Tuesday, November 28, 2006
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.
Monday, November 27, 2006
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.]
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:
(From Nicola Lacey's A Life of H.L.A. Hart)
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)
Tuesday, November 14, 2006
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:
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:
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.
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."
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:
- 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.'
- 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.
- 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.
- 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.
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.
Tuesday, November 07, 2006
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:
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:
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.
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.
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