are among the best for children”). The idea of philosophy as an isolated discipline, Appiah argues, is a relatively newfangled idea, and not a good one.

***

Talking about the genocide of the Tutsis in Rwanda in 1994, Appiah suggests that “if you or I had been planted on this earth as Hutus at that time and place, we too would probably have been participants.” While I think this point is often somewhat overstated (after all, there are those who behave nobly regardless of where they are, as well as those who are monsters in the best of times), Appiah is probably right when he concludes that we should place less emphasis on “character education” and focus more on trying to establish situations in which people’s better selves can flourish.

Some good support for the project of the Situationist blog.

Posted by Frank Pasquale at 09:30 AM | Comments (1) | TrackBack

Ten Favorite Books Read in 2007

I admit it: despite criticizing rankings here and in articles, I like a good "Top 10" list as much as the next guy. As Harold Bloom opined in a recent podcast, there are more great books out there than you can possibly read in a lifetime, so you have to make choices. Since I get a lot of my reading from used book stores, not all of these were published in 2007. Without further ado, here are my picks:

10. David Feige, Indefensible: One Lawyer's Journey Into the Inferno of American Justice. As I noted before, it's a briskly written, insightful work by someone trying to do the right thing in impossibly difficult situations. Feige whisks you through a single day of his life as a public defender in the South Bronx. Most events in the day bring up some memory of past clients, who take on an almost palpaple presence in the narrative despite being limned in a series of fast-paced sketches. If you like "The Wire" or other crime dramas, you will almost certainly enjoy this book (and you might also like this podcast from Judge Nancy Gertner).

9. Frank Ackerman & Lisa Heinzerling, Priceless: On Knowing the Price of Everything and the Value of Nothing. Ackerman & Heinzerling have an enviable knack for combining rigorous analysis with accessible prose. They do a great job exposing misuses of economic analysis.

8. Richard G. Wilkinson, Mind the Gap: Hierarchies, Health, and Human Evolution. This thin volume offers great insight into why rising inequality can lead to bad health outcomes for those at the bottom of the ladder. Many thanks to Daniel Goldberg at the Medical Humanities Blog for recommending it.

7. Junot Diaz, The Brief and Wondrous Life of Oscar Wao. If you want a good reason for ending the "canon wars," look no further than this moving and hilarious novel about a Dominican-American family's travails (and occasional triumphs) in New Jersey and the DR. It's a Faulknerian narrative, bildungsroman, history lesson, and fanfic all rolled into one cracklingly good read.

6. Barbara Fried, The Progressive Assault on Laissez Faire: Robert Hale and the First Law and Economics Movement. This is one I should have read long ago. Ian Ayres puts its significance well:

[Fried's work] traces the career of Columbia Law School Professor Robert Hale, who used principles from finance and economics to attack justifications for constitutionalizing laissez faire during the Lochner Era. The reviewer argues that while Hale's policy prescriptions may miss the mark, his refutation of a priori defenses of the free market is nonetheless important for contemporary debates over the appropriate levels of regulation and redistribution.

Anyone working in the IP or health care fields would do well to consult Fried's book before buying into further "market-based" reform of either area. When at least 43% of the spending on health care comes from the federal government (which also sets the rules for most IP), scare quotes ought to surround the term "market" in these fields far more frequently than they do presently.

5. Charles Karelis, The Persistence of Poverty: Why the Economics of the Well-off Can't Help the Poor. I've tried to apply Karelis's insights here. Can a philosopher have valuable insights for economists? One IMF division chief has stated that "the reader—especially if he or she is a trained economist—will be frustrated by the author's reliance on words and a few simple diagrams." But as Deirdre McCloskey has stated,

What distinguishes good from bad in learned discourse . . . is not the adoption of a particular methodology, but the earnest and intelligent attempt to contribute to a conversation . . . You can tell whether [an argument] is persuasive only by thinking about it and talking about it with other thoughtful people. Not all regression analyses are more persuasive than all moral arguments; not all controlled experiments are more persuasive than all introspections.

As James Angresano has argued, "orthodox economic education" can "inhibit poverty alleviation" when perspectives like Karelis's are neglected.

4. Avner Offer, The Challenge of Affluence: Self-Control and Well-Being in the United States and Britain since 1950. I quoted it here; here's a summary from the OUP web page:

Well-being has lagged behind affluence in these societies, because . . . the capacity for personal and social commitment is undermined by the flow of novelty. His approach draws on economics and social science, makes use of the latest cognitive research, and provides a detailed and reasoned critique of modern consumer society, especially the assumption that freedom of choice necessarily maximizes individual and social well-being.

3.5: Schuck and Zeckhauser, Targeting in Social Programs. I review it here.

3. James Hackney, Under Cover of Science: American Legal-Economic Theory and the Quest for Objectivity. I discuss it here.

2.5 Dan Solove, The Future of Reputation. I review it here.

2. Katherine S. Newman and Victor Tan Chen, The Missing Class: Portraits of the Near Poor in America. As the subprime crisis accelerates, expect more Americans to join the missing class's ranks. The book is a compelling example of qualitative social science, sensitively exploring the lives of people in difficult economic circumstances. One of the biggest issues in the 2008 election is whether a sensibility like theirs can inform political debate, or if we become a society of "devil-take-the-hindmost."

1. Robert Frank, Falling Behind. I've probably done 5 posts on it this year, many collected here. This book was not quite the "summa" I was hoping for; it's hard to cram all of Frank's great ideas of the past twenty years into one slim volume designed for popular consumption. Nevertheless, the following blurbs speak for themselves:

"'Falling Behind' is a compact example of a professional economist brilliantly deploying the tools of social science to illuminate the human condition."--New York Times Book Review

"The most influential ideas often turn out to be those that seem obvious--once someone has had the wit to point them out. Robert Frank's ideas in Falling Behind meet this test. In this short, lucid set of essays he explains exactly how and why an unequal society leaves almost all its members worse-off, including most of those who objectively are doing 'better.' This is a very important application of economic logic to modern America's main domestic problem."--James Fallows, National Correspondent, The Atlantic Monthly

"Robert Frank escapes the fog of economics wars by illuminating the meaning of facts on the ground, not numerical theories in the sky. He sketches a theory of human economic nature and links it responsibly to the rickety choices of policy-makers who have no such theory or, worse, a truly faulty one."--Lionel Tiger, Rutgers University

"Robert Frank is the rare sort of economist whose work disconcerts economists and delights the rest of us. This is not mainly because he mischievously highlights the blind spots of his learned profession, but because his insights reveal fundamental, unnoticed, and yet very important truths about the society in which we live. As inequality has grown in America over the last three decades, Frank shows in this fluent and powerful little book, we have all been led by human nature to act in ways that are bad for virtually everyone. Frank's ideas should play an important and innovative role in the gathering debate about inequality in America."--Robert D. Putnam, Harvard University

ALSO NOTEWORTHY: Erik Barnouw, et al., Conglomerates and the Media; Philip Mirowski, Machine Dreams: Economics Becomes a Cyborg Science; Michael Sandel, The Case Against Perfection; Ramachandra Guha, How Much Should a Person Consume; Wolff and de Shalit, Disadvantage.

Posted by Frank Pasquale at 12:02 PM | Comments (2) | TrackBack

This is Your Brain on ... the New York Times

A recent NY Times bit talks about “neurorealism,” that is, people’s increased tendency to believe psychological or other scientific assertions when those assertions are accompanied by images from brain scans. The piece quotes Deena Weisberg, who wrote an article in the Journal of Cognitive Neuroscience documenting this empirically (in both laypeople and, if I remember the article correctly, in experts, though to a lesser extent), and the neologizer, Eric Racine. The piece mentions a newspaper article “about how high-fat foods activate reward centers in the brain,” and asks, “Couldn’t we have proced that with a slice of pie and a piece of paper with a check box on it?” Brian Leiter also noted the Times piece, with a plug for his paper criticizing legal academics’ use of evolutionary biology.

But the Times bit, and these scholars, conflate two very different points. The first is the “credulousness” issue—that people believe the assertions when accompanied by brain images. That’s an important point, especially in the legal context, where judges, jurors, or policy-makers might be exposed to such scans and misled by such scientific “explanations” of behavior. (Of course, it’s not enormously surprising, given past concerns about jurors’ understanding of complex scientific evidence.)

But that’s quite a different point from the dismissive “check box” question, criticizing even the usefulness of such neurological research. fMRI and other such scans can of course provide important and useful evidence, and certainly can tell us more than simple self-reports or even other behavioral studies. Matt Lieberman, a psychologist at UCLA [disclosure: we were in grad school together] and one of those most prominently associated with the newish field of social cognitive neuroscience, has addressed this well, in answering whether SCN provides something more than conventional social psychology. Summarizing just one of his papers on the issue: he points out that fMRI can provide evidence that “two psychological processes that experientially feel similar and produce similar behavioral results, but actually rely on different underlying mechanisms,” such as memory for social and non-social information. It can document “processes that one would not think rely on the same mechanisms, when in fact they do,” such as the common neurological pathways in the experience of both physical and social pain. And more speculatively, he suggests, as “more is learned about the precise functions of different regions of the brain it may be possible to infer some of the mental processes that an individual is engaged in just from looking at the activity of their brains.” This is an important advantage to overcome potential difficulties in, for instance, self-report.

There is of course danger in over-selling fMRI and similar neurological evidence—whether evaluating psychiatric patients, capital defendants, or others—and documenting people’s susceptibility to such over-sell is important. But it’s quite a different question whether such scans can be useful, and to dismiss them out of hand is just as obviously a mistake.

Posted by Jeremy Blumenthal at 10:57 AM | Comments (2) | TrackBack

The Place of the Humanities in Politics and Law

I just wanted to highlight two very insightful articles on the humanities I should have read earlier. First, here's part of the abstract of Balkin & Levinson's Law and the Humanities: An Uneasy Relationship:

Law's professional orientation pushes legal scholars toward prescriptivism - the demand that scholars cash out their arguments in terms of specific legal interpretations and policy proposals. These tasks push legal scholars toward technocratic forms of discourse that use the social and natural sciences more than the humanities. Whether justly or unjustly, the humanities tend to rise or fall in comparison to other disciplines to the extent that the humanities are able to help lawyers and legal scholars perform these familiar rhetorical tasks of legitimation and prescription.

Laura Kalman has observed a similar tension between advocacy and academic research in the legal academy, and I'm happy to see B&L moving the conversation forward.

Second, here is Harvey Mansfield writing in First Things on How to Understand Politics:

Politics is not an exchange between the bargaining positions of a buyer and a seller in which self-interest is clear and the result is either a sale or not, all without fuss. As it happens, self-interest does not explain even commercial transactions. That we get angry if we feel cheated, or that we succumb to the charm of salesmanship, shows that more than a small measure of ego enters into the behavior of those who pride themselves on calculation.

Self-interest, when paramount, cools you off and calms you down; thumos pumps you up and makes you hot. In politics there is bargaining, as in commerce, but with a much greater degree of self-importance. People go into politics to pick a fight, not to avoid one.

A provocative and passionate take on a subject that many have tried (and failed) to reduce to transactional logics.

Here is Mansfield's conclusion:

My profession needs to open its eyes and admit to its curriculum the help of literature and history. It should be unafraid to risk considering what is ignored by science and may lack the approval of science. The humanities too, whose professors often suffer from a faint heart, need to recover their faith in what is individual and their courage to defend it. Thumos is not merely theoretical. To learn of it will improve your life as well as your thinking.

It is up to you to improve your life by behaving as if it were important, but let me provide a summary of the things that you will know better after reflecting on the nature of thumos: the contrast between anger and gain; the insistence on victory; the function of protectiveness; the stubbornness of partisanship; the role of assertiveness; the ever-presence of one’s own; the task of religion; the result of individuality; the ambition of greatness. Altogether, thumos is one basis for a human science aware of the body but not bound to it, a science with soul and taught by poetry well interpreted.

Though Charles Taylor critiqued the modeling of human sciences on natural sciences over twenty years ago (and interpretive social science is getting a second look), few have applied such ideas as eloquently or entertainingly as Mansfield does in this essay.

Posted by Frank Pasquale at 12:09 AM | Comments (6) | TrackBack

Understanding Resistance to Redistribution

Over at Balkinization, Professor Brian Tamanaha worries that the "fabled American Dream, the supposed glue that holds our society together across its many fault lines, is a delusion for many." He points to "new research [that] suggests the United States' much-ballyhooed upward mobility is a myth, and one that's slipping further from reality with each new generation." (Even The Economist has recognized the problem!) Tamanaha wonders why the issue has so little visibility in national political debates, and gives several good reasons. I'd like to focus on one of them: the sense that increasing inequality "feels irresistible, the product of structural factors beyond our control."

First, though this sense may be widespread, it is highly contestable empirically, and doesn't really "ring true" at an intuitive level. Let's not even talk about the justice or appropriateness of an executive making hundreds of times more than line workers--what about people who almost got to the top spot? As Eduardo Porter reports, "widening disparities in business, which show up in a variety of other ways, reflect a dynamic that is taking hold across the economy: the growing concentration of wealth and income among a select group at the pinnacle of success, leaving many others with similar talents and experience well behind."

A form of "legitimation theodicy" has become important for some at the top, who reach for sports metaphors:

[Some] very wealthy men in the new Gilded Age talk of themselves as having a flair for business not unlike Derek Jeter’s “unique talent” for baseball, as Leo J. Hindery Jr. put it. “I think there are people, including myself at certain times in my career,” Mr. Hindery said, “who because of their uniqueness warrant whatever the market will bear.”

The flip side of this is a well-cultivated sense among the "losers" in the new economic order that their fates are their own fault. This is one reason why the SCHIP battle is so hard-fought right now: it is very important for those pursuing an inequality-enhancing agenda to insist that some people do not deserve health insurance. . . . and that that sin is so egregious as to be visited even upon their children.

I do not expect redistributional issues to get much play in the upcoming presidential election, for a number of reasons. The media is largely run by those who benefit from the current order. Moreover, no candidate has much reason to offend the what Professor Spencer Overton has aptly called the "donor class." As he noted in 2004,

Less than one percent of the U.S. population makes financial contributions over $200 to federal candidates, and these contributions represent the vast majority of funds that candidates receive from individuals. Of those who contribute over $200, approximately 85 percent have household incomes of $100,000 or more, 70 percent are male, and 96 percent are white. This donor class effectively determines which candidates possess the resources to run viable campaigns.

Thomas and Mary Edsall’s work has detailed the ways in which federal officials’ reliance on large donors has slowly narrowed the range of acceptable political discourse. To the extent politicians are reliant on the support of those enriched by market forces, they are reluctant to interfere too much with the distribution of social power such forces generate.

So what is to be done? First, those concerned about equality of opportunity have to become more skilled at relating the objective harms arising out of inequality. Robert Frank has become a master at this, and I'm going to try to draw out the implications of his work in an upcoming review of his book Falling Behind: How Inequality Harms the Middle Class.

Second, consider the following comment from Greg Mankiw on health care debates:

What health reform would you favor if the reform were required to be distribution-neutral? That is, you can change the rules of the health system but you cannot change the distribution of economic resources between rich and poor.

The bottom line of health care reform has to be an insistence that its financing rely not merely on redistribution from the healthy to the sick, but also from the rich to the rest. A just society is committed to the universal destination of human goods--especially those essential to the preservation of human life. Perhaps we will eventually reach a point at which taxation of those at the top to provide for the care of those at the bottom truly threatens the well-being of our economy. But when "the increase in incomes of the top 1 percent of Americans from 2003 to 2005 exceed[s] the total income of the poorest 20 percent of Americans," we're a long way from that point on the Laffer Curve.

Posted by Frank Pasquale at 11:29 PM | Comments (2) | TrackBack

Reprise of Son of "Hume v. Kant" Redux Again

Pardon my redundancy, but some debates just aren't going to go away. Dennis Overbye, the very fine science writer for the New York Times, has an article/essay today that once again poses the essential Kantian-Humean issue - is there a priori knowledge by which we order sensory data (Kant) or is what we presume to know of the universe's regularities merely a conclusion we reach by induction from all the past regularities (Hume)? Here's a taste:

Paul Davies, a cosmologist at Arizona State University and author of popular science books. . .asserted in [a New York Times op-ed piece] that science, not unlike religion, rested on faith, not in God but in the idea of an orderly universe. Without that presumption a scientist could not function. His argument provoked an avalanche of blog commentary, articles on Edge.org and letter to the Times, pointing out that the order we perceive in nature has been explored and tested for more than 2,000 years by observation and examination. That order is precisely the hypothesis that the scientific enterprise is engaged in testing.

I think the latter view (i.e. the Humean view) simply ignores too many unresolvable questions and paradoxes, like whence come scientific hypotheses, and the relationship of the scientific hypothesis to categories, analogies, and metaphors, but I also recognize that you don't have to engage in meta-thinking about hypotheses to come up with hypotheses. Apropos of this is another quote in the article, this one attributed to Richard Feynman: "Philosophy of science is about as useful to scientists as ornithology is to birds."

I have been thinking about that quote this morning and trying to decide if philosophy of law or jurisprudence is about as useful to lawyers as ornithology is to birds. Is it a good analogy for either scientists or lawyers? We start with the relationship of the two concepts in the source which are linked by "usefulness": ornithology is the science concerned with the classification and the properties and vital phenomena of birds; is it ornithology not useful to birds because they are incapable of thinking about ornithology, or because ornithology wouldn't help them flourish as birds even if they could think about it? I think the former is the primary characteristic of birds, and I am hoping it's the latter Feynman (if in fact he's the author) wanted to imply about the primary characteristic of scientists as the target of the analogy.

To flip it around, suppose I said ornithology is about as useful to birds as physiology and anatomy are to human beings. That can't be right, because physiology and anatomy are important to human beings. And I do think there are ethics of science and ethics of law that are part of meta-reflection about those disciplines, even for pure doers, that go beyond being birdbrained.

I guess my main problem with pure empiricism and pure pragmatism is that they give a great big shrug to the paradoxes and inconsistencies, probably because they are, for many people, too disturbing to consider. And to judge by a number of my family members, who roll their eyes and head for their iPods when I bring up these subjects, they are probably happier for it!

Posted by Jeff Lipshaw at 10:31 AM | Comments (1) | TrackBack

Posner: Show Me the Money (and Little Else)

Many scholars are interested in new ways of measuring well-being that go beyond crude measures of income. I have thought of the UN Human Development Index as a good step in this direction, but Richard Posner has come out against it.

I agree with Posner's critique of commensurability implicit in such a ranking, and his points about the distortions that can be caused by the "bunching" of many countries around one indicator. But if there are going to be rankings by income, I would think he would welcome alternative perspectives. Instead, he frets that the US loses out in the UNHDI because its life expectancy figures are lower than many other countries. I found this section of his critique troubling:

If a country devotes resources to improving life expectancy, it has to give up some other good. It is hard to say that the United States is making a mistake in not spending more resources on extending life expectancy; many Americans think that we spend too much on health care already. One reason (though by no means the only one) that the United States ranks only 44th in life expectancy is that our large black population has an abnormally high death rate; the average life expectancy of black male Americans is only 69. This shockingly high death rate reflects deep-seated problems of American blacks that would probably cost an enormous amount of money to solve. The political will to expend those resources does not exist. This may be a misfortune, a tragedy, or even a sin, but to use it to push the United States down in an index of human development is a political judgment, rather than anything determined by neutral social science.

Query: is the UN constrained to measure well-being only via neutral social science? Is that even possible? Well-being and development are inherently normative concepts. Their capacity to reflect a society's "misfortunes, tragedies, or sins" is a feature, not a bug.

Posted by Frank Pasquale at 06:36 PM | Comments (3) | TrackBack

How the Economics of the Well-Off Can't Help the Uninsured

Two of the most perceptive health policy analysts, Drs. Steffie Woolhandler and David U. Himmelstein, provide a good "reality check" for those who think a Massachusetts-style health plan can fully handle the problem of the uninsured. (Though it took me a long time to figure out their title, "I am not a Health Reform," was a play on Nixon's "I am not a Crook.")

Woolhandler and Himmelstein observe that the past twenty years of failed state-based health care reform (and mandates) do not bode well for the plans now being discussed among presidential candidates:

In 1971, President Nixon sought to forestall single-payer national health insurance by proposing an alternative. He wanted to combine a mandate, which would require that employers cover their workers, with a Medicaid-like program for poor families, which all Americans would be able to join by paying sliding-scale premiums based on their income.

Nixon’s plan, though never passed, refuses to stay dead. Now Hillary Clinton, John Edwards and Barack Obama all propose Nixon-like reforms. Their plans resemble measures that were passed and then failed in several states over the past two decades.

W&H are particularly disappointed by the recent Massachusetts plan; "even under threat of fines, only 7 percent of the 244,000 uninsured people in the state who are required to buy unsubsidized coverage had signed up by Dec. 1. Few can afford the sky-high premiums." W&H should also acknowledge that in some cases the uninsured themselves are responsible; according to one recent study, "twenty-five percent are eligible for public coverage."

W&H suggest that mandates will not work, but do not have the space to fully explore why. I think they are right to emphasize lack of affordability in plans, but a recent book suggests some deeper issues. Charles Karelis's The Persistence of Poverty: Why the Economics of the Well-Off Can't Help the Poor argues that we cannot expect impoverished individuals to react to economic incentives the same way that middle- and upper-class people do.

Karelis asks a provocative question: "what if the choices that truly benefit typical human beings when they're poor are working little and not saving?" He asks us to consider the following scenarios:

In the first, a poor worker with no car or bus fare must walk six miles to work. And let's say this long walk results in six blisters, and six unwashed dishes in the sink at home, and workplace mistakes that bring six reprimands from the boss. Suppose too that getting a bus ride for part of the way would reduce the worker's troubles proportionately, so that each mile she didn't have to walk would mean one fewer blister, unwashed dish, and reprimand. What will the poor worker give up to get a one-mile ride, given that she still has five miles to walk? Probably not much. After all, the sixth blister, unwashed dish, and reprimand tends to be drowned out, like a shout in a riot, by the other five anyway.

But now imagine she has just been given a five-mile bus ride, free. She has only one mile left to walk. What will she give up to get a one-mile ride now? Probably much more than in the first scenario because the difference between the discomfort of one blister, unwashed dish, and reprimand and the discomfort of none is far greater than the difference in discomfort between six and five. If the effect of getting a one-mile bus ride in the first scenario is like that of quieting a shout in a riot, in this scenario the effect of the one-mile bus ride is like that of quieting a shout in an otherwise quiet street.

Karelis offers a number of other examples in a phenomenology of the poor that challenges conventional economic wisdom. If we think of health insurance payments as a form of (probabilistic) saving, we can better understand how many of the uninsured rationally choose to persist in vulnerability. Life is already pretty bad presently; why deny certain small pleasures (or necessities) now to improve an uncertain future?

Of course, we all grow up with Horatio Alger tales, and there are many inspiring microlending success stories out there. But capitalism's chutes and ladders have a dark side, too. Perhaps it's time policymakers stopped trying to scare the poor into certain patterns of behavior--fill out this form, pay this deductible, etc., or you don't get health insurance!--and instead take this particular "blister" of insecurity off the table.

Karelis is a philosopher, and though some may challenge his introspective methods, I can say that coming from a family that often had little money, they often made a lot of sense to me. The more policymakers can meld the insights of a Karelis with empirical works like Sudhir Venkatesh's Off the Books: The Underground Economy of the Poor, the better a chance we have at addressing the persistent disadvantages and insecurity generated by the great risk shift. Here are some closing thoughts from Karelis:

[W]e should reopen the welfare debate that preoccupied liberal and conservative poverty reformers during the 90s. Having agreed that giving poor people resources undermines their motivation for self-help, the liberal and conservative camps fell to wrangling over whether generosity or maintaining incentives ought to be the top priority. (The liberals lost.) But the choice between generosity and maintaining incentives is a false one if generosity actually enhances the motivation for work and investment — by increasing the relief that poor people stand to get from the next dollar. It's time to take another look at no-strings welfare for the truly poor. . . .

Posted by Frank Pasquale at 10:01 PM | Comments (3) | TrackBack

Models and Games

This seems like an auspicious occasion to announce that, following in the Larry Solum model of developing a paper from blog post to short idea piece to full-blown article, I've posted on SSRN the complete version of what was known in a prior iteration as "Aboutness, Thingness. . . ." The last thing to go was the old title, and the second to last were the first several paragraphs of the old introduction, I suppose because the words are like children, these particular words had been around since I first put fingers to keyboard, and, if truth be known, I thought they were really clever. But these are all aspects either of self-deception or unwillingness to make choices, and who of all people inspired me but Katie Holmes (or at least her character in Wonder Boys, Hannah Green) who observed to Michael Douglas (as Grady Tripp) that writing was about making choices and he had made none in the manuscript of his second novel.

The gist of the piece, if I were to put it blog-colloquially, is how some modes of making sense of cause-and-effect, particularly in the realm of human behavior, just plain miss the boat. In natural science, an example would be trying to explain dog behavior and conditioning at the level of physiology. That level of explanation might suffice for a physiologist who is interested in measuring muscle contractions at feeding time, but it doesn't tell the microbiologist much, nor does it do much to explain at the level of operant conditioning. In the social sciences, the distinction would be (courtesy of historian Thomas Haskell), the difference between explanatory cause and attributive cause. If you ask the thug why he beat the old man, an answer that involves neural pathways and muscular contractions may explain cause and effect at one level, but it doesn't make sense in the same way this answer does: "because I wanted his wallet full of money."

The part of the piece with which I had the most fun was where I applied the foregoing to the 2003 Yale Law Journal article by Alan Schwartz and Bob Scott on contract interpretation. In a nutshell (but you will have to read the piece to see why), my claim was that their mode of explanation simply missed the boat in the same explanatory versus attributive way.

The article is Models and Games: The Difference Between Explanation and Understanding for Lawyers and Ethicists. The abstract follows the fold.

Here is the abstract:

There is value in thinking about constructs of rules as games on one hand, or models with on the other. Games are real in a way models are not. Games have “thingness” – an independent reality – and they can be played. Models have “aboutness” – they map onto something else that is real for the sake of simplification and explanation. But models and games are not dichotomous as the preceding claim makes them out to be. Sometimes models look just like games, and sometimes games can serve as models. Because models look like games, we may come to believe they are real – that the models have thingness rather than aboutness. People are prone to think some of the models they deal in all the time are real, like games, and perhaps even more real than the reality the models are supposed to represent. When that happens unreflectively in business, ethical and legal problems can ensue.

There is also a relationship between games and models as a way of thinking, and the position of the thinker as modeler, game creator, or game player. To engage in any of those acts is to use the legally trained mind to make sense of what is going on, and to act on it. But there are different ways of making sense, either by explaining or understanding, and it is not common in legal education to undertake the exercise of thinking about thinking, or theorizing about theory. I explore the consequence of confusing games and models in two contexts, financial accounting and contract interpretation, and consider the possibility of co-optation from models into games and vice versa. I conclude that practicing lawyers (or law professors) need to think about thinking itself or face the possibility of being misled by precisely the same context facing their clients. In short, lawyers need to be pragmatic ontologists.

Posted by Jeff Lipshaw at 10:30 AM | Comments (0) | TrackBack

Social Science Star: Randall Collins

Via Tyler Cowen, I've found out that sociologist