Links to Consider, 11/12/2024
I do a substack "live";Dan Williams on outlandish accusations of censorship; Andrey Mir's theory of identity politics; I review a book on luck; Alberto Mingardi reviews a book on laws run amok
I had a surprisingly successful substack “live” event, spontaneously joined by Lee Bressler and then about 40 minutes in by Razib Khan. Some dead air, as this was my first try. But it was great fun, and went much better than expected. Lee posted the video. Transcript here. Unfortunately, the transcript does not distinguish between when Lee is speaking, Razib is speaking, or I am speaking.
Hysterical discourse about a totalitarian censorship industrial complex also has more sinister consequences. This discourse did not arise by accident, or through simple mistakes. There is a lucrative market for it.
Yes, I noticed many months ago that the most popular substack newsletters dealing with politics were almost all focused on “exposing” the other side’s evil conduct. (At the time, Matt Yglesias was the only writer in the top ten who was not playing that game.) Recall that when I wrote The Three Languages of Politics over a decade ago, it was in reaction to my observation that pundits mostly do not try to open minds, but instead behave as if they were out to close the minds of people on their own side.
Williams writes,
Intervening to reduce people’s exposure to content without removing it (typically justified by the slogan “freedom of speech is not freedom of reach”) could also reasonably be characterised as censorship. However, it is far less serious than the outright removal of content. To mark the distinction, I will call such removal “hard censorship” and the mere reduction in people’s exposure to content “soft censorship”.
I think that soft censorship is a serious problem. It contributes to selective attention on the part of the left. As an example, let me cite Joe Biden’s cognitive impairment—or Kamala Harris’, for that matter. In a more balanced media environment, this would not have been covered up for so long.
I find that people on the right are aware of stories that the left circulates. But there are other stories, or angles on stories, that circulate exclusively on the right. They only “break through” to the left when the mainstream media believes that it can expose them as totally false. The upshot is that my left-of-center friends are convinced that following right-wing media would only expose them to falsehoods, so they stay away.
You might describe the problem as lack of media balance, which is different from soft censorship. But soft censorship helps reinforce unbalanced media. It reinforces the left’s treatment of conservative perspectives as low status. If people on your side are praising soft censorship of the other side, that serves to justify your propensity to dismiss the other side without listening.
Since the mid-1800s, media has increasingly targeted audiences rather than ideas, intensifying society’s focus on group identities—a trend that culminated in social media’s focus on personal data. Cultural settings began to reflect this development of media; this is why identity politics is a media effect.
…the basics of identity identification, along with the belief that identity is the fundamental principle of social interaction, first emerged in media and marketing—to increase revenue.
In a review of Mark Rank’s The Random Factor, I write,
The point is worth emphasizing that annual income varies a great deal relative to lifetime income. This is easily and often overlooked. For example, we regularly read that the home ownership rate in America hovers around 60 percent. However, people move back and forth between renting and owning. It was Rank and his co-authors who in an earlier book showed that close to 90 percent of Americans will have bought a home by the time they reach age 55.
…I believe that everyone interested in public policy, including Rank, should focus more on lifetime income and less on annual income.
Rank includes an anecdote in which he was lucky to leave the Washington U sociology department just before it was abolished. He does not explain why it was abolished, but I know a bit of the story from my father, who was acquainted with some of the administrators making the decision. The department had some star researchers, but their methods and conduct were somewhat…unusual.
In a review of Overruled, by Neil Gorsuch and Janie Nitze, Alberto Mingardi writes,
One of the reasons we have too many laws in the United States and throughout the Western world is that people want them. If a society believes that any problem has a solution known to the lawmaker, it will end up with more and more laws as more problems surface. Gorsuch and Nitze point out how this attitude is jeopardizing the whole of the legal system that the Founding Fathers built on British common law.
I suspect that the late Jeffrey Friedman had the explanation for the public’s excess desire for laws: the belief that there is an expert with perfect knowledge in the subject area. Friedman called this “naive third-person realism.” The naive realist is convinced that his own perspective on a policy issue is completely accurate. The naive third-person realist believe that there is a technocrat whose perspective is completely accurate.
Mingardi, whose affiliation is with the Bruno Leoni Institute, fittingly cites Leoni, albeit only briefly. Several years ago, I wrote,
His thesis was that cumulative legal precedent, or common law, is adequate for providing citizens with the rule of law. In Leoni’s view, enactment of laws by legislators is unnecessary and in fact harmful. His criticisms of the legislative process would apply even more strongly in today’s environment, in which much of the legislative power of writing rules has been assigned to regulatory agencies.
Imagine that we had no hard-coded rules, but instead we had only legal decisions made by judges and jurors consulting precedent and common sense. Could this work in a complex modern society, with issues like the question of whether Large Language Models are stealing intellectual property from creators? Returning to common law would not yield perfect results. But the attempt to use legislation and administrative law is certainly not perfect, either.
substacks referenced above:
@
@
“Returning to common law…”
I was unaware that the common law had ever gone away in the United States other than in Louisiana where contract and torts are said to have a civil law character. Indeed the common law governs most relationships between private parties, including businesses, in the United States and the courts and judges are so unreliable and unpredictable that the United States is the world leader in alternative dispute resolution as parties flee the common law nightmare. Romanticize oligarchy and aristocracy all you want, but people are still going to attempt to minimize their transaction costs. US economists don’t really appreciate this because they worship GDP and more transaction costs mean more GDP.
Ironically, it was the populists who inflicted the common law on the United States. Up until the time of Andrew Jackson, the aristocrats like John Adams were all fluent in Latin and resorted to Roman civil code texts frequently. They were quite close to installing a common sense civil law regime until the country lawyers who didn’t have facility with Latin overpowered the aristocracy and began imposing common law on a state-by-state basis and the midwits took control. The federal courts developed their own common law tradition independently. The oligarchs and aristocrats failed as they always have.
Because the United States has national, state, and local common, administrative, judicial, and legislated law it is not in the least surprising that the United States also leads the world in legal costs. Nor is it at all surprising that the US, with 2.5% of GDP going to legal costs is closely followed by other common law jurisdictions Canada and the UK. Australia comes in 5th behind Germany.
( https://www.sterlinganalytics.com/u-s-legal-system-ranked-as-most-expensive-in-the-world/ )
Germany, however, has a wholly superior legal system, despite also having a federal system and the immense legal cost of EU compliance. Germany is legal system is a civilian system, primarily based on codified laws and regulations and there is concurrent jurisdiction between the Federal Government and the states so that defendants don’t have to face both federal and state trials for the same thing. It also uses an inquisitorial system with judges conducting most of the trial instead of allowing cross-examination between the defense and prosecutors. This reduces costs for the parties and defendants are not coerced into plea deals by prosecutorial threats of enhanced sentences and even more costly trials as so frequently happens in the US. Germany also uses a mixed system of judges and lay judges so the legal guild is less able to engage in monopoly practices. Germany has five basic codes which are relatively common sense and intelligible so it is possible for lay people to understand the law in advance and plan their affairs accordingly without costly legal counsel. And most importantly, the dank emanations of prior judgments do not hang in the air suffocating all progress: Germany has no stare decisis. No endless shelves of prior opinions for the legal guild to generate billable hours. Of course, Germany is not perfect. And last but not least, the German Federal Constitutional Court is the only court that may declare statutes unconstitutional. Moreover, private parties do not have to bear the cost of litigating the constitutionality of laws: the court can exercise review without a conflict before it:
“The Federal Constitutional Court has two separate panels (senates) of 8 judges each (originally 12), and each panel has jurisdiction over distinct areas of constitutional law. Judges serve a single, nonrenewable 12-year term (service, however, may not extend past the retirement age of 68). Half the membership is elected by the Bundesrat (the upper house of the German legislature), the other half by a special committee of the Bundestag (the lower house). To be elected, a judge must secure a two-thirds majority of votes cast; this rule has generally prevented any party or coalition from determining the court’s composition.
The court’s workload of some 5,000 cases annually is quite heavy in comparison with the U.S. Supreme Court, which hears several hundred cases each year. The Federal Constitutional Court is not an appeals court; rather, it is a trial court with first and final competence. Its decisions are binding on state and federal legislatures and on all other courts. Any individual claiming an infringement of his basic rights may bring a constitutional complaint. In any case in which there is doubt as to the constitutionality of a law, lower courts must stay the proceedings and submit a question to the Federal Constitutional Court. Unlike the U.S. Supreme Court, the Federal Constitutional Court exercises what is termed abstract judicial review; under this jurisdiction the federal or a state government or one-third of the members of the Bundestag may petition the court on the constitutionality of a statute, even before the statute has taken effect….. ... The court settles disputes between the states and the federal government and serves as a court for impeachment of the president and judges. “
Of course the system is not perfect. Some features are proving problematic: “The Federal Constitutional Court is also empowered to decide whether a political party is pursuing aims and using methods that conflict with the democratic order; in cases where the court rules that a party is in violation of the constitution, it will order the party’s dissolution.”
(https://www.britannica.com/topic/Federal-Constitutional-Court )
Nevertheless, I have little doubt that the people of the United States if able to vote in a referendum on whether to retain the status quo or adopt the German court system, would overwhelmingly support the latter.
Do we really need wonder why the neo-aristocracy movement in the US wants to distract us by blaming the public for the USA’s third rate legal system? The status quo is unsustainable.
Re: "I suspect that the late Jeffrey Friedman had the explanation for the public’s excess desire for laws: the belief that there is an expert with perfect knowledge in the subject area."
My intuition is that this explanation has much less bite than the public's desire to impose their norms and sentiments as formal rules for all in all manner of things. "There oughta be a law!"
Classical liberals distinguish laws and norms. They hope to have few, but crucial laws; and day-to-day regulation of behavior by wise, healthy norms in civil society. In current political cultures, few people are classical liberals, it seems.
Compare the EconTalk conversation between Michael Munger and Russ Roberts, about Lord Moulton's classic lecture a century ago, "Law and Manners," and Moulton's ideal, "obedience to the unenforceable:"
https://www.econtalk.org/michael-munger-on-obedience-to-the-unenforceable/