1. You’ll work your ass off trying to devise new, exciting, and sophisticated ideas.
2. You’ll be remembered for some silly piece of fluff you threw together based on a bar conversation.
Every three months or so, in a fit of narcissism, I’ll Google myself or my website to see who’s been linking to me. Here’s what I discovered the last time I did it: I’ve gotten more publicity for The Two Things than anything else I’ve done, casually or professionally. Periodically, someone new will discover The Two Things page and link it, and I’ll only know because of the unexpected deluge of emails with more submissions. Today it was MetaFilter. I’m not annoyed, just amused. Keep those submissions coming.
Friday, June 11, 2004
The Two Things about Being a Public Intellectual
Thursday, June 10, 2004
If You Multiply Two Negative Rights, Do You Get One Positive Right?
Lots of people are still talking about this negative-versus-positive rights thing, so I guess they (the writers, not the readers) must not be bored yet. So I’ll just make one more observation that I hope will clear up some confusion. I’ll try to keep it short. Consider two hypothetical rights claims:
(1) I have a right not to be punched without my consent.
(2) I have a right to police assistance in enforcing claim (1).
These claims are not identical. Claim (1) is only a claim to the non-interference of others (they should refrain from punching me). It is therefore a negative right, assuming that I have an underlying property right in my own body. Claim (2), on the other hand, is a claim to the provision of specific services by other people – police officers and, by extension, the taxpayers who fund them. It is therefore a positive right, unless we assume that I own the labor of the police or a fraction of the wealth of the taxpayers.
By merging claims (1) and (2), Eugene and some others reach the conclusion that some allegedly negative rights are actually positive. It is a natural merger (though not a necessary one, as anarchists will emphasize), because claim (1) does not seem terribly useful unless backed up by claim (2). Libertarians who support both claims are indeed supporting some positive rights, albeit only those used to back up negative rights. But nonetheless, the two claims are conceptually distinct, and dehomogenizing them will clear up much confusion.
Wednesday, June 09, 2004
Atom Enabled
At the request of a reader, I have enabled Atom, which is some kind of syndication device. I don't know much about this, but if it makes the site easier to read for some people, I'm in favor (although it apparently strips out all paragraph breaks and text formatting). The link is to the right.
Is the Square Root of a Negative Right an Imaginary Right?
Good lord, what a lot of confusion on the topic of negative and positive rights. Eugene Volokh. Stephen Bainbridge. Jane Galt. Jonathan Wilde.
Here’s why everyone is confused: They are working under the mistaken notion that negative rights and positive rights are fundamental concepts, which can be defined by reference to specific kinds of actions and behavior. But negative and positive rights are in fact derivative concepts: they have no particular meaning without reference to some more fundamental notion of rights, specifically, of property rights.
Example: I have a negative right not to be punched in the nose. This accords with the standard definition of a negative right, inasmuch as it requires someone else to refrain from something rather than doing something. But what about that other fellow’s negative right to swing his arms around without interference, perhaps as part of a funky dance? These two rights, both seemingly negative, seem to be in conflict, and the conflict is resolved in my favor only by the presumption that I own my nose. If I did not – say, if I had signed a contract giving someone else the right to make decisions regarding my nose – then the conflict would be resolved in the arm-swinger’s favor.
This is exactly equivalent to Eugene’s point about private property: that my negative right not to have strangers walking around on my land entails a restriction of the negative right of other people to walk wherever they please. To assume that other people have such a right is to assume an underlying regime (moral or legal) in which land is communal. And if that is the case, then I have no negative right to exclude others at all. Once again, the conflict between seemingly negative rights is resolved by an assignment of underlying property rights.
Any positive right can be recast in negative terms, if you’re willing to jigger with the underlying property rights distribution. For instance, a right to food and shelter is usually treated as a positive right, but we can cast it as a negative right if we are also willing to say that those who must provide these things do not own the labor and resources needed to do so. And indeed, that’s essentially what we say in cases where the initial owners have specifically agreed to provide the goods or services in question, such as through a grain futures contract. The contractual arrangement changes the distribution of property rights.
So are libertarians wrong to say their position supports negative rights and eschews positive ones, and that this distinguishes libertarianism from other points of view? If they intend those terms to carry much philosophical weight, then yes, they’re wrong. But the language of positive and negative rights is better understood as a shorthand summary of the libertarian point of view, given a context in which the basic elements of the libertarian understanding of property rights – one of self-ownership and private ownership of external resources such as land – happen to be pretty well accepted. Very few Americans, at least, would be willing to admit that you don’t own your labor or your private home. Libertarians can thus use the language of positive and negative rights to explain how their vision builds on (though is not identical to) commonly understood conceptions of self- and world-ownership.
Tuesday, June 08, 2004
Everything Must Be Banned or Required Department
The usual justification for ratings systems is that they allow parents greater control over their children’s viewing habits. But every now and then, the nannies betray their real agenda: they want to do the parenting themselves.
Example: According to an article in today’s L.A. Times (not available without registration), a movie theater chain has started created special IDs for kids under 17, by which parents can give permission for their kids to see R-rated movies without parental accompaniment. Parents have to accompany their kid to the movie theater just once, for the purpose of creating the ID. Great idea, right? Not according to the hand-wringing set:
Critics argue that the cards amount to parents handing to their kids the delicate decision about what movies are appropriate, a shift they say violates the intent of the motion picture industry's voluntary rating system.Now, why in the world would giving parents greater choice undermine their faith in the system? The parents signing the ID cards obviously don’t mind. So the real concern here is that other parents will get annoyed at the permissive parenting of their neighbors and demand government intervention to set them straight. And the threat of regulation is, of course, what motivates industry spokesmen like Jack Valenti to oppose what is clearly a great concept.
"All R-rated films are not alike. It is the parents' responsibility to make specific judgments about R films — and wrong to give a blanket endorsement to all," said Jack Valenti, president and chief executive of the Motion Picture Assn. of America, which issues movie ratings.
…
Some opponents fear that leaving movie choices to teens could taint the ratings system, voluntarily enforced by theaters since 1968. They say that could open the door to government regulation that would stifle creativity and experimentation in filmmaking.
“If parents lose faith in the system, the first thing they'll ask is ‘What are our recourses?’ Then, we could start hearing from every politician that wants to make a name for himself in the name of family values,” said Dann Gire, president of the Chicago Film Critics Assn.
Head of the Class
Some people are upset about the phenomenon reported in this NYT Magazine article. It seems that teenagers are having a lot more oral sex these days, presumably as a means of avoiding HIV transmission.
Amy blames the phenomenon on abstinence-only education:
And yet, it seems not to have occurred to people that teenagers are having unprotected oral sex because their teachers have told them that having protected intercourse is too dangerous. No one is talking about the fact that preaching abstinence and telling kids that pre-marriage romantic relationships can hurt them may be encouraging promiscuity.I agree with Amy that abstinence-only education is pretty stupid (read the rest of her otherwise excellent post for more details). But is the shift to oral sex one of its ill effects? Are the abstinence-only classes really telling kids to avoid having sex and just failing to mention that oral sex counts as sex? Given the right-wing origins of abstinence-only education, I figure the classes probably tell students not to have any form of sex, especially not the crime-against-nature variety.
So why the shift to oral? It sounds to me like a fairly rational response to the risks involved. I’m inclined to present it to my students as an example of how people respond to changes in relative costs by substituting in favor of less costly activities. The fact is that while both oral and vaginal anal sex can transmit HIV (and other STDs), the risk is a good bit lower for oral sex. Comparing unprotected oral to unprotected vaginal or anal, the evidence, such as it is, indicates that oral is much safer. I assume the same goes for the comparison between protected oral and protected vaginal or anal. I have not seen any comparisons of risk for unprotected oral versus protected vaginal or anal. But even if the former is riskier than the latter, they are both safer than unprotected vaginal or anal, so it makes perfect sense that both would increase in frequency relative to unprotected vaginal or anal, once people became aware of the risk differential. The fact that vaginal sex can lead to pregnancy shifts the balance even further toward oral.
Yes, the kids are still engaging in a risky activity. Then again, they’re engaging in a risky activity every time they cross the street. People take calculated risks all the time. Indeed, the most salient point raised by the opponents of abstinence-only education is that teenagers will take some sexual risks, so it’s foolish to just exhort them not to have sex at all. But by the same token, it’s also foolish to think that teenagers will always minimize risk by using protection even for the lowest-risk activities. Instead, they probably perceive condom use and oral sex as two different modes of reducing their risk, and they figure doubling up is overkill. After all – they might reason – if you’re going to reduce your sensitivity by using a condom, you might as well skip the oral and go for the vaginal.
Belle Waring and Eszter Hargittai have a different objection. They’re disturbed by the fact that boys are receiving oral sex without returning the favor. Well, okay, they should return the favor. But most high school boys are socially maladroit asses – that’s old news – so I’m betting that the girls weren’t getting much out of the vaginal sex in the old days, either. Are the girls being pressured into doing it? Sometimes, I assume, and that’s bad but hardly new, either. So it seems to me that girls are probably getting a better deal than they used to, because they can satisfy their horny boyfriends with less chance of getting infected and no chance of getting knocked up. In fact, my reading of the NYT Magazine article is that girls are playing a key role in negotiating the shift in behavior: “According to Jesse, Caity set the ground rules. ''Caity told me, ‘Adam knows he's not going to get in my pants, but I might get into his.’” That doesn’t sound to me like a girl getting pressured into an unequal relationship; it sounds like a girl deciding what kind of risk she’s willing to take.
What He Said
Lots of eulogies for Reagan. Lots of execrations of Reagan. I feel almost an obligation to add something. But over the last 15 years, I’ve gradually realized two things about Reagan’s legacy: (1) It is a profoundly mixed bag, filled with substantial chunks of both good and bad. (2) It’s hard to even distinguish the good chunks from the bad ones.
Anything else I added would just be a repeat of Will’s post, so I’ll quote him in full, with emphasis added:
I am fairly nauseated by the Reagan retrospectives, left and right. It's dispiriting to see that it [is] apparently next-to-impossible for human beings to go beyond their ideological commitments and make a more or less objective assessment of a man's accomplishments. We see all the usual mechanisms of ideological insulation. Any good during Reagan's reign would have happened anyway. Reagan's scandals are justified by his larger visionary struggle against unfreedom. All our ills are directly traceable to Reagan's malign influence. All good is directly traceable to Reagan's forward-thinking moral clarity. It's really just too, too much. Why do we not see that there is no need to make devils or gods of men?Exactly.
Sunday, June 06, 2004
Public Education: Where Markets Dare Not Tread
At Marginal Revolution, Fabio Rojas takes on the tired old claim that paying low salaries for teachers means we don’t consider education important.
The salary one makes is determined by supply and demand. A price doesn't indicate how important the job is, or even if people think it is important. Take a simple example: water - it's cheap because there is plenty of it, not because we don't think it is important!I agree with Rojas’s main point, which is that wages do not and should not reflect some abstract notion of importance. However, in America’s monopolistic government-run public school system, applying a simple model of supply and demand is problematic. The wages paid to teachers result not from the interaction of supply and demand in a competitive market characterized by many buyers and sellers, but by the interaction of monopsonistic buyers (legislatures and boards of education) on the one hand and monopolistic sellers (teachers’ unions) on the other. These two groups negotiate the terms of trade, while the actual customers – students and their parents – are relegated to the sidelines. In such a situation, teachers’ wages could be either too high or too low. (Bilateral monopolies typically yield multiple equilibria.)
…So why the low pay? Teacher's low pay is due mainly to the fact that there are tons and tons of teachers! There is a huge supply of teachers. Education schools have huge enrollments - and surveys routinely report that education is one of the most popular majors in the country.
As a benchmark, we might be tempted to look at the wages of teachers in private schools, which are generally lower than those of public teachers. But there are a couple of reasons those wages might be distorted by the public system. First of all, the availability of a “free” public education drastically reduces the demand for private education. Only those parents who think the whole price of a private education is justified by the difference in quality will opt for a private school. A voucher system would change the story, of course; under such a system, parents would opt for the private school if the difference in price were justified by the difference in quality. The rise in demand would likely drive up the wages of private teachers. But under the status quo, such competitive pressure is lacking. Second, the lower wages of private school teachers probably reflect the greater desirability of those jobs, as they avoid much of the violence and bureaucracy associated with public schools.
There’s also an important issue of teacher quality. The wages paid to teachers might be high enough to attract enough people to fill all the positions, which is fine if all teachers are equally good. But if they are not, then buyers have to decide what is the right quality level. A higher wage offer might attract more qualified people – potentially drawn away from other important professions, of course, which is why we shouldn’t automatically assume attracting higher quality teachers is a good thing. But there is also no good reason to think the political process chooses the right level of quality. In a private competitive system, parents might well choose higher quality and pay for it with higher wages. The point is not that teachers should get higher (or lower) wages. The point is that a politicized education system is incapable of discovering the answer to that question, which is yet another argument in favor of privatizing education: doing so will allow us to utilize the spontaneous market process to discover the correct wages (or wage schedules) for teachers.
Thursday, June 03, 2004
Just Deserts
Number of Google hits for “desert island”: 447,000
Number of Google hits for “deserted island”: 73,900
So “desert” outnumbers “deserted” by a factor of more than 6 to 1. I had always assumed those islands that castaways crawled onto were devoid of people, not rainfall. I wonder how many islands there are with less than 10 inches of rainfall per year? And I wonder whether there are six times as many of them as islands with no people?
Also, can someone point me to one of those “dessert islands” (2310 Google hits) – that is, islands filled with tasty treats? Does Jamaica count?
Wednesday, June 02, 2004
Pornoconomics
There’s a store just down the road from me called “Red Hot Video.” It has all black windows. I figured it was a porno store. But then I noticed the signs advertising that they had “All Ratings” and the “Widest Selection.” Why would they put up signs like that if they only had porn? So one evening, after failing to find the title I was looking for at Blockbuster, I decided to check it out.
You know how sometimes you judge a book by its cover, and then you actually check it out and discover you were all wrong? Yeah, well, this was not one of those times. It was a porno store. But here’s the funny part. Although the back room was filled with porn, the little front room had four walls covered with the most amazingly craptacular collection of non-porn movies ever. “Ishtar,” Howie Mandel’s “Little Monsters,” “Gremlins 3”… you get the idea. It was like they had deliberately gone through and removed every movie with more than 1.5 stars. It was a veritable vortex of suckiness. And no new movies either, mind you. It was all from the 1980s, as far as I could tell. Oh, and no DVDs.
In the center of the room, I did not find more racks of crappy movies. Instead, there were 15 or 20 large bins of lousy merchandise. Popcorn and candy, maybe? Nope. In one bin I found a pile of plastic disposable razors. In the next, a jumble of plastic spider-rings, like kids wear on Halloween. In another, temporary tattoos. Thumbtacks. Hair scrunchies. Rubber balls. I can’t remember what else, but it was all random, low-quality, disposable, and made in China or Taiwan.
What was going on? As always, I have a theory. I suspect there must be some arcane zoning regulations that, among other things, regulate the percentage of a store’s floorspace or inventory that can be devoted to sex-related products. Or perhaps sex stores are subject to regulations not imposed on other businesses, and you can avoid the sex-store classification by stocking enough other stuff. Either way, the business ends up buying a bunch of merchandise they don’t expect anyone to buy, purely to meet some arbitrary quota. Stocking the bins with crapola makes sense because (a) it’s cheap to stock, and (b) no one will ever bother to buy it, which means no delivery and restocking costs. Sure, they could put high-quality merchandise there, but who would ever walk into a porno store looking for it?
A similar phenomenon occurred in New York City while I was living there, after Giuliani pushed through a slew of anti-sex-shop zoning regulations. And I have confirmation on my theory here, because the regulations had been the subject of a public debate. The new rules specified (among other things) that no sex-related business could be located within X yards of a school, church, community center, or other sex-related business. They defined “sex-related business” in terms of floorspace, as I recall.
The stores responded (I, uh, heard somewhere) by stocking 90% of their shelves and floorspace with a sparse array of other items. And then they’d cram literally hundreds of porn videos into one little corner of the shop. The result? Stores that were almost completely empty, except for a crowd of horny men all clustered together in an area about the size of a walk-in closet, trying to avoid eye contact. All part of the mayor’s brilliant plan, I assume.
Tuesday, June 01, 2004
More ambiguous song lyrics
I remember a one-liner from one of Rodney Dangerfield's old routines. It went like this:
Even in high school, I got no respect. A girl called me up and said, "Why don't you come on over? There's nobody home." I went over. There was nobody home!I was reminded of it when I went with my cousin and Glen to see Shrek 2 while I was in Austin last week. The dance number at the end of the movie was "Livin' La Vida Loca," and one line went:
She'll make you take your clothes off and go dancing in the rainIt had me imagining a dialogue in some never-released Rodney Dangerfield movie...
RD: She said she'd make me take my clothes off and go dancing in the rain!
Other guy: Sounds kinky! So what happened?
RD: She made me take my clothes off, and then while I was standing there ready to go, she went dancing in the rain! No respect, I tell ya!
More on Punitive Damages
Alex Tabarrok comments on the punitive damages issue I blogged about last week. He makes the important point that taxation of punitive damages (and, by extension, my tongue-in-check proposal to burn them) would create a greater incentive for both parties to settle out of court. That's not necessarily a bad thing, of course.
UPDATE. A conversation with some colleagues prompted me to add the following: Juries might simply inflate their punitive damage awards if they knew the “victims” would only get 25% of them. Is this really likely to happen? The key question is why juries are inclined to make large punitive damage awards. If their desire is to give victims giant lottery jackpots (even though compensatory damages are supposed to be large enough to make the victims whole), then there is good reason to think they’d inflate the damages. On the other hand, if their desire is to punish the evil corporations (or whatever), then they’d have no reason to inflate the damages any more than they do now, because the defendants have to pay the entire amount.
Saturday, May 29, 2004
What Don't You Know?
Another item from last week's visit to Austin:
During my sister's graduation ceremony, at one point in the program a woman sang "Colors of the Wind" from the movie Pocahontas. The first verse ends with these lines:
But if you walk the footsteps of a stranger,I've written before about song lyrics that are just ambiguous enough to distract me from appreciating the song itself while I mentally diagram the possibilities, and this is another prime example. In this line, is the speaker merely repeating you never knew for emphasis, or does she actually intend the meaning captured in the paraphrase "things such that you never even knew you didn't know about them"? After ten years, I've finally decided that this is indeed the intended meaning, and what's more, I now see that it's another case of the Unknown Unknowns!
you'll learn things you never knew you never knew.
The Unknown Unknowns, of course, are what Donald Rumsfeld referred to in a concise and insightful, but nonetheless widely ridiculed, quotation a few months back:
Reports that say that something hasn't happened are always interesting to me, because as we know, there are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns -- the ones we don't know we don't know.Geoff Pullum at Language Log wrote in Rumsfeld's defense (at least as far as the logic and clarity of this particular quotation go), and even compared it to the first line of an old Persian saying:
He who knows not, and knows not that he knows not, is a fool; shun him.So now in this Disney movie is another instance of someone talking about what we don't know that we don't know, and understanding it doesn't seem to have caused people any trouble--indeed, when I searched for the line on the Internet to make sure I got it right, I found it on a site devoted to "Cool Quotes". I also found the phrase "you never knew you never knew" in the title for a session in a seminar, in a list of facts about dogs, a page of tips for digital imaging , and several other places that I won't bother to list.
Word.
Merriam-Webster has released the results of its “top 10 favorite words” poll. A few old favorites of mine made the list:
defenestrateBut I think the voters focused excessively on multisyllabic words of Latin or Greek origin – you know, the kind of vocabulary words people feel proud of themselves for knowing. Some of my favorite English words that didn't make the list are much more pedestrian:
callipygian
juxtapose
dungGo ahead, say each one of those a few times, and savor their simplicity and rich Anglo-Saxon flavor.
chicken
blow
Fine Dining
My 4-year-old son Adam has an autism spectrum disorder, and is undergoing some early intervention therapy to learn explicitly what most kids learn by osmosis. Many of his learning programs are intended to give him social skills, and one of these skills is to be able to say the formulaic responses for common situations. One of these targets is for him to say, "I'm doing fine," when asked, "How are you?" Realizing that this question is not a request for information is one of the things that autistic-spectrum kids often have trouble with.
Adam has done well with this target. Of course, "I'm doing fine" is just a start, enough to get him through the most common social-greeting situations. But to truly master this social skill, he'll need to generalize it, so that eventually he can recognize and use other possible responses, be able to ask someone else how they're doing, and know when he can get away with replying, "Not so good, actually." And maybe one day his generalization will be so advanced that he will confidently answer, "Not much!" when asked, "How ya doin'?" and "Pretty good!" when asked, "What's up?"
Today, though, Adam did some generalizing with the pronoun and the tense in the target response. He was finishing his lunch when his therapist returned from her own lunch break. She asked, "How was your lunch?"
Adam said, "It was doing fine."
Friday, May 28, 2004
Block the Box
This op-ed by Chris Edwards contains a long list of proposals for new spending, all gleaned from the Kerry website. It really is appalling. Democrats who criticize the Bush Administration for its profligate spending have no business proposing laundry lists of new programs. Edwards’s bottom line: “In November, Americans will have to decide whether Kerry's big-spending promises are worse than Bush's big-spending record.”
But how to decide? We need to break out of the narrow mindset that trains all attention on the presidential candidates and their specific platforms and personal qualities. What matters far more is the balance of power. When one party is in charge of both Congress and the Presidency, the outcome is a spending binge, regardless of the party. Repeat after me: The pro-Kerry argument is not Kerry’s platform. The pro-Kerry argument is gridlock.
Wednesday, May 26, 2004
The Cosby Show
Whoa. Click this link, and scroll down past the titillating story of the Capitol Hill sex diarist. You’ll find a column reporting recent comments by Bill Cosby (yes, that Bill Cosby) about the failure of black people to raise their children properly. Among other things, he says:
I am talking about these people who cry when their son is standing there in an orange suit. Where were you when he was 2? Where were you when he was 12? Where were you when he was 18 and how come you didn't know that he had a pistol? And where is the father? …Wow. Cosby makes challenging points here, but if he were white and made the same comments, I suspect he’d be called a racist. Yet the NAACP’s Kweisi Mfume stated that Cosby had “said what needed to be said.” A similar thing happened a few years ago when Jesse Jackson admitted to being a little scared when two young black men were walking behind him in a deserted neighborhood. Apparently it’s easier to take criticism from a member of one’s own group.
The church is only open on Sunday and you can't keep asking Jesus to do things for you. You can't keep saying that God will find a way. God is tired of you.
I wasn't there when God was saying it, I am making this up, but it sounds like what God would say. In all of this work we can not [sic] blame white people. White people don't live over there; they close up the shop early. The Korean ones don't know us well enough, so they stay open 24 hours.
People putting their clothes on backwards: Isn't that a sign of something gone wrong? …People with their hats on backwards, pants down around the crack, isn't that a sign of something, or are you waiting for Jesus to pull his pants up? Isn't it a sign of something when she has her dress all the way up to the crack and got all type of needles [piercings] going through her body? What part of Africa did this come from? Those people are not Africans; they don't know a damn thing about Africa.
With names like Shaniqua, Taliqua and Mohammed and all of that crap, and all of them are in jail. Brown versus the Board of Education is no longer the white person's problem. We have got to take the neighborhood back. We have to go in there -- forget about telling your child to go into the Peace Corps -- it is right around the corner. They are standing on the corner and they can't speak English.
Basketball players -- multimillionaires -- can't write a paragraph. Football players -- multimillionaires -- can't read. Yes, multimillionaires. Well, Brown versus Board of Education: Where are we today? They paved the way, but what did we do with it? That white man, he's laughing. He's got to be laughing: 50 percent drop out, the rest of them are in prison.
Five, six children -- same woman -- eight, 10 different husbands or whatever. Pretty soon you are going to have DNA cards to tell who you are making love to. You don't know who this is. It might be your grandmother. I am telling you, they're young enough! Hey, you have a baby when you are 12; your baby turns 13 and has a baby. How old are you? Huh? Grandmother! By the time you are 12 you can have sex with your grandmother, you keep those numbers coming. I'm just predicting…
What is it -- young girls getting after a girl who wants to remain a virgin? Who are these sick black people and where do they come from and why haven't they been parented to shut up? This is a sickness, ladies and gentlemen.
There’s much truth in what Cosby said, but he’s also missing something. The importance of taking responsibility for oneself and one’s children can hardly be overemphasized, but here’s the puzzler: why has responsibility taken such a beating in the black community? It wasn’t always that way, so something must have changed. I would argue that the twin tornadoes of the welfare state and the war on drugs have created an environment in which honest work is discouraged and dependency and criminality rewarded, and the outcome has been the erosion of long-held values of personal responsibility and parental guidance. And that problem is hardly unique to the black community, although it’s especially visible there.
Right to Die Lives On
Good news: a federal court just upheld Oregon’s physician-assisted suicide law against John Ashcroft’s challenge. This is not just a victory for the right to die; it is a smack in the face to the Bush administration’s fair-weather federalism. No word on whether the case will go to the Supreme Court.
Punitive Damages
My grad-school buddy Susanne emailed me this L. A. Times article about Gov. Schwarzenegger’s proposal to divert 75% of punitive damage awards to the state. I first encountered this idea as a debate case on the APDA circuit, but I didn’t know any actual policymakers had proposed such a thing. But it turns out that several states (Alaska, Georgia, Illinois, Indiana, Iowa, Missouri, Oregon, and Utah) already collect some percentage of punitive damage awards.
In favor of the proposal, there's the fact that punitive damages will deter tortious behavior regardless of who receives the award, and giving the damages to the plaintiff (on top of compensatory damages that he will receive regardless) just encourages more lawsuits.
Against the proposal, we should recognize that plaintiffs do need a sufficient incentive to file suit. Especially when a large chunk of all damages, including compensatory damages, goes to the plaintiffs’ attorneys instead of the actual victims, punitive damages might be needed to fill in the gap to make the bottom-line payment to the victim large enough. (Punitive damages serve some other purposes besides giving plaintiffs incentive to bring suit, but all of those other purposes would be served just as well if the damages went to the state.)
But what is a “large enough” payment for the victim to receive? It depends on the goal. Damage awards serve two purposes – compensation of victims and deterrence of future tortfeasors – and the correct amount for the former might not be the optimal amount for the latter. The right dollar amount for deterrence purposes could be greater or less than the right amount of compensation. Think about it this way: if someone did $1 million of damage to you, but you could only get $800,000 of it back, would that stop you from filing suit? I think not. Thus, there’s no particular reason to think that a damage award (net of attorney’s fees) equal to the monetary damage suffered by the victim necessarily induces the right amount of lawsuits.
On balance, the proposal sounds good to me, because I'm not terribly concerned about having too few lawsuits. I think it's pretty clear that we currently have too many. Given that punitive damages are often determined as a multiple – sometimes a very large multiple – of compensatory damages, I suspect allowing plaintiffs to keep 25% of punitive damages is sufficient to make sure they actually receive full compensation even after paying off their attorneys. Still, if I were voting on the proposal, I’d want to see some figures on typical punitive damage awards to be sure.
I’m squeamish about giving the government a new source of revenues, though. If we could trust that the new revenue stream would be offset by decreases in other sources, like income taxes, that would be one thing. But that never happens. The state will spend whatever money you give it and ask for more. Indeed, the Governor’s proposal is part of his plan to balance California’s budget. Worse, the state might have an incentive to encourage larger punitive damage awards or more tortious behavior. Those baleful possibilities would have to be weighed against the reduced incentive for plaintiffs to file lawsuits.
Here’s an alternative proposal: collect the punitive damages from the defendants, give the plaintiffs a 25% cut, and burn the rest. Destroying dollar bills does not reduce wealth or resources; it just increases the value of the remaining money supply. The punitive damages would still deter people from committing torts, without creating perverse incentives for potential plaintiffs or the agents of the state. (I’m joking, but only by half. Can anyone tell me what’s wrong with this proposal?)
Tuesday, May 25, 2004
Rampant Speculation
Last weekend I went to Austin to see my sister graduate from the University of Texas (congratulations, Ellen!). During the visit with Mom, Dad, Glen, and Ellen, we had several conversations about English grammar, and just before they took me to the airport for my return flight, Dad was complaining about the strange vocabulary used by airline employees. Now for years, he's expressed his dislike of the word deplane, meaning "to disembark." ("To deplane should mean to remove planes from someone!") This time, though, he had an item that was new to me: the use of ramp to refer to what the rest of us call the runway or the tarmac. He said people in the industry could be quite adamant about using this term, and that he had even had a heated discussion on the subject with my uncle, who is a commercial pilot. My uncle's position: It's not made of tarmac! Dad's position: Even so, it's not a ramp!
I think calling a runway a ramp is just plain wrong, too, but my family expects me to put on my descriptive hat in situations like these, so I did.
"Well, Dad, I'm sure you wouldn't object if I told you that ramp can also mean a kind of wild leek found in Appalachia, would you?"
He said no. So he wasn't in principle against ramp being an ambiguous word. He (and I) could accept both the "inclined plane" and "wild leek" meaning for ramp, but not the "runway" meaning. Why not?
"So," I said, "when someone uses ramp to mean 'wild leek,' you accept that they have two meanings for the word. When they use it to mean 'runway,' which is hard and flat like a ramp, but doesn't have the one essential property of being an inclined plane, is the problem that it looks like they think they're dealing with a single concept, and they're not?"
"Yeah!" said Dad. "Exactly!" added Glen.
It made sense to me, too, but I wonder: How much in common with an inclined-plane-type ramp does any given object have to have before calling it a ramp triggers alarm bells for people like Dad and Glen and me? Is being human-made enough? What if a certain kitchen utensil were called a ramp? I think I'd be OK with it. Maybe human-made plus flatness is enough. Could a kind of bed be called a ramp? No, if I heard of a bed called a ramp, I'd wonder how you'd keep from sliding out of it. What about flatness all by itself? Could a plateau be called a ramp? No, I'd object to that in the same way as I do to calling a runway a ramp. Is having an incline sufficient? Could a soft, squishy slope of mud after a mudslide be called a ramp? I'd say no, since you can't move stuff up it; evidently, the function of helping move things is an essential part of the definition of ramp. I know plenty has been written on the question of "how alike do X and Y have to be before they can be denoted by the same word?" (for example, see this page about Eleanor Rosch, as well as all the current IT work on ontologies), but this question of "how alike do X and Y have to be before the differences between them preclude giving them the same name?" is one I haven't run into before.
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