Tuesday, August 31, 2004

The Cause of Oz

I recently finished watching Season 1 of “Oz” on DVD, which got me thinking about the rape penalty again. I’m still appalled that prison rape is not taken at least as seriously as the death penalty, given that (a) it’s imposed without regard to the severity of your offense, (b) no judge or jury officially approves of the sentence, (c) it’s systematically inflicted on the weakest and most vulnerable of prisoners, (d) the transmission of HIV can make it a de facto death penalty, and (e) it occurs at least an order of magnitude more often than the death penalty. Why isn’t allowing prisoners to be raped considered cruel and unusual punishment?

When I presented my position to a group of college students this summer, most of them libertarians or libertarian-leaning, I was surprised by their willingness to defend prison rape. They relied primarily on a loosely intent-based argument: that while prisoners may unfortunately get raped, that is not the state’s intent when it jails them. In a sense, they pointed to point (b), above, as an excuse: nobody officially sanctions rapes; they just happen.

That argument, in my opinion, fails. Consider an analogy. What if the state imprisons a man in the same cell with a rabid dog? Let’s give the state the benefit of a doubt by assuming the intent is merely to imprison, not to expose him to attack by a vicious and diseased animal. Nonetheless, it’s easily predictable that the prisoner will get bitten and possibly infected. I hope this would be considered cruel and unusual punishment by most reasonable people.

But, it might be objected, the dog attack verges on certainty, which is not true of prison rape. Okay, fine. Let’s suppose we have ten prisoners and one rabid dog. The prisoners draw straws, and the one with the short straw gets put in the dog’s cell. Does that free the state from blame?

I will grant that the state cannot, at any cost, guarantee 100% safety in the prisons. Take the above example and continue increasing the number of prisoners, while keeping only one rapid dog. Assume for some reason we cannot remove the dog at low cost (a reasonable assumption, given that the dog plays the role of a rapist prisoner). For some sufficiently high number of prisoners, I would concede that the likelihood of attack for any given prisoner becomes low enough not to constitute an unconscionable risk.

But based on the numbers that I’ve seen, the actual risk doesn’t come close to being that low. The survey I cited in my previous post indicates that one in ten prisoners gets raped; hence the ten prisoners in my analogy above. Surveys can be unreliable, but in this case, I’ll bet the number is conservative, since some prisoners would be inclined not to admit having been raped (because of shame or fear of reprisal).

Moreover, I think the risk is probably much greater than one in ten for some prisoners. For instance, what if I went to prison? For those readers who don’t know me, I’m a slight guy (5’11”, about 160 pounds) with what a hard-up convict might consider “a purty face.” I figure my chance of getting raped would approach certainty. If prosecutors put me behind bars without some kind of protective custody, they would pretty much know I was going to get raped, or at least badly beaten.

My point is that the notion of intent is not – or should not be – limited to the primary goal of the state’s policies. When the agents of the state can predict with relative certainty that a given prisoner, or some substantial fraction of all prisoners, will suffer a peculiarly brutal and demeaning form of attack, they cannot plausibly pretend innocence on grounds of not “intending” for it to happen.


Monday, August 30, 2004

Theory and Application

On Saturday, I met a married couple with a couple of kids. They were pondering whether to have a third child - or get a horse instead. In class today, I felt compelled to use this as an example of diminishing marginal utility. (The example will probably resurface later this semester, when I replace diminishing marginal utility with diminishing marginal rate of substitution.)


Speaking Truth to Punkass

Speaking to a kid wearing a hammer-and-sickle T-shirt, Radley Balko calls it like he sees it:

So I added, "I know Soviet chic is hip right now, particularly on college campuses. But you really ought to think about the message you send by wearing that shirt. It has all the charm of a swastika."
Right on. I’ve written before on why people give a moral pass to communism that they don’t give to Nazism, despite both systems having been responsible for the death of tens of millions of people. My assessment is about the same as Radley’s: anyone who still advocates communism in the modern era is at best monstrously ignorant.

And yet I, like Radley and some of his commenters, am willing to tolerate ironic expressions of communism, like the very pricey Red Square vodka bar in Mandalay Bay. I wouldn’t feel the same about a Nazi-themed establishment. What makes the difference? Perhaps it’s my sense that I can trust the communist irony more, given the obvious capitalist context.


Friday, August 27, 2004

Legal Back-Flips

My sister Ellen, who is a gymnast, added the following comments about the Paul Hamm controversy (see my prior post here). I’ve boldfaced the parts that jumped out at me.

[E]ven if Yang's scoring had been done correctly, it wouldn't have guaranteed him the gold.

a. Like Glen said, he actually violated the rule about 3-holds (more on that later if anyone cares) which would have gotten him 0.2 points off. But the judges missed it.

b. Say the element that gave Yang his 0.1 point gets accounted for by the judges. That doesn't mean he'll get the entire 0.1 for it. The judges can take the entire 0.1 back from him if he executes the skill poorly enough or in such a way that it isn't counted as the skill that is worth 0.1. They could even take more than 0.1 away from him. For example, if I put an element worth 0.4 in my routine, but then I don't execute it correctly I could only receive 0.2. If I do it so poorly that it's mistaken for a different trick or a "non-trick", then it's 0.4 off. If I fall or wobble so many times I get a deduction worth a fall taken, I get 0.5 off -- more than I added by trying it. I would have been better off if the judges just didn't acknowledge that I attempted that element.

In addition to all this, grievances are supposed to be made within one rotation of the event. Yang's start value was flashed before he began, and if he had a problem with it his coaches should have had a complaint all ready to hand over as soon as his routine was done.

Incidentally, he did better on the routine started at a 9.9 than he did the previous night when he was starting at 10.0. And so he didn't complain... until Paul Hamm got the gold.
All this further confirms my opinion that retrospective refereeing is a bad idea. Better to let scores stand (subject to a specified challenge procedure like the one Yang failed to use) than to go back and try to re-judge everything based on the videotape.


Thursday, August 26, 2004

Junk-Food Junkies

Todd Zywicki makes a plausible argument about vending machines in public schools:

On the other hand, let me stress that it might still be appropriate to ban vending machines at school, although it will do little to combat obesity [for reasons explained elsewhere in Todd’s post – GW]. I think a strong argument can be made that the problem with vending machines is that they permit children to consume junk food without parental supervision and on that basis alone it might be appropriate to ban them.
The appropriate rules for children obviously differ from the appropriate rules for adults. For that reason, I’m quite happy not to grant the full complement of libertarian rights to kids, and I have no problem in principle with the vending machine proposal. Parents should have the authority, within limits, to control their children’s diets.

Still, some of the usual libertarian insights on prohibition would seem to apply here. I predict that a vending machine ban would encourage enterprising youngsters to bring in junk food from the outside to sell to their classmates. Black markets are hardly unknown to the public schools. If the kids can sneak in coke, surely they could sneak in Coke – especially if the ban did not extend to junk foods that parents put in their kids’ lunches. The result? Higher prices, and drinks that aren’t refrigerator cold.

And now for the slippery slope. Upon observing a black market in junk food, school authorities would never see fit to lift the ban. At best, they would let the imperfectly enforced ban stand. More likely, given the personality types that typically gravitate to positions of authority in the public schools, would be the emergence of a “zero tolerance” policy. No longer could more permissive parents allow their kids to bring their own junk food, because such food might be sold to the children of less permissive parents. The process would culminate in a complete ban on junk food of any kind in school.

Of course, I’m just speculating here. But if my speculation is correct, notice how the debate unfolds: what begins as an argument based on parental discretion (“parents who want to restrict their children’s diets should be able to do so”) ends up as a restriction on parental discretion (“you can’t send your children to school with junk food in their lunches”).


Wednesday, August 25, 2004

Arbitary Athletic Attachments

The Olympic Games always generate a wave of “scoreboard nationalism,” as Matthew Barganier dubs it. The equation of athletic triumph with the superiority of one’s race/culture/politico-economic system is, of course, bollocks. A part of me wants to say: “The victory of American athletes vindicates the capitalist way of life. Our economic system produces the surplus wealth necessary to fund the training of champions.” Or something like that. But, of course, if China takes a few medals from us, I want to say: “Well, consider the opportunity cost. The Chinese government spends outrageous amounts of money on athletics, and that’s money that could have been spent by the Chinese people on goods and services they value more.”

My judgment on China is the more trustworthy one. You cannot judge any society or economic system based on its performance in a single field of endeavor. Even a poor totalitarian regime can do well at just one thing by pouring its wealth into it. To applaud the nation’s performance in that one area, without considering the sacrifices it has made elsewhere, is to measure benefits while sweeping costs under the rug. And that goes for the U.S., too: the resources we spend on athletics could be spent elsewhere.

So athletic nationalism makes little sense. But on the other hand, it’s usually pretty harmless. I’d far rather see jingoism play out on the soccer field than on the battlefield. And besides, allegiance to sports teams is always fairly arbitrary. People I know root vehemently for the L.A. Lakers every year, simply because they’re based in L.A. (with players drawn from all over the country, and a team name drawn from Minnesota). Why? Because sports are more fun when you feel personally involved, so you pick somebody and choose to identify with them. In the case of Olympic sports, many of which the general public witnesses only once every four years, few spectators will know the athletes by name or reputation, and thus we need some other way of choosing who to identify with. Nationality works as well as anything else.


Tuesday, August 24, 2004

Legal Gymnastics

The Paul Hamm controversy got me thinking about the nature of rules. (Eh, the mind of an academic.) The conflict appears to be one of substantive versus procedural justice. As the advocates of South Korea’s Yang might put it, “Yang deserved to win, because he did a better job on the parallel bars; he shouldn’t be deprived of his medal because of a silly technical requirement about the deadline for lodging protests.” Hamm’s advocates rely on a more procedural argument: “He was given the medal and it’s just not right to take it away. The Koreans had their chance to make a formal protest, and they missed it.”

Superficially, the substantive argument sounds better. After all, it would be difficult to condemn an innocent man to a prison term, knowing his innocence, because of a procedural error committed by his defense attorney.

But what if there were not any underlying matter of guilt or innocence? What if court proceedings were nothing but a game, like a moot court or mock trial? In that case, procedure’s all there is. And that, I think, is the closer analog to gymnastics and any other sport. Sports are not just constrained or affected by their rules; they are defined by them. Frederick Schauer refers to these as “constitutive rules,” because they literally constitute the activity in question. Without the rules, the activity would not exist.

When an activity is defined by its rules, the line between substantive and procedural rules is pretty much impossible to draw. Players and coaches have to adjust their behavior to take greatest advantage of the rule configuration. Rules that appear merely procedural take on a strategic character. For instance, NFL teams know they can use their limited number of instant replays as quasi-time-outs. NBA teams know they can use fouls to interrupt the other team’s momentum.

In gymnastics, the rule stipulating that challenges must occur within a certain time period might seem arbitrary. Then again, all the rules are somewhat arbitrary. The start values and bonus values for different gymnastic feats – which the judges misapplied in Yang’s case – lack any cosmic justification. They are decided upon by people, and sometimes they change. Indeed, a last-minute change in values induced Blaine Wilson to change his high-bar routine, leading to a critical error and a nasty blow to head. Yang’s claim is that one arbitrary rule (relating to challenge deadlines) should be suspended while others (relating to start values) should remain fixed.

If some form of “justice” ought to prevail in sports, I think it relates to the public character and medium-term constancy of the rules. The players and their coaches need enough time to familiarize themselves with the rules and devise optimal strategies to deal with them. Last-minute changes alter the calculus without allowing response time. As far as I can tell, the rules relating to score challenges had been established well in advance (whereas the change in start/bonus values that affected Blaine Wilson occurred just before the games began). I see no particular reason to treat the challenge deadline as a negotiable rule while treating others as sacrosanct. Let Paul Hamm keep his gold, for whatever it’s worth to him now.

UPDATE: Read this for more info. Seems Yang may have committed an unnoticed error in his routine, carrying a penalty greater than the difference attributable to the incorrect start value. If the normal review process is suspended, Hamm's supporters argue (I think correctly), then there's no bulwark against reviewing the whole thing on tape and making all adjustments. Does anyone else notice a growing resemblance to the 2000 presidential election?


Sunday, August 22, 2004

Of Guns, Vipers, and Crime Control

Mark Kleiman makes an excellent but oft-ignored point about crime:

The purpose of police work and prosecution is crime control.

But what police and prosecutors do from day to day is make arrests and secure convictions (or guilty pleas) and thus sentences. It seems natural to count those activities and use the counts as performance measures. That, however, turns out to be a mistake. Actual arrests and prosecutions are mostly costs rather than benefits.
Moreover, the figures the authorities cite may actually reflect failure, not success. More arrests and convictions could indicate more crime, not less. To evaluate the effectiveness of any crime control measure, you need to look at the bottom line, i.e., the number/severity of crimes committed, or at least some good proxy thereof. More simply put: you need to measure outputs, not inputs.

Here’s my favorite example of a crime-control measure that is evaluated using exactly the wrong data: gun buy-back programs. Politicians regularly tout the number of guns collected as evidence of the programs’ success:
Congressman Patrick J. Kennedy: “It is obvious that with 1,235 guns off the streets, the program is working effectively.” (1,235 was the number of guns turned in during a buy-back.)

ABQ Journal: “There are fewer guns in Las Cruces today. Police collected about 160 weapons and 1,000 rounds of ammunition during a gun buy-back program Saturday.”

Website of Maricopa County (AZ) Supervisor Mary Rose Garrido Wilcox: “Gun Buy-Back a huge success … ‘I'm excited to announce that this year we took in more than 200 guns at our two locations. …,’ said Wilcox. … ‘The Gun Buy-Back program has saved hundreds of lives in these communities and in our own. We are dedicated to continue saving lives of Arizonans by getting guns off the street,’ said Supervisor Wilcox.”

District of Columbia Police Department Press Release: “Saying that lives will be saved as a result, Chief of Police Charles H. Ramsey today announced the Metropolitan Police Department took in 1,787 firearms on Thursday, Friday and Saturday during the first phase of ‘Operation Save A Life,’ the District of Columbia's gun buy-back program. … ‘Every one of the nearly 1,800 guns collected represents a step towards making the District of Columbia safer, and this weekend's buy-back served both as a national model and as an inspiration for buy-backs HUD is supporting in other communities throughout the nation,’ he said.”

Another press release from the same source: “‘Getting one dangerous and illegal firearm off our streets or out of a home is significant because of the potential pain and tragedy that single weapon can inflict,’ said Chief of Police Charles H. Ramsey. ‘Getting more than 6,200 firearms off our streets and out of our homes is a momentous victory for safer children, safer families and safer communities throughout our city.’”
The problem, of course, is that purchasing a gun doesn’t necessarily mean reducing the number of guns in the hands of the public. The gun buy-back might encourage the trafficking of guns into the region, if the price is high enough. If the price is low, it still might encourage people to trade-in old guns so they can purchase new ones (much like when an auto dealership offers to buy your old junker). And even if gun buy-backs succeed in reducing the stock of guns in the hands of the public, who’s selling them – criminals, whose livelihoods depend on their guns, or law-abiding citizens who rarely need their guns? While it’s possible that gun buy-backs reduce crime, the number of guns collected does nothing to prove it.

When I think about gun buy-backs’ effectiveness, I recall the old story (possibly apocryphal, but still instructive) about the town of Abruzzi, Italy:
The city was plagued by vipers, and the city fathers determined to solve the problem by offering a reward for any viper killed. Alas, the supply of vipers increased. Townspeople had started breeding them in their basements. [from S. E. Rhoads (1985), The Economist's View of the World: Government, Markets, and Public Policy, Cambridge University Press, p. 58]
And I’ll bet that one of the city fathers trumpeted the success of the program based on the number of dead vipers turned in for the bounty.


Friday, August 20, 2004

White Elephants

I always thought a white elephant was any old piece of junk that you wanted to get rid of. But Merriam-Webster’s Word of the Day offers a more interesting definition (“a property requiring much care and expense and yielding little profit”) along with this fascinating background story:

The real "white elephant" (the kind with a trunk) is a pale pachyderm that has long been an object of veneration in India, Sri Lanka, Thailand, and Myanmar. Too revered to be a beast of burden, the white elephant earned a reputation as a burdensome beast, one that required constant care and feeding but never brought a single cent (or paisa or satang or pya) to its owner. One story has it that the kings of Siam (the old name for Thailand) gave white elephants as gifts to those they wished to ruin, hoping that the cost of maintaining the voracious but sacred mammal would drive its new owner to the poorhouse.
Seems to me there are more than a few white elephants in the federal bureaucracy.


Thursday, August 19, 2004

Habitability Hubbub

A couple of days ago, Alex Tabarrok posted one of my favorite examples of how well-intentioned laws can lead to unintended consequences. Specifically, laws mandating minimum “habitability” standards for apartments (e.g., hot water) will cause prices to rise, quite possibly making consumers worse off:

If tenants benefit from a law that says apartments must have hot water then surely a law that says tenants must have hot water and a dishwasher benefits them even more, right? What about a law that says tenants must have hot water, a dishwasher and cable tv? By now the students have cottoned on to the idea that the rent will increase. Once you realize that the law causes the rent to increase it's no longer obvious if tenants benefit or if landlords are harmed.
As Alex observes in a follow-up post, it seems some smart people are having difficulty with this fairly simple point.

Kevin Drum, in particular, offers a strikingly unperceptive response:
No kidding. And increasing the size of the military by one division must be bad because, you know, increasing it by a thousand divisions would definitely be bad. So one division must be bad too. I sure wish I could get paid for standing in front of a blackboard and cranking out insights like this.

Reductio ad absurdum is a childish game. The fact that a minimum wage of $100/hour is ridiculous doesn't mean that a minimum wage of $7/hour is ridiculous.
Drum completely misunderstands Alex’s point. If he were saying, “It’s absurd to require dishwashers, therefore it’s absurd to require hot water,” that would have been a reductio. If he were saying, “If they require hot water, next thing you know they’ll be requiring dishwashers,” that would have been a slippery slope argument (as some of Drum’s commenters claim). But Alex’s point was much simpler: any added amenity, whether hot water or dishwashers, increases the landlord’s cost of providing housing, and therefore the price will tend to rise. That is neither a reductio nor a slippery slope. Drum’s response is pure red herring by way of a straw man.

Nonetheless, Drum’s commenters (with a few gratifying exceptions) celebrate his post with a carnival of economic illiteracy. Interestingly, Alex’s critics fall into two categories: those who say he should have proceeded to a more complex and intricate level of economic analysis, and those who clearly don’t even grasp Alex’s elementary point. Alex is dead-on when he says, “[U]nderstanding the basic analysis is the first-step on the path to wisdom, it is not the end of the path. But you have to understand the first step if you are going to reach the final destination.”

Interestingly, those who criticize Alex for not delving deep enough commit that very mistake themselves. They blithely assume that introducing complexities like monopoly power and asymmetric information will necessarily vitiate Alex’s conclusion that renters (may) end up worse off. This is a common phenomenon in the anti-market left: whenever they identify any conceivable source of market failure, they figure they’ve won the debate.

But in fact, it turns out Alex’s conclusion is robust to at least some degree of market imperfection. Suppose, for instance, that the housing market is a monopoly (which it’s not, of course, but there’s surely some degree of pricing power). If the monopolist’s customers value some additional amenity by more than the monopolist’s added cost of providing it, the monopolist has every incentive to go ahead and provide it in return for a price increment somewhere between the added cost and added benefit. So let’s focus on cases where the added cost is greater than the added benefit. That means it’s inefficient to provide the amenities – but let’s suppose that’s okay, because the government wishes to transfer wealth from the monopolist to his customers. Does it work? Do the customers get better off?

Not necessarily. Indeed, probably not, according to my calculations. There are two effects at work. First, some of the increase in cost is passed through to the consumer in the form of a higher price. Second, the added value of the amenity also causes the price to rise, because the monopolist can charge more for a more valuable product. If the total price increase from both effects exceeds just the added value of the amenity to the consumer, the consumer gets worse off.

And it turns out that, in a wide range of cases, that’s exactly what happens if (as assumed earlier) the added cost exceeds the added benefit. The math’s a little complex, but here’s the intuition. As a limiting case, suppose the added benefit is zero. Then the price will rise by some fraction of the added cost, even though the consumer does not value the amenity at all. As far as the consumer is concerned, he ends up paying more but not getting more. (Also, some consumers will be priced out of the market.) Now, if the amenity has a positive benefit, then the consumer does get something more – but then there’s another jump in the price to account for the increased value.

Just to be clear, I’m not claiming there are no circumstances under which habitability mandates could increase consumer welfare. I’m saying it’s not as easy as the interventionists seem to think. Pointing to the existence of monopoly power or some other market imperfection doesn’t do the job – you need a lot more information to be sure the mandate will actually do what it’s supposed to. Now, does anyone seriously entertain the idea that governments and courts did the research necessary to justify the mandates before implementing them? My bet is they did about as much research as Drum and his parade of commenters.

UPDATE: Alex has even more. He observes that someone's doing economic calculations to justify the mandates after all. Who? The contractors who install the relevant amenities, of course.


Wednesday, August 18, 2004

Healthy Choices

An article in Monday’s L.A. Times reports a trend that, if it continues, bodes well for healthcare in this country. The article’s subject is “consumer-directed health plans,” a fancy name for what free-market healthcare reformers have advocated for years: high-deductible insurance plans accompanied by health savings accounts. Health savings accounts allow people to sock away pre-tax dollars for medical expenses, including deductibles, thereby removing the tax bias that favors health insurance over direct payment for services. Here are some of the key bits:

Learning what a treatment or procedure costs — then deciding whether to pay for it – is a new step for most Americans with health insurance. Even traditional fee-for-service plans, in which consumers pay 20% of a bill, don't prompt most people to analyze a procedure's cost or their actual need for it, experts say. But when consumers are held solely responsible for a medical bill, they tend to think twice.

Having patients assume responsibility for such costs is the centerpiece of this increasingly popular type of insurance, called consumer-directed healthcare. Now a small part of the insurance market, about 2%, consumer-directed plans are expected to become much more common in the next few years as a way to potentially curb employers' rising healthcare costs. The plans could account for 7% of health insurance by 2007 and one-quarter in about five years, according to Forrester Research, an independent technology research company.

Eventually, about 40% of consumers who now use preferred provider organizations or point-of-service plans will likely opt for consumer-directed plans, predicts Brad Holmes, vice president and research director of Forrester, who has studied the trend.

The strategy, which takes some of the control over spending away from employers and insurers, typically allows people to select their own physicians and hospitals, avoiding "gatekeepers" who might limit their care.

In turn, consumers pay more up front — such as the first $1,000 to $2,500 per year spent on healthcare — and bear the responsibility to spend those funds wisely. Consumers can then find themselves considering whether to have that ingrown toenail treated or whether to choose a generic heart medication over a more expensive brand-name product.

"I think there is hardly an employer in the country who isn't considering some version of this approach," says Greg Scandlen, director of the Center for Consumer Driven Healthcare at the Galen Institute, a nonprofit health policy research organization in Alexandria, Va. "The notion that consumers can take charge of their own healthcare is what puts the sizzle behind this."

Interest in such plans got a jump-start last year with the creation of health savings accounts.

As with existing health-spending accounts, consumers can use the new accounts to set aside money annually, tax-free, for medical costs. Unlike spending accounts, however, the savings accounts earn interest and can be rolled over from year to year if the money goes unused.

A typical plan, for example, has an annual $2,000 deductible that must be met before insurance will kick in; the insurance company then pays 90% of costs, she says. Although the deductible is high, the consumer can use a health savings account to pay for those initial expenses.
This is really excellent news – indeed, good enough news that I might even forgive Congress and the President for passing the outrageously costly prescription drug benefit bill, which included health savings accounts as a rider.

I have one small complaint about the article. The headline of the article says, “More choice, at a cost: Consumer-directed health plans give patients freedom to choose – and a larger bill,” which is a major theme of the article. One the one hand, that’s just right – choice generally does involve greater cost, and people should know that. HMOs are able to charge lower premiums precisely because they ration your care and give you fewer options. But on the other hand, it’s missing a key feature of high-deductible insurance plans: that they typically charge substantially lower premiums. That’s (a) because consumers are paying more out of pocket or from savings accounts – the obvious reason, but not the most important, (b) because bureaucratic processing costs fall, (c) because the moral hazard problem of people buying services they don’t need is reduced, and (d) because as the plans become common, consumers become smarter shoppers whose efforts give doctors an incentive to lower prices. The article observes (a), but while it observes the others, it does not explain how they will tend to reduce the overall cost. As a result, the claim that people will get more choice “at a cost” misleads; they might actually get more choice at less cost.


Tuesday, August 17, 2004

Gouging Season

In the wake of Hurricane Charley, "price gouging" is in the news again. Rather than rehearse the usual arguments, I'll just link to the post I wrote during the last hurricane season.


Monday, August 16, 2004

Tomic Energy

I want to thank Tom for guest-blogging here for the last two weeks. It’s really been a pleasure having him aboard. I usually have to search other blogs for challenging posts to respond to, but lately I’ve found plenty of inspiration right here at home. (Neal was great, but I never felt the need to challenge his linguistics.) I hope Tom finds the time to visit again sometime soon.


A Fortnight of Fun

When Glen invited me to blog with him, we agreed that I would post for a couple of weeks. Today marks the end of that fortnight, so I thank Glen for hosting me and thank the rest of you for reading and sometimes commenting on my posts. I’ve enjoyed my introduction to blogging.

Looking back, I realize that my blogging mirrors my teaching. In either case, I sometimes let digressions about my personal life get in the way of the substantive points I’d planned to make. Here, for instance, I never got around to blogging about the policy lessons found in the allocation of law school parking lot spaces or about how surprisingly little artists know about the law—two things I had planned to write about. Nor did I get around to updating you all on how one of my neighbors struck back at Landscaping Man. But, speaking of teaching, my classes start again on Wednesday and I need to pay some attention to my day job.

Happy trails, my friends!


Necessary Attributes of Natural Rights

What does it take for a right to qualify as natural? Honestly, I’d never given that question much thought until my recent exchanges with my blog-host Glen and fellow blogger Tim Sandefur about the naturalness of intellectual property rights. Chalk one up for the virtues of blogging! It has not only introduced me to a great question; it has even prompted me to try my hand at a possible answer: Only a right that an individual can in general effectively assert in a state of nature can qualify as a natural right.

Rights to tangible property—be it tangible property in one’s self, one’s chattel (moveable) property, or real property—clearly qualify as natural rights under that accounting. People did and do defend their rights to tangible property without recourse to any statist assistance. In theory, at least, people form states not to create those rights but to better secure them.

What about rights to copyrights and patents? I have a very hard time seeing how anyone could defend those rights in a state of nature. They require some sort of coercion administration for their protection; individual self-help will not suffice.

Note that, true to the sort of naturalist legal positivism that I’ve learned from Barnett, whether or not a particular right qualifies as natural under my test remains a question of fact. Perhaps, then, I should hedge my earlier claim that the non-rivalry in consumption of copyrights and patents renders them too unlike tangible property to qualify them as natural rights. It is not that difference per se that renders them suspect.

Rather, the non-rivalrousness of copyrights and patents merely makes them unlikely to benefit from self-help efforts in a state of nature. If somebody copies your song, for instance, you are not likely to try to enforce a homemade sort of copyright. Because you still enjoy your song, you would not risk threatening your admirer. Your fan might, after all, take offense and strike back. Potential harm to your person, family, home, and chattels might easily justify taking that sort of gamble. Having your expression or invention copied almost certainly would not.


Setting the Record Straight

Watching the Olympics, I began to wonder: How often should we expect athletes to set new world records? After all, records get broken during every Olympic Games, and in other competitions each year. Are we (by “we” I mean humankind) breaking them quickly, slowly, or at about the normal rate? How would we know whether the number of new records exceeded our justifiable expectations?

Some a priori theorizing. Suppose the population of the earth is constant (death rate equals birth rate). We can think of each new athlete’s performance in some event – say, the 100-yard dash – as a draw from a distribution (probably a bell curve) of relevant skills. The current world record is a mark somewhere toward the right end of the bell curve. The chance of any new athlete being able to break the record is equal to the area in the right tail of the distribution (under the curve, to the right of the current record). Each time someone sets a new record, the mark moves to the right, and therefore the area in the right tail shrinks. Therefore, given a constant number of new athletes each year, each new record diminishes the probability of another new record in any subsequent year. (A constant number of new athletes means we have the same number of draws from the distribution each year, but the smaller tail results in a smaller likelihood of any new athlete setting a new record.) Hence, world records should be set less and less often.

I can think of two major factors that could alter the conclusion. First, a growing population implies more draws at the distribution each year. Second, improvement in health and training technology could shift the whole curve to the right, thereby increasing the area in the right tail. These effects would both offset, possibly even overcome, the predicted slow-down described above.

So what’s the reality? Is the average time it takes for an old record to get replaced by a new one growing, shrinking, or remaining constant? A quick Google search turned up nothing – but admittedly, I didn’t search long. I encourage anyone with actual data to forward it to me.


Sunday, August 15, 2004

The Price of Paradise

People who have merely heard of Orange County, California, often have strangely inaccurate notions about it. They seem to picture it as one large subdivision filled with tanned blonds driving SUVs on the way to the mall. The movie, “Orange County,” and television show, “The O.C.,” have hardly helped that misperception. For a curative, if not necessarily typical, impression, consider my weekend.

On Friday night, Donna and I went to see The Cowboy Junkies at The Coachhouse, in nearby San Juan Capistrano. We had dinner there, before the show, and chatted a bit with the couple next to us, a marine and his date. The marine had been stationed at Camp Pendleton, the huge base just south of San Clemente, and headed out to Iraq yesterday. A very nice teenage girl watched our kids. Although she does have blonde hair and surfs, thus fitting some O.C. stereotypes, she plans a career as a church missionary.

The next morning, we took the kids to Irvine Regional Park, where we met some old friends from the Boring (a.k.a. “East”) Coast who were passing through the area on their way to Hawaii. They brought their two boys, and together we goofed around a very clean and safe playground set under spreading sycamore trees, took a ride on the miniature railroad that runs through the park, walked through the charming little Orange County zoo, and fed the ducks that patrol the park’s two lakes. We didn’t get around the pony rides, the hiking trails, the volleyball courts, or many other of the park’s astounding range of amenities.

We took the kids out to dinner last night, to Rubio’s, a SoCal franchise deservedly well-known for its fish tacos and other tasty, fresh, and economical fare. Truth be told, I slightly prefer the competing Wahoo’s, because it shows surf videos. But my daughter A.J. strongly prefers Rubio’s, because it offers a kid’s meal.

This morning I ran the dawn patrol at Sano. The surf proved dismal, so I sat on the beach and played my guitar while the sun rose, waiting to see if the rising tide would improve things. It didn’t, so I took a run along the beach, south past the San Onofre Nuclear Generating Station and into the adjoining San Onofre State Beach. I like how that route passes from the height of technology to a vista where wild bluffs and beaches stretch as far as the eye can see.

Upon my return to Sano (which stands for San Onofre Surf Beach), I put in a quick 15 minutes of surfing, more to rinse off than anything else. The waves remained too laid back to offer much more than wetness. The surf forecast calls for a decent swell later this week. By then, though, I’ll have started teaching again and will probably not be able to make it out, alas.

So go some of the highlights of one guy’s weekend in Orange County. You will have noted the absence of lattes, trips to box stores, or manicures at Fashion Island. What you might not have noted, however, is how often my diversions relied on commercial transactions. We paid for the dinner and show on Friday night, as well as for the kids’ babysitter. Irvine Regional Park charges an admission fee and separate fees for the train ride and zoo. We even purchased bread to feed the ducks! The family dinner out on Saturday of course cost something, but it also illustrated the market niches occupied by two competing fish taco joints. This morning’s recreations also came at a cost: I got into Sano thanks to a season pass.

That pervasive influence of market processes probably speaks more to Orange County culture than local hair fashions and slang. To my mind, it makes O.C. a well-run and pleasant place. I’d say more, but now I have to go to the pool with my daughter. I’ll pay for that, too, and happily.


Saturday, August 14, 2004

Non-Rivalry in Discussion

What sort of anti-social idiot would pick a fight with Glen, a gracious blog-host, brilliant thinker, and ninja debater? Not me! But I might qualify as the sort of scrupulously polite guest who cautiously offers a modestly alternative view of some of the issues that Glen raised in his recent post, The Properties of Property Rights.

Glen there argues against drawing a fundamental distinction between intellectual property (IP) rights and tangible property rights. He explains that IP is limited in duration as a matter of policy because it is non-rivalrous in consumption as a matter of fact. Glen emphasizes, however, that the non-rivalry in consumption of IP does not make it fundamentally different from other types of property. Different types of property have different attributes, he explains, citing as an example the limited duration of rideable wave faces, an asset that I earlier described in terms of property rights. (Here as elsewhere, I take it we use “intellectual property,” to refer only to copyrights and patents. Other types of IP—trademarks, rights of publicity, and trade secrets—are rivalrous in consumption and thus impliedly outside the scope of our discussion.)

To bolster his point that different types of property have different attributes, Glen appears to claim that whereas a surfer who abandons a wave “cannot forbid another surfer from taking over,” the same is “[n]ot true for real estate. “ I have to wonder, though, why we cannot regard the adverse possession doctrine as establishing essentially the same rule for real property that holds true in surfing. Under adverse possession, someone who openly, exclusively, and notoriously occupies land to which they do not own title can thereby, if not ejected by the rightful owner after a term of some years, win rightful title to it. Surfers transfer title to waves in the same fashion, albeit more quickly.

I quibble, though. Different kinds of property certainly do have different attributes. Rideable wave faces don’t last as long as plots of land, even if title to either can pass from one who abandons the property to one who takes possession of it. In further defense of Glen’s argument, I note that he might likewise have observed that different kinds of property have different attributes of mobility. Waves and chattel property move; real property does not.

(OK, ok. More precisely, Earth-bound parcels of real property do not move with regard to each other, even though they move as a whole with respect to the rest of the universe. Sheesh, you sci-fi guys drive me nuts, sometimes.)

So understood, Glen’s argument leaves a crucial question hanging. Granting that different types of property have different attributes, does IP’s non-rivalry in consumption mark it as too different from tangible property to qualify as a natural right? To put the question another, perhaps clearer way, is rivalry in consumption a necessary attribute of a natural property right?

Some will say that the question, in either form, wrongly presupposes that natural rights exist. Some will answer, “No. Patents and copyrights qualify as natural rights.” I reply, “Yes, I think both that tangible property rights qualify as natural rights and that the non-rivalry in consumption of copyrights and patents marks them as too different in kind to merit that same appellation.”


Suicide Bombed

In my last post at Volokh, I promised to extend my economic theory of suicide to the case of suicide bombers. Over a month later, I’m finally getting around to it.

The story so far: I model the suicidal person as engaged in a search for suicide opportunities, akin to a job search or product search. The agent ranks the possible methods in order of desirability (e.g., guns are preferred to pills, pills are preferred to drowning). But some methods are more readily available than others, and waiting for a better method to come along means enduring a bit more of life’s misery. The model counter-intuitively predicts that decreased availability of a preferred method could increase the frequency of suicide, because the agent becomes more willing to employ the less-desirable but more-readily-available methods. (The job-search analogy: A worker is more likely to take a lousy job offer now if he’s unlikely to get a good job offer in the future.)

As I originally conceived the model, all the utility values are negative: life sucks, shooting yourself sucks, etc. The agent just tries to minimize the sum of suckiness. But actually, all the math goes through just as well with positive values. Imagine a would-be terrorist. He doesn’t necessarily hate his life – it has a net positive value – but he also anticipates great utility from the killing of infidels, enough so that he might be willing to sacrifice his life. The more dead infidels, the greater the utility. This provides a natural ranking of his suicide opportunities: a planeful of victims is preferred to a busful, a busful to a carful. But some opportunities are more readily available than others. A 9/11 takes months of preparation (at least), and only a few hijackers. Opportunities to bomb buses arise more often.

The conclusion? If increased security diminishes opportunities for “major” terrorist acts, the result could be increased frequency of “small” terrorist acts. Would-be terrorists, faced with fewer chances to commit big atrocities, become more likely to commit small ones. The total number of terrorist acts or victims could rise or fall. Example: The U.S. had (maybe still has) lousy airport security. We got 9/11. Meanwhile, Israel has had its airport security tight as a drum for decades. They get countless truck bombings, car bombings, restaurant bombings, etc.

I know, I know… that’s purely anecdotal evidence, and I wouldn’t claim otherwise. The U.S. and Israel differ in numerous important ways other than their airport security, including their size and their distance from the terrorist breeding grounds. It would be difficult, maybe impossible, to do a true controlled study. So there’s no proof here, but I think the comparison is suggestive.

Does the theory indicate that increasing airline security is a bad idea? Not necessarily, since the total effect is ambiguous. But at a minimum, we shouldn’t simply assume that increasing security in any given area will have reduce the incidence terrorism. If I worked for Homeland Security, I would anticipate an increase in the number of small-scale terrorist attacks that don’t involve airplanes.


Friday, August 13, 2004

The Banquet Roves from List to Blog

Browsing the comments to Glen’s most recent post, I saw Mike Linksvayer’s name. Sure enough, it’s the same Mike I met back in Chicago, nearly 15 years ago, at an outing to Gilbert and Sullivan’s most anarcho-capitalist musical, Utopia, Limited. (Hi, Mike!)

Mike and I used to hang out on the Extropy email listserv. I don’t subscribe to that or many other email lists anymore. More accurately, I simply stopped getting messages from the list and never got around to doing anything about it. It had grown too noisy for my tastes, as email lists generally have since I’ve started reading blogs.

Mike has an interesting blog, which I can suggest to anyone interested in the social impacts of technology. Consider, for instance, his most recent post, which inquires whether the porn industry—so often a technological bellweather—will embrace digital rights management. (My guess: No. Porn consumers seem content with cheaply produced and only modestly original works. Porn producers thus need not recover the sort of fixed up-front costs that plague the traditional film industry.)

Mike’s blog informed me that Perry E. Metzger—ever brilliant, prolific, and unwilling to suffer fools—has a blog. I know Perry from the (now defunct?) Extropy listserv, too. From a post on Perry’s blog, I learned that Robin Hanson et al. plan a workshop on information markets (sometimes called “idea future” or “decision” markets) next February. If you don’t already know about Robin Hanson’s work, well, you should. Brace yourself for some assumption-kicking, first, though!

I’ve already written to Robin inquiring whether he plans to include any discussion of the legality of such markets. I’ve for some years been trying to get The Simon Market in Science Claims off the ground, focusing (naturally enough, given my aptitudes) on the legal and regulatory issues. For my law review article on the topic, check out Gambling for the Good, Trading for the Future: The Legality of Markets in Science Claims, 5 Chapman L. Rev. 159 (2002) [PDF format].

I offer this somewhat rambling post as a first-hand account of the blogohypercube’s (the traditional “blogosphere” just does not cut it) serendipitous ways. What a pleasant surprise that so many of my former listserv correspondents have resurfaced in this new medium! I’m tempted to say more, most notably about how blogging does not appear to encourage the same sort of back-and-forth that characterizes—and sometimes plagues—email lists. But if you will excuse me, I’ve got yet more blog links to follow.


Thursday, August 12, 2004

Properties of Property Rights

Consider the following two criticisms of intellectual property rights, both of which I’ve heard made by anti-IP libertarians: (1) “They have limited duration. If they’re true property rights, shouldn’t they have unlimited duration? If IP is a just form of property, then having a limited copyright or patent period should be construed as an unjust taking.” (2) “Ideas are non-rivalrous in consumption – use or enjoyment of an idea by one person does not diminish use or enjoyment by another person. This means ideas are fundamentally different from material assets.”

You can’t make both criticisms simultaneously, because one is the answer to the other. Ideas do in fact differ from material assets, just as stated in criticism (2). That is why it makes sense to treat intellectual property differently from material property by imposing an expiration date. The longer is the patent or copyright period, the greater is the deadweight losses from under-use of ideas.

Does an expiration date make property not “real” or “true” in some sense? I think not. Intellectual property and material property follow different rules. Real estate and movables also follow different rules. Assets in land, water, and air also follow different rules. Some rights, like your right not to have your car taken, are protected with property rules (violators are punished for not getting your consent), while other rights, like your right not have your car dented, are protected with liability rules (violators must pay damages but are not punished for failure to get consent). All of these distinctions derive, I would argue, from differences in the physical or economic characteristics of the assets or activities in question.

Allow me to appropriate Tom’s surfing-rights example to make the point more concrete. In the surfing system to which Tom refers, the following convention applies:

[Referring to a picture with four surfers labeled A, B, C, and D, in order of decreasing distance from the breaking wave.] OK, so it's surfer D. Why, because surfer D is closest to the breaking wave. Simple as that!. If surfer D does not get the wave then its up to surfer C and so on.
Note that in this system, some rights exist for limited durations – and not just the life of the wave. For a moment in time, D has the right to claim the wave. But it’s a “use it or lose it” situation: if he doesn’t take the wave, someone else claims it. Thus, D’s right has limited duration, and for good reason: unless someone jumps on the wave soon, it goes to waste.

Imagine, for a moment, that waves did not rapidly vanish, but instead became “fixed” upon having been claimed. In that situation, D could be granted a more permanent right without great harm. He could claim the wave, wait to use it until a more desirable time, sell it to someone else, etc. And that’s just how we handle much material property. If you acquire a piece of vacant real estate, you don’t lose it because you fail to develop it. You can wait until its most valuable use becomes clear before developing.

Some might object that the surfing convention above applies to homesteading of initial property rights, and therefore the more apt analogue in real estate is the requirement that a homesteader must use the land in some way – e.g., farming it for some period of time – in order to secure his claim. Perhaps so, although I’m not sure the “must use” requirement applies to all forms of homesteading. But set that aside and consider what happens even after a surfer has homesteaded the wave. As Tom observers, “Someone who favors large, outside waves might ride one only partially in-shore before pulling out over the lip and paddling back out, allowing a surfer who favors inside breaks to then take possession.” Note that the first claimant can only maintain ownership by maintaining possession; if he abandons the wave, he cannot forbid another surfer from taking over. Not true for real estate. The justification, as before, is that the wave would likely go to waste if the first claimant’s consent were required. Again, not true for real estate.

My point is not that surfing rights resemble intellectual property rights. My point is that surfing rights differ from traditional property rights for a sensible reason related to the nature of the assets in question – specifically, their permanence or rate of decay. Likewise, the rules of intellectual property rights also differ from other property rights for a sensible reason related to the nature of ideas – their non-rivalrous character. In no way does the difference in rules indicate the unreality or injustice of such rights.

(Addendum: From my recent posts, it may appear that I’m an ardent defender of strong intellectual property rights. Not true. There exist viable consequentialist arguments against strengthening – and in favor of weakening – IP protection. I may discuss them in future posts. Here, I’m arguing against the blanket dismissal of IP on what I consider silly or irrelevant grounds.)


Blogging as a Public Good

As my very brief history of blogging already indicates, I take a keen interest in privately-provided public goods. I’ve already written about street-side landscaping and clean beaches. You can now add blogging itself to that list. Reading a blog does not make it less available to others (absent an extreme case of server overload), thus making blogs non-rivalrous in consumption. Blogs almost always remain open to public scrutiny, too, making them non-excludable. That makes a blog, by the standard definition, a public good.

An aside for the exact: None of the three goods I’ve just mentioned qualifies as non-excludable per se; each could be—and sometimes is—fenced off. Here, as elsewhere, the definition of a public good relies not on its inherent attributes but on contingent facts about the rest of the world, most notably facts concerning the costs of enforcing property rights. You might thus substitute “non-excluded” for “non-excludable” in the definition of a public good. It just goes to show that private parties can cope with the problem of providing public goods simply by making them excludable, thus turning them into toll goods.

For now, though, I’m interested in discussing the mechanisms by which private parties can provide public goods without excluding access to them. By way of the story of Landscaping Man, I discussed the uses of shaming. Glen made much the same point in his post on voting. My description of the San Onofre Surfing Club impliedly demonstrated how private parties can provide a public good (clean beaches) by bundling them with a private good (access to a fun club). Glen did likewise, in his voting post, by suggesting that libertarians could host “voters only” parties.

What about blogs? They appear to constitute public goods (though I guess some wags might quibble about the “good” bit). And private parties certainly appear to provide them in abundance, without the benefit of any statist subsidies. Why?

To answer that question takes more honesty than reflection. Bloggers typically seek social status, something that only audiences can give them. Readers confer status on a blogger through the medium of praise, whether they offer it expressly or impliedly (by dint of links or simple referral counts), and whether they offer it by way of another blog post or a private compliment. Their goals fairly well ensure that bloggers will not exclude access to their posts. The low marginal costs of copying posts ensures that blogs remain non-rivalrous in consumption.

It is not surprising that bloggers seek social status. Most humans do. It does prove somewhat surprising, however, how in their high-tech pursuit of that near-universal drive, individually selfish bloggers have spontaneously created so selflessly generous a public good.


Wednesday, August 11, 2004

Surfing Customs, Customers, and Clubs

My surfin’ bud and fellow researcher, Paul Feine, no doubt hoping to score some of the fieldwork grants soon to pour in as a result of my recent plea, rightly reminds me that surfing property rights, as evolved norms, vary widely even along the SoCal coast. Compare, for instance, the mellow vibe at Old Man’s described below with the “locals only” ethos expressed by the Surf Punk’s classic, “My Beach!”

Paul also offered an cogent analysis in favor of privatizing the operation of one of our favorite surfing spots, San Onofre Surf Beach ("Sano"). Paul argued, in brief, that the state of California charges too little to access Sano (encouraging overuse), applies much of the funds that it does collect to unrelated uses (leaving Sano under-funded), and often works at cross-purposes to the private San Onofre Surf Club that locals have created to take up the resulting slack (such as by installing and maintaining shower hoses and BBQ grills). Although I’ve always found the state employees working at Sano friendly and helpful, I have to agree with Paul that their employer’s interests diverge from the interests of us surfers.

What would a locally-owned and operated Sano look like? Although the market’s wendings defy prediction, it seems safe to say that a private party would put up with more um, private partying than the State of California does. The latter killjoy, for instance, mowed down a stand of bamboo that enclosed a cozy little hideaway, reasoning that it might thereby crush the menace posed by dope-smoking surfers. I have my doubts about both the efficacy and wisdom of that policy; I still see a lot of goofily grinning surfers at Sano and still find them completely harmless. More to the point, I doubt that anyone looking to satisfy customers, as opposed to a Drug Czar from the East, would worry about a little secretive sand-side spliff sucking.

I learned about this recent struggle between Sano surfers and the State of California, by the way, from a member of the San Onofre Beach Club. I’ve made a habit of picking trash up off the beach both before and after I surf. Leaving the water after one recent session, I saw another guy doing the same. I struck up a conversation with him and learned that he was fulfilling one of his duties as a member of the club. Score another point for the private provision of public goods!

I plan to join the San Onofre Beach Club, too, as soon as I can figure out the somewhat obscure and informal process. It probably includes some mysterious initiation ceremony involving conch shells, face paint, and hula skirts. Hey, a guy can hope!


Gunning for President

Is it hypocritical of pro-gun Republicans to ban guns from the Republican National Convention? Here’s Mark Kleiman with an even-handed analysis:

Pro-gun forces have made a considerable amount of ill-natured sport out of the fact that some gun control advocates, including entertainers, have armed bodyguards. It's a fair point: if ordinary folks who can't afford to hire guards must go unprotected by guns, why should the rich be different? The business about the convention turns that around: if allowing guns to be present, even in the hands of people licensed to have them, is intolerably dangerous to the President -- even protected by the Secret Service -- why should the rest of us have to tolerate it?

Now of course that's not a completely reasonable position; the President is [a] special target, and what's justified to protect him might not be justified in an ordinary setting. But that doesn't necessarily make it any less effective rhetorically. If the President really believes in Second Amendment rights, why shouldn't licensed gun owners, and especially holders of concealed-carry permits, be allowed to bring guns into his convention. Or into the White House, if it comes to that?
That the President is no ordinary citizen is one defense, but I can think of at least one better defense: Keeping guns out of a convention hall is much easier than keeping guns out of the country. The number of entry points is finite, versus the virtually infinite number of entry point into the country. The number of attendees is small, relative to the population of a city or country. A convention hall can be evacuated and searched beforehand to find guns that might have been secreted there; but you can’t evacuate the country and search every house and hidey-hole to ferret out all the existing guns. In short, the difficulty of enforcing a national- or state-level gun ban dwarfs that of enforcing a building-level gun ban.


More Wining

Todd Zywicki has returned to the Volokh Conspiracy, where he’s making a series of posts on the wine-shipping cases that I discussed here. Here are part 1 and part 2 of Zywicki’s series.

UPDATE: And now part 3 is up.


Tuesday, August 10, 2004

Health Hazards

Via Tyler at Marginal Revolution, I found a summary version of Michael Porter and Elizabeth Olmsted Teisberg’s prescription for a better healthcare system. (I’m too cheap to pay $5 for the long version.) Porter and Teisberg, both trained in economics, provide a diagnosis and prescription far better than most. Still, there’s room for criticism – some substantive, some rhetorical.

First the rhetorical. Porter and Teisberg try to sound non-partisan and even-handed by saying things like, “There is no villain here. Poor public-policy choices have contributed to the problem, but so have the bad choices made by health plans, hospitals, and the employers who buy their services.” I understand what they’re trying to do, but in some cases it’s misleading. For instance, they draw attention to the lack of transparency in healthcare pricing and recommend simplified billing practices:

A fundamental function of pricing is to convey information to consumers and competitors. Current billing practices obscure that information. Unnecessarily complex billing contributes to cost shifting, drives up administrative costs, and makes price and value comparisons virtually impossible. Under positive-sum competition, providers would have to issue a single bill for each service bundle, or for each time period in treating chronic conditions, rather than a myriad of bills for each discrete service. Many other industries have solved the problem of how to issue a single bill for customized services; among them aerospace, construction, auto repair, and consulting. A competitive health care industry could figure it out, too.
Absolutely correct. But if Porter and Teinberg won’t point fingers, I will. Current billing practices result not from market forces, but from government interventions that have encouraged people to insure all healthcare services – including routine care and maintenance – and to avoid high-deductible policies. As a result, customers have almost no incentive to compare prices and demand simpler bills. Why should they, when the insurance company (or Medicare or Medicaid) takes care of the bill?

By way of comparison, most car owners will ask their mechanics about the price of auto repairs and question any mysterious items on the bill. Similarly, I suddenly became a lot more interested in the cost of dental procedures when I discovered that my dental insurance didn’t cover my preferred dentist. My dentist’s assistant was able to quote me exact prices for each thing I might want done; of course, government intervention in dentistry doesn’t even approach the level of intervention in regular healthcare.

Porter and Teisberg assuredly realize all of the above, which is why I characterize it as a rhetorical complaint. But now for a couple of substantive complaints:
[Under our plan,] Providers could and would set different prices from their competitors, but that pricing would not vary simply because one patient was insured by Aetna, another covered by Blue Cross, and another self-insured. Payers could negotiate, but price changes would have to benefit all patients, not just their own. The cost of treating a medical condition has nothing to do with who the patient's employer or insurance company is.
It’s simply false that the cost of treating a condition is independent of the patient’s affiliation. Some insurance companies and HMOs have bureaucratic procedures for handling claims, while others have streamlined the process. The former cost more to deal with than the latter. Moreover, a patient who pays out of pocket is substantially easier to process than any patient paying through insurance. If providers cannot discriminate based on the patient’s payment method, incentives for administrative efficiency will diminish greatly.
National List of Minimum Coverage. The current system of individual negotiation and litigation over coverage is expensive. A better system would mandate a minimum level of coverage with a national list (such as the one used in the Federal Employees Health Benefits Program).
Any mandated minimum coverage would need to specify the package of benefits to be included. And who would do the specifying? Either Congress or a bureaucracy. Either way, the contents of the package would assuredly fall prey to the depredations of special interests. Under the status quo, state legislatures have responded to the lobbying efforts of medical specialists and pharmaceutical companies by passing literally thousands of laws that require health insurance policies to cover particular benefits, from mental health to acupuncture to hair transplants. Premiums have risen in order to cover the cost of all these benefits, thereby pricing some customers out of the market. And that’s only at the state-level; with the higher stakes of a nationally mandated package, the special-interest problem could only get worse. Make no mistake: a mandated benefits package will drive costs up, not down.

When Porter and Teisberg talk about minimum coverage, I’m sure they have in mind a minimal, catastrophic-care, high-deductible plan. But in politics, what you want is rarely what you get. Porter and Teinberg know their industrial organization, but perhaps they should brush up on their public choice theory.

Be sure to read Tyler’s misgivings as well.


Skateboarding, the Latest Embarrassment?

I've long accepted that I’m always doing something embarrassing—but that I don’t always know what it is. I resign myself to finding out only later, in painful retrospect. Some few times I do know that I’m in for ridicule, of course, such as when I competed at an AAU swim meet wearing nothing but Speedo racing suit and an egg-sized hickey on my neck. Often, as with regard to regrettable clothing, I have only a nagging suspicion that I’ve missed the exit for Cooltown and ended up in Nerdsburg. On Dweeb Street. During the annual Mocking Days festival. See, e.g, the white Fantasy-Island-style leisure suit that I wore for my high-school senior picture.

Most often, though, I remain clue-lite that something I now regard as utterly acceptable, or perhaps even commendably edgy, will later give me a groan of recollection. My experiments with facial hair probably qualify on that count (though I reserve the right to reverse judgment if I ever figure out how to shake the Satan look). I recall with affection the zebra-striped shoes I wore as an undergrad—I painted them myself!—but wince when I remember that I wore them with the top from a karate uniform. Ow.

The question thus arises: What am I doing now that will later cause me embarrassment? As noted, clothing choices often merit suspicion. Maybe those flowered surf trunks that I like so much will come back to haunt me. (But they feel so comfy! And everybody wears them in San Clemente!) Or maybe it’s blogging, especially on the present theme, that will look pretty dumb in retrospect.

I think that skateboarding marks the most likely candidate for reversal on appeal, though. A 40-year-old can hardly expect to take up the sport without at least looking foolish, and perhaps even looking like he has rubbed asphalt on his face (because he has). Unless I can parlay this, the latest addition to my collection of board sports, into a decent showing at the Seniors' X-Games, I think I’m fairly likely to look back on it with some mortification (assuming that my head injuries allow me to look back, of course).

Nonetheless, undeterred by the haunting suspicion I’m going to crash into big regrets, I persist. I like learning new stuff, especially fun stuff like skateboarding. Learning to skateboard with my six-year-old daughter makes it all the more fun. I rationalize it as a way to teach her by my example (maybe) and by her own first-hand experience (undoubtedly) how initial failure can lead to eventual success. Anyhow, it’s so cute to see her rolling down the street, deep in concentration, red high-tops on her feet and braids peeking out from underneath her helmet, that I’m willing to risk embarrassment, both present and future.

Thank goodness for parenting. It removes the possibility—and thus the pressure—of achieving Coolness. We parents don’t need to feel embarrassed. We have kids to feel embarrassed for us.


Monday, August 09, 2004

Schopenhauer's Debate Camp

A few years ago, I wrote a debaters’ guide to logical fallacies. I’m hardly the first person to have created a list of fallacies; my purpose was to discuss how to deploy them in the context of debate – how to refute your opponents’ fallacies, and how to “fix” your own to make them more plausible or respectable. Even in this narrower task, I had plenty of company. Via Language Log, I found Robert Thouless’s “Thirty-eight dishonest tricks which are commonly used in argument, with the methods of overcoming them.” And it turns out that Thouless was apparently paying homage to Arthur Schopenhauer’s thirty-eight stratagems in “The Art of Controversy.” Both lists are excellent, especially the latter. Some selected passages (N.B.: some of these stratagems are not fallacies, but simply clever devices):

If you want to draw a conclusion, you must not let it be foreseen, but you must get the premisses admitted one by one, unobserved, mingling them here and there in your talk: otherwise, your opponent will attempt all sorts of chicanery. Or, if it is doubtful whether your opponent will admit them, you must advance the premisses of these premisses; that is to say, you must draw up pro-syllogisms, and get the premisses of several of them admitted in no definite order. In this way you conceal your game until you have obtained all the admissions that are necessary, and so reach your goal by making a circuit.
A great lesson for anyone performing a cross-examination. I’ve seen dozens of debaters try to force the cross-examinee to admit or deny a main proposition of the debate; utterly pointless. No one will admit what they don’t want to admit. Instead, use the cross-ex to lay the groundwork for your own devastating speech.
If you have no argument ad rem, and none either ad hominem, you can make one ad auditors; that is to say, you can start some invalid objection, which, however, only an expert sees to be invalid. Now your opponent is an expert, but those who form your audience are not, and accordingly in their eyes he is defeated; particularly if the objection which you make places him in any ridiculous light. People are ready to laugh, and you have the laughers on your side. To show that your objection is an idle one, would require a long explanation on the part of your opponent, and a reference to the principles of the branch of knowledge in question, or to the elements of the matter which you are discussing; and people are not disposed to listen to it.
Back in the day, we called this tactic a “time suck”: a point that probably won’t win you the round, but will induce your opponent to waste precious time in refutation. The wit is not strictly necessary, but it sure helps – I’ve seen a good joke swing many a debate round.
“That's all very well in theory, but it won't do in practice.” In this sophism you admit the premisses but deny the conclusion, in contradiction with a well-known rule of logic. The assertion is based upon an impossibility: what is right in theory must work in practice; and if it does not, there is a mistake in the theory; something has been overlooked and not allowed for; and, consequently, what is wrong in practice is wrong in theory too.
Ugh. It’s not an argument, but a place-holder one. Annoying, yet sadly effective.
When you state a question or an argument, and your opponent gives you no direct answer or reply, but evades it by a counter-question or an indirect answer, or some assertion which has no bearing on the matter, and, generally, tries to turn the subject, it is a sure sign that you have touched a weak spot, sometimes without knowing it. You have, as it were, reduced him to silence. You must, therefore, urge the point all the more, and not let your opponent evade it, even when you do not know where the weakness which you have hit upon really lies.
Every seasoned debater knows this one: whatever argument you’ve made to which your opponent has given the least attention – whether for lack of time or lack of response – suddenly morphs into the most important point of the debate.


Olympic Events: Summer and Summern't

The 2004 Summer Olympics will encompass so many different events that NBC plans to air them on at least three different channels. Which raises a question I've been wondering for several Olympic seasons now: why not move some summer events to the Winter Olympics, when the schedule isn't so jammed? Gymnastics, for instance. All gymnastics events take place indoors, so there's no particular reason not to move them to winter. And how about ping pong? Don't tell me they can't play ping pong in February. Boxing, fencing, judo, weight-lifting -- all indoor sports that can take place any time of year.

For that matter, all the swimming events happen indoors now...


Ping and Pong with Tim and Glen on Copyright and Natural Rights

Tim Sandefur clarifies his take on the (un)naturalness of copyright, and my co-host Glen offers a fresh view of the same topic. I here reply to each in turn and in brief. Ping-pong postings! How bloggy is that? Very much, I should think.

Tim complains that when it comes to defining the scope of copyright rights,

[W]e have a spectrum. On one extreme is the possibility that a person could own the genre of swamp-rock, . . . . On the other extreme, Fogerty can only own a specific, exact arrangement of notes . . . . In seeking a middle ground between these extremes we use “reasonableness.” But I don’t think reasonableness works if we’re using a natural right theory of copyright. If John Fogerty invents swamp-rock, then under a natural right theory of copyright, then he should be able to prohibit me from writing in that genre.
I take Tim to say that a natural rights view of copyright would logically permit the ownership of ideas—something that the Copyright Act specifically excludes from protection. On that reading, I think Tim has a valid point. The real-world law of copyright does not jibe with the theory of natural rights. Copyright practice diverges from natural rights in other areas, too. I catalog some of them in, Escape from Copyright: Market Success vs. Statutory Failure in the Protection of Expressive Works, 69 U. Cin. L. Rev. 741, 760-774 (2001).

Nonetheless, I don’t think that the case against natural copyrights can rely solely on the law’s failure to meet the demands of theory. Critics of natural rights to tangible property could make similar claims about the all-too-imperfect laws in that area. Consider, for instance, the long-standing Poletown decision that, as Tim describes, only recently and thankfully bit the dust. Granted, copyright practice diverges from natural rights theory more often and widely than the law of tangible property does. Still, I would hesitate to deny natural copyrights solely on that argument.

Glen offers a different angle on the natural copyrights dispute, one arising from his fundamentally consequentialist justification of all rights. On that view, whether copyright qualifies as a natural right (as opposed to merely a statutory right) depends on a variety of contingencies. Those contingencies include such things as the demand for expressive works, the incentives needed to foster their creation, and the costs of enforcing any rights thereby set up.

I’m largely sympathetic with that view of rights, because I do not think that natural rights derive from a priori reasons. I follow Randy Barnett in viewing natural rights from the viewpoint of naturalist legal positivism (as opposed to statist legal positivism). For Barnett’s early views on the topic, see Toward a Theory of Legal Naturalism, 2 J. Libertarian Studies, 97 (1978). On that view, natural rights rank as such because they prove necessary for people to live together in peace and prosperity. Economic theory can illuminate much about those rights, and legal reasoning can help to administer them, but practice remains the ultimate test of whether a right is natural to human thriving.

I don’t think copyright meets that test. Copyright arose relatively recently and from purely statutory origins. It did not evolve as a necessary means of guarding against antisocial violence and killing poverty. Economic theory offers only equivocating support for copyright, portraying it as only one of many tools for incentivizing the supply of expressive works. Economics also teaches that expressive works, as non-rivalrous in consumption, differ fundamentally from tangible goods. Deontological justifications of copyright, most notably those arising from Locke’s, Hegel’s or von Humbolt’s theories, prove susceptible to convincing counterarguments. I thus regard copyright as at best good public policy and at worst as an unnecessary and improper transgression on our natural rights to persons, properties, and promises.


Sunday, August 08, 2004

Natural Consequences

Could there be a natural right to intellectual property? Tim and Tom both doubt it. Though I’m not a proponent of the natural-rights approach myself (I usually call myself a rule utilitarian), I wonder if Tim and Tom are selling natural rights short. While libertarians often use “natural rights” as a kind of shorthand for deontological modes of reasoning, I think that does violence to the concepts of natural law and natural right as understood by the thinkers like Cicero and Aquinas who articulated them. (Disclaimer: I am neither a philosopher nor an expert on natural law.)

Natural law does not eschew consideration of consequences. Aquinas emphasizes the importance of “practical reasoning” as a means of applying natural law in particular circumstances. Natural law affirms certain ends, including survival, health, wealth, and knowledge, as inherently good for human beings. But it takes practical reasoning to understand the requirements for achieving those ends, and both the requirements and our understanding of them may change over time. Here’s Aquinas himself, in Summa Theologica, apropos the question of whether human law could ever change:

On the part of man, whose acts are regulated by law, the law can be rightly changed on account of the changed condition of man, to whom different things are expedient according to the difference of his condition. …

… The natural law is a participation of the eternal law, as stated above (91, 2), and therefore endures without change, owing to the unchangeableness and perfection of the Divine Reason, the Author of nature. But the reason of man is changeable and imperfect: wherefore his law is subject to change. Moreover the natural law contains certain universal precepts, which are everlasting: whereas human law contains certain particular precepts, according to various emergencies.

… A measure should be as enduring as possible. But nothing can be absolutely unchangeable in things that are subject to change. And therefore human law cannot be altogether unchangeable.

… In corporal things, right is predicated absolutely: and therefore, as far as itself is concerned, always remains right. But right is predicated of law with reference to the common weal, to which one and the same thing is not always adapted, as stated above: wherefore rectitude of this kind is subject to change.
Now, natural law is not subjectivist in the sense that utilitarianism typically is. It regards some things as inherently good, whether people subjectively desire them or not. But it is still broadly consequentialist in its application, because its prescriptions result both from a priori goods and from reasoning about what kinds of activities and institutions best advance them.

What does all this have to do with intellectual property? As I have argued before, the consequentialist justification for intellectual property is very similar (though not identical) to the justification for material property. Both forms of property serve to internalize the positive externalities that would accompany productive effort if the fruits of that effort were owned in common. It’s questionable whether either material or intellectual property ought to be considered “natural rights,” if that term means rights derived from purely a priori considerations. Without any consideration of economic factors like scarcity, incentives, and so on, nothing seems especially “natural” about exclusive control of any assets, material or otherwise. But if natural rights arise from the interaction of natural law principles and economic factors, then the case for natural rights in intellectual property differs little in principle from the case for natural rights in material property.


Dancing with Sharks

The sun has yet to rise and a quiet blanket of morning fog still wraps around our hill. I’m having a cup of coffee, trying to wake up for the dawn patrol at Sano. Maybe reading about these recent shark encounters at the local breaks will help to rev me up.

You have to enter a wilderness to surf. Even if you can see cars up on the beach, you see them from untamed world. I like that. Every few trips out a pod of dolphins will glide down the line, sometimes coming in close enough to pop up among the surfers. On Super Special Unicorn and Rainbow days they join us in riding the waves, rippling just under the surface until—POW!—they suddenly leap free into the air.

Only recently have the sharks started showing up. Or, more accurately, only recently have people started reporting having seen sharks. My wife sniffs a conspiracy, claiming that locals make up the stories to scare off tourists and Gomers. The incentives do favor fabrication, or at least marginal exaggeration. It costs little to report a shark encounter and may win you the same, pale glory that fishermen find in their prey. You alone would know that you in fact saw a seal. You would thus enjoy both less crowded breaks and less anxiety riding them. Even if you get caught in the lie, little of consequence would follow.

Alas, a public goods problem stalks the waves. If you have an incentive to make up shark tales, so do other surfers. And you cannot be sure whether others may stretched or even snapped the truth.

I’d ruminate longer, but I’ve got an appointment with the Man in a Grey Suit. Leastwise, I’ll be waiting for him. I hope he shows; that would make for a really good story. Too bad nobody would believe me.


Saturday, August 07, 2004

Tim Sandefur: Naturally Argumentative

When I first met Tim Sandefur, at an IHS Liberty and Society seminar, we started arguing before we’d even said, “Hello.” I don’t think we’ve ever really finished that particular argument, which concerned the meaning of “liberal” and what to do about it, because he still doesn’t agree with me. Fortunately, however, I did win an early argument with Tim about where he should go to law school, convincing him to attend Chapman University School of Law. And I certainly cannot argue with his decision, after graduating from Chapman, to join the Pacific Legal Foundation and pursue a career in smashing statism.

Tim’s blog, Freespace, recently offered a couple of amusing and informative posts about Credence Clearwater Revival’s run-ins with the law. In one of those posts, he relates how John Fogerty—the band’s lead guitarist, lead vocalist, lead songwriter, and (as Tim convincingly argues) lead leader—faced a lawsuit for plagiarizing himself. Tim concludes, “The possibility of self-plagiarism seems to me to be excellent evidence of the incoherence of a natural right to copyright. Perhaps Professor Bell will comment on the subject.”

Me? Comment on a question of intellectual property? Oh, gosh. If you insist.

Paradoxical though self-plagiarism may at first sound, I don’t think it says much the fundamentals of copyright. Rather, it says merely that copyright functions much like tangible property. Regardless of whether it arises naturally or by fiat, property can be acquired by creation, transferred voluntarily, and trespassed by its initial owner in violation of that transfer.

Fogerty was accused of copying without authorization a copyrighted work that he had created and then transferred to a music publisher. Even someone who believes in a natural right to copyright should see that as a prima facie case of self-plagiarism. It follows logically from the initial acquisition of a copyrightable work (by creation), the transfer to another party of that intellectual property (by sale), and the trespass on it by the same party who initially created it (by Fogerty, the alleged self-plagiarist).

Like Tim, I doubt that copyright constitutes a natural right. And, like him, I think that it does make sense to talk about natural rights to other sorts of property. But, perhaps contrary to him, I don’t see any paradox in violating a natural right you’ve acquired but transferred to another person. As always, though, I’m happy to argue with Tim about the question.


Friday, August 06, 2004

Half-Life of a Bogus Stat

I caught a few minutes of the news while eating lunch. As introduction to a fluff piece on how to get along with co-workers, the anchorman said something like, “Since we spend almost half our lives at work…” What? Half our lives? You’re kidding, right? By my calculation, a person working a massive 80 hours a week would spend 48% of his time at work – and that’s assuming this poor schmuck had no childhood, no retirement, no vacations, no sick days, and no periods of unemployment. And for this guy to be the mean or median American (the only way one could justify saying we spend almost half our lives at work), there would have to be a helluva lot of people at work much more than 80 hours per week – again with no childhood, retirement, etc. – to make up for all the people who are clearly at work much less than 80 hours per week (including everyone who’s not part of the labor force, like homemakers, children, and retirees).

Clearly, this little factoid doesn’t pass the smell test. Yet a Google search for [“half our lives” work] pulled up copious references to the same claim, including some that omitted the “almost” or even replaced it with “more than.” Anyone know where this clearly bogus statistic came from? Is my hyperbole detector on the fritz?


“Pertinax”: Arnold’s Next Starring Role?

Arnold Schwarzenegger, in his role as governor of California, recently hosted a premier for the California Performance Review (CPR). This thrilling work plots out several years of reforms aimed at curing the state’s budget crisis, combining the best of the sci-fi and slasher genres. Critics call it “radical,” “sweeping,” and “drastic,” crediting Arnold for “making history again.” Although it is too early to be sure whether the CPR will pan out financially, the governor already deserves an Oscar for bold originality.

He probably won’t dwell on that success, however. A savvy player like Arnold thinks several steps ahead. This time, he might also do well to look back—way back--as he ponders his next move. Governor Schartenegger can find both inspiration and a warning in the tragic story of Publius Helvius Pertinax, who ruled the Roman Empire for eighty-seven glorious days in the year 193.

Surprisingly, screenwriters appear not to have mined this true-life tale of intrigue, bravery, and heartbreak. Astonishingly, advocates of limited government seem largely ignorant of Pertinax, whom they should rightly include in their pantheon of heroes. Happily, Edward Gibbon’s Decline and Fall of the Roman Empire lyrically relates the tale. (Admittedly, though, some accounts treat Pertinax less reverentially.)

Commodus, the emperor who immediately preceded Pertinax, no doubt ranked among ancient Rome’s most cruel and despotic leaders. The assassination of Commodus, however welcome, left public affairs in shambles. A desperate Senate pleaded for the august Pertinax, a retired general, Roman prefect, and senator, to come to his country’s aid. He reluctantly but dutifully agreed to don the Imperial purple. “To heal, as far as it was possible, the wounds inflicted by the hand of tyranny, was the pleasing, but melancholy, task of Pertinax,” explains Gibbon.

Pertinax immediately embarked on a vigorous campaign of reform. His policies, as Gibbon recounts, would impress any friend of freedom:

Pertinax had the generous firmness to remit all the oppressive taxes invented by Commodus, and to cancel all the unjust claims of the treasury; declaring, in a decree of the senate, "that he was better satisfied to administer a poor republic with innocence, than to acquire riches by the ways of tyranny and dishonour." Economy and industry he considered as the pure and genuine sources of wealth; and from them he soon derived a copious supply for the public necessities. . . . He removed the oppressive restrictions which had been laid upon commerce, and granted all the uncultivated lands in Italy and the provinces to those who would improve them; with an exemption from tribute, during the term of ten years.
The innocent zeal of Pertinax proved his undoing, however. “His honest indiscretion united against him the servile crowd, who found their private benefit in the public disorders, and who preferred the favour of a tyrant to the inexorable equality of the laws,” explains Gibbon. The Praetorian Guard, in particular, chafed under the newly resurrected rule of law. Twice they conspired to force aside Pertinax and place one of their lapdogs in the throne. Twice they failed.

Gibbon’s account of the Praetorian Guard’s final assault, and of Pertinax’s noble last stand, merits quoting at-length:
These disappointments served only to irritate the rage of the Praetorian guards. . . . Two or three hundred of the most desperate soldiers marched at noon-day, with arms in their hands and fury in their looks, towards the Imperial palace. The gates were thrown open by their companions upon guard; and by the domestics of the old court, who had already formed a secret Conspiracy against the life of the too virtuous emperor. On the news of their approach, Pertinax, disdaining either flight or concealment, advanced to meet his assassins, and recalled to their minds his own innocence, and the sanctity of their recent oath. For a few moments they stood in silent suspense, ashamed of their atrocious design, and awed by the venerable aspect and majestic firmness of their sovereign, till at length the despair of pardon reviving their fury, a barbarian of the country of Tongres levelled the first blow against Pertinax, who was instantly dispatched with a multitude of wounds. His head separated from his body, and placed on a lance, was carried in triumph to the Praetorian camp, in the sight of a mournful and indignant people, who lamented the unworthy fate of that excellent prince, and the transient blessings of a reign, the memory of which could serve only to aggravate their approaching misfortunes.
Emperor Pertinax offers Arnold Schwartenegger the sort of movie role that he might relish playing, a role that pits a single man of courage and integrity against a snake’s nest of brutes, cowards and rogues. But Governor Schwartenegger surely does not want to relive—and die—the short reign of Pertinax. He might thus regard it as a cautionary political history. The moral of Gibbon’s tribute to Pertinax: Where you cannot force reform on a corrupt regime, you must take care to buy the peace from its minions.