On reading our own recipes ... and our constitution

[UPDATED BELOW]

Over at Legal Theory, Larry Solum has generously linked here and posted an helpful response. The key part seems to be his analogical move from how we decode the meaning of ordinary documents (like maps) to how we therefore ought to do so with constitutions. It's an argument that reminds me of Gary Lawson's rhetorically brilliant "On Reading Recipes ... and the Constitution" (Georgetown Law Rev 1997), and it strikes me as problematic in much the same way.

Solum's example is of a treasure map from 1689 that uses the word "agolanad", whose meaning has shifted from "oak" to "elm" from 1689 to the 1860s. As he puts it:

"If we want to know what the map meant, we will use the conventional meaning that prevailed at the time, and we certainly won't use the meaning that came into being more than a century later. On the other hand, if we couldn't determine when the map was created, the meaning would be ambiguous, and we would have good reason to look for the location of either an Oak or an Elm."

What I find interesting and problematic about this example is that what does the work here in fixing meaning at 1689 rather than 1862 is a set of linguistic guidelines whose force seems to flow entirely from pragmatic, genre-dependent considerations about successful communication. The reason we care about the map's meaning is to find the treasure, and for that purpose, we want to have as direct access as possible to the information that was being communicated by its creation. In short, there's an implied minor premise here about what meaning is, in the circumstances, supposed to accomplish.

But moving from maps (or recipes) to constitutions makes this minor premise more controversial. It's still a colorable one, but it's now something much more like Barnett's argument that I cited earlier--an argument about what constitutions are for (in Barnett's case, generating the stability needed for the rule of law) that gives reasons for preferring fixed over mutable meanings. And I think here, considerations like those pressed by Andrei Marmor and Jeremy Waldron (and, for that matter, Jefferson) carry the day. Language and the natural conservatism of a well-governed polity will provide enough stability for rule-of-law purposes; seeking more would be to grant the framers authority that simply can't be justified.

It's possible to make a more conceptual, less functional, claim instead--that there's something about authorship and fixity inherent in our linguistic practices, perhaps. We read Shakespeare through the light of Elizabethan meaning not because we think it makes the plays better (though it does) but because extricating ourselves from this fixed-at-creation conception of textual meaning would simply be unnatural to us. And I think there's something to this argument, but not enough.

I think its strength, much like the strength of the functional claim, is both genre- and context-dependent. It draws for its force on the Romantic idea of authorship, and is weaker in those areas where this idea plays less of a role. I suspect it would seem much less natural if the text in question was one known to have been banged out by a group of monkeys, or if we were considering lines of computer code that, by freakish coincidence, also executed flawlessly (but in a very different way!) on an entirely different machine than the one they were written for.

To return to constitutions: to my mind, the first and most important truth about constitutional meaning is to view it through the practice of governance that makes it the constitution of some polity rather than an inert text. This is one reason why I think arguments like Lawson's about how constitutions are transparently and necessarily like recipes are misguided: such claims leave little room for understanding, eg., a Canadian constitutionalism that seems to have decisively rejected originalism without falling into anything resembling conceptual incoherence.

Any decisive originalist argument will have to be one internal to the constitutional practice in question. Of course, such arguments must be consistent with (external) theories about what it is to make an internal argument and what truth in such matters could consist in, but I doubt this constraint by itself will settle much.

[UPDATE: Solum continues the conversation here. A clarification--when I claimed that originalism gives more authority to the framers than is warranted, I meant both that it defers too much to their generation, and that, within that generation, it grants the framers in particular too much power. Both these points are fully compatible with rejecting intentionalism, as most originalists do; the framers were still the ones to choose the words, even if we subsequently ignore their internal mental states. That's power, a power I believe unjustified. A fuller response to follow.]

Originalism on the cheap

The perennial debate over constitutional interpretation spills over into the blogosphere fairly frequently; here and here we see Larry Solum defending, on Gricean grounds, original-meaning originalism. I'm a bit puzzled by this approach. Now, I don't dispute Solum's contention that philosophy of language is relevant to legal theory; any conception of constitutional meaning has to be consistent with at least some respectable theory about what constitutes meaning more generally. Where I find myself puzzled is in the idea that Grice or any other philosopher of language gets you originalism, without the help of any detailed argument about what constitutes the correct version of a genuinely contested social practice. In other words, I have a hard time understanding what we might call "originalism on the cheap", the idea that the constitution just means what it originally did and that this is transparently true.

Solum says that 'laws are different [than one-to-one utterances], and are better understood on the Gricean model of "sentence meaning," analogous to what is called original public meaning in constitutional theory.' Well and good, but I just don't see how the analogy gets you original, rather than current, public meaning. Grice shows us that we needn't view the Constitution as the direct utterance of a certain number of people, the meaning of which must be constituted by actual intentions; we can instead see it as a generic text whose meaning is established by how a certain audience would standardly react to it--but why does the audience need to be the original one?

What makes the Constitution of the United States, rather than the Constitution of the Confederacy, our constitution is that it is ours: our practice of constitutional government is thoroughly and undeniably one that refers to the Philadelphia document (and its amendments) as setting out the rules of legitimate political activity. This conceptual claim has nothing to do with any causal/historical argument about how in fact a given textual document came to have such totemic legitimacy; it is merely an assertion about what it is to have a constitution, whether it be written or, like New Zealand's, essentially customary. (The truth of this claim is, however, more obvious in the latter cases, which is one reason I think more people ought to study them!)

The originalism-just-is argument relies on the claim that any reference to a given text must of necessity be a reference to the sentence meaning at the adoption of that text. But this, as it stands, is simply begging the question. It is true that most knowledgeable practitioners make reference to the text's history and early reception when making arguments about its meaning--especially in areas where current practice is largely unsettled--but they also advance (to channel Philip Bobbitt) doctrinal, structural, textual (in the current-meaning sense), ethical, and prudential arguments.

Now, obviously, originalists claim that most of these other types of argument are invalid, or if valid, only so for epistemic or adjudicative, rather than constitutive, reasons. But this kind of argument can't come from linguistic philosophy--we'll have one sentence-meaning if we look to the Now, and another if we look to the Then--and it doesn't seem to emerge as a conceptual truth about our constitutional practice, Michael Perry's triumphalism on that score notwithstanding.

What the originalists need, I repeat, is a theory of why, given the plural and contested natures of our interpretive methodologies, their particular one is true and all the rest are false. And precisely because of this plural and contested nature, mere appeals to "writtenness" and "sentence meaning" don't hold up. This is why, I think, there is a constant recourse to the sort of normative argument Solum deplores--arguments that give us reasons to prefer the originalist reading over a living constitutionalist one. Randy Barnett, whom Solum often cites approvingly, is clearly engaged in this when he uses an analogy to the parol evidence rule in contract law:

However, given that the meanings of words can change or evolve, in searching for the "generally accepted" or reasonable meaning within a particular community of discourse, at what point in time do we look for the meaning? Here is where textualism meets and melds with originalism. With a constitution, as with a contract, we look to the meaning established at time of formation and for the same reason: if either a constitution or contract is reduced to writing and executed, where it speaks it establishes a rule of law from that moment forward. Adopting any meaning contrary to the original meaning would be to contradict or change the meaning of the text in violation of the parol evidence rule and thereby to undermine the value of writtenness. Put another way, writtenness ceases to perform its function if meaning can be changed in the absence of an equally written modification or amendment.

I think Barnett's argument is an entirely reasonable one: given that multiple meanings are available, we should stick with the original one, because only then can constitutions bind in the very rigid way we want them to. I also think it mistaken: originalism plus high barriers to formal amendment just isn't incentive-compatible, leading to "Constitutional dissonance", and would be morally illegitimate even if feasible. But all of that takes us into the realm of substantive, normative political theory. And that's precisely where Larry Solum (and others, like Michael Stokes Paulsen and Gary Lawson) don't want to go and claim we don't need to go.

If not moral argument, though, what are we to use? Julie Dickson's wonderful article "Methodology in Jurisprudence" surveys various positions far better than I could; read it, if you haven't already. It's quite possible that one could mount what Dickson calls an 'indirectly evaluative' argument claiming that practitioners' most central commitments are to legal authority and legitimate constitutional change, entail originalism, and cannot be abandoned (as non-originalist modalities could be) without destroying our practice entirely. I'd be interested in seeing such a claim. My own is not that originalism is wrong, but that those of its proponents who disclaim any recourse to moral theorizing need to stake a position in the debate over how, without it, one is to determine the true version of a contested practice.

More entertainment blogging

Brief notes:

* China Mieville's "Looking for Jake" is simply brilliant. I'm generally not a huge fan of short stories--when I want escapism, I want to really escape, and that takes word count!--but the format really plays to Mieville's strengths, chief among which is mood-setting. Even that click-to-feed-the-hungry website becomes strange and sinister in his hands. Plus, it includes this, which (no offense to Cory Doctorow) is at the moment my very favorite anti-IPR story.

* David Marusek's Counting Heads is also good, though more in a "gee-whiz" way than a sucking-you-in way. Wonderfully realized vision of the future; less wonderfully plotted story.

Libertarian worries about inequality

Will Wilkinson, who continues to write really awesome stuff, is baffled by the idea that growing inequality per se could be a problem.

Now, I'll acknowledge right at the start that Wilkinson's per se and by its very nature allow him a lot of wiggle room; I'm about to list two worrisome effects of inequality that might not arise or be problematic in every possible world. Still, I think they provide prima facie reasons for concern.

The first is simply the reminder that market allocations are sensitive to starting endowments; one dimension along which Wilkinson's two hypothetical societies, one more unequal than the other, will differ, is that the more unequal society will tend to orient its production more towards the tastes of its elite. Is this a terrible thing? Not always, of course; heck, the luxury-service orientation of New York City's economy lets me get really fancy haircuts for free! Still--if we wanted to get all Rawlsekian, we might say that there are ways in which growing inequality might threaten the social bases of self-respect, even while acknowledging the impropriety of attempting to use the state's power as a 'corrective'. It's okay for libertarians to worry about a "servile state" even when brought about through voluntary transactions--especially when those transactions take place against a background of entitlements and regulations so thoroughly infected with statist intervention!

So one cause for concern is the morally different (but equally 'efficient') outcomes that unequal endowments give rise to. Another is more explicitly political: a worry that rising inequality will lead to a dulling of the sentiments of sympathy and empathy between differently situated people that are in many ways the wellsprings of moral and political rectitude. One needn't sign onto anything remotely like communitarian associative obligations to think this a potential problem; indeed, the more we're skeptical of statist inclinations, the more we ought to be worried if it turned out that our political elites were being drawn from a distinct and increasingly distant set of folks.

Generally speaking, if we libertarians are concerned about and attuned to the ways in which people will often abuse their power over others, of all sorts, these are both things to be wary of.

So a first-world country walks into the doctor's office ...

... and he says, "Doctor, you gotta help me out. I've got this huge problem. Every time I do this"--and here he demonstrates by using his economic and political leverage to pressure a third-world country into signing onto a disastrous intellectual property rights treaty, like TRIPS--"I cause injustice to the global poor! What can I do?"

Now, everybody knows the punchline: the doctor says, "Well, maybe you should stop doing that." But Thomas Pogge has a totally different version. See, in this version, the doctor says, "Well, you can keep doing that, but at the same time you have to implement an incredibly elaborate central-planning scheme for incentivizing the production and distribution of lifesaving diseases based on their importance to the Global Disease Burden. Now, I know such elaborate do-good schemes often seem utopian, but this one is politically tasty, because instead of trying to stop the expansion of unjust and unjustifiable monopoly rights, let alone roll them back, we're actually creating a whole new institutional structure that is built around the methods and profit margins of the existing pharmaceutical industry! It'll be regulatory-capture and rent-seeking, but on a global scale, and because it's all for the poor, it'll also provide great PR! Everyone wins!"

Well, except for the developing countries that are, you guessed it, still pressured into signing TRIPS and the like and and thereby subject to patent thickets galore if they wish to develop their own pharma industries rather than rely on manna from Redmond. The developing countries whose ability to produce medicines that treat equal-opportunity diseases will hinge on whether or not that particular disease happened to look ex ante like one where more profits could be made by going the GDB-based Patent-2 route rather than the good ol' patent-it-and-price-discriminate-like-heck route.

Oh, and first-world taxpayers get a bit screwed, too. They now have to contribute to a prize-pool calculated not merely to induce optimal research effort but to compete with the potential rents available under the current, unjust and inefficient, scheme. Besides which, they stand a greater chance of never seeing said system disabled, because the co-option of third-world countries into the plan means less political pressure of the "re-import from Canada!" variety.

Look, I'm sympathetic to Pogge's project, really I am. But I fail to see how his plan is better on any dimension than the "first, do no harm" principle embodied in the standard punchline, especially if the abandonment of efforts to push developing countries into IPR-feudalism is supplemented with affirmative efforts to aggressively fund poor-country-only diseases (I wouldn't even get too grumpy about an optional check-off box on one's tax return!). And once you start looking at the political-economy effects, it gets positively frightening.

An observation

Using Hans Kelsen's General Theory of Law and State as bedside reading is a good way to never, ever finish Hans Kelsen's General Theory of Law and State.

Sexual orientation: etiology, control, irrelevance, morality

In the course of mocking an inane WorldNetDaily article, the folks at Feministe are having an interesting discussion about the importance of 'choice' in arguments about discrimination against those with disfavored sexual orientations.

As some of the commentators note, one problem with focusing on the fact that almost no one experiences their sexual orientation as chosen or could change it if they tried is that it misses much of what is wrong with homophobia and invidious discrimination more generally, viz., that it involves inflicting harm or denying opportunities to people for a bad reason. The fact that sexual orientation is generally outside of an individual's control makes doing this even worse, of course, because the people in question no longer have a way to avoid this unfair treatment, but focusing entirely on choice seems to obsess over the aggravating factor to the exclusion of the underlying wrong. Being short, for example, is hardly something over which people have any real control (putting aside issues of malnutrition, etc.), but we don't usually think the NBA morally at fault for discriminating against short people, because they have a good reason to do so and because this practice does not foreclose essential life-options for the vertically-challenged.

Firing an exemplary employee because one has discovered that she is a lesbian is morally wrong not because her lesbianism is unchosen but because it is irrelevant to her job performance. But even if this is conceded, the argument is not complete: if lesbianism itself were a sinful disposition, and the employee was not chaste, there would at least be a colorable claim that this makes censure of many forms, including firing, appropriate, just as it might be quite alright to fire someone who enjoyed torturing small animals in his free time. So it is therefore important to confront head-on the question of immorality and to insist that same-sex sexual activity is not immoral, or at the very least not the sort of immorality that would justify such censure (the latter may be the best we can do with regards to those wacky traditionalists who view almost all sexual activity as immoral).

'Choice' plays a complicated role here, because it typically figures into our views about the appropriate censure visited upon those who do bad things: there seems little point in censuring or punishing, as opposed to merely stopping, those who cannot control their actions or (crucially) whose example will not inspire others. But these niceties carry no weight with those who would, on grounds of morality, discriminate only against sexually active homosexuals, since they can point to the availability of chastity as justifying censure (though few, of course, are particularly consistent about enforcing this vis-a-vis sexually immoral heterosexuals). Ultimately, then, we still need to persuade at the level of morality. At the very least, we need to persuade that sexual 'deviance' isn't immoral enough to justify the level of 'collateral damage' its persecution entails.

Finally, it's worth noting that very little of importance trades on the etiology of sexual desire as opposed to its later mutability, irrelevance, or immorality. Of course, if it's irrelevant in most contexts and morally neutral, its mutability and etiology are matters of trivia. But even if it were relevant or immoral, so long as desire is largely immutable it doesn't much matter whether it originates from genes, childhood environment, or gayness-waves emanating from Tinky-Winky--at least in terms of the propriety of personal censure and discrimination (it might well have policy implications concerning Tinky-Winky).

[Disclaimer: none of this is particularly original, and much of it is via Les Green's work.]

The Nightmare and the Noble Dream

H.L.A. Hart, in his diary, while struggling to formulate an appropriate reply to criticisms of his hugely influential The Concept of Law:

Last night kept awake for a time by panic thought about this! Why not cool: what does it matter to confess errors even as large as this at my age? (Life of errors: why have I had success?)

I find the poignancy of this almost overwhelming. This is a man who had single-handedly revived the entire field of Anglophone legal philosophy, setting the agenda for both general jurisprudence and criminal legal theory ... and he is kept awake at nights by panic at his inability to formulate a full response to his critics, a panic that has him seeing his whole life as one of errors.

(From Nicola Lacey's A Life of H.L.A. Hart)

My correct views on everything

Just kidding. For the sake of brevity, this post will be limited to my correct views on intellectual property rights.

A vigorous discussion is going on here at the Tech Liberation Front, with Tim Lee being attacked for "playing favorites" by his pointing out that Novell's deal with Microsoft is bad for open-source development, but that insofar as Novell relies on the goodwill and effort of open-source developers, it may be forced back to the path of righteousness should said developers ostracize the company. Apparently suing competitors into the ground using morally illegitimate and often legally invalid government monopolies is the free market at work, but encouraging volunteers to withhold their, you know, voluntary contributions is Just Not Okay. Fireworks ensue; check it out. The fun continues in this thread, where Noel Le defends neo-Schumpeterianism ("only the promise of temporary monopoly induces competition and innovation") to its reductio ad absurdum conclusion: without DRM, no one would have invented the iPod. He actually believes this, folks.

All of which is merely a lead-in to the point of this post, which is about the Broken Window Fallacy of intellectual property. The parable of the Broken Window, you may recall, is about refuting the claim of the onlooker who, upon seeing a window broken, asserts that just this sort of window-breaking is necessary for the economy. After all, "Everybody must live, and what would become of the glaziers if panes of glass were never broken?" What this misses, of course, is "what is not seen", what would have happened if the glass hadn't been broken: the money spent on replacing it would have been directed towards some other, productive, pursuit; perhaps a pair of shoes. As Bastiat pithily notes, "destruction is not profit." The implications for intellectual property should be transparent, but don't seem to be (though Tim Lee, unsurprisingly, gets it). So let me break it down for everyone else.

One interesting effect of US copyright law is that, as Judge Kozinski puts it, "Congress has given courts the power to order books burned." Infringing copies may be impounded and destroyed. Instead of innocent children breaking the window, we now have the agents of the state. More typically, by giving monopoly privileges of greater or lesser scope, patents and copyright (especially the derivative works right in copyright, which prevents me from, e.g., competing with Laurell K. Hamilton in offering vampire-porn featuring Anita Blake and Jean-Claude), write into law the principle that one may only buy windows from particular glaziers and their licensees.

Just as in the Bastiat story, you have the helpful onlooker who says "But everyone must live, and what would become of innovation if every innovator could have his insight copied by the first free-rider who came along?" Just as in the Bastiat story, this is wrong. What is seen is the way in which the protected firm uses his IPR to generate monopoly profits, some of which are then plowed back into R&D, generating a pleasant stream of innovation. What is not seen is what would happen in the absence of this protection: the innovator would have to keep innovating in order to maintain his market, leveraging his expertise into further productive developments, while newcomers would be able to experiment on their own with the knowledge produced by the first. Money that once went to monopoly rents would go instead to other, more productive things--including further innovation.

The neo-Schumpeterian retort is that this is hopelessly naive: innovation requires large capital investment and the reasonable hope of monopoly rents to recoup it. But this is mere question-begging, and its plausibility lies, again, with the distinction between What Is Seen and What Is Not Seen: when we give innovators monopoly privileges of this sort, we thereby tilt the playing field dramatically towards heavily capitalized firms by jacking up the costs of the inputs (eg., prior innovations, a skilled legal team, insurance against lawsuits) to production. As a result, What Is Seen is capital-intensive innovation; What Is Not Seen is the less capital-intensive innovation that the legal regime has stamped out.

And so:

• When a surgeon insists that only he should be allowed to perform a certain operation, because only then will surgeons come up with new procedures, we say (rightly): "I don't believe you."
• When the domestic auto industry says that it must be protected from foreign competition, because only then will it have the profits to innovate, we say (rightly): "I don't believe you."
• When a chef says that only she should be allowed to sell a certain recipe, because only then will the restaurant business innovate, we say (rightly): "I don't believe you."
• When a fashion designer says that only he should be allowed to sell fashions of type X, because only then will fashions innovate, we say (rightly): "I don't believe you."
• When the pizza-delivery guy says that only he should be allowed to sell pizzas, because only then will pizza-delivery innovation happen, we say (rightly): "I don't believe you."
• When a singer says that only she should have the right to sell recordings of her songs, because only then will she bother to sing at all, we should say: "I don't believe you."
• When an author says that only he should have the right to sell books he has written, because only then will he write anything, we should say: "I don't believe you."
• When a company says that only they should be allowed to let customers buy things with a single-click, because only then will anyone come up with such out-of-the-box thinking, we should say: "I don't believe you."
• When authors and investors more generally say that they should be granted the exclusive rights to their respective writings and discoveries, because only then will we have progress in the sciences and useful arts, we should say: "I don't believe you."

We should refuse to believe such claims not because they are never true. On the contrary, the individuals and firms making the claims often will be unable to compete, if they are forced to do so on a level playing field. But it is precisely those who need such monopoly privileges to compete who we least want in the marketplace to begin with. Competition, not monopoly, is the mother of invention.

Of course I am not denying the presence of positive externalities, nor am I denying that music, books, and technical progress exhibit them to an enormous degree. My point is rather twofold: first, to use the coercive force of state authority as a tool to internalize all positive externalities is precisely to take on the hubris of the central planner. Second, even if you are asking the planner's question, to believe that IPRs are necessary is to display a laughably narrow view of human motivation, one that entirely ignores the complexity of the choices and preferences facing real people.

This is worth elaborating on, so let's take books as an example. It's true that if it were simply impossible to make a living writing books, fewer people would write them. But even here, the number would not be zero: think of all the fanfiction writers who not only will not be remunerated but face possible legal action for their efforts. Think of the gentleman-scholars and -writers of ages past. Think of the simple fact that some people enjoy writing. Think of weblogs, for goodness' sake!

But current-profits vs. no-money is, of course, a false dichotomy--absent all copyright, authors would still get paid, though probably not as much. People are willing to pay significant premiums for brand-label prescriptions over generics, brand-label cereal over store-brand made in the same factory with the same process, etc.; do we really think that no one would buy the Authorized Edition, even if it cost a shade more? Indeed, buying books is generally an expressive rather than merely an instrumental act--if it weren't, the new-book market would have a much harder time than it currently does competing with public libraries and used books.

The planner's question, then, is whether we need copyright to properly incentivize. And when we think carefully, it becomes immediately apparent how absurd it is to think the author needs to be guaranteed the entire social surplus for this to happen, or even any significant part of it. At the technical level, we only have an inefficient allocation if, for any author whose writing is more socially beneficial than any other use of her time, there exists some activity she could pursue instead that she would find more privately rewarding. The question is whether we should expect this to be the normal state of things, without copyright, and I think the answer is clearly no. Reasons why include:

1. Comparative advantage. Authors are often not very good at other things! Just think about the day jobs that various famous authors had before they 'made it big.'
2. Non-monetary values. Being an author has rewards beyond the monetary, just as being an actor or an academic or a judge does. Those who are able to be good authors typically have preferences structures that place a high weight on the rewards that come with being one.
3. Backward-bending labor supply. When effort is rewarded more heavily, there's both a substitution and an income effect: working is now more valuable, but you're also more rich, and hence might want more leisure. Often authors work hardest and are most productive, not when they are widely acclaimed and wealthy, but when getting that chapter in on deadline is all that will keep them from being evicted.
4. Endogeneity of potential author supply. Books are not just what authors produce, they are also an input into producing future authors. Have you ever heard of an author who doesn't like reading, who didn't practically live at their local library as a youngster? Drive down prices and increase availability of current works, and you shape the preferences and abilities of the next generation, resulting in more authors later.
   

When all these factors are considered, exclusive rights start looking penny-wise and pound-foolish. Which should lead us, in this as in pizza-delivery, to give up on the planner's hopeless task, and let a genuinely free market sort it all out. The lesson is the general libertarian one: yes, perhaps government intervention could fix this particular market imperfection or that one. But by granting the state this power, you throw open the door to the most pernicious and thorough rent-seeking, and guarantee that the good you've accomplished will be far outweighed by the resulting evil.

Well, all done. To anyone who made it this far, I congratulate you, and I leave you with this lovely quote from Joseph Schumpeter, who may have been wrong but was undeniably clever: "Early in life I had three ambitions. I wanted to be the greatest economist in the world, the greatest horseman in Austria, and the best lover in Vienna. Well, I never became the greatest horseman in Austria." Even he, I think, would have denied that patents should be awarded in economic theory, horsemanship, or lovemaking.

Taking labor value seriously (1)

(First of two posts.)

In a provocative post, Brink Lindsey exhorts us to "take labor markets seriously". His title might be a bit misleading, however, because his bottom line is that (as Richard Epstein says) labor markets are "immensely boring." More precisely:

Contrary to the fears of Ezra and the rest, America’s labor markets are working fine. Strong incentives are in place for companies to pay people what they’re worth. The system isn’t broken.

I'll try here to develop what I see as the leftish/radical-libertarian critique of this view, with particular attention to Lindsey's demand for "theory or evidence" of how problematic mechanisms might operate. Note that none of this is intended as a brief for "reactionary collectivism," as he terms it, but instead as a rebuke to what might be called Panglossian libertarianism.

In this first post, I'll focus on value theory--why even if the market is perfect, we may have good reason to dislike the outcome. Now, Lindsey acknowledges this when he says that "you can be disappointed that more people aren’t doing better," but I think it's important to be more thorough about getting why some sorts of "aren't doing better" are worse than others, and should evoke not merely disappointment (in the way that, say, bad weather might) but indignation, even perhaps outrage.

The bottom-line is this: even in a system of perfect markets, the (economic) value attached to both goods and services, and hence their allocation, is not (morally) value-neutral. Even if you accept a strongly historical conception of distributive justice as an ideal, the need to rectify past injustices may well be an exception that swallows the rule; at the very least, it inserts an inevitable degree of 'patterning' into the mix. For those who don't, of course, the worries surface even sooner. As Brad DeLong says in a too-cute Socratic dialogue:

If we restrict ourselves to social welfare functions that are weighted sums of individual utilities, that means that the market system's social welfare function gives each individual a weight inversely proportional to his or her marginal utility of wealth.

Note that this is not merely a question of distribution, in terms of personal utility or some such, but a matter of allocation and production as well--what gets made, and who makes it, and how they are compensated, will all reflect initial endowments. Your place in the economy, not merely your paycheck, reflects this.

This shouldn't, of course, be taken as a conclusive reason for insurrectionary behavior, let alone coercive state intervention; it merely serves as a reminder that what someone is worth, in a market society, depends on who has what. The more radically unequal or unjust the original distributions are--and whatever you think of the United States, there are clearly other societies where current holdings are nowhere near just--the more morally troubling this will be, especially if the tastes of the wealthy differ systematically from the tastes of the poor. To take an extreme (but not irrelevant) case, a society of latifundos where servility is valued highly by those with the means to purchase it will result in an efficiently high output of servility and service; a more egalitarian society with more egalitarian tastes will, efficiently, produce much less.

One response is to reject any tie between one's economic worth and one's social or moral or political worth and strive mightily against any conflation--this is Hayek's route, I think. Naturally, as a grad student, I have a great deal of sympathy with this move, but it's important to recognize how much of current American society pushes in the other direction. And this recognition, I think, pushes one towards cultural, if not political, radicalism--doing what one can to make sure that Rawls' 'social bases of self-respect' don't become luxury goods.

All of which is merely to suggest that we should be very careful about the normative baggage that "paying someone what they're worth" carries. Next, I'll try to address reasons we have to be skeptical that people are in fact paid their marginal products.

But this is how we've always done it

So, how about that microcredit, huh? Bradford Plumer (incidentally: is there any better name for a policy wonk than "Bradford"?) has a response here, which ends with:

That [starting a small rock-smashing business] may help her stave off extreme deprivation, but it won't turn Malawi into a developed country. That's certainly not how Europe or Asia became industrialized. Without massive state-driven investments in, among other things, infrastructure, legal institutions, health, and education, the markets in these countries will be too stunted for "entrepreneurs" with microloans to do much more than set up rock-smashing businesses or sell bananas on the side of the road. I really don't want to denigrate that, but as a poverty-reduction strategy, it's no substitute for proper economic development.

Now, to a certain extent, this is obviously true. The history of 'proper economic development' has, by and large, been the story of massive state investments in things like that. But the history of failed development has also largely been a history of massive state investment. And one central reason for this is that while massive state investment, in any given case, may or may not be good for the area as a whole, it is almost always good for somebody, and that somebody usually has some say in the matter.

That's not to deny that there's something compelling about the "big push" idea of virtuous circles of development and the multiple equilibria available to a given economy; there obviously is. But if getting from here to there were remotely easy, we wouldn't have people like Bill Easterly making a career out of pointing how badly we've fucked it up for half a century.

One reason why bottom-up development has never 'worked' could simply be that any time you get a reasonably strong state, you're going to have very strong incentives to have that state Do Something. Exactly how much of the resulting development (in the good case) is a result of the Something that gets Done, and how much is from the industrious rock-smashers going about their business, is difficult to say; it's made still more difficult by the fact that state intervention will naturally divert entrepreneurial energy towards those things that the state is pushing forward or propping up.

So, three points. First, the way things have been done in the past might not be the best model to follow; we don't want to encourage others to duplicate what were, at the time, maybe-not-even-necessary evils (enclosure is the obvious bogeyman here, with intellectual property its contemporary heir). Second, microcredit has one clear advantage over massive state investment: it is unlikely to further entrench wretched political-economic equilibria. Third, the sort of growth microcredit is likely to encourage is likely to be the sort least well-tracked by standard national-income accounting, and we should recognize this in our assessments of it.

Appropriation without expropriation

Over at Feministe, Piny criticizes cultural appropriators in general and one shallow-sounding one, Lynn Andrews, in particular. I'm not about to rush off to partake in the "ancient ceremony of the Pleiades" or anything, but I don't quite see what justifies the opprobrium attached to the idea of, as Piny puts it, "picking through traditions from cultures other than your own so that you can glean the safest, easiest, most comfortable bits while leaving all the dangerous and difficult stuff to its owners." Or rather: put like that, yes, such conduct is hardly admirable. But it's contemptible in a rather straightforward way: putting together the set of rituals, practices, and beliefs that will collectively give one's life meaning and significance is not something that ought to be done on the basis of safety, comfort, and ease. Doing so is like constructing one's causal theory of the universe on the basis of what one would like to be true; it misses the very point of the endeavor.

Of course, the question of how one ought to go about creating meaning for one's life is hardly an easy one. And I'm willing to acknowledge that there's a real role to play for authenticity. But I don't think this sort of authenticity can or ought to be tied too tightly to blood, soil, or upbringing. My sympathies lie somewhere in the neighborhood of a coherentist account; this draft chapter (the second one, p. 31) by Ronald Dworkin strikes a chord with me. Suppose we have someone who, for one reason or another, has trouble finding meaning in her life through the rituals and practices that make up the more popular cultural repertoires in America. Suppose even that, reacting in a somewhat Orientalist way to the evils of western colonialism, she decides to investigate Buddhism as an alternative. But suppose that, having started out with fairly naive and even perhaps problematic motives, she comes to take seriously the task of examining and reflecting over various strands of Buddhist thought and practice. She now sees herself as no longer fleeing from traditions that repulse her, but as constructing for herself an identity that she can live with, out of what materials she can find.

I don't think there's anything wrong with this sort of cultural appropriation, even if she ends up with a bricolage of materials from a half-dozen traditional sources in her quest for horizons of meaning and significance that feel authentically hers. And should she fall far short of this ideal, I still think we should hold off on too sharp a critique, for how many of us subject our own cultural baggage to the level of scrutiny we demand of the cross-cultural interloper? The unreflective cosmopolitan may seem ridiculous in her performances of Buddhist spirituality or Kabbalah mysticism, but ridiculousness does not imply moral wrongfulness.

I think in the end it really comes down to beliefs of cultural ownership. Piny, it seems, buys into this: he talks of "stealing" from the source culture. I think this is a dangerous and mistaken view to hold: dangerous because it reinforces deeply harmful ideas about intellectual property and because it implicitly acknowledges that there must be some authoritative way (perhaps through certain authoritative persons) of defining, using, and changing culture, and mistaken because it presents culture as something static or at least controllable, rather than the always-contested interpretive practice it is.

Now, I know from reading Feministe that Piny obviously doesn't think of culture as static or controlled; he's always struck me as very thoughtful about these things, probably moreso than me. Which is one reason I find the post worrisome; I once took a class on "indigenous intellectual property rights," and I think Piny's view is quite common, even (perhaps especially) among thoughtful and concerned sorts. There is no denying that indigenous groups and non-Western nations have been and continue to be treated unjustly, often appallingly so. And because so much of this unjust treatment has been in the form of blatant and bloody expropriation, it is very, very easy to see every case where the West benefits from the "rest" as fitting the same mold: just another case of taking what's not ours. But I think this intuition gets it wrong, very wrong, with cultural materials. "We" don't own the Mona Lisa; "they" don't own sweat-lodges.

(I think Russell Arben Fox's critique of Kwame Anthony Appiah's "Cosmopolitanism" has real weight to them, but even here, the importance is ensuring that communities have the capacity to shape their own culture for themselves, not that outsiders can't incorporate fragments into their own outsider-cultures.)

Pseudonymity is the new black

Most likely this will go nowhere. But my, looking at this clean and attractive interface, how could I not blog? So blog I shall.

I'm not, in fact, a connoisseur of literature; I read Powell's Dance to the Music of Time because I felt I had to read some Serious Fiction and the jacket blurbs compared it favorably to Proust, which I sure as hell wasn't going to read.

Stay tuned for exciting stories!