Eugene Volokh's Blog, page 2745

Let's Hope They Don't Ask This on the Bar Exam:

(David Post)

[In connection with something I'm writing about the Supreme Court's decision in the videogame case (Brown v. EMA), I stumbled upon this while doing some Lexis research]

Q: What is the holding of the Court in Alabama v. North Carolina, 130 S. Ct. 2295 (U.S. 2010)? Please note the lineup of the Justices:

Scalia , J., delivered the opinion of the Court, in which Stevens , Ginsburg , and Alito , JJ., joined, in which Roberts , C. J., joined in all but Parts II-D and III-B, in which Kennedy and Sotomayor , JJ., joined in all but Part II-E, in which Thomas , J., joined in all but Part III-B, and in which Breyer , J., joined in all but Parts II-C, II-D, and II-E. Kennedy , J., filed an opinion concurring in part and concurring in the judgment, in which Sotomayor , J., joined. Roberts , C. J., filed an opinion concurring in part and dissenting in part, in which Thomas , J., joined. Breyer , J., filed an opinion concurring in part and dissenting in part, in which Roberts , C. J., joined.

It's not the worst I've ever seen, but it's damned close.

Judge Kozinski's Foreword to My Academic Legal Writing

(Eugene Volokh)

A comment to my post about my Academic Legal Writing book reminded me about Judge Kozinski's Foreword. There's always a risk in quoting material like this, so I apologize in advance to those who might think it inapt; but many people have told me how much they enjoyed reading Kozinski's piec, so I thought I'd reprint it below, in case some of you folks are interested.

A few years ago I interviewed a candidate for a clerkship. He had record-breaking grades from a name-brand law school and his recommenders sprinkled their letters with phrases like "Kozinski clone" and "better even than you." This kid was hot.

His interview went well, and I had pretty much made up my mind to hire him on the spot, when I popped a fateful question: "So, have you decided on the topic for your law review note?"

"It's done," the candidate replied. And, with a flourish, he pulled an inch-thick document from his briefcase and plopped it on my desk. Impressed, I picked it up and read the title page: "The Alienability and Devisability of Possibilities of Reverter and Rights of Entry."

After making sure this wasn't a joke, I started wondering why someone would write a piece on such an arcane topic. Maybe this kid wasn't so smart after all. I decided I had better read the piece before making a hiring decision.

After the applicant left, his article sat on the corner of my desk like a brick. Every so often, I'd pick it up, leaf through it and try to read it, but with no success. It was well-written enough; the sentences were easy to understand and followed one another in seemingly logical fashion. But the effort was pointless because the subject matter was of absolutely no interest to me. Instead, my mind wandered to doubts about the author. How did he come to write on such a desiccated topic? Under that veneer of brilliance, was there a kook trying to get out? Could I really trust his judgment as to the countless sensitive issues he would have to confront during his clerkship? Would he constantly aim for the capillary and miss the jugular?

It is difficult to overstate the importance of a written paper for a young lawyer's career, especially if the piece is published. Grades, of necessity, are somewhat grainy and subjective; is an A– that much better than a B+? Letters of recommendation can be more useful, but they still rely on someone else's judgment, and they often have a stale booster quality about them. Words like "fabulous" and "extraordinary" lose their force by dint of repetition — though "Kozinski clone" is still pretty rare.

A paper is very different. It is the applicant's raw work product, unfiltered through a third-party evaluator. By reading it, you can personally evaluate the student's writing, research, logic and judgment. Are the sentences sleek and lithe or ponderous and convoluted? Does he lay out his argument in a logical fashion, and does he anticipate and refute objections? Is the topic broad enough to be useful, yet narrow enough to be adequately covered? Is it persuasive? Is it fun to read? Writing a paper engages so much of the lawyer's art that no other predictor of likely success on the job comes close. A well-written, well-researched, thoughtful paper can clinch that law firm job or clerkship. It is indispensable if you aim to teach.

Published student papers can also be quite useful and influential in the development of the law. A few law review notes and comments become classics cited widely by lawyers, courts and academics. Many more provide a useful service, such as a solid body of research or an important insight into a developing area. Most, however, are read by no one beyond the student's immediate family and cause hardly an eddy among the currents of the law.

Why do so many published student papers fail in their essential purpose? (The same question might well be asked about non-student academic writing.) The simple answer is that most students have no clue what to write about, or how to go about writing it. Finding a useful and interesting topic; determining the scope of the paper; developing a thesis and testing its viability; avoiding sudden death through preemption; and getting it placed in the best possible journal — these are among the tasks that most students aren't trained to perform. My applicant, smart though he was, went off track because no one showed him where the track was or how to stay on it. Many students make the same mistake every year.

This book fills a void in the legal literature: It teaches students how to go about finding a topic and developing it into a useful, interesting, publishable piece. It gives detailed and very helpful instructions for every aspect of the writing, research and publication process. And it comes from the keyboard of someone who has authored articles on a dizzying variety of legal topics and is widely regarded as one of the brightest lights in legal academia.

But I digress.

I pondered the fate of my applicant for some weeks and never did get myself to read more than a few lines of his dreary paper. Finally I called and offered him a clerkship with a strong hint — not quite a condition — that he drop the paper in the nearest trash can and start from scratch. I explained to him what was wrong with it, and what a successful paper should look like. "You can do whatever you want," I told him, "but if you should have the misfortune of getting this dog published, it will only drag you down when you apply for a Supreme Court clerkship or a position as a law professor."

The applicant gratefully accepted the advice. He chucked the "Possibilities of Reverter" paper and went about developing a new topic. Some months later, he produced a dynamite piece that became one of the seminal published articles in a developing area of the law. Eventually, he did clerk for the Supreme Court and has since become a widely respected and often quoted legal academic. His name is Eugene Volokh.

"Let 'em Play" — Some Responses to Comments

(Prof. Mitch Berman (University of Texas), guest-blogging)

First, let me thank the many readers who have commented these past few days. I did not know what to expect when I accepted Eugene's invitation to blog about my article, and have been impressed by, and grateful for, the number and incisiveness of the comments. Unfortunately, there have been too many to permit me to respond in a systematic manner, let alone in a comprehensive one. So here are a mess of somewhat random reactions.

1. I've agreed with many of the posts, and have been gratified to see that many readers anticipated arguments to come.

For example, Assistant Village Idiot observed that my analysis "would suggest that a possible strategy would be to reduce the penalty late in the game but call it more closely. I don't know if that would actually play out well, however."

Agreed on both counts. See p.1349 n.73 of my article for some remarks on just this score.

Soronel Haetir remarked on Tuesday: "I can see some argument for allowing more contact later in a game (an argument I don't particularly agree with), but I don't see any reason whatsoever for relaxing the basic rules of ball possession."  I hope that this morning's post revealed my full agreement that the argument I offered on Tuesday would not support relaxing "the basic rules of ball possession."  Those are constitutive rules.

Justin agreed with Tuesday's analysis but added: "except for fouling out in basketball and red cards in soccer. Two fouls called on a key player in the first 5 minutes of a basketball game can change the entire contest. And a soccer team playing 80 minutes while a man down is almost certain to lose."

So true. Wait for Friday. Incidentally, Friday's post will simplify matters by ignoring Visitor Again's observation that soccer refs might already respect temporal variance in the issuance of red cards.  This is addressed in the article at p.1368 & n.116.

Guy and I seem to be on the same page.  I agree with his observation on the regulative/constitutive distinction that "the distinction is less something that can be derived by objective observation of the law in operation, but more by how people understand the law and what its purposes are."  He then added: "the most obvious distinction between foot faults and zone faults is that most people think of the game as being a test of skill with respect to hitting the ball, not where you place your feet. Foot faults only exist because the game needs to prescribe a spot for you to serve from, but minor variations in the rule are unlikely to change the difficulty of performing a proper serve. Rigid adherence to the rule is probably thought of as more penal by the audience than rigid adherence to zone fault rules because the game is 'testing' your ability to hit the ball precisely to serve to a particular spot, but it isn't 'testing' your skill at putting your foot close to a line without going over."

Yep, that will a core piece of tomorrow's argument.  Incidentally, Justin agreed with Guy, but added:  "Unfortunately, I think one of the problems with your analysis is that you are looking at it through a legal philosophy prism when the answer you are looking for is an anthropological one."  This puzzled me.  Anthropology and philosophy needn't be at odds.  I understand my philosophical analysis to point out which anthropological facts are relevant, in what ways, and why.  Perhaps Justin might further explain why he thought his observation showed a problem with my analysis (or with Guy's?).

Lastly, I think Martinned is right, as against both Noah and Gentleman Farmer, that the relative distinction is not objective/subjective.

2. The problem of time-sensitive impact.

I received fewer challenges than I anticipated to my claim that outcome-affecting events have greater impact the later they occur in a close contest, holding closeness of contest contest.  I believe only  Bruce Boyden and Tom Swift objected.

Here are a few additional thoughts on the matter.  I think almost all of us feel comfortable saying things like Team A has a .X probability of winning this game.  We believe, for example, that the U.S. women's soccer team had a pretty high probability of victory immediately after Abby Wambach's goal.  We believe that the team's probability of victory was lower once Japan equalized.  Almost all probability theorists believe that such statements are meaningful and that they must be some type of subjective probabilities.  (The objective probability of a U.S. victory was, at all times, 0.)

If we then believe that events can affect outcome-probabilities, we must be comfortable assessing these things in terms of subjective probability.  And once we're in subjective probability land, my claim that late events change the probabilities more than early events do is quite sound as a generalization, though there can be exceptions.  (See, e.g., p. 1350 n.74.)  Given all this, I'd need to hear more from Bruce Boyden regarding why he believes that the perspective of an omniscient observer supplies the "more relevant comparison."

Tom Swift is surely right in one sense that "points count the same at the beginning of a game as they do in the last 2 minutes." They count the same in terms of nominal additions to the score.  But they don't count the same in terms of changes to probability of winning so long as the relevant probability is subjective — which, I've just said, it must be so long as we continue to make claims about probability less than 1 and greater than 0.

3. Miscellaneous thoughts.

Many of the remaining posts raised ideas that might not be strictly germane to my arguments thus far, but which I found interesting enough to merit some reaction.

tbaugh wrote:

I've never understood how an official not calling a violation late in the game is "letting the players and not the officials decide the game." A non-call of a violation is an official influencing the game, perhaps decisively. I think the comment from James about uncertainly in the determination of an infraction is a good one, however, particularly in basketball. Perhaps some "temporal variance" is justifed in terms of the degree of certainty the official should have in making a late call (I've done a litte refereeing, and I'd say it's kind of a "felt" thing rather than a conscious decision).

I wonder whether the ideas in this post are in tension.  Temporal variance in degree of certainty (actually, the NBA has a rule about this!) would make sense if the costs of false positives and false negatives differ toward contest's end.  But tbaugh seems to deny that.  I happen to agree that temporal variance in the standard of proof makes sense.  But the judgment that a false positive is worse than a false negative is (and must be, I think) parasitic on the supposition that the sanction and the penalty are differently costly as measured against the competitive desideratum.  (Incidentally, James's different argument for why uncertainty might lead to temporal variance seems largely dependent upon omission bias.)

duffy pratt observed that "Baseball has a different time element than other games" and asked for examples "where this idea of "temporal variance" would apply in baseball?"

I'm disposed to think that baseball has few good examples not because it has a different time element (see 1336 n.32) but because it has few duty-imposing/regulative rules and many power-conferring/constitutive ones.  I do think that balks provide a good potential example, though.

Ossus recalled

baseball announcers advocating a form of situational (if not strictly temporal) variance with balls and strikes. For example, on 0–2 counts when the batter takes a close pitch, I have heard announcers talk about how the umpire either should have (when they call a third strike) or did (when they call a ball) take the situation into account. The implication is obviously that the penalty for a called strike to the batter is much greater than the penalty of a called ball to the pitcher, so I think this can actually fit into your analysis whereas you claim that it does not.

The analysis in a book I mentioned earlier, Scorecasting, reveals that umpires do take the situation into account in must this way.  I am disposed to believe that they ought not to.  More interestingly, as some commentators observed previously, Steven Jay Gould thought that home plate umpire Babe Pinelli rightly gave Don Larsen a few extra inches on his last called strike to end his perfect game in the 1956 World Series.  I differ with Gould here.  (See pp. 1352–54)

Lastly,  Byomtov opined that "calling a pitch a ball is a penalty, or at least can be seen as one. If we say the idea of the game is for the batter to try to hit the ball, etc., then there needs to be a rule requiring the pitcher to throw it where the batter actually can reach it. The penalty for violating the rule four times is a walk."  I think that's an interesting analysis.  Balls could have arisen as Byomtov conjectures and still count as constitutive rules today.  I'll think more about this.

Byomtov also remarked, presumably tongue-in-cheek, that he "wouldn't be surprised if the rule was established — by Abner Doubleday no doubt — precisely for this purpose, though of course it turned out that it often makes sense to violate it and suffer the penalty."

Interestingly, early baseball had no bases on balls.  There were balls, but no number of balls resulted in a free pass to first.  I believe that bases-on-balls were introduced in 1879.  At that time, though, a pitcher had 9 balls for a walk.  The current rule that awards a walk on 4 balls was introduced ten years later.

That's it for now.  See you tomorrow.

3-Year Sentence in Ecuador for Newspaper Editor, Based on Alleged Criminal Libel of Ecuadorean President

(Eugene Volokh)

CNN reported on the trial, which apparently stemmed from a column that "called [Ecuadorean President Rafael] Correa a dictator and claimed that the president had ordered security forces to open fire at a hospital full of civilians last September." La Hora (Ecuador) reports on the sentence, which was apparently just handed down, and which also apparently included an $80 million damages award. I don't know any more details, but I thought this was worth noting.

I should note, by the way, that the U.S. Supreme Court has never held that American criminal libel laws violate the First Amendment, and about a third of the states apparently have such statutes on the books. Moreover, there are quite a few prosecutions under such statutes in at least a few states, see here and here. But the prosecutions generally seem to lead to very modest sentences, rarely involve politicians or political matters, and therefore don't draw much attention; and the prosecution must generally prove that the statements were false and that the speaker knew they were false or at least acted in reckless disregard of the known probability that they were false. I don't know of any comparable sentences for alleged criminal libel of a politician, at least during recent American history, though I note again that in principle such a prosecution has not been foreclosed by Supreme Court precedent. Thanks to Jose K. Guerrero for the pointer.

A Nice Present for Incoming Law Students?

(Eugene Volokh)

I thought I'd take the liberty of mentioning again my Academic Legal Writing: Law Review Articles, Student Notes, Seminar Papers, and Getting on Law Review book is now out. Besides being on Amazon (including for the Kindle), it's also available directly from Thomson.

Call me biased, but I think this makes an excellent present for anyone who's about to go to law school, or for that matter anyone who is about to start the second or third year, when students often write seminar papers and Notes. Here are some reviews from readers (this page, for the Third Edition, has many more reviews than the page for the Fourth Edition) and from professors.

The publisher isn't sending me author's copies for signing and resale. But if you'd like me to send you a free personalized bookplate (basically just a label) to be pasted inside the book, just e-mail me at volokh@law.ucla.edu and tell me (1) the name and address to which you want the bookplate sent, and (2) the inscription you'd like me to use.

Finally, here's one of my favorite reviews, which was written by a professor (Norman Garland) with regard to an earlier edition, but which I think should apply to the Fourth Edition as well:

Last year I learned that Professor Eugene Volokh, a prolific and superb acamedician and author, had written a book with a blueprint for writing in law school and beyond. My expectation was that the book would be good, but I was awed by just how good it was. Prof. Volokh (pronounced "Volk" I am told) has done an enormous service for academics like myself who struggle to help students and young colleagues to learn the art of writing in the legal domain. That means papers for law school, articles for student publication, and beyond, when a person enters the profession and seeks to enhance his or her name. Now he has a second edition, adding two chaper: one on getting on to law review (a major benefit for law students), and the other advice on how to enter writing competitions.

Let me tell you how much I love this book. I bought ten copies of the first edition and distributed it to some of my students who I thought could benefit from it (although all can). My first choice to give one to was a protege of mine who was my research assistant, a moot court competitor (interscolastic), and a candidate for the law review board at the time. She advised me when I handed her the book, that it was required by all law review candidates–the board of editors run a program at my school and require the text.

Next, I have a colleague who had not been writiing. I gave a copy of the book to him and he seems to have moved on to produce a publishable piece. My wife, who went back to law school to get an LLM degree had to engage in some serious writing. I gave her a copy of the book and she got very high grades on her work and is considering turning one of them into an article.

So, when the new edition came out last week, I ordered 10 copies of it to spread the word again this year. I have been a professor of law for 37 years. I am thrilled that Professor Volokh saw fit to share his wisdom and insight into academic legal writing. Not since the original writing book that I learned from, Strunk and White's Elements of Style, has there been a book that I could recommend so heartily. If you are considering writing for law school or after, buy this book.

My one reservation about the review is that my name is usually pronounced "Vollock."

Many Thanks

(Eugene Volokh)

Many thanks to Jim Prevor and Dave Mecklenburg for their very generous help on a recent project!

NPR's "On Point" Discussion on Police Use of Iris Scans and Facial Recognition Software

(Orin Kerr)

This morning I was a guest on NPR's "On Point" show, an hour-long program hosted by Tom Ashbrook that today focused on police use of new biometric identification methods — facial recognition and iris scans, in particular. I've been on the program once before, and it's terrific: It manages to go in-depth while being of interest to the general listener.

You can listen to the program from here, or download the mp3 directly from this link. The first 15 minutes or so is just about the technology and how it is being used. I show up at about the 17:30 point to focus on the legal questions, and I stay in the conversation on and off for the rest of the hour.

"Let 'em Play" — Day 3: Of Constitutive and Regulative Rules

(Prof. Mitch Berman (University of Texas), guest-blogging)

At first blush, we might suppose that the analysis I provided yesterday applies, mutatis mutandis, to foot faults in tennis and therefore that tennis officials should call foot faults less strictly at crunch time. But this conclusion would be premature. It could be that foot faults in tennis differ from fouls and similar infractions in basketball, football and comparable sports in ways that make a difference.

I'll explain today why I believe that foot faults do differ in a way that matters. Tomorrow I'll argue that temporal variance in their enforcement might nonetheless be defensible on alternate grounds.  This afternoon I will respond to some of the many excellent comments already posted by VC readers.

The analysis I presented yesterday for temporal variance in the enforcement of penalties for fouls like those committed in basketball depended upon the claim that there are times when it might better serve the objectives of competitive sports to refrain from enforcing a penalty despite the occurrence of an infraction. That's because the competitive costs of an infraction and of the sanction or penalty that it begets are both temporally variant and the latter can become, at game's end, very much greater than the former.

Yet assessing the competitive costs of these two things – the infraction and the sanction – seems impossible in some cases. Take balls and strikes in baseball. The denomination of a pitch as a "ball" is not properly conceptualized as the penalty for an infraction; the concepts of infraction and penalty just don't apply here.

That not all undesired consequences that attach to nonconformity with the dictates of a rule are sanctions imposed for infractions was a central claim upon which Hart relied when critiquing the Austinian command theory of law.

Most of the rules of the criminal law impose duties and threaten sanctions for their violation. But other legal rules, like those specifying the conditions for valid wills or contracts, are of a different sort. These, Hart proposed, are "power-conferring rules" – rules that (somewhat simplified) provide that "if you wish to do this, this is the way to do it." In the case of rules that impose a duty, he explained, "we can distinguish clearly the rule prohibiting certain behaviour from the provision for penalties to be exacted if the rule is broken, and suppose the first to exist without the latter. We can, in a sense, subtract the sanction and still leave an intelligible standard of behaviour which it is designed to maintain."

But the distinction between the rule and the sanction is not intelligible in the case of power-conferring rules. It makes sense to say "do not kill" even when we leave off the part about what happens if you do. In contrast, we know we're leaving something critical out of the picture if we say "get two witnesses" but don't explain that the will will be invalid otherwise. The power-conferring/duty-imposing distinction is, at a minimum, a close cousin to another distinction between rule types made famous by John Searle: the distinction between constitutive and regulative rules.

The Hartian analysis of power-conferring rules helps to explain why balls and strikes in baseball feel very different from the infractions I have discussed in basketball. In the case of the latter, we can sensibly ask both whether some type of contact ought to be proscribed (thus denominated as a "foul"), and, in addition, whether, if so, the penalty attached to commission of the foul – two free throws, say, or ten yards – is too great (or too small).

But every pitch is either a ball or a strike. The logical consequence of its being outside the strike zone is that it is a ball. While we can sensibly ask whether the strike zone is too small (or too large), or whether the number of balls that constitutes a walk is too great (or too small), or whether any number of balls should result in the award of a base, it seems nonsense to ask whether a pitch's being a ball is too high a price for its having narrowly missed the strike zone: that the pitch was a ball is just what it means for its not having been a strike.

In short, balls and strikes are not proper candidates for temporal variance on the analysis I sketched yesterday because (1) temporal variance depends upon the widening of a gap between the competitive cost of an infraction and the competitive cost of the penalty it incurs, but (2) there is no such gap between nonconformity with a power-conferring rule and the consequences that attach, and (3) the rules governing balls and strikes are power-conferring rules (or constitutive rules, or something of this sort).

If this is right, the question becomes whether the rules governing foot faults in tennis are power-conferring (or constitutive) as opposed to duty-imposing (or regulative). For want of space, I'll just assert that the former construal seems significantly more plausible. In order to successfully or "validly" put the ball into play, thus giving oneself an opportunity to win the point, the server must do several things: (1) start behind the baseline, (2) strike the ball before stepping on or over the baseline, and (3) by striking the ball, cause it to land in the service court diagonally opposite.

We might say that these are three components of the rule that defines a valid serve. A failure on any of these three grounds is just a failure to perfect the power conferred upon the server; none is a violation or an infraction.

Let's suppose that's correct. Even if so, here's the puzzling thing. If foot faults, just like ordinary "zone" faults (i.e., the failure to serve the ball into the service box), are governed by power-conferring rules, and if temporal variance could be defended only on the analysis developed to this point, then we should expect foot faults to be immune from temporal variance just as surely as are zone faults. But widespread intuitions are more equivocal.

I have not run across anybody who is tempted by temporal variance for zone faults. If, facing match point, the server hits a second service wide by a smidgen, well them's the breaks and that's the match. And yet some folks (McEnroe, for example) believe that foot faults should be enforced with temporal variance. Just as revealingly, many more feel that the temporal variance of foot faults is, at the least, more plausible, less obviously mistaken.
The fact that even those who resist temporal variance for foot faults do not feel about foot faults quite as they do about zone faults – the fact that many of them at least feel the tug of temporal variance – requires explanation even if we end up concluding that, all things considered, foot faults should be enforced invariantly. That fact is inexplicable if the argument for temporal variance depends upon the widening of a gap between infraction and penalty and if faults aren't penalties for infractions.

I favor our taking widespread intuitions seriously. Doing so invites us to consider whether the analysis supplied thus far furnishes the only sound basis for temporal variance. Perhaps it doesn't. Perhaps temporal variance for some power-conferring (or constitutive) rules might be warranted on other (possibly related) grounds. That's my topic for tomorrow.

Never Transmit False Data in Rhode Island

(Eugene Volokh)

R.I. Gen. Laws § 11–52-7(b) makes it a misdemeanor to "intentionally or knowingly" "make[] a transmission of false data," or to "make[], present[] or use[] or cause[] to be made, presented or used any data for any other purpose with knowledge of its falsity." Section 11–52-6 also makes violators civilly liable, including for punitive damages. Nor is this section just limited to submitting false data for purposes of getting payment; subsection (a) of the same section makes that a felony.

I can't imagine that the Rhode Island legislature meant to criminalize all distribution of false information online. And such a ban would be unconstitutional; for instance, the Court has held that one can't criminalize even knowing falsehoods about the government generally, and it seems likely the same would be so as to knowing falsehoods about science and history generally (see pp. 6–8 of this amicus brief). But what then does the statute mean? Here is the full text:

(a) Whoever intentionally or knowingly makes a transmission of false data for the purpose of submitting a claim for payment, or makes, presents, or uses or causes to be made, presented, or used any data for the purpose of submitting a claim for payment with knowledge of its falsity and with knowledge that it will be used for any claim for payment, shall be guilty of a felony and shall be subject to the penalties set forth in § 11–52-5.

(b) Whoever intentionally or knowingly: (1) makes a transmission of false data; or (2) makes, presents or uses or causes to be made, presented or used any data for any other purpose with knowledge of its falsity, shall be guilty of a misdemeanor and shall be subject to the penalties set forth in § 11–52-5.

And here is a definition, in case it's helpful, from § 11–52-1:

(10) "Data" means any representation of information, knowledge, facts, concepts, or instructions which are being prepared or have been prepared and are intended to be entered, processed, or stored, are being entered, processed, or stored or have been entered, processed, or stored in a computer, computer system, or computer network.

Foot Voting for Freedom

(Ilya Somin)

Political scientist Jason Sorens presents some interesting new data showing that people tend to "vote with their feet" for states with greater freedom when they make migration decisions. He shows that, controlling for other variables (such as climate and cost of living), people tend to migrate towards states with greater economic and personal freedom, and away from states with lower levels of either. The state freedom ratings are based on his excellent recent study Freedom in the Fifty States, coauthored with William Ruger. Economic freedom is defined by levels of government spending and regulation, while personal freedom is defined by such policies as regulation of sexual freedom, drugs, gambling, and so forth.

Sorens finds that migrants may find economic freedom attractive in part because it is associated with increases in income. Economically freer states experience higher income growth (though, surprisingly, in Sorens' data it's less clear that income growth is associated with higher in-migration). By contrast, personal freedom is not correlated with income growth. Migrants apparently find it attractive for its own sake. This last result contradicts Richard Florida's famous theory that the economic growth of localities is highly dependent on its attractiveness to the "creative class," which greatly values personal freedom. Perhaps the creative class is a less important engine of growth than Florida argues, or perhaps they don't value personal freedom as much as we think they do. Regardless, many migrants apparently value personal freedom even if it doesn't do much for their income.

I previously wrote about the tendency of migrants to vote with their feet for greater economic freedom here and here. In this article, I explain why foot voting decisions are generally likely to be better-informed and more rational than ballot box voting.