Eugene Volokh's Blog, page 2724
August 29, 2011
Two Interesting But Entirely Unrelated Posts
I have been working on a new edition of my constitutional law casebook and traveling this summer, so have not had time for much blogging. Now I am getting organized for my Contracts course at Penn. Still, I thought I would break radio silence by passing along links to two unrelated blog posts I found interesting.
The first is by Brian Leiter in the nature of ad hominem arguments: What an "Ad Hominem" Argument Is and Isn't. Here is how it begins:
We take a break from our regularly scheduled programming for a brief detour into a subject that is occasionally addressed in the philosophy blogosphere, and is standard fare in "informal logic" or "critical reasoning" classes: namely, the ad hominem argument, what it is, and why it is fallacious with repect to the truth of what someone says, but not necessarily with respect to whether they are reliable or whether one is justified in believing them. There was not a single fallacious ad hominem in my post last week, and while the fact that the random know-nothings that populate cyberspace didn't understand that, it was slightly more surprising that one or two law professors made the same mistake. So perhaps this can be an educational moment. (Those who already know what an actual ad hominem fallacy is can move on!)
Just as its title promises, Brian clearly explains what an ad hominem arguement is, and is not–something very useful to know in these days of plentiful personal attacks. Read the whole thing.
The second is Constitutional Structure Matters: A Response to Larry Tribe by Ilya Shapiro and Chaim Gordon responding to an argument by Larry Tribe criticizing the Eleventh Circuit's decision finding the individual mandate unconstitutional. Here is how it ends:
Under modern jurisprudence, essentially the only check on Congress's taxing and spending powers under the General Welfare Clause (as opposed to its regulatory power under the Commerce Clause) is political. So yes, Professor Tribe, there is a constitutional reason for depriving Congress of the power to do in one step what it could surely do in two other steps: to maintain that remaining constitutional qua political check. Indeed, the very reason why Congress adopted the individual mandate was because it lacked the political will — it feared political accountability too much — to impose single-payer universal coverage, where the government would first impose a tax on everyone and then provide health care (at this point it's no longer "insurance") to everyone.To accomplish the same result without having to impose significant new taxes — as President Obama famously promised there would not be – Congress tried to evade political accountability through the individual-mandate mechanism. That's why the Eleventh Circuit wisely declined to grant Congress the power to move a significant part of its spending "off budget" and "mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die."
The rest of the post is also worth reading.
Ryan Calo on Weak AI
Ryan Calo responds to my earlier post on whether a software engineer could win the Nobel Prize in Literature, in a post at Concurring Opinions that is considerably more profound and well-thought out than my original somewhat whimsical post — it being a product of no power or internet at home or at school. It's well worth reading — Ryan is one of the smartest people working in this area, and he's been thinking about these issues in general society far longer than someone like me, who has wound up interested in general robotics via battlefield robotics. Also, I'd like to note the October conference Ryan's center at Stanford has coming up on AI; it will be posted as a video there. (The panel will include Larry Solum, by the way, who back in 1992 wrote a prescient article on whether an AI could be a legal trustee — proud to say that I provided what is surely the single most important footnote in that article. A footnote on whether Spock has emotions or not. Naturally.) I should also add that I'm writing this with that pretty funny Hollywood satire running in the background, Simone. Naturally.
Coase on Adam Smith and the Theory of Moral Sentiments
I just finished reading an essay by Ronald Coase I had not read before — indeed, hadn't realized existed — on Adam Smith's thought in The Theory of Moral Sentiments. That book has occupied me a lot in the last three years, as an example of the tradition of moral psychology in economics that seems almost entirely to have disappeared within mainstream economics.
(Added: It isn't its presence or absence in economics that actually interests me, so much as its absence within law and economics; and indeed, something close to a general denial of this kind of intellectual thought within law and economic thought — though it figures into the work of, as it were, the father of law and economics, Coase of the Coase Theorem. That's what troubles me. What would Coase think of modern law and economics and the fact that this kind of methodology seemingly has no place within it, given that it seems to be, god help us, philosophy rather than social science?)
Coase's exposition, in a book of essays late in his life, Essays on Economics and Economists, reads more as though it had been written by Philippa Foot, Larry Solum, Rosalind Hursthouse, or Herbert Morris, rather than an economics Nobelist of the contemporary period. Gracefully written, without the jargon of the profession, and exquisitely tuned to the relational nuances that define moral psychology — it could not be further from the surface behaviorism (whether of pure rationalism or behavioral economics) that currently defines a considerable part of microeconomics' claim to social science.
So here is my question — and I'm only interested here in informed comments that directly give me names, thank you: What other living economists and their books can you point me to that engage in this kind of moral psychology? It helps, note, if you have read the essay by Ronald Coase or other of his writing in similar vein. The one person I can think of immediately is Deirdre McCloskey — who has written directly about the moral sentiments as such. (Maybe Tyler Cowen, author of that lovely book on commercial culture, and Alex Preda, of Framing Finance, though both of those are more sociology than relational moral psychology. Frank Fukuyama, but again, even his take on trust and political order is fundamentally sociological. Also, I'm looking for professional economists, not sociologists.)
Who else? I'd add that for this question, the institutional economics of Elinor Ostrom, important is it is on its own terms, is not what I mean: Ostrom's writing runs in exactly the other direction, trying to find ways translate a vision of institutions, some formal and others informal, into terms already familiar and comfortable to professional economists, in their language. Coase, by contrast, in these essays writes as a humanist, not a social scientist: and, note, this is the same language as that of The Problem of Social Cost or The Nature of the Firm. So, what names and books?
Gut Feeling
This just in: The right kind of bacteria in your gut can literally change your mind – reducing anxiety in stressful situations. Now we know why they call it intestinal fortitude. Because it is.
August 22, 2011
A Few Thoughts on "LawProf" and Law School Scam Blogs
With law school scam blogs being in the blogospheric news these days, I wanted to offer a few thoughts.
1. In my view, Paul Campos's blog has been useful. If Campos had written his blog using his real name, few would have paid attention. By hiding his identity, and by claiming that he hid it to avoid repercussions, Campos created the impression that he was taking a very courageous and daring step. That impression is what made the blog newsworthy, and that newsworthiness led to press coverage. That press coverage generated eyeballs, and it led to people talking about the issues. Campos's expressed fear of repercussions was basically false, but his plan to generate attention worked quite well. If you think that the law schools could benefit from more discussion these issues — as I do — then that's a good thing on the whole.
2. The law school scam blogs often overlook the important difference between a law school's administration and its teaching faculty, and their arguments sometimes miss the mark because of it. In my view, the blogs have some legitimate complaints about the lack of transparency at some law schools; of the way scholarships are structured; and the way tuition is set. Those are important issues. We should talk more about them. But for the most part, decisions about those issues are made by the law school administration instead of the teaching faculty.
Students may not be fully aware of the difference between the administration and teaching faculty, but it's a pretty important one. If you'll let me paint with a very broad brush, the Dean and Associate Deans run the law school and determine the school's policies while the professors teach their classes, grade their exams, and write their articles. The kinds of law school policies attacked by the scam blogs are mostly in the realm of law school administration. The professors who make up the teaching faculty usually learn about these things when they read them in the New York Times or Above the Law just like everybody else. That doesn't mean the professors should escape criticism. But there's a big difference between the guilt of creating a bad policy and the guilt of not learning that the policy exists where you work.
3. Building on (2) above, I think the scam blogs should see professors as natural allies on these issues instead of natural enemies. Some of the blogs envision professors as enemies because the professors seem to have a sweet life and students aren't finding jobs. They reason that professors are scamming students by getting their sweet life based on the students' suffering. But many of the students are suffering right now mostly because of the weak economy for lawyers. The professors don't control that economy today any more than they controlled it five years ago when the economy for lawyers was booming.
More broadly, I think there's less of a gap between the interests of the professors and the students than the blogs imagine. A lot of the professors share the same concerns that the students do. They want law school to be the best value, and to give the best education, and to train students to get the best careers. They're frustrated by the status quo, and they want to they are open to new ways of doing business. Setting up a bogus faculty-vs-students narrative draws eyeballs to a blog. But it also alienates the group that is most able and willing to enact reforms that could actually improve things.
Upcoming 2012 Mayan Apocalypse Upcoming Transhumanism-Triggered Second Coming of Jesus?
From a WorldNetDaily article:
Secret U.S. experiments to prompt 2nd Coming? ...
Secret experiments now underway in the U.S. and elsewhere are sparking fears of a potential extinction-level event hastening the 2nd Coming of Jesus ....
The possibility of humans eradicating their own existence through technological advancement has some Christians cracking open their Bibles to see what Scripture has to say on the matter.
The 24th chapter of the Book of Matthew is often cited, as Jesus talked specifically about the end of the current human age, saying, "For then shall be great tribulation, such as was not since the beginning of the world to this time, no, nor ever shall be. And except those days should be shortened, there should no flesh be saved: but for the elect's sake those days shall be shortened." (Matthew 24:21–22)
Britt Gillette, the Virginia-based Christian publisher of End Times Bible Prophecy, has been studying transhumanism in the light of Scripture, and says:
Taken in its original context, Jesus did not necessarily say that unless those days are shortened, "humanity will not survive." Instead, he said unless those days are shortened, "no flesh will survive."If the transhumanist movement suceeds in transforming the human race into a race of "posthumans" who no longer need flesh covered bones to survive, then these words of Jesus take on an entirely different meaning.
And it doesn't take an illogical leap of faith to draw this conclusion.
After all, it seems reasonable to assume that humanity will have to undergo some sort of radical transformation in order to plot a war against God Almighty. The arrogant impulse already exists. All that remains is the need for an exponential increase in human power which deludes humanity into believing it can overcome the Lord of lords.
And make no mistake about it, the Bible is clear that this is where humanity is ultimately headed – physical conflict with God:
"Then I saw the beast gathering the kings of the earth and their armies in order to fight against the one sitting on the horse and his army." (Revelation 19:19, NLT)
That point of an actual war between mankind -– even if somewhat altered -– and the Creator is echoed by author Steve Quayle, who warned of the dangers of transhumanism in an April 2010 radio interview with Horn....
During the discussion with Quayle, Horn sounded ominous as he talked of "that future moment ... that gives birth overnight to some version of the artillects (artificial intellects) who suddenly come online as conscious, living, synthetic superminds that are immensely more powerful than humans."
"It appears, at least in my belief system," he continued, "to be the billion-pound elephant standing in the middle of prophecy circles right now that the lion's share of critical Christian thinkers don't seem to be recognizing, or very few of them are waking up to it."
"This is coming whether people want it to or not. It is so close to being unveiled. I'm not talking cosmologically close. I mean it is very close now. It could happen literally at any moment, and I think it carries magnificent prophetic themes around it. We're literally talking about large-scale genetic, neurological re-engineering of humanity. ... Anybody who thinks this is wishful thinking on the part of the transhumanists, just pick up your newspaper, get your newest science magazine and start reading."
I should say that pragmatic concerns about the dangers posed by genetic technology, artificial intelligence, and the like can be quite sensible, though it's also right to be concerned about the daily evils (e.g., early death) that these technologies could help overcome, as well as the near certainty that other countries will be exploring these fields, and that if we don't we're likely to be quickly conquered. My post here is not intended to dismiss such concerns.
UPDATE: I neglected to at first add the "as well as the near certainty" clause; thanks to commenter Reasoner for reminding me about this.
Machine Man
If you'd like an entertaining techno-social satire with a reasonable amount of wit and bite, try Max Barry's Machine Man. I just finished it late last night and thought it was excellent summer reading fun. The protagonist is a young STEMmie who, following a horrible lab accident that results in a leg amputation, discovers a taste for gradually replacing his various parts with advanced cyborg-robotic prosthetics.
Is It Time to Deregulate the Law?
In today's WSJ, Clifford Winston and Robert Crandall of the Brookings Institution argue that now is the time for the legal profession to deregulate.
The reality is that many more people could offer various forms of legal services today at far lower prices if the American Bar Association (ABA) did not artificially restrict the number of lawyers through its accreditation of law schools—most states require individuals to graduate from such a school to take their bar exam—and by inducing states to bar legal services by non-lawyer-owned entities. It would be better to deregulate the provision of legal services. This would lower prices for clients and lead to more jobs.
Occupational licensing limits competition and raises the cost of legal services. But those higher costs are not justified when the services provided by lawyers do not require three years of law school and passing a particular test. One example is LegalZoom.com, an online company which sells simple legal documents—documents that should not require pricey lawyers to prepare—like do-it-yourself wills, uncontested divorce documents, patent applications and the like.
The competition supplied by new legal-service providers, who may or may not have some type of law degree and may even work for a non-lawyer-owned firm, will not only lead to aggressive price competition but also a search for more efficient methods to serve clients.
They are also co-authors of a new book, First Thing We Do, Let's Deregulate All the Lawyers.
Are Winston and Crandall right? Although it may be against my own economic interests to say so, I am inclined to think they are. For more on this subject, check out Truth on the Market's forthcoming online symposium on whether to deregulate the legal profession. In addition to Crandall, confirmed participants include Bill Henderson, Bruce Kobayashi, George Leef, Jon Macey, and Richard Painter, with more to come. It should be good.
"No Longer Anonymous, But Still Not Quite Right"
At Prawfsblawg, Paul Horwitz offers useful perspective on "Inside the Law School Scam" and its author's decision to reveal his identity.
Debate on the Legality of the Libya Intervention at the University of Akron Law School
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