by Kieran Healy on December 21, 2005
A commenter in “our previous post”:https://crookedtimber.org/2005/12/21/posner-forgets-himself/ points to “this chat session”:http://www.washingtonpost.com/wp-dyn/content/discussion/2005/12/20/DI2005122001142.html with Posner, hosted by the _Washington Post_. Besides forgetting everything he ever learned about public choice theory, Posner also seems to have abandoned the cost-benefit methods which made him famous. He is now convinced that radical uncertainty is not amenable to probabilistic analysis:
*Question*: … Nothing in the Constitution does (or could) provide a guarantee of safety. I suspect that I am statistically much more at risk of being run over by a car than of being killed by a terrorist (even though I live within five miles of the White House). Should the government ban all automobiles to protect me?
*Richard Posner*: If your premise were correct, your conclusion would follow. But how do you know you’re at less risk of being killed by a terrorist than being run down by a car? The risk in the sense of probability of being killed by a nuclear bomb attack on Washington, a dirty-bomb attack, an attack using bioengineered smallpox virus, a sarin attack on the Washington Metro (do you ever take the metro?), etc., etc., cannot be quantified. That doesn’t mean it’s small. For all we know, it’s great. Better safe than sorry.
How far this all is from the confidence with which Posner “typically slaps probabilities on things”:https://crookedtimber.org/2004/12/06/posner-and-becker-comedy-gold in order to justify some policy. Here he is arguing about preventive war in 2004:
Should imminence be an absolute condition of going to war, and preventive war thus be deemed always and everywhere wrong? Analytically, the answer is no. A rational decision to go to war should be based on a comparison of the costs and benefits … Suppose there is a probability of .5 that the adversary will attack at some future time, when he has completed a military build up, that the attack will, if resisted with only the victim’s current strength, inflict a cost on the victim of 100, so that the expected cost of the attack is 50 (100 x .5), but that the expected cost can be reduced to 20 if the victim incurs additional defense costs of 15. Suppose further that at an additional cost of only 5, the victim can by a preventive strike today eliminate all possibility of the future attack. Since 5 is less than 35 (the sum of injury and defensive costs if the future enemy attack is not prevented), the preventive war is cost-justified.
I guess his epistemological position has changed a great deal in the meantime. Incidentally, about “forty two thousand people a year”:http://www-fars.nhtsa.dot.gov/ are killed in automobile accidents in the United States. Do the math yourself.
by Kieran Healy on December 21, 2005
Earlier this month, Judge Richard Posner “wrote”:http://volokh.com/posts/1133483156.shtml a “brutal opinion”:http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=04-1339_033.pdf (accompanied by some “entertaining oral argument”:http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=04-1339_031.mp3) savaging the Bureau of Immigration Appeals for its capricious decision-making process, its inability to keep track of paperwork, and its willingness to dump the consequences of its ineptitude onto the people it passes judgement on — in this case by deporting them for no good reason. “We are not required to permit [the unlucky victim] Benslimane to be ground to bits in the bureaucratic mill against the will of Congress,” he said.
Today, Posner has an “Op-Ed”:http://www.washingtonpost.com/wp-dyn/content/article/2005/12/20/AR2005122001053.html in the _Washington Post_ arguing that the Defence Department and the FBI need extensive new powers to spy on as many U.S. citizens as possible. It seems that Posner’s well-founded belief that big state bureaucracies are good at grinding-up innocent people has evaporated within the last week or two.
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by Chris Bertram on December 13, 2005
It doesn’t shock me that Tookie Williams was refused clemency. It saddens me, as do all such executions, but it doesn’t shock me. I can even see things from Schwarzenegger’s point of view: the courts have had their say, the process has come to an end, and the state has determined what the penalty should be. It is difficult for an elected official to use his personal discretion at the last moment. But I “was shocked to read”:http://www.latimes.com/news/local/la-me-analysis13dec13,0,4494420.story?coll=la-home-headlines , among Schwarzenegger’s justifications for his refusal, the following:
In addition to arguing that Williams’ continued claims of innocence should be counted against him, the governor made a point of quoting the dedication of Williams’ 1998 book “Life in Prison.”
In the dedication, Williams named 11 people, all of whom had been imprisoned or in custody. Among them were Nelson Mandela, the South African anti-apartheid leader; Malcolm X, the black nationalist leader assassinated in 1965; and Angela Davis, the black Marxist professor acquitted of murder charges in 1972.
Schwarzenegger and his aides focused on one name on the list — George Jackson, the author of “Soledad Brother,” a book about life in prison. Jackson was “gunned down on the upper yard at San Quentin Prison” on Aug. 21, 1971, in a “foiled escape attempt on a day of unparalleled violence in the prison that left three officers and three inmates dead,” Schwarzenegger said.
“The inclusion of George Jackson on this list defies reason and is a significant indicator that Williams is not reformed and that he still sees violence and lawlessness as a legitimate means to address societal problems,” the governor said.
I posted a while ago about the British government’s plans to criminalize statements “glorifying terrorism”. Here it seems that if it tipped the balance of Schwarzenegger’s decision, Williams’s dedication of a book to a controversial historical figure, may have cost him his life. A book dedication hardly amounts to an endorsement of all of a person’s attitudes and actions anyway. What can Schwarzenegger have been thinking in including this in his statement?
by Kieran Healy on December 12, 2005
“Jim Henley”:http://highclearing.com/index.php/archives/2005/12/12/4753 points us to “Radley Balko’s”:http://www.theagitator.com extensive coverage of the astonishing case of “Cory Maye”:http://news.google.com/news?hl=en&ned=us&q=cory+maye. Here is “Radley’s initial post”:http://www.theagitator.com/archives/025962.php#025962 on the case; and here are a series of posts of his updating and clarifying the details — “1”:http://www.theagitator.com/archives/025971.php#025971 “2”:http://www.theagitator.com/archives/025975.php#025975 “3”:http://www.theagitator.com/archives/025977.php#025977 “4”:http://www.theagitator.com/archives/025982.php#025982 “5”:http://www.theagitator.com/archives/025983.php#025983 “6”:http://www.theagitator.com/archives/025986.php#025986 “7”:http://www.theagitator.com/archives/025987.php#025987 and “8”:http://www.theagitator.com/archives/025989.php#025989 (the first and last will tell you a lot). He’s been talking to a lot of people involved in the case. Here’s a link to “a lot of commentary”:http://battlepanda.blogspot.com/2005/12/outrage.html by others.
_Update_: I’ve updated this summary to better reflect the facts of the case as I understand them.
I’ll put the details below the fold. I urge you to read them. The guts of it is that Cory Maye is a black man on death row for shooting a white police officer dead. The officer was part of a paramilitary no-knock drug raid which broke down the door of Maye’s apartment at 11:30pm, when he and his young daughter were sleeping. The building was a duplex and the officers had a warrant for Jamie Smith, the person who lived in the other half, and for “occupants unknown” in Maye’s half. It’s not clear that the officers expected anyone to be in that half of the duplex. There’s no evidence that Maye had anything to do with Smith, and Maye did not have a criminal record. When the officers broke in, Maye woke up, took his gun and ran to his daughter’s room. When Officer Ron Jones entered the room, Maye shot him. Jones later died. There is disagreement about whether the officers announced they were the police as they broke in, and what the exact sequence of events was once they were in there. (I don’t think it’s in dispute that Maye really had no reason to expect the police would come breaking down his door at midnight.) Jones was (1) first into the apartment but (2) not part of the SWAT team — he was invited along because he tipped off the Narcotics Task Force about the suspected dealer in the other half of the duplex. He was also (3) the son of a local police chief. Mayes was tried, apparently was not well-represented, and was convicted of capital murder and sentenced to death.
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by Chris Bertram on December 12, 2005
I see from the “BBC that Tookie Williams has been denied clemency”:http://news.bbc.co.uk/1/hi/world/americas/4523098.stm . I have no opinion about whether he was guilty or not, nor do I know whether the various good works he has engaged in in prison were sincerely motivated. I am generally opposed to the death penalty, for a variety of familiar reasons. But I’m moved to post now, not to articulate those general reasons, but out of a sense of incredulity. The crimes for which Williams was convicted took place in 1979, when he was in his mid-20s. Even if I thought it was right to execute people for such crimes, I think I’d baulk at the idea of killing someone in his 50s for an act committed more than a quarter of a century ago. To do that is almost like executing another person.
by Jon Mandle on December 7, 2005
Last week’s New Yorker (Dec.5, 2005) had a very good article on the trial concerning “intelligent design” in the high school of Dover, PA. (It’s not online, but a Q&A with the author, Margaret Talbot, is.) It included lots of interesting original reporting, including the following:
The night after the board approved the evolution disclaimer, Brad Neal, a social-studies teacher at the high school, had an e-mail exchange with [assistant superintendent Mike] Baksa. “In light of last night’s apparent change from a ‘standards-driven’ school district to the ‘living-word-driven’ school district … I would like some direction in how to adapt our judicial-branch unit,” Neal wrote. “It is apparent that the Supreme Court of the United States has it all wrong. Is there some supplemental text that we can use to set our students straight as to the ‘real’ law of the land? We will be entering this unit within the next month and are concerned that we would be polluting our students’ minds if we continue to use our curriculum as currently written in accordance with [state] standards.”
Neal’s message was sarcastic, but Baksa’s reply was not. “Brad, all kidding aside, be careful what you ask for,” he wrote back. I’ve been given a copy of ‘The Myth of Separation,’ by David Barton, to review from board members. Social studies curriculum is next year. Feel free to borrow my copy to get an idea where the board is coming from.”
Fortunately, those are now ex-board members.
by Chris Bertram on November 21, 2005
“Orin Kerr at the Volokhs”:http://volokh.com/posts/1132357846.shtml has a link to an “ABC News piece on CIA interrogation techniques”:http://abcnews.go.com/WNT/Investigation/story?id=1322866&page=1 . Apparently these methods are “not torture”:
bq. 4. Long Time Standing: This technique is described as among the most effective. Prisoners are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor for more than 40 hours. Exhaustion and sleep deprivation are effective in yielding confessions.
5. The Cold Cell: The prisoner is left to stand naked in a cell kept near 50 degrees. Throughout the time in the cell the prisoner is doused with cold water.
6. Water Boarding: The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner’s face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt.
by Chris Bertram on November 15, 2005
I’ve been meaning to post on the issue of abortion and the European Union. Not to discuss the substantive merits of the case — I’m pro-choice, since you ask — but, rather, to get some reactions. The Portuguese constitutional court has now decided to “block a referendum”:http://news.bbc.co.uk/2/hi/europe/4387406.stm to liberalize the law until September 2006. Naturally, I hope that the referendum, when it is eventually held, produces a majority in favour of reform. But I got to thinking about how outrageous it would be if the EU centrally, or the ECHR, decided what the law in Portugal should be rather than the Portuguese people themselves. It seems, though, that “not everyone agrees with me”:http://217.145.4.56/ind/news.asp?newsitemid=23897 :
bq. Finding ways to force countries such as Ireland, Portugal and Malta to liberalise their abortion laws was the focus of a meeting of 17 members of the European Parliament and representatives of various NGOs who gathered in Brussels on 18 October, LifeSiteNews reported.
bq. At a conference entitled, Abortion – Making it a right for all women in the EU, attendees heard testimony from abortion advocates from countries with restrictive abortion laws.
bq. Held at the European Parliament building, participants strategised about ways to make a right to abortion mandatory for all member states of the European Union. They discussed ways of arguing that guaranteeing the right to abortion falls under the European Union’s mandate because it is a human rights and public health issue.
The EU isn’t structually similar to the US (despite what some commenters at CT appear to believe), but there are obvious parallels here to the Roe v. Wade issue. Personally, I think that the right of a demos to decide these things after intelligent public debate should not be sacrificed lightly in favour of empowering a bunch of (foreign) judges, just to get the substantive result one likes. I would also imagine that if the EU starts to impose a view then that will have very damaging effects on the cohesion of the Union. But I’d be interested to get the views of others.
by Eszter Hargittai on October 31, 2005
Ed Felten quotes a disturbing snippet from an interview with SBC CEO Edward Whitacre concering traffic flowing through SBC pipes:
Q: How concerned are you about Internet upstarts like Google, MSN, Vonage, and others?
A: How do you think they’re going to get to customers? Through a broadband pipe. Cable companies have them. We have them. Now what they would like to do is use my pipes free, but I ain’t going to let them do that because we have spent this capital and we have to have a return on it. So there’s going to have to be some mechanism for these people who use these pipes to pay for the portion they’re using. Why should they be allowed to use my pipes?
The Internet can’t be free in that sense, because we and the cable companies have made an investment and for a Google or Yahoo or Vonage or anybody to expect to use these pipes [for] free is nuts!
Ed (Felten that is) rightly notes that calling the service free is hardly correct when SBC customers (me being one of them) pay monthly fees for it. He then goes on to discuss some other problems with the quote. But I want to focus on one particular issue having to do with SBC’s status as a common carrier.
Randy Zagar correctly points out in the comments to Ed’s post that common carriers are legally prohibited from monitoring the content of the traffic that flows through their pipes, which means that they cannot legally discriminate among content the user requests. So how could they do what CEO Ed Whitacre is suggesting? I’m not a legal scholar nor am I up-to-date on possible recent developments, but I am quite sure this law is still in effect. I welcome clarification.
The conversation on Ed’s blog regarding this matter seems to focus mostly on prices and commercial considerations. But how about political ones? What if an Internet service provider company had a leadership that was especially supportive of a certain political view (whether backing a particular political candidate or taking a certain side in a debate over, say, abortion or gay rights). Let’s say the leadership in said company was aligned enough with a particular perspective that they did not care if restricting access to certain content perhaps even led to lost revenues (in the short term or long). Let’s assume they were more interested in pushing a certain political perspective and decided to block access to Web sites that disagreed with these views. What then? If there are several players in town then the user can perhaps switch providers. That said, blocking usually happens in a way that doesn’t make it at all clear to the user what happened and why a certain site is inaccessible. So it is not clear that the user will know what alternative route to take to access the desired content.
The reason I decided to get DSL at home instead of cable is precisely because of the law concerning common carriers and their neutral stance with respect to content. I don’t want my provider to discriminate among the types of material I request. I went so far as to bother getting a land line installed just for my DSL connection despite the fact that I am already paying for basic cable anyway as part of my building’s assessment fees and so getting Internet access on cable would have been easier (and possibly cheaper). I realize this level of obsession with having guaranteed access to different types of content is probably not common, but I believed it to be an important enough distinction to bother. But what was the point if the CEO of my common carrier believes in what is articulated in the above quote?
Do head over to Ed’s post for more on problems with Whitacre’s comments.
UPDATE: I just came across this piece that points to a draft of the new broadband legislation. Among other things, it “[e]nsures network neutrality to prevent broadband providers from blocking subscriber access to lawful content.”
by Chris Bertram on October 31, 2005
Today’s Guardian “editorial”:http://www.guardian.co.uk/leaders/story/0,3604,1604944,00.html concerns the recent legal case involving “Hyperion Records”:http://www.hyperion-records.co.uk/ . Hyperion are best know for their wonderful series of Schubert song recordings — Ian Bostridge’s Die schöne Müllerin being a case in point. Their survival is now threatened because the editor of the works of a rather obscure French composer was successful in “an action claiming musical copyright in the work”:http://www.hyperion-records.co.uk/news.asp#1 . I offer no opinion on the legal merits of the case, though it is claimed that this effectively lowers the threshold on what counts as an original work. Hyperion will probably face small damages, but they must now meet their own and the plaintiff’s enormous legal costs. They are “appealing for donations”:http://www.hyperion-records.co.uk/shop/donate.asp .
by Belle Waring on October 27, 2005
Either my charitable nature has overwhelmed me, or my desire for someone to fight with whose arms I don’t have to prop up and swing around myself. It is easy to pin straw men to the mat, but it lacks something, somehow. Anyway, I have written the most convincing anti same-sex marriage post I could muster on my personal blog. Please comment there.
by John Holbo on October 24, 2005
It hardly seems sporting to take another poke at Maggie Gallagher, the best-refuted woman in the blogosphere. So I won’t. Still, her Volokh posts reminded of something I read recently …
Roads To Ruin, The Shocking History of Social Reform, by E.S. Turner. (Published in 1950. You could google up a used copy for yourself somewhere. Amazon hasn’t so much as heard of it, although other curious titles
tempt. Past the age of 90, the man’s most recent publication was … four days ago.)
The book’s theme:
It is a salutary thing to look back at some of the reforms which have long been an accepted part of our life, and to examine the opposition, usually bitter and often bizarre, sometimes dishonest but all too often honest, which had to be countered by the restless advocates of ‘grandmotherly’ legislation.
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by Kieran Healy on October 18, 2005
Over at Volokh, Maggie Gallagher is visiting for a bit and arguing against the legalization of same-sex marriage. At least, soon she will begin arguing against it. Right now, “she is”:http://www.volokh.com/archives/archive_2005_10_16-2005_10_22.shtml#1129658399 “clearing”:http://www.volokh.com/archives/archive_2005_10_16-2005_10_22.shtml#1129586609 “some”:http://www.volokh.com/archives/archive_2005_10_16-2005_10_22.shtml#1129571505 “ground”:http://www.volokh.com/archives/archive_2005_10_16-2005_10_22.shtml#1129565640 to prepare for her main case. It looks like she wants to make some broad sociological generalizations about the place of the institution of marriage in society and the likely effect of a legalization of same-sex marriage on that institution. Essentially, she thinks that the main _public_ purpose of marriage is procreation — this is the reason why it enjoys the legal status it does. In “this post”:http://www.volokh.com/archives/archive_2005_10_16-2005_10_22.shtml#1129586609, she asserts that marriage (or some functional equivalent) is a cultural universal — the “cultural” qualifier is important because she also thinks marriage is a functional solution to the apparently biological problem of fathers buggering off and abandoning their children:
bq. The argument I am making is this: every society needs to come up with some solution to the fact that the default position for male-female sexual attraction (that is unregulated by law or society) is many children in fatherless homes. The second human reality societies must face is that procreation is not optional, it is necessary. Individuals don’t have to do it but societies do. The word for the social institution that addresses these problems, in this and every known human society is marriage. Sex makes babies, Society needs babies, babies need mothers and fathers.
Some quick responses to the sociological angle below the fold.
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by Harry on October 17, 2005
by Chris Bertram on October 14, 2005
The excellent “Equality Exchange”:http://mora.rente.nhh.no/projects/EqualityExchange/ — a repository for papers about the theory and practice of equality from philosophers, political scientists, sociologists, lawyers and economists — has moved. Adjust your bookmarks for the new site, and take the opportunity to have a look around one of the most valuable resources for political theorists and philosophers.