"Obesity and Rising Incomes:" A Blogging Puzzle

I routinely use Google to find people talking about me online, both out of curiosity and because I sometimes want to respond. Recently I noticed something odd—lots of posts that mention my posting on the subject of obesity and rising incomes, always with that wording. I found nine hits today for the search string ["obesity and rising income" Friedman] and suspect the figure would have been higher if I did the search a few days earlier.

Searching this blog, I found no articles with that title, so went to one of the posts that mentioned it, followed its link, and eventually reached a post I made back in 2007 entitled "Obesity: A Conjecture." Further searching found someone else's post, made a few days later, that used the phrase "obesity and rising incomes." But I do not know how references to an old comment on an old post of mine suddenly become the topic of the day.

Any guesses? Did some very widely read web page have a link to the old comment sometime in the past few weeks?

Faith vs Reason: Mutazilites, Ash'arites, et multae Caetera

I have just finished reading a book on Islamic law, that being the subject of one of the chapters of a book I am currently writing. One of the parts that caught my interest was the description of the disagreement between two philosophical schools. The Mutazilites, or rationalists, held that human reason was capable of recognizing good and evil; they concluded that although religious obligations, such as prayers, had to be based entirely on revelation, other legal and moral rules did not. The Ash'arites, on the other hand, held that human reason was unable to make such judgements, hence all rules had to be entirely based on revelation, with reason limited, if I correctly understand their position, to interpreting the meaning and application of what had been revealed.

It occurred to me that there was a small problem with the Ashirite position. If humans are entirely unable to distinguish good from evil, how can they distinguish God from the Devil? How, in other words, when a powerful supernatural being tells them to do something, can they tell if he is good or evil? The same problem must exist for other religions in which some theologians hold a position analogous to the Ash'arite. I am curious as to whether any of my readers can tell me how it is dealt with.

One of the other interesting details in the book was the attitude of Islamic legal scholars to probability. In their view, again as I understand it, as probability becomes stronger, it becomes certainty.

An example is the status of a hadith, an oral tradition about something Mohammed did or said. A hadith known through only one chain of transmitters is at best probable. A hadith known through N independent chains—legal scholars disagreed about the size of N—is certain.

That view of probability theory reminded me of something I had seen before. As anyone who has spent much time arguing with Objectivists, followers of Ayn Rand's philosophy, is likely to have discovered, they too believe in certainty where others would see, at most, a high probability.

I succeeded, with a great effort, in resisting the temptation to title this post "Was Ayn Rand a closet Muslim?"

From Imperial China to West Virginia

My previous post suggested that police in West Virginia respond differently to misdeeds of students than to misdeeds of teachers. It occurred to me after writing it that I had seen a similar pattern in a very different society, and the two  may have the same explanation.

One of the features we associate with oppressive regimes is forcing children to testify against their parents. Imperial China, which is the subject of one chapter in my current book project, did the precise opposite. For a child to accuse his parent of a crime was a criminal offense, whether or not the parent was guilty.

My explanation of that (and some other features of Chinese law) was that the government was ruling a very large population with a very small number of elite scholar-bureaucrats. It did it by subcontracting much of the job of controlling behavior to other authority structures, of which the most important was the extended family. A child who could threaten to report a parent's crimes to the state would have leverage over the parent, undermining the hierarchical authority structure of the family. Preserving that structure was important enough so that the state was willing to give up a little of its ability to enforce its own laws in order to do so.

I suspect that, in a modern society such as ours, much the same pattern holds for the relation between the authority structure of the police and the authority structure of the school.  The police expect the school to take on a good deal of the job of controlling students. A policy of backing teachers against students when the two come into conflict helps support the school's authority structure, however badly it fits with an ideology of equal rights for all.

Student Teacher Assymetry

Recent news stories describe an incident in West Virginia where Jared Marcum, a 14 year old student, was ordered by a teacher to remove (or turn inside out) an NRA T-shirt with a picture of a gun on it. The student refused and ended up being arrested for (among other things) "disrupting the educational process." The dress code rules for the school do not prohibit pictures of weapons, the student is back in school wearing the shirt, lots of other students apparently are wearing them too as a token of support. Which raises an obvious question. 

If, as the school now seems to concede, the shirt did not violate any school rules, the teacher's order was a violation of the student's rights under the First Amendment as currently interpreted by the courts. It follows that any disruption resulting from the incident—apparently other students cheered Marcum when he was led out of the cafeteria—was the fault of the teacher who gave an order he was not entitled to give. Yet, for some reason, there has been no talk of arresting the teacher for committing the offense that was the basis for arresting the student.

All animals are equal, but some are more equal than others.

Bad for Us, Bad for You, Bad: Different Justifications for Restricting People

For no good reason, I was thinking recently about the problem of defining paternalism, of when a policy should or should not be considered paternalist. It occurred to me that there are at least three different arguments for regulations limiting what someone can do.

1. Bad for us. If what I do imposes costs on you, that's a reason why you might want to prevent me from doing it. An obvious example would be rules making vaccination compulsory.

2. Bad for you. What you do imposes costs on you; regulations will stop you from doing it, making you better off. That is paternalism. A recent example is the attempt by the mayor of New York to limit the size in which soft drinks can be sold on the theory that doing so will make people less likely to be obese. Cigarette taxes and restrictions on smoking fit the same pattern. The argument depends on assuming that the people making the regulations know what is good for other people better than they do, but most people do believe that they know what is good for some other people better than they do—those people who are doing things they are confident are bad for them.

3. Bad. From the standpoint of an economist, this is the most puzzling. A good example would be restrictions on male homosexuality. Such restrictions are common to many different societies. As best I can tell, the basic motivation is a gut level feeling that the activity is wrong—not bad for the person doing it, just wrong.

Practically any restriction can be, and is, defended on more than one of these grounds. The restriction on soda can be defended on the grounds that obese people impose costs on the rest of us in one way or another. Laws against homosexuality can be defended on the grounds that God doesn't approve of it and will punish the nation that permits it. Compulsory vaccination can be defended on paternalist grounds.

In most cases, one can get a pretty good idea of the real grounds of support for a policy by looking at what questions the supporters choose to look at. If the reason for trying to reduce obesity or smoking was to reduce external costs, you would think people would be interested in a realistic calculation of what those costs are. While doing things that reduces your life expectancy may impose costs on other people, it also reduces the amount of social security you collect, which is a benefit to other people. And it is not even clear that doing things that reduce your health increases total health costs—it might mean you die faster, with less expensive end of life treatment. 

All of these would be relevant issues if the motivation were protecting us from you rather than you from you—but if you try introducing them into the argument you are unlikely to get a friendly reception. I recently came across an analysis that concluded that obesity probably did not impose net external costs, but I do not expect it to persuade Mayor Bloomberg to change his policy. So far as the external costs of second hand smoke, a recent post here described how careless supporters of a smoking ban on my campus were about the evidence to support their estimate of the size of the effect, which suggests that their real motive was paternalism.

Similarly for the case of homosexuality. People who want to ban it as a protection against divine wrath do not seem very interested in looking at the evidence for either God's opinion on the subject or the risk of divine punishment. For the latter they generally cite a single case from considerably more than two thousand years ago, ignoring both the ambiguity of the motive for the destruction of Sodom and Gomorrah—arguably the real offense was violation of the obligations of hospitality—and all of the societies since that have tolerated homosexuality and not been subject to a rain of fire and brimstone. 

As to God's opinion, the evidence, at least in the case of Christianity, is not all that clear. The late John Boswell, a gay historian at Yale, argued pretty convincingly that both the scriptures and early Christianity for the most part treated homosexual sex as no worse than other forms of non-marital intercourse. Opponents of homosexuality may oppose heterosexual fornication as well, but rarely with the same passion.  What convinced me that Boswell had a reasonable case, incidentally, was reading an attack on him by a prominent opponent which badly misrepresented the contents of the book I had just read; people who have good arguments do not need bad ones.

For a final and more ambiguous example, consider environmentalist regulation. It is frequently defended as a way of protecting us from each other, of keeping me from producing CO2 that will result in your house being flooded. But my conclusion from watching the arguments is that for many, perhaps most, supporters of such regulation that is not the central motivation.

Consider as  evidence the issue of species extinction. People who argue that the extinction of a species will upset the ecology in ways that will impost drastic costs on us rarely offer much evidence for the claim, at least that I have seen, let alone enough evidence to justify the costs of protecting endangered species. People who argue that other species should be preserved because there may be information in their DNA that will at some future time prove informative to us do not, as a rule, react positively to the suggestion that the problem can be solved by preserving a few samples in liquid nitrogen for future genetic analysis, when and if doing so becomes appropriate. Large parts of the motivation, as best I can tell, are essentially religious, based on the feeling that natural is good. My category 3.

Time Inconsistency and the Welfare State

Start with a society in which individuals are mostly reliant on themselves—if you don't find some way to earn an income you are likely to go hungry, or at least have to rely on charity and lead a much harder life than if you had a job. In that society, someone on charity will be seen as a failure, by himself and others, which is a strong reason to avoid being in that situation.

Add a reasonably generous welfare state. For a while, perhaps a generation or so, the old attitudes persist. As time passes, it becomes clearer and clearer that going on welfare is not evidence of failure, hence not something to be ashamed of. It may not pay as well as a  job, but it leaves you a lot more leisure and a lot more control over your own life; if you want to go off to Prague or Barcelona for a week or two you are free to  do so, provided you don't mind doing it on the cheap.  As more and more people see welfare as a reasonable choice, attitudes change. Once the old attitudes are entirely gone, you have a society where anyone who prefers a life of leisure with a moderately restricted income takes it, leaving fewer and fewer people to pay the taxes to support that life.

The implication is that a welfare state will look considerably better in the short term, when most of the people collecting welfare are people with no good alternative, than in the long term. One likely effect is to undermine political support for the welfare system, at least among those not on it. Another is to eliminate the economic support it requires to continue.

All of which occurred to me, and I am sure many other people, long ago. What reminded me of it, and inspired this post, was a recent story in the New York Times. 

Denmark has gotten to the long term.

----

“In the past, people never asked for help unless they needed it,” said Karen Haekkerup, the minister of social affairs and integration, who has been outspoken on the subject. “My grandmother was offered a pension and she was offended. She did not need it."

Which Side Are You On? Robert Wolff, Murray Rothbard, and Me

I spent the past two days attending a conference at Duke University. One of the other participants was Robert Wolff, who published his In Defense of Anarchism a year or two before I published my Machinery of Freedom. I found his presentation, and especially what it implied about the difference between his views and mine, one of the most interesting parts of the conference.

Wolff considers himself a left anarchist and a Marxist. He described the difference between us as the difference between two movie tropes—the self-sufficient western loner who comes into town to clean it up, seen as symbolizing the propertarian anarchist, and an Amish barn raising for the communitarian anarchist.

There are two obvious problems with that. The first is that I, like most individualist anarchists, have nothing against the Amish barn raising, indeed see that sort of voluntary cooperation as an important and attractive feature of the kind of society we want. The second is that the actual Amish are both propertarian and communitarian. The barn will end up as the private property of the farmer on whose land it is being raised.

The real difference, as best I could tell, is something quite different. Wolff described how, as a professor of philosophy at Columbia during the student riots there, he had been trying and failing to find a philosophical derivation of ethics in the work of Kant, an argument showing what was good or bad, what one should or should not do. His conclusion was that if Kant could not do it, it could not be done, leaving him with no intellectually satisfactory way of answering the important questions. The solution to that problem was provided to him by one of the student revolutionaries, one he thought was almost certainly a communist, who told him that he did not need a philosophical derivation of ethics. All he needed was to decide which side he was on.

Wolff eventually concluded that the student was right. He did not go into details, but pretty clearly the way he saw it was that he was on the side of the workers, the South African blacks, the oppressed of the earth against their oppressors. There was still room for disagreement among those on his side of the barricades, but the essential problem was solved.

There are some problems with that solution. In his comments on my talk the previous day—the recording is linked to my previous post, but it may be hard to hear the questions—he indignantly rejected the idea that one could judge the effects of capitalism by comparing it to the major non-capitalist societies of the 20th century, the Soviet Union and its allies. But his communist student would probably, judging by the ones I knew at the time, have been a supporter of either the Soviet Union or Communist China. If the only question was which side he was on and he accepted the student’s answer, as pretty clearly he did, that put him on the same side of the barricades as states that murdered millions of those they ruled and held hundreds of millions at a level of poverty compared to which the bottom third of the U.S. income distribution, whose misery he had offered the previous day as evidence of the horrors of capitalism, live in luxury.

I concluded that his fundamental disagreement with me was the same as Murray Rothbard’s, which I discussed in a previous post. Rothbard, in an essay now webbed, claimed that what was wrong with me was that I did not hate the state, that I regarded those who disagreed with my libertarian views not as evil but merely as mistaken

My response to Wolff, as to him, was that the fundamental question is not which side you are on. For many, although not all, political questions, the right answer is the same for almost everyone. The fundamental question is what is the right answer.

Is my extreme version of free market capitalism better or worse than the mixed economies that are currently the norm of the developed world? Are they better or worse than some other alternative set of institutions? There may be some issues for which there is an irresolvable conflict of interest, where one large group of people are better off with one answer and a different group with another. But on most of the big issues almost all of us should support about the same policies—if only we could agree on what the consequences of the alternatives would be. I have never met a socialist who was in favor of what I think the consequences of socialism would be, and I doubt there are many libertarians who would approve of what a socialist thinks the consequences of their policies would be.

Wolff commented that my describing him as on the same side as Murray Rothbard was a terrible insult. But it is also true. Both of them chose to see the conflict as between good men and evil men. I see it as between good ideas and bad ideas, where bad ideas are not evil, simply wrong.

In the course of his talk, Wolfe mentioned a conversation he had had in South Africa, during the period of Apartheid, with an intelligent intellectual who supported it. His conclusion was that there was no argument he could offer to prove the other wrong—the supporter of Apartheid was simply evil.

The question I put to him, and I do not think he ever answered, was what the implications would have been if the end of apartheid had set off the sort of blood bath that decolonization did set off in some of the African states—Nigeria killed about a million people in the process of suppressing the attempt of its Ibo citizens to secede, and several other black African states ended up with bloodshed on a similar scale. It is easy enough to imagine an alternative history in which the shift to one man, one vote in South Africa turned out to be a mistake, as judged by its effect on the South African blacks, the people on whose side Wolff thought he was. It could still happen, although hopefully it won’t. If it did, does Wolff have to conclude that he had it wrong, that he, not the supporter of apartheid, was the evil one?

I had had advance warning of his position, and what was wrong with it, in his comment on my talk. As best I could tell, he simply took it for granted that his view of the facts—that a market system led to massive inequality and miserable conditions for a large part of the human race—was obvious fact, and the only puzzle was how I could be in favor of such things. It did not seem to occur to him that I, or anyone, might disagree about the relevant facts, that the argument might be, not about what outcomes we wanted, but about what outcomes followed from one or another set of institutions.

What made that approach more striking and, to me, more obviously wrong, was the earlier talk of another speaker, the science fiction writer Kim Stanley Robinson, who appeared to share a good deal of Wolff’s view of the world. The picture he painted struck me as a highly colored cartoon view of the world, inconsistent with obvious facts. He talked (I am pretty sure I am not confusing him with one of the other speakers with similar views—if I am, it does not affect my point) about how vampire  capitalism focused investment on one low wage nation after another, draining it dry and then moving on when wages got high enough to make further exploitation unprofitable. 

It did not appear to occur to him that moving a country from low wages to high was a good thing, not a bad thing, nor that the countries supposedly “drained dry,” presumably including South Korea, Taiwan, Singapore and, a decade or two earlier, post-war Germany and Japan, had ended up as developed countries with first world standards of living. Nor did it occur to him to look at where the investors of the developed world actually did their foreign investment—some of it in poor countries with low wage labor, but much of it in other developed countries.

Wolff and Robinson were entertaining speakers and I ended up liking both of them—perhaps some day I can have the opportunity to continue our arguments at greater length. But Wolff, like Rothbard, is wrong, dangerously wrong. He holds a view of the world which, however emotionally satisfying, implies that the essential relation of human beings to each other is that of enemies—a view that has been used to justify some of the worst deeds of the past century. It is, as Orwell pointed out, much easier to defend the liquidation of antisocial elements than to argue in favor of murdering people who disagree with you. If the reason people disagree with you is that they are evil, there is no need to think about whether they might be right and you might be wrong.

My Talk Tomorrow

A correspondent asks me about talks I am giving on the east coast. I gave one today at the law school of the University of Maryland, Baltimore, and am giving another tomorrow (April 17th) at the University of Baltimore law school, 1420 N. Charles St., Baltimore, Maryland. The talk is at noon, the subject is "What is Economics and What Does it Have to do With Law?" I do not know the room, nor how open the talk is.

After that I fly to Raleigh/Durham to participate in a conference at Duke on "Community and Emergent Order in Non-State Spaces." I am speaking Thursday afternoon at 3:45; I wouldn't assume the conference is open to the general public, but I don't know. My topic will be "Vinge, Heinlein, the Sagas, and Me: Stateless and Semi-Stateless Societies in Fiction and Semi-Fiction."

Then home.

The audio recording of the talk is now webbed.

How to Lie With Statistics: A Recent Example

A recent post by Chuck Marr on a Huffington Post blog provides a nice demonstration of how to use true facts to support a false claim. It contains a series of charts with information on taxes, mostly federal. One of them is labeled: "Bush Tax Cuts Heavily Tilted to the Top," and shows that the percentage increase in after-tax income as a result of the tax cuts was almost three times as large for taxpayers with incomes of more than a million dollars as for those with incomes of $40,000-$50,000.

What it does not mention, but what one can see from other charts on the page, is that high income taxpayers pay in federal taxes about three times as large a fraction of their income as middle income tax payers. So if the tax cuts reduced everyone's taxes by the same percentage, the result would have been almost exactly what the chart shows. Indeed, the author could have made his claim even more striking by pointing out that taxpayers near the bottom of the income distribution got nothing out of the tax cuts—and neglecting to mention that the reason was that they were not paying any taxes.

Another somewhat misleading chart shows that it is possible for a middle income family with relatively little investment income to pay a higher tax rate than a high income family whose income is mostly from investments. It is clear if you read carefully that the author is not claiming this situation is typical--an earlier chart shows that, on average, high income families pay a much higher rate than middle income families. But the author does not mention that his calculation ignores corporate income tax, which arguably should be attributed to the owners of the corporations—the people receiving investment income. 

A final problem, not of dishonest presentation but of the difficulty in adequately analyzing the effect of taxes, is that all of the charts show who pays taxes, not who actually bears the tax burden. It is easy enough to describe situations where the result of taxing the income of group A is partly a reduction of their after tax income, partly an increase in their before tax income, ultimately paid by those who consume the goods or services they produce. To put it in conventional terminology, it is not clear to what extent a tax on A is passed on to B. That problem applies to corporate income taxes as well—the reason for the word "arguably" in the previous paragraph.

One other chart has a different sort of problem. It shows taxes as a fraction of GDP for a range of countries, with the U.S. near the bottom. The author does not mention that the federal government for the past few years has been going largely on borrowed money—at one point almost half of total expenditure—hence that the chart badly misrepresents the more important question, which is what fraction of national income each government spends.

Obama on Thatcher

"With the passing of Baroness Margaret Thatcher, the world has lost one of the great champions of freedom and liberty, and America has lost a true friend."

(From the White House statement on Thatcher's death)

 Judging by my online interaction with people from the U.K., those left of center—probably most of those I interact with—hated Thatcher. Most, I would guess, approve of Obama. Which makes Obama's praise of Thatcher, in part for the same policies for which they hate her—they, of course, would not describe her economic policies in such positive terms—interesting.

Part of the explanation is summarized by the Latin tag de mortuis nil nisi bonum—concerning the dead, nothing but good.  It is a sentiment I share. When someone about whom I have serious reservations dies, I am reluctant to interrupt the paens of praise with a sour note of criticism, and generally don't. On the other hand, looking at commentary on Thatcher's death from left of center sources other than the President, including the NYT and various writers in the U.K., I do not see much sign of such restraint.

It would appear indecorous for the President to celebrate the death of a national leader, even one he disapproved of—so far as I know, the death of Hugo Chavez was not celebrated by any official statement from the White House. But the President's statement on Thatcher's death could have been put in less fulsome terms, celebrating her role as a loyal ally of the U.S. and leaving unstated his disapproval of her economic policies. That it was not suggests that Obama sees rhetorical support for libertarian ideals as politically prudent even if his actual policies tend to go in precisely the opposite direction.

Global Warming: Implications of the Current Data

There has been a good deal of talk lately, much of it set off by a recent article in the Economist, about the fact that global temperatures have now been nearly constant for over a decade despite large increases in atmospheric CO2. Looking at the situation as a non-expert observer, it seems to me there are three possible explanations both for the recent pause and for the earlier pause from about 1940 to 1970. 

1. The theory is wrong. Warming over the past century+ is due to something other than the greenhouse effect of CO2 produced by human action.

This is possible but does not strike me as very likely.

2. The theory and models are right. Anthropogenic CO2 produces warming at about the rate implied by the IPCC models. There are, however, other factors that also affect global temperature. Recent periods of stable or falling temperature occurred because those other factors were pushing temperature down about as fast as the greenhouse effect was pushing it up.

3. The theory is right but the models are wrong—they substantially overestimate the sensitivity of temperature to CO2.

This is, I think, a more plausible variant of the previous explanation because of two of the latter's implications. The first is that the other factors are about as important, at least in the short run, as CO2, since otherwise they could not have cancelled its effect. The second is that the other factors were not adequately included in the IPCC models, since if they had been those models would not have seriously over predicted global temperatures, and they did.

As best I understand the relevant theory, sensitivity is an open question—we do not have climate models good enough to calculate it with confidence, so rely instead on deducing it from statistical data. But if global temperature depends on both CO2 and other things and the models left out or underestimated those other things, then calculations when the non-CO2 effect was pushing temperature up instead of down would tend to overestimate the CO2 effect. That seems to me consistent with the fact that temperature change over the past century is significantly positive, but at a rate much lower than what the IPCC models imply for the rest of this century. And, of course, it would explain why global temperatures for the past decade are lower than would be expected from the IPCC models and the increase in atmospheric CO2.

Why Landsburg's Puzzle Is Interesting

I have seen two sorts of defenses offered for the virulently hostile response that many people gave to Steve Landsburg's recent post. One is that one shouldn't talk about rape, or shouldn't use it in hypotheticals,  because it will rouse bad memories in people who have been victims of rape or for other reasons along similar lines. I find that argument unconvincing, and suspect that most of those using it would reach a different conclusion if they were doing the talking and expressing the proper views on the subject. 

The other defense is that Landsburg was not offering an interesting puzzle, since the answer was obvious, hence that the only explanation of his post was that he was trying to shock people, and trying to shock people by talking about a sensitive subject is juvenile and rude. Alternatively, that Landsburg was not offering an interesting puzzle but thought he was, which shows how stupid he is.

Hence this post.

Argument 1 for why the answer is obvious, popular with libertarians:

The unwanted but physically harmless rape is obviously wrong because it violates the victim's property right in her own body.

When I look out the window and see the light in a neighbor's window, the fact I can do so shows that photons whose existence he caused have trespassed on both my property and my retina. We don't see that as obviously wrong.

Why? One obvious answer, although not the only possible one, is that the trespassing photons do no damage—we would react differently if what was trespassing was a megawatt laser beam. But that answer gets us back to Landsburg's puzzle: If physical trespass to someone's body did no damage, would it also not count as a violation of the victim's rights? More generally, how do we figure out what rights, in property or anything else, who has? 

In my view, anyone who thinks that problem is trivially easy has not thought very hard about it. Any philosopher who thinks so should find another line of work. Which brings me to ...

Argument 2, popular with philosophers:

The puzzle is uninteresting because we already know that utilitarianism, at least of a simple sort, is obviously wrong.

Perhaps I missed it, but I am not aware of any proof, by philosophers or other people, of what moral philosophy is the right one. Absent such a proof, the fact that a particular candidate implies a conclusion that feels wrong to us admits of at least three different explanations:

A. The candidate is wrong.

B. Our moral intuition is wrong.

C. The argument from assumptions to conclusion is wrong. 

Part of what makes an argument like the one Landsburg offered interesting is that it forces us to think about those explanations. Responding with "we already know the right answer to the fundamental questions of moral philosophy," which is not what anyone I saw said but what a number of people appeared to be implying, is not a good answer. My long post on the subject was arguing C—that the conclusion Landsburg sketched did not follow from the implicit assumptions, for somewhat complicated (and, I thought, interesting) reasons.

I could go on to list other arguments for why the answer to the puzzle is obvious, but I have not seen any that struck me as convincing, and two unconvincing ones are sufficient.

Showing why particular arguments that his puzzle is uninteresting are wrong does not tell us what is interesting about it. One answer to that question is that one of the most intriguing facts that comes out of the economic analysis of law is that the legal rules that economic theory implies are efficient—loosely speaking maximize utility—often if not always resemble the rules implicit in both existing law and existing moral beliefs. If that is true, it is surely interesting, in part because it suggests some possible conjectures about where law and moral beliefs come from. And it also suggests the project of looking at places where law or moral beliefs fail to fit what economic efficiency appears to imply, and trying to see if one of my answers A, B, or C explains the difference.

One implication of that project is that  it is a mistake to claim, as some philosophers (and economists) do, that wicked pleasures ought not to count in the utilitarian calculus. If you put your moral beliefs in at the beginning of the analysis, it is not very interesting to get them out at the end. It is much more interesting if you put in something much simpler, if you treat the benefit that the pickpocket gets from the money he steals from you on precisely the same terms as the loss to you from having it stolen, and yet end up with something that looks like rather like your intuitions of right and wrong. As you do—for a defense of that claim, see my Law's Order.

It is possible that I am being unfair to Landsburg's critics, since this is an area I have worked and written in for many years, so the point may be more obvious and interesting to me than to them. On the other hand, if an intelligent academic makes an argument that seems pointless to you, trying to figure out why he thinks it interesting, even asking him, seems a more appropriate response than most of the responses Landsburg got.

And even for someone who has never thought about the economic analysis of law, figuring out why we make the moral judgements we do, why we reach different conclusions about what can be seen as similar cases, ought to be interesting.

Frightening Ideas

Discussing with my daughter the flap over Steve Landsburg's recent post, I commented that the people who were angry about it, mostly online, struck me as either stupid or evil. Either they were too stupid to see that he was actually raising an interesting puzzle or they saw that he was doing so but pretended not to, in order to have an excuse to attack someone they disliked or disagreed with.

Her response was that I was wrong, that my mistake was not realizing the degree to which many other people were different from me. To me, ideas are real, important, and sufficiently interesting that my reaction to an argument that appears to prove some frightening or ugly conclusion is to be neither frightened or angry but intrigued. Lots of people don't react that way—and if you see the conclusion of an argument as frightening or ugly, it isn't surprising if you skip over the fact that it raises an interesting puzzle or are too willing to assume that whoever offered the argument must agree with its conclusion.

I am not sure if she is correct or not, but it did start me thinking about other arguments which I find intriguing despite the fact that their implications are disturbing. None of them has the same emotional loading as an argument about rape, but all of them have implications that strike me as more serious, in various directions, than the implications of the argument Landsburg made. Here are three examples:

1. Moral nihilism: 

I have sketched elsewhere my view of the nature of moral philosophy, what Michael Huemer (and, I assume, other professional philosophers) refers to as intuitionism. I read Huemer's book on the subject in part in the hope that he could offer an adequate rebuttal to the best argument against that position that I knew of, since I didn't have one. I still don't, although he thinks he does.

The argument (which I believe was once offered by someone commenting here) is simple. I have moral intuitions—I perceive some acts or outcomes to be good or bad. My preferred explanation is that they really are perceptions of a (non-physical) truth. An alternative explanation is that they are beliefs that got hardwired into my brain by evolution because having those beliefs resulted in increased reproductive success in the environment in which my distant ancestors evolved. That explains the same data, my intuitions, without requiring any additional assumptions, since I already believe in evolution and recognize that some characteristics of how the brain processes information are best explained in that way.

If that argument is correct, not only is there nothing wrong with raping an unconscious victim, there is nothing wrong with doing anything to anyone—right and wrong are merely illusions. I find it impossible to believe that conclusion, but I have no adequate argument against it.

Unless you count this one.

2. We are all brains in vats:

Assume that the growth in wealth and technology that has occurred over the past century continues into the far future. In the world of a thousand years from now, an obvious form of entertainment, the equivalent of movies, books and video games, is simulation—Sim City on steroids—and in that world they will have the wealth and technology to simulate people, and worlds full of people, down to the neuron. A period of history of particular interest, and so particularly likely to be simulated, is the period when mankind made the great technological leaps that made possible the world of a thousand years hence. There will be thousands, millions, perhaps billions of simulations of that period, fully populated with simulated people who believe they are real.

What are the odds that you and I are in the one real version of the present instead of one of the millions of simulated ones?

3. There is no reason to expect the future to resemble the past. At all.

Consider the inductive hypothesis, the claim that the future resembles the past. It is essential to all of science, indeed to virtually all of our attempt to make sense of reality. Without that assumption, the fact that stones fell down when we dropped one yesterday gives us no reason to expect that, if we drop another stone today, it will fall down instead of up. 

Do we have any reason to believe the hypothesis? It is true that it has held, so far as we can tell, through the entire history of the universe. Unfortunately, that argument is circular. In the past, the future resembled the past—each day, stones fell in the same direction. But unless we already know that the future is going to resemble the past, the fact that the inductive hypothesis held in the past is no evidence that it will hold tomorrow.

Response to Bork and Landsburg

In a recent post, I argued that Robert Bork, in an old and famous law review article, and Steven Landsburg, in a recent and now infamous blog post, were making two sides of the same point, in both cases arguing that our legal rules (and, for many of us, our moral intuitions) were inconsistent in treating essentially similar cases differently. Various commenters on my post pointed in what I think is the right direction for explaining the puzzle and justifying the legal, and perhaps the moral, difference.

The first step is an old distinction in the economic analysis of law between property rules and liability rules, two different solutions to the problem of efficient allocation. Under a property rule, something belongs to someone and other people can use it only with his permission. The role of the legal system is to impose costs on those who use it without his permission large enough so that they won't. My control over my car is regulated by a property rule, as demonstrated by what happens to someone who steals it and gets caught.

Under a liability rule, in contrast, people are permitted to do things that impose costs on others, but have to pay for them. My use of my car to impose a risk of collision on other drivers is regulated by a liability rule. Unlike the case of a property rule, I don't need their permission to use their cars as possible unintended targets for mine. But if I do dent their cars and it is my fault, I am supposed to pay for the repairs. The role of the legal system is to estimate the cost and make me pay it.

Why do we use property rights to control who drives my car but liability rights to control how it is driven? The standard response is that, under property rights, things are moved to their highest valued use via market transactions—if ownership or use of my car is worth more to you than to me, you ought to be able to offer me a price to buy or rent it that I am willing to accept. Under liability rules, they are moved to their highest valued use via litigation, actual or potential. 

Controlling who drives a car by market transactions is reasonably simple and straightforward, as demonstrated every day by car dealers and rental agencies. Controlling how it is driven would either require me to buy permission from everyone else on the road to impose a cost of damage on their car, if they had a property right not to have such a risk imposed on them, or require them to buy a guarantee from me to drive carefully, if I had a property right to drive my car as I wished, whatever the risk to others. Neither is practical, since what I am imposing is a highly dispersed cost, a very small risk on each of a very large number of people.

Controlling who drives a car by a liability rule would mean that someone in a hurry to get to the airport would be entitled to hotwire my parked car, drive it to the airport, and leave it there—and it would be up to me to sue him for the cost and inconvenience imposed on me. That would create substantial costs, since I would have to identify the guilty party and sue him, and provide a very inaccurate and expensive control mechanism, since a court would have to somehow estimate the cost to me. Some of those problems exist for using a liability rule to control how I drive, but they arise only when I actually run into someone, which (fortunately) does not happen very often, and it is usually obvious at that point who was the driver. So it makes sense to use a property rule to control who drives the car but a liability rule to control how he drives it.

(For a more detailed account, see Chapter 5 of my Law's Order, under the subhead "Property or Liability Rules.")

The discussion so far leaves open one question of some importance: If we use a property rule, who owns the property? From the standpoint of economics, there are two different approaches to answering it.

One is that property should start out belonging to the person who created it, in order that people will have a suitable incentive to create things. The other is that property should belong to the person who can most easily control it, in order to minimize the cost of enforcing property rights.

We use the first rule for deciding who owns my car. It started out as the property of the Honda corporation, which built it, was sold by them to a dealer and by the dealer to me. We use the second approach for deciding who owns me.

One could hold—as Roman law did—that I belong to my parents (actually, under Roman law, my father—or his father if still alive), on the grounds that they created me. The problem with that approach, economically speaking, is that it is easy for me to control myself (at least as long as there are no bowls of potato chips within easy reach), hard for anyone else to control me. If I want my arm to move, I move it. For you to get my arm to move, supposing you are my owner, is a more difficult, indirect and costly process. That, economically speaking, is the argument against slavery.

Sometimes the two approaches are in conflict. Consider the case of copyright law. Giving me the right to control people who want to copy my book and charge them for doing so gives me a suitable incentive to write books. But controlling their copying is much easier for them to do than for me to do. How much easier depends on technology, which is why we have moved, over about a century, from a situation where copyright could be enforced without copyright law, as in the case of English authors collecting royalties for books published in America a century or so ago, to one where it is becoming increasingly difficult to enforce copyright in digital works even with copyright law.

How does all of this apply to the puzzle raised by Landsburg and Bork? Being more prudent than Landsburg, or perhaps less courageous, I start by replacing his example with a less emotionally loaded one that I think raises the same issues.

You happen to know that I am going to be out of town for a few months, perhaps because I have mentioned my plans on my blog. Coincidentally, you are going to be in town for the same few months, in need of a place to stay. Conveniently, one of your hobbies is picking locks. I leave, you move in. Shortly before I return you, being a considerate guest, tidy the place up, leaving it in exactly the same condition you found it in and so, arguably, imposing no cost on me. 

You only make one small mistake—not noticing the video camera unobtrusively located on a high shelf in the living room, plugged in, running, and feeding a very large hard drive. 

Just as in Landburg's example, the act violates existing rights but imposes no material cost. As in that example, it might impose a psychic cost—I may be upset to find that someone else has been living in my house without my permission. And, as in that example, it is illegal. Should it be?

It should. The reason it should is that the use of houses is better allocated by a property rule than by a liability rule. The liability rule, under which you are not liable because you imposed no cost, or at least no cost of a sort reasonably measurable by a court, is difficult to enforce, given that not all empty houses have security cameras running and not all trespassers are easily identified, located and sued. Further, the cost to me is better measured by the price I am willing to accept for the use of the house than by a court's estimate, in part because that includes the subjective cost to me of knowing that my house has been occupied and any secrets it contained, perhaps my stash of porn, revealed, a cost hard to prove or measure in court.

A further argument, pointed out by commenters on my earlier post, is that a property rule makes it possible for me to charge you for your use of my house, which in turn affects my incentive to make the house available—my earlier point about allocating property to its creator. The ability to collect rent on the house when I am not using it reduces the cost to me of spending a quarter visiting at GMU and so makes me more willing to do so—and should, since the availability of the house for you to occupy is a real benefit produced by my absence.

I think I have now answered Steve Landsburg's puzzle. The difference between his example (or mine) of an action that imposes only subjective costs and his example of an activity such as reading pornography, or Bork's of using contraception, that imposes only subjective costs, is not the nature of the harm. The difference is that in the one case the cost is of a sort that can be measured, the action controlled, via a property rule. In the other, it is not. 

More precisely, the property rule under which I have a right to read porn and you can only stop me by offering to pay me not to do so produces its result by ignoring the cost my porn reading imposes on you, since, as with the case of risks imposed by careless driving, including that cost requires an unworkable contract between all of the prudes and all of the would-be consumers of porn. The property rule under which you have a right to forbid me, or anyone else, from reading porn, produces its result by ignoring the cost your ban imposes on me, for the same reason. Neither property rule gets the cost/benefit calculation correct, but the former rule is a great deal less expensive to enforce than the latter, which is an argument for it. 

What about a liability rule? That is the point at which the subjective nature of the harm comes in. It is true that, from the standpoint of economics, all harm is ultimately subjective—having my arm broken or my car dented would not be a cost under sufficiently bizarre assumptions about my preferences. But some subjective costs are a lot easier to measure externally than others. When I claim damages for my wrecked car, there are market prices out there for repairing or replacing it that provide a court with a reasonable basis for estimating the cost. When I announce that your reading of porn, or oil drilling in a wilderness I never plan to visit, inflicts large psychic harm on me, there is no such basis for checking my claim.

I think I have now answered Bork's argument as well as Landsburg's. Insofar as air pollution imposes measurable costs in ill health or increased laundry bills, it is possible to use a liability rule or something similar to measure those costs and charge the polluter for them. But if my use of contraception imposes only immeasurable psychic costs on you, that approach does not work. A property rule takes account of such costs, since they are reflected in the prices people are willing to pay or accept, but a property rule assigning the right to either the would-be user of contraception or the opponent of his use does not work to reflect those costs because of their dispersed nature. And, between the two alternative property rules, there is a strong presumption for the one that libertarians prefer, since it requires no expensive and intrusive apparatus to enforce it.

Bork, unfortunately, is no longer around to read my answer, but Landsburg is, and probably will.

In my earlier post, I commented that explaining why I thought Bork was wrong would require a different and longer post. I have now written it, and it did—about twice as long.

"Feud" v "Feudal": Sound is not Meaning

A recent blog post commenting on one of mine asserts that:

David Friedman at his appropriately entitled blog “Ideas” compares contemporary patent litigation with feudal warfare.

What I compared it to was a feud system, a legal system whose rules are enforced by the threat of private force, something very common in the historical record. "Feud" and "feudal" sound the same, which makes it easy to confuse them, but the words are unrelated in both meaning and etymology.

The same mistake as interpreting "niggardly" as a racial slur.

---

feudal (adj.)

1610s, from Medieval Latin feudalis, from feudum "feudal estate," of Germanic origin (cf. Gothic faihu "property," Old High German fihu "cattle;" see fee). Related to Middle English feodary "one who holds lands of an overlord in exchange for service" (late 14c.).

feud (n.)

c.1300, fede "enmity, hatred, hostility," northern English and Scottish; perhaps from an unrecorded Old English word or else from Old French fede, from Old High German fehida "contention, quarrel, feud," from Proto-Germanic *faihitha noun of state from adj. *faiho- (cf. Old English fæhð "enmity," fah "hostile;" German Fehde "feud;" Old Frisian feithe "enmity;" see foe). Sense of "vendetta" is early 15c. Alteration of spelling in 16c. is unexplained.

(Both from the Online Etymology Dictionary)

The Economics of Finding a Wife

A charming, reasonably sensible, but somewhat tongue in cheek essay by a fellow economist.

Landsburg v Bork: What Counts as Injury?

My friend Steve Landsburg appears to have entered a competition with my friend John Lott over who can make the most politically incorrect argument. John's old entry was an article arguing that the fact that rich criminals were less likely to be convicted than poor criminals was evidence for, not against, the efficiency of the legal system (my discussion of that article is in chapter 15 of my Law's Order, under the subhead "Should the Rich Pay Higher Fines"). Steve's new one, which has gotten a good deal more attention, is a blog post asking why rape of an unconscious victim who suffers no injury in the ordinary sense should be illegal.

Reading attacks on Steve's piece, it occurred to me that I had seen the essential point before—from the other side, in an old article by Robert Bork which explained, among other things, why he was not a libertarian. It is a long time since I read it, and when I recently reread it I discovered that it was not mainly about the part I remembered, but that particular argument was what impressed me, since I am both a libertarian and an economist and the argument appeared to show that the two were inconsistent with each other.

Bork's argument, in my words not his, goes as follows:

When I pollute the air I am injuring other people, so it is legitimate for the legal system to respond by penalizing me. What makes it an injury is not the fact that I affect the air but that the effect does harm; one could imagine an effect, such as a change in the ratio of two stable isotopes of trace gases in the atmosphere, that would not matter to anyone and so would not be seen as an injury or a proper subject for legal action.

Harm, however, is ultimately subjective, since it depends on the preferences of the harmed individual.  When I smell the roasting ribs from my neighbor's barbecue, that isn't harm because I enjoy the smell. When the smoke from the barbecue makes me cough that is harm, because I don't like coughing—and would be harm even if the smoke had no adverse effect on my health. From the point of view of economics, "harm X" simply means "lower X's utility."

Suppose that, instead of polluting my neighbor's air, I engage in behavior that he disapproves of—read pornography, use contraceptives, work on Sunday. That too causes him disutility. Since the defining characteristic of harming someone is lowering his utility, I am harming him. Since I am harming him, my activity is just as much a legitimate target for legal action as my polluting his air would be. Hence the libertarian principle that I have a right to engage in what Mill referred to as self-regarding actions, actions that only affect me, is either false or empty. Either I don't have a right to read porn if doing so offends others without affecting them, or their offense counts as an effect of what I am doing so my reading porn isn't really a self-regarding action and there is no reason in principle why it shouldn't be banned.

When I first read it, it struck me as an interesting and persuasive argument for a conclusion I disagreed with—explaining why I thought it was ultimately wrong would take a different, and longer, post than this. 

Steve Landsburg's piece, responding in part to the Steubenville rape case, makes the same argument from the other side. We—at least Steve (and I)—don't feel that the argument for banning pornography or contraception is a legitimate one. Our reason is that the "harm" in those cases is purely subjective—I haven't actually done anything to you, so your unhappiness at my self-regarding behavior is your problem, not mine, and you have no right to use the legal system to make me conform to your wishes. And even if you argue that I have done something to you—acted in a way that resulted in your knowing what I was doing, knowledge that pained you—that doesn't count, because "knowledge that pains you" isn't injury in the same sense as causing you to get cancer is.

Which gets us to the part of Steve's post that gives lots of people reason, or excuse, to attack him. Suppose an unconscious woman is raped in a way that results in no injury—in the Steubenville case, "rape" actually consisted of digital penetration. She only finds out it happened several days later, at which point the harm is purely subjective, consists of her being offended at the knowledge that it happened. Why is this different from the subjective harm suffered by the person offended at someone else reading pornography? It feels different—to me and obviously, from his post, to Steve. But is it different, and if so why?

That, it seems to me, is an interesting question, one relevant to both law and  morality. It is ultimately the same question raised by Bork, although from the other side. Bork was arguing that the harm caused by the use of contraception and the harm caused by air pollution were ultimately of the same sort, that it was legitimate to ban pollution hence legitimate to ban contraception—his article was in part an attack on Griswold v. Connecticut, the Supreme Court case that legalized contraception, a fact I had forgotten when I started writing this post. Landsburg is arguing that rape that does only subjective harm is of the same sort as reading pornography that does only subjective harm (unlike Bork, it isn't clear that he is thinks his argument is right, only that he thinks it interesting), that it is not legitimate to ban the reading of pornography hence not legitimate to ban that particular sort of rape. 

I agree with both Bork and Landsburg that there is a real puzzle in our response to the legal (and moral) issues they raise. Hence I disagree with the various commenters whose response to the Landsburg piece was that it showed he was crazy, evil, or both.

Mann v. Hansen: They Aren't All the Same

My interest in the global warming controversy centers mostly on the question, largely although not entirely economic, of what the net effect for humans would be of global warming on the scale suggested by past IPCC projections; for details see my previous posts on the subject. I have, however, also been an observer, mostly from a safe distance, of the ongoing war between proponents of the conventional view of global warming and critics. For anyone else interested in observing it, I suggest the RealClimate blog for the former side and Anthony Watt's What's Up With That for the latter. They represent the more reasonable range of their respective factions. For the less reasonable range, a sample of both sides can be found on the Usenet group alt.global-warming.

One not surprising feature of the argument is that each side tends to demonize everyone on the other side. That is a mistake. Some people hold a position for good reasons, some for bad. Some supporters of a position are honest, some are not. And that is true both of correct positions and of incorrect ones, given that most such disputes are over questions complicated enough so that there are good arguments for both sides.

I was reminded of this point by a recent link on WUWT to a paper coauthored by James Hansen, who has been a prominent supporter of the idea that global warming is a very serious problem and strong measures should be taken to deal with it. The paper is a defense of nuclear energy, both on the grounds that it results in many fewer deaths than conventional energy sources and on the grounds that it does not produce CO2, hence shifting to nuclear energy would reduce global warming.

That is interesting because, while the second point is clearly true and the first may well be, it is not a position popular with environmentalists. I pointed that out in an old post on this blog, and ended with:

I am sure there are people who are both seriously worried about global warming and in favor of nuclear power. But how many of them are there? How many high profile spokesmen or organizations have taken that position?

 I now have at least one example.

This is the second time I have noticed Hansen getting something right. The first was a video of a talk he gave on how to control global warming. It was in favor of what economists call a pigouvian tax, in this case a tax on putting CO2 in the air, as a superior alternative to more direct forms of regulation. Given his underlying assumption—that global warming produces large net negative externalities—he had the economics right. In that case as well, although not as clearly, he was going against the consensus of "his side," most of whose members, in my experience, support a range of more direct regulations and many of whom disapprove of the idea of allowing firms to "buy the right to pollute."

I offer, as a contrast to Hansen, another prominent figure on the same side of the dispute, Michael Mann, most famous for his role in the hockey stick controversy, the argument over whether features of a graph of global temperature in an article he co-authored were real or were artifacts of an error in the statistical procedure he used to produce it. That particular controversy is complicated enough so that I have no strong opinion on it, although I do have the opinion of one statistician I know that there was a real problem with the analysis. 

But I also observed, mostly via arguments on the Usenet group, a less important controversy over a simpler issue, the claim by Mann, his university, and his supporters, that he was a "Nobel winning scientist."

[Later addition: Tim Lambert in the comments points out that the university web page claimed Mann won a Nobel prize (along with others), but specifies the peace prize, hence does not describe him as a "Nobel winning scientist."  The claim on Mann's facebook page was similar. 

So I don't have evidence that Mann or the university described him as a "Nobel winning scientist," merely that they (falsely) claimed he had won a Nobel prize. On the other hand, a quick google finds lots of stories by supporters, including stories of interviews with Mann, which do describe him as a "Nobel winning scientist," which seems unlikely if he made any effort to correct those who so described him.]

That claim was bogus twice over. To begin with, the Nobel prize in question was the Peace Prize, so even if Mann had won it, the description, although literally true, would be misleading. But in fact, the prize did not go to him, it went to the IPCC. His claim was based on a certificate from the IPCC, sent to a substantial number of people, crediting them with work that helped the organization win the prize. 

Doing work, along with others, that helps an organization win the Peace Prize does not make you a Nobel prize winning scientist, as should have been obvious to anyone not blindly partisan—but wasn't to a considerable number of people who were. Mann's university, many of his supporters, and (I think) Mann himself, finally abandoned the claim after someone got in touch with the Nobel committee and got the response that the prize had been given to the IPCC, not to Mann et. al., and he was thus not a Nobel winner. That does not tell me whether the hockey stick is or isn't bogus, but it does tell me something about Mann that makes me very reluctant to trust anything he writes.

I could, I suppose, make longer lists of good guys and bad guys on both sides of this and other controversies—Pachauri, the head of the IPCC, would be on the same list as Mann, for his role in the Himalayan glacier controversy. So would some people on my side of other issues. But I think two examples are sufficient to make the point.

Patent Litigation Seen as a Feud System of Law Enforcement

I am currently working on a book on legal systems very different from ours; interested readers can find the draft webbed for comments on my site. This post is a first cut at something I intend to include in it.

One of the things that has struck me, looking at a wide variety of legal systems past and present, is the important role of feud—often but I think misleadingly referred to as blood feud—as a form of law enforcement. The essential logic of feud is simple: If you wrong me, I threaten to hurt you unless you compensate me for the wrong. It is a decentralized form of law enforcement. In order for it to work, it requires some mechanism that makes my threat of hurting you substantially more believable when you actually have wronged me than when you have not, in order to prevent the enforcement mechanism from being used instead for extortion. To put it differently, you need some mechanism such that right makes might.

For a simple example, consider the feud system of the Rominchal gypsies, the largest gypsy population in England, as described in Chapter 3 of Gypsy Law. If you wrong me, I threaten to beat you up. Both of us know that if you have wronged me, as judged by the norms of our community, my friends will back me and your friends won't back you, making it in your interest to either compensate me or leave town.

Feud systems (not, incidentally, the same thing as feudal systems—the words sound similar but are unconnected in both meaning and origin) are very common among human societies. In addition to the Rominchal, well recorded examples include saga period Iceland and traditional Somali. In the Icelandic case, the mechanism for converting right into might was an explicit law code and a court system. You sued the person who wronged you. If you won, the verdict was a damage payment he owed you. If he failed to pay, he had two weeks to leave Iceland, after which he was an outlaw, meaning that it was legal for you to kill him and tortious for anyone to defend him. The system functioned for about a third of a millenium—for details see the relevant chapter in my draft. The Somali version was somewhere between the Icelandic and the Rominchal, with customary law and customary mechanisms for setting up courts to arbitrate disputes—along with a fascinating system of prefabricated coalitions to deal with both paying damages and enforcing their members' claims.

Perhaps more interesting, there is good evidence that many, perhaps most, legal systems were built on top of preexisting feud systems. That includes Jewish law and Muslim law, both of which contain what I would described as fossilized evidence of a feud system, along with Anglo-American common law and Roman law.

Feud systems are not only a matter of historical interest—de facto, if not de jure, they still exist. One current example is patent litigation among modern high-tech companies such as Apple and Samsung.

Suppose Apple sues Samsung, claiming that Samsung's phones infringe some of Apples' patents.  Doing so costs Apple something, since lawyers have to be paid, but it also produces two benefits. There is some chance that Apple will win, be awarded damages, and be able to some degree to cripple Samsung's product line by refusing to license the relevant patents. And even if it loses, the uncertainty generated by the litigation will to some degree reduce Samsung's ability to compete with the iPhone.

If the legal system worked perfectly, Apple would always lose when its patents were not infringed and would be liable for the costs that its unsuccessful suit imposed on Samsung. But it does not work perfectly. The rights established by patent law are sufficiently fuzzy so that Apple has some chance of winning even when it is in the wrong. And, under most circumstances, if Apple loses it will not be found liable for costs, direct or indirect, that the suit imposed on Samsung.

Part of Samsung's response is to try to win the case in the courts. But the other part is to have or acquire a patent portfolio large enough so that it can plausibly claim that Apple infringes some of its patents, sue, and so impose costs on Apple to retaliate for the costs Apple imposes on it. As best I can tell, this is currently standard practice in the high tech world. Firms acquire portfolios of patents not primarily for their own use but as weapons with which to attack, or threaten to attack, other firms.

What I have just described is a feud system, with litigation taking the place of direct violence. Like other feud systems, its functioning depends on some mechanism making it easier to win when you are in the right, some way of converting right into might. Without that, the threat of suit can be used not to enforce rights but to extort money.

In theory, the court system provides that mechanism by making it easier to win an infringement case when your patents have actually been infringed. Absent the feud mechanism, the courts would have to work well enough so that suing innocent people on average lost money. With the feud mechanism, it is sufficient that suing innocent people and then having them counter sue you on average loses money, while suing guilty people on average makes money, even if they counter sue you—provided you have not really infringed their patents.

Whether this particular feud system works or is broken is a matter people  disagree about. Those who think it is broken describe the people they think are using it for extortion as patent trolls.

Comments welcome. 

Academic Orthodoxy: Official Lies

A commenter on a recent post of mine writes:

CC asked for examples of the reigning orthodoxy among academics. Here's a short list:

--There is no such thing as "race." It is not a scientific concept.

--Affirmative action is necessary because racism continues to be the primary cause of the poor performance of blacks in school.

--IQ tests do not measure anything real about human intelligence.

--IQ is not heritable.

--If government programs for the elimination of poverty have failed, it is for one of two reasons: 1) they have not been sufficiently funded; or 2) those implementing the programs have not been sincere.

--All differences between men and women are culturally determined.

If anyone doubts the extent to which these ideas dominate public discourse on college campuses, I invite that person to assert publicly a contrary view and see what happens. I say "publicly" because many people will tolerate such notions in private, but they will feel compelled to silence them if they are offered as part of the public discourse of the campus.

 I agree that everything in his list is part of current orthodoxy, with "all differences between men and women" not including obvious physical differences. Also that most or all of them are false—I'm not entirely sure that one couldn't have at least reduced poverty if a sufficiently large amount had been spent by sufficiently sincere people. 

I am curious whether anyone reading this is willing either to argue that the claims on the list are true, or at least defensible, or to deny that, in many parts of the academy, it would be imprudent for an academic without tenure to dispute them.

Should I Be Mad at Scribd?

Googling around, I have come across quite a lot of material I wrote on the Scribd site, including a sizable chunk from this blog, a sizable chunk from the Miscellany (a book my wife and I wrote and self-published on our medieval hobby), the full text of several of my commercially published books, and what appears to be the full text of translations of my first book into several languages.

With the exception of the translations, all of this was material already available online for free from my site. The commercially published books include my name as author and my copyright notice, so although the publishers might possibly object to their being up without my or their authorization, I don't see much reason why I should. Some people may read the books on Scribd instead of on my site, but the only downside of that from my standpoint is that they are less likely to come across other material on my site in the process. And the upside is that some people might find and read the books on Scribd who otherwise wouldn't.

I am unhappy about the first two things I listed, however, because, so far as I can tell, the material copied from this blog contained no link to this blog, and the material copied from the Miscellany did not contain either my or my wife's real names—articles in the Miscellany are given under the names we use in the SCA, since it is about our medieval hobby—or a copyright notice, or any way that a reader could discover that the material was part of a larger book that he might want to look at.

I accordingly emailed Scribd to complain. The response I got was that they could not add anything, such as a credit line or a URL, to material that had been uploaded to their site. I accordingly asked for contact information for the people who uploaded it, and was told that that could only be provided via a subpoena. I have put comments on the text giving the additional information, but I don't know how many people who read the text will bother to look at the comment.

So far as I can tell, the only thing I could do is to file a takedown notice, which I am reluctant to do, and then upload the material to Scribd myself, thus keeping it available, but with the additional information about who the author is and where the rest of it is to be found. I may nor may not bother.

Suggestions?