The Foundation for Economic Education recently invited me to join its flagship publication, The Freeman, as a regular contributor. It just published my first article, No Exit: Are Honduran Free Cities DOA? Here's an excerpt:
Eager to bring Hong Kong-style growth to their beleaguered Central American country, Honduras amended its constitution in 2011. The new provisions allowed the creation of quasi-sovereign special development regions. Libertarians thrilled at the prospect.
By making it easier to escape from bad government to better government, the Honduran plan would put the forces of competition and choice in the service of the Honduran people. Formerly, Hondurans who voted with their feet had to flee their homeland. Now, they could stay and wait for good government to come to them--at least to the neighborhood.
Those grand visions came to nothing, however. Instead, the Honduran Supreme Court struck down the constitutional amendments as ... unconstitutional. Does that spell the end of the Honduran experiment in newer, freer cities?
Tuesday, November 27, 2012
The Freeman on Free Cities
Friday, August 12, 2011
Volokh on the Constitution's Plain, Present, Public Meaning
My friend, Eugene Volokh, has posted some thoughtful comments on my consent-based approach to reading the Constitution. His excellent questions show one benefit of looking for the plain, present, public meaning of the Constitution: It gives us a fresh look at a document we risk treating as putty for judges or as a dead historical artifact.
I won't pretend that a consent-based approach to reading the Constitution solves all our interpretive problems--especially hard problems like those Eugene raises--but every theory struggles with the text. Looking for the plain, present, public meaning of the Constitution offers at least another way to tackle the problem. I'd argue, further, that it offers us the best way to maximize the consent of the governed.
Eugene cites a "number of terms that either don’t have a 'plain, present, public meaning' apart from either their originalist or precedential meaning," such as those in the First Amendment or other, well-known parts of the Constitution. I appreciate that observation--though again I emphasize that precedent-based "living" constitutionalists and originalists struggle with the same passages. I won't bother, here, to try to answer each puzzle that Eugene offers, as I am more interested in describing a methodology than I am in dictating particular results. I have opinions about such things, to be sure, but I'm no judge.
How should real-world judges interpret constitutional words or phrases that the public understands to have a specialized meaning (e.g., "establishment of religion") or no discernible meaning at all (e.g., "writ of habeas corpus")? The same way they would interpret and construct a contract in similar circumstances: interpreting legal terms as such, taking heed of their context, and constructing uncertainties against the drafting party (the U.S. federal government, here) and in favor of the adhering party (citizens and residents of the U.S.).
That does not lead to simply following Supreme Court precedents. I doubt that Kelo would come out the same way under that approach, for instance, nor that "Property" would end up with a different meaning each time it appears in the Constitution. Note, too, that the approach I describe leaves room for considering original meaning, which we should treat as something akin to "course of dealing" in the contract context. By borrowing the methodologies of contract law, a court can come as close as possible to finding the plain, present, public meaning of popularized constitutional phrases and uncommon terms such as "writ of habeas corpus." Perfection remains elusive, here as with other approaches to the Constitution. But this approach offers the best guarantee of preserving the consent of the governed.
Friday, March 27, 2009
The Transcendental Value of Consent
Consent plays a prominent role in moral reasoning. I here offer a new, transcendental argument for the moral value of consent: Because an attempted justification aims, by definition, to obtain its audience's consent, justifications presume the moral significance of consent.
Students of philosophy tend to associate transcendentalism with Immanuel Kant, who argued against metaphysical skepticism on grounds that reason necessarily presumes both time and substance. Kant had no monopoly on "transcendental," however, which simply describes a particular form of argument. A transcendental argument begins with an uncontroversial fact, adds a proposition that necessarily follows from that fact, and concludes in support of the proposition. Following that form, the transcendental argument for consent's moral relevance runs as follows:
1. A justification aims to win the consent of its intended audience.
2. If a justification aims to win the consent of its intended audience, then the argument's efficacy covaries with the consent of that audience.
3. Therefore, justification presumes the value of consent.
This argument for consent's moral relevance begins with a (supposed) truism about the nature of justification. Readers who regard step one as an obvious truth can skip to step two without delay. Some might doubt its truth, however; in particular, a skeptic might counter that justifications sometimes aim to mislead their intended audiences, as when political leaders conspire to mislead gullible citizens about the causes of social unrest, blaming foreign provocateurs rather than native disaffection. In such a case, however, we cannot properly say that the justification aims to win the consent of the governed; it aims, rather, to win their ignorant acquiescence.
The claim made in step two of the transcendental argument for consent's role in justification might, like the claim made in step one, strike many readers as obvious. As long ago as Aristotle, philosophers have regarded the end, or teleos, of a thing as a fair gauge of its proper function. On that reasoning, if a justification (or, more properly, the person offering the justification) aims to win the consent of a particular audience, we can judge whether or not the argument succeeds by measuring the consent that the argument rouses.
The third step of the argument for the moral relevance of consent follows as a matter of logic from the first two steps. Even hardcore skeptics do not trouble themselves challenging modus ponens, so perhaps we could stop here. As a safeguard against sophistry, however, let us double-check whether the argument's conclusion—that justification presumes the value of consent—conforms with common sense.
Note, first, that an argument nobody accepts cannot work as a justification. We thus laugh off the arguments, no matter how internally consistent or ardently pressed, a madman makes when he claims the right to rule the Earth. Because his argument wins nobody's consent, nobody regards it as sufficient justification for his coronation. Note, next, that we commonly regard informed consent as adequate justification for imposing far-ranging conditions on those who accept them; we hesitate to second-guess another's pursuit of happiness. Lastly, note that we tend to recognize exceptions to that rule only in defense of consent itself, as when we refuse to enforce an agreement to submit to slavery, when we deny the power of fraud to justify a transaction, or when, far from praising a mugger for successfully inducing his victim to give up her purse in exchange for not losing her life, we condemn his acts as coercive and unjustified. Logic and experience alike thus suggest that we judge an attempted justification in terms of whether or not it wins the consent of its intended audience. Unsurprisingly, the plain meaning of "justify" conforms to that understanding.
[NB: The foregoing comes, after various edits, from Part I.B. of Graduated Consent Theory, Explained and Applied, Chapman University School of Law, Legal Studies Research Paper Series, Paper No. 09-13 (March 2009) [PDF].]
Wednesday, March 18, 2009
A Call for Citizen Courts
It stands as a fundamental principle of justice that we cannot entrust one party to unilaterally judge its disputes with other parties. This poses a problem for the resolution of disputes between a State and those subjected to its legal jurisdiction. How impartially can agents of the State, acting as the judges of its courts, decide such disputes? "Not well enough," citizens and residents might worry. It thus looks at least unwise, and arguably unjust, to give federal authorities exclusive jurisdiction over disputes that call for applying the U.S. Constitution.
If we view the U.S. Constitution as a contact—a standard form agreement offered on a take-it-or-leave-it basis by an awesomely powerful government to a comparatively powerless individual—we cannot help but note the glaring inequity of letting only federal authorities decide questions of federal power. No just court would enforce a standard form agreement between grossly unequal parties, imposed by one on the other under conditions that raise serious doubts about the offeree's consent, that lets the all-powerful offeror alone decide disputes arising under the agreement. A clause reading, "I have the sole power to interpret this agreement," reeks too much of substantive unconscionability to win a court's approval. Indeed, the patent unfairness of such a clause cannot help but raise procedural doubts about whether the parties bargained for an exchange at all, undermining the enforceability of the entire agreement.
Happily, we can easily read the U.S. Constitution to avoid the vice of self-judgment. Its plain text by no means mandates that only federally employed judges can decide the scope of federal power. . . . We thus remain at complete liberty to adopt this remedy for self-judgment: Decide disputes between the federal government and other parties under the same arbitration procedures that private parties customarily use in deciding their contractual disputes. In other words, we should establish Citizen Courts.
A Citizen Court would arise at the option of any party to a legal dispute with the federal government being heard by a federal court. Each party—including the federal one—would choose one judge. Those two judges would then agree on a third. Together, the panel of three judges would decide the parties' dispute. Rather than leaving questions about the power of the federal government solely in the hands of federal agents, therefore, a Citizen Court would rely on judges to which the disputants have consented. A Citizen Court would help to remedy the partiality of federal courts and, thus, would offer more justifiable judgments.
[NB: The foregoing comes, after various edits, from Part III.B.3.c. of Graduated Consent Theory, Explained and Applied, Chapman University School of Law, Legal Studies Research Paper Series, Paper No. 09-13 (March 2009) [PDF].]
Sunday, March 15, 2009
Original Reasons for Non-Originalism
Although some of my closest friends might respond with expressions of fury and disappointment, I am coming out of the closet on originalism. I am not convinced that we should interpret the Constitution's text to mean what those who ratified it thought it meant, over 200 years ago. Instead, I think we should favor the plain, present, public meaning of the Constitution's text, resolving any ambiguities in favor of individual liberty.
Given the popularity of originalism among self-proclaimed libertarians and conservatives, my view risks raising some hackles among the very people with whom I so often agree in questions about the constitutional limits on government action. So be it. Originalism's foundations have always seemed pretty shaky, to me, even though I usually like the theory's results. It has taken me some years to formulate a different, and I think much more solid, foundation for resolving questions of constitutional meaning. I describe that new approach in a working paper, Graduated Consent Theory, Explained and Applied, Chapman University School of Law, Legal Studies Research Paper Series, Paper No. 09-13 (March 2009) [PDF]. For a snapshot view of the theory, consider this figure from the paper:
That may look familiar, given that I earlier blogged about The Scale of Consent, a working paper that, in revised form, constitutes one part of this larger paper. Rest assured, though, that this later work has a different, and more ambitious goal. Here is the abstract:
We often speak of consent in binary terms, boiling it down to "yes" or "no." In practice, however, consent varies by degrees. We tend to afford expressly consensual transactions more respect than transactions backed by only implied consent, for instance, which we in turn regard as more meaningful than transactions justified by merely hypothetical consent. A mirror of that ordinal ranking appears in our judgments about unconsensual transactions. This article reviews how a wide range of authorities regard consent, discovering that they treat consent as a matter of degree and a measure of justification. By abstracting from that evidence, we can outline a theory of graduated consent. This article concludes by testing a graduated consent theory against such problems as enforcing standardized agreements, justifying political coercion, and reading a constitution. In those and other applications, a theory of graduated consent can help to advance legal, moral, and economic reasoning.
If I don't sidelined by other, more pressing obligations, I'll post here some excerpts from Graduated Consent Theory. It offers a number of original (but not originalist!) arguments, which I'd like to air for commentary. I plan to publish the paper in a law review and want to make sure the best possible version makes it into print.
Saturday, November 08, 2008
The Electoral College: Just Like Any Other Legislature
Don Boudreaux, in defending the Electoral College, makes the following excellent point:
A related, but potentially more serious, objection to the Electoral College -- indeed, the objection that, I'm sure, motivates most people who object to it -- is that it can result in a minority of popular voters getting the candidate of their choice over the candidate receiving the greatest number of popular votes. ... This objection, too, is weakened when one considers that such outcomes can occur in legislatures based upon geographical representation where there is uneven distribution of the voting population across the electoral districts.Or in other words, people who have a problem with the Electoral College should have a problem with the Senate as well. In fact, they should have a bigger problem with the Senate, since it diverges much further from proportional representation than does the Electoral College. (Each state has electoral votes equal to its total number of senators and representatives.)
The 25 most-populated U.S. states have a total population of about 235 million people. The population of the 25 least-populated states totals just about 70 million people.
With each state sending two Senators to Capitol Hill, it's clearly possible that a majority of U.S. Senators will vote for a bill even though, if citizens themselves directly voted on the bill, the vote would go in the other direction.
But Boudreaux’s argument can be made even stronger, because it does not actually depend on uneven distribution of population across electoral districts. You can get the very same effect -- i.e., policies being adopted with only minority support -- when electoral districts represent equal-sized groups of constituents, as long as the groups have sufficiently different divisions of opinion.
Here’s a very simple example. Say you have a legislature composed of five representatives, each representing 100 constituents. Each representative votes in line with his constituents’ majority opinion. Legislators Jameson, Johnson, and Jones vote for policy A over policy B, because 70% of their constituents prefer A. Legislators Smith and Stone vote for policy B, because 100% of their constituents prefer B. As a result, policy A gets passed into law, even though the overall population favors policy B by a 290 to 210 margin.
And if you think about it, that’s pretty much what happens when there’s an electoral-popular split in a presidential election. Yes, the states do have different numbers of electoral votes, so that produces part of the effect. But for the most part, the split seems to be driven by the existence of some large states with close divisions of opinion (like Florida in 2000) and other large states with lopsided divisions of opinion (like California).
So Boudreax’s point can be broadened to this: people who have a problem with the Electoral College should also have a problem with representative, as opposed to direct, democracy. Any representative democracy creates the real possibility of policies being adopted that are opposed by a majority of the public.
Tuesday, November 04, 2008
A Poll Tax by Any Other Name
Via Julian, I find Ezra Klein and Rachel Maddow making a really good point: long waiting lines at the polls are another kind of poll tax. A time tax instead of a money tax.
And as one of Klein’s commenters points out, this kind of tax may have been used to disenfranchise certain groups – by, for instance, having fewer (and less functional) voting machines in poorer districts.
But given that some amount of waiting is almost inevitable, what, I wonder, would constitute an even playing field for all groups? Equalizing waiting time wouldn’t work, because the opportunity cost of time is generally greater for the rich than for the poor. Think about the relative sacrifice involved in voting for an unemployed person versus a lawyer who earns $600/hour. If equal money taxes are more burdensome for the poor, equal time taxes are more burdensome for the rich.
To get things on absolutely equal footing, you’d need to equalize utility costs, not time or money costs. But the interpersonal comparability of utility is problematic at best, which is why I suspect there’s no objective answer to the question. The truly interesting point is that voting outcomes are sensitive to seemingly unimportant logistical aspects of the voting structure. Yet another reason that we cannot regard democracy as a process of revealing the general will. There is no such thing.
Wednesday, June 04, 2008
Upgrading the Pledge of Allegiance
Back in 2005, I criticized the U.S. Pledge of Allegiance and offered an improved alternative. My version of aimed to correct "the odiously unconditional" demands of the present pledge and thus better honor the ideals that gave rise to the U.S. in the first place. Field testing and theoretical musing convinced me, however, that I needed to have another go at debugging the Pledge of Allegiance. I here offer an upgrade for 2008:
I pledge allegiance to the laws of the United States of America, on condition that it respect my rights, natural, constitutional, and statuory, with liberty and justice for all.
Why upgrade to Pledge v. 2008? For one thing, it matches the cadences of the currently popular pledge—which history suggests we might call "v. 1954"—more closely than my earlier alternative did. It proves especially helpful, when you're saying this latest version in a crowd, that it starts and ends with the same words that everybody else says. It also follows the same cadences as v. 1954; consider the following parallels:
| Pledge v. 1954 | Pledge v. 2008 |
| I pledge allegiance | I pledge allegiance |
| to the flag | to the laws |
| of the United States of America, | of the United States of America, |
| and to the Republic | on condition that |
| for which it stands, | it respect my rights, |
| one Nation | natural, |
| under God, | constitutional, |
| indivisible, | and statutory, |
| with liberty and justice for all. | with liberty and justice for all. |
I also tweaked the content of this latest version of the pledge to make it still more palatable to friends of liberty. Note, for instance, that it now has you pledge allegiance not to the flag, nor even to the political institution for which that flag stands, but rather to "the laws of the United States of America." After all, a republic that breaks its own laws does not deserve your allegiance.
Note, too, that v. 2008 conditions your allegiance on the U.S. respecting three kinds of rights you can claim—natural, constitutional, and statutory. This upgraded pledge thus offers powerful protections for your liberty. Indeed, you might well wonder whether, given those strict conditions, Pledge v. 2008 commits you to anything at all! I leave the answer to that question, however, to the dictates of your conscience.
Monday, December 31, 2007
What and How to Think About Immigration
It’s Kerry Howley versus Megan McArdle on immigration. Kerry favors a guest-worker program, while Megan opposes it (see here, here, here, and here.
I won’t weigh in on the topic itself, fascinating though it is. I’m more interested in trying to parse why they disagree. One interpretation of Kerry vs. Megan is that they differ in their preference ordering. Kerry’s preferences look like this:
{more legal immigration}whereas Megan’s, apparently, look like this:
pref {guest-worker program}
pref {status quo}
{more legal immigration}That is, Kerry and Megan would both ideally like to see expanded legal immigration, but since that’s a political dead letter, they are consulting their second preferences. Their second preferences differ, because Megan thinks the negative consequences of a guest-worker program are bad enough to make it worse than the status quo.
pref {status quo}
pref {guest-worker program}.
But here’s an alternative interpretation of Kerry vs. Megan: They have the same preferences (both consider a guest-worker program superior to the status quo, as in the first ordering above),but they have different political strategies. Kerry, thinking that expanded immigration is not going to happen, pushes her second preference for a guest-worker program. Megan, thinking expanded immigration might still be in the cards, opposes a guest-worker program because it could siphon support from the superior alternative.
(Clearly, it’s Megan’s position that I’m less clear about. Without citing specific passages, I’ll just say I think there’s support in her posts for both interpretations.)
It might appear, from these two interpretations, that Kerry and Megan disagree on either their policy preferences or the political likelihood of their shared first-best option. But there’s a third interpretation that combines the two. Perhaps both have the same preference ordering (the first one), and both think there is some (small) chance of expanded immigration. But they differ in the intensity of their preferences: Kerry thinks a guest-worker program is a lot better than the status quo, while Megan thinks it’s just a little better. This preserves the shared preference ordering, but it makes Megan willing to gamble the benefits of a guest-worker program for even a small chance at expanded immigration. Kerry, given her more favorable assessment of the gains from a guest-worker program, is unwilling to take that gamble.
I find it useful to parse Kerry and Megan’s debate in this way because it relates to a broader question of philosophy-and-policy: to what extent should perceptions of “political reality” affect the positions we advocate? I’ve been pondering that question a lot lately, and the more I think about it, the thornier it seems. But that discussion will have to wait for a future post.
P.S. The syntax of this post's title is dedicated to Neal.
Saturday, June 02, 2007
"Monster": A Consent Theory Sing-Along
Next week, during a lecture I'm slated to give at the Institute for Humane Studies' Liberty and Society seminar at Wake Forest, I plan to discuss some applications of consent theory. Specifically, I aim to share the supply/demand charts that I've worked up to explain the origin and development of government services. I'm not yet done with that particular problem, as I'm still trying, with some help via email from Glen, to figure out how to graph hypothetical consent for public goods. Look for a post on that topic, soon.
In the meantime, allow me to share the lyrics from "Monster," a song I plan to perform in conjunction with my account of the supply and demand of government services. So goes my idea of pedagogy: First, hit 'em with impenetrable theory, then follow-up with awful music! Seriously, though, the lyrics of "Monster" pretty closely track my model of how government originates (as a natural monopoly) and grows (by dint of appeals to hypothetical consent). The song adds some color—nothing in my theory counsels us to "give 'em hell"—but I think I've stayed within the bounds of poetic license.
Monster Verse 1:We watered the desert.
It grew like a weed,
And sheltered our people,
From violence and need.
Refrain 1:It drove off the monsters.
It drove off the monsters.
Verse 2:We wanted it well armed.
They armed it with claws.
We wanted the top hand.
They wrote their own laws.
We raised a cathedral.
They made it a cage.
We wrote up a compact.
They cut up the page.
Refrain 2:
They made it a monster.
They made it a monster.
They made it a monster.
They made it a monster.
Verse 3:Now, they claim to rule us,
For our own good.
But they've spoken for us.
And misunderstood.
With cunning persistence,
With fire and lead,
They come for our freedoms.
Let's give 'em hell, instead.
Refrain 3:We must tame the monster.
We must tame the monster.
We must tame the monster.
We must tame the monster.
You can find the chords for "Monster" on this PDF file. (I was especially pleased to work in a chord—Caug5 maj7 sus4—that takes longer to say than it does to play.) If you don't mind listening to a pretty raw version, you can hear to the music in this MP3 file (played with a capo on the second fret). I've not yet recorded a version with the music and lyrics, but the IHS folks might do so at the upcoming seminar.
(Think you've got libertarian geek cred? Identify the shout-out to Randy Barnett. I'll hold off on the hints; I imagine that Agoraphilia's readers won't need them.)
Tuesday, May 29, 2007
Supply and Demand of Government qua Natural Monopoly
In an earlier post, I described a scalar model of consent. I here use that model to analyze the supply and demand of government services. Specifically, I explore the origin and development of government qua natural monopoly. I plan in a later post to apply a similar analysis to government qua provider of public goods.
A government that enjoys a natural monopoly on satisfying the express demand for its services will have the power, and incentive, to expand to meet non-express demand. The result: a supply of more government services, at a higher price, than citizens in fact want. In an extreme case, satisfying the implied or hypothetical demand for government services may result in an oversupply so gross that consumers expressly assign it a negative price. In other words, consumers of government services may actually object to what they supposedlywant.
Government represents a sort of service industry, albeit one marked by some peculiar features. For one thing, governments can often lay plausible claim to qualifying as natural monopolies. (Perhaps that is not so peculiar; David Friedman convincingly argues that natural monopolies pervade sufficiently small markets.) Figure 1, below, offers a fairly conventional graph of the economic features of government qua natural monopoly.
(In figure 1, "MC" stands for "marginal costs of production"; "ATC" for "average total costs of production"; and "D" for "aggregate demand." Because we here portray a monopoly aggregate demand equates to "AR," or "average revenue." The various uses of "P" mark prices; "Q" of quantities. The lowercase "m," as in "Pm," designates the monopoly price. "Qm" of course corresponds to the monopoly quantity. In like fashion, "r" designates the regulated price and quantity, and "c" the competitive ones.)
So it goes, at least, in the standard economic view, which concerns only expressly consensual transactions. But as I noted earlier,, we might do well to also consider transactions marked by less than express consent. Government monopolies, for instance, typically claim to respond to implied and hypothetical consent. What does a market based on non-express consent look like? Figure 2, below, illustrates.
Figure 2 shows the non-express demand, marginal revenue, monopoly price, and monopoly supply of government services. All those non-express measures come marked with "(n)" suffixes. The express measures from figure 1 remain, but now carry "(e)" suffixes to distinguish them from the newly added material. (For the sake of clarity, I've dropped from figure 2 some of the information offered in figure 1.)
Figure 2 illustrates three interesting results. First, non-express demand, because it includes transactions beyond those expressly agreed to, traces a curve to the right of typical (i.e., express) demand. Second, due to its speculative nature, non-express demand of necessity charts a somewhat more fuzzy line than express demand does. Figure 2 thus draws the non-express demand and marginal revenue curves as relatively imprecise blobs.
Third, and most crucially, figure 2 illustrates that a government monopoly meeting non-express demand may provide more services, at a higher price, than consumers in fact demand. How can government agents get away with thereby supplying and getting paid for grossly inefficient level of services? Recall that we charitably but reasonably supposed that in a market based on expressly consensual transactions, government will enjoy a natural monopoly. Government agents can thereby lay claim to a monopoly on the initiation of coercion. They can all too easily wield that power to expand their market share, claiming a mandate to satisfy implied or hypothetical consent. And, given the super-monopoly profits thereby afforded, they have powerful incentives to do so.
Figure 2 only hints at something that figure 3, below, makes explicit: Government based on non-express consent may supply—"oversupply," really—a level of service that consumers expressly value at less than zero. That result follows quite directly from the simple, if somewhat unusual, expedient of following the express demand curve even as it plunges below the x-axis. Economists do not generally explore that region of "negative demand," granted, but they seldom have reason to do so. Figure 3, because it tracks both express and non-express transactions, gives us good reason to spell out what happens when a supposedly justified supply meets actual consumer demand.
What, in sum, does this application of "consent theory" (as I style it) teach? Government services, because they have power and incentives to expand from natural monopolies based on express consent to coercive monopolies based on implied or hypothetical consent, threaten to provide more government than consumers really want. In some cases, consumers may afford negative value to the resulting oversupply of government services. We thus might say that figure 3 illustrates, in the iconography of economics, the causes and effects of tyranny.
That paints a rather grim—but, I would argue, accurate—picture of how government can grow from a natural monopoly into an artificial, and unwelcome, one. Note, however, that I have not yet invoked the public goods justification for government power. I'll take that up my next post on consent theory, explaining why a government that aims to meet the hypothetical demand for public goods runs a reduced risk of supplying services to which that consumers assign negative value. In other words, governments based on the hypothetical demand for public goods tend to become bloated but not monstrous.
[NB: I edited this post, some weeks after originally publishing it, to have it speak not specifically of hypothetical consent, but rather more generally of non-express consent. The latter comprises both implied consent and hypothetical consent.]
Wednesday, May 23, 2007
The Scale of Consent
To someone steeped in the study of law, economics seems to focus monomanically on expressly consensual transactions. The supply/demand curves that pepper microeconomics texts chart where buyers and sellers plainly agree to exchange quid for quo.
Legal texts discuss those same sorts of transactions under the heading, "contract law." But contract law represents only one of many jurisprudential concerns. Students of the law also spend a great deal of time studying other sorts of transactions—transactions marked by implied consent, hypothetical consent, or varieties of non-consent.
Perhaps the law takes too dark a view of human nature. Or perhaps economics takes too bright of one. Non-expressly consensual transactions do happen, after all. Even if rare, they can powerfully affect—or even end—our lives. But non-expressly consensual transactions are, in fact, not rare. They pervade our world.
Consider government, a service supplied and demanded subject to varying levels of consent. A consumer might demand government services expressly, impliedly, hypothetically, or in some mixture thereof. An immigrant might, for instance, swear allegiance to the U.S (showing express consent) after having taken up residence in it (showing implied consent).
Consumers can object to government services in similar fashion, denying consent expressly, impliedly, or hypothetically, in measures unique or in combination. Thus, for instance, an emigrant might disavow allegiance (expressly not consenting) to and flee (signaling implied non-consent) from a tyrannical (and therefore hypothetically non-consensual) regime.
Combine these observations, and you can picture consent and non-consent on a scale running from most to least:
c + express
o + implied
n + hypothetical
s ---------------------
e - hypothetical
n - implied
t - express
As that scale of consent indicates, different types of consent have different probative values. Express consent conveys more information about a transaction than implied consent does. Thus, for instance, an agreement's written terms trump those merely assumed to apply by dint of customary practices. (See, R. (2d) Contracts § 203(b).) Implied consent, in turn, says more than hypothetical consent does. What people actually do says more about their preferences than mere theory does. Non-consent, too, comes in different strengths, running from weak (hypothetical non-consent) to strong (express non-consent). "No!" thus tells us more about whether you agree to a proposition than if you silently turn away, and both signal your views more reliably than our musing on what you would agree to.
Many interesting results follow from this model of consent. I explored some of them in a paper I wrote under the tutelage of Judge Richard Posner, The Jurisprudence Of Polycentric Law (unpublished manuscript, 1992). In particular, I there describe express consent "as an ideal standard for ranking surrogates such as implied and hypothetical consent. The nearer these substitutes come to obtaining a person's express consent, the better they justify the legal obligations they serve to defend."
Whether and to what extent that approach to justification jibes with Randy Barnett's poses an interesting question, one that I plan to address later and at length. First, though, I plan to tackle another application of the scalar consent model: I plan to use it to describe the supply and demand of government services. More on that project, anon.
Thursday, March 15, 2007
Boggling Electoral Outcomes
Sasha Volokh observes a likely violation of Independence of Irrelevant Alternatives (IIA) in the upcoming French election. For those who don’t know, IIA is the idea that if option A beats option B when there are no other alternatives, then A should still beat B when option C is introduced. Recent polls in France indicate that candidate A (Francois Bayrou) would beat candidate B (Nicolas Sarkozy) in a two-way race, and A would also beat candidate C (Segolene Royal) in a two-way race. But A is nevertheless likely to lose the three-way race among A, B, and C. The reason is that A is probably the second choice of many supporters of both B and C (and some other candidates), so he would gain a lot of those votes if either B or C dropped from the race; yet A is not the first choice of enough voters to make the run-off election.
This result is not a fault of the run-off system. If the French held a single election and chose whichever candidate got the plurality of votes, A would still win in a two-way race against either B and C, while he would lose in the three-way race.
This violation of IIA reminded me of another such violation I observed about a month ago, coincidentally while attending a game party hosted by Sasha’s brother Eugene: the game of Boggle. I’m okay at Boggle, but I’m no master. Unfortunately, the people most willing to play against me are masters, so I get beaten a lot. But there’s one circumstance in which I occasionally win (though not this last time, sadly): when I play against two masters. Boggle rules stipulate that when any player finds a word, nobody gets credit for it. As a result, the masters will sometimes wipe out each other’s scores, allowing me to win if I can just find two or three words neither of them found.
Most multi-player games probably violate IIA, because most of them have interactive effects that change with added players. But the IIA-violation is most noticeable in games like Boggle and Scattergories, whose rules makes each player’s score a function of how many unique answers the player has. Note the similarity to most popular electoral systems: what matters most for staying in the race is a candidate’s number of “unique” voters, that is, the voters whose first choice is that candidate.
Tuesday, November 07, 2006
The Rational Irrationality of Voters
Bryan Caplan has an excellent Election-Day article at Cato Unbound on “The Myth of the Rational Voter.” I applaud the fact that Bryan does not rely solely on rational ignorance (the notion that people remain ignorant about policy because the personal costs of becoming informed outweigh the personal benefits), but instead highlights the phenomenon of rational irrationality (the notion that people have a taste for certain kinds of beliefs, whether those beliefs are true or not). Here’s the best part:
But why are there some areas – like politics and religion – where irrationality seems especially pronounced? My answer is that irrationality, like ignorance, is sensitive to price, and false beliefs about politics and religion are cheap. If you underestimate the costs of excessive drinking, you can ruin your life. In contrast, if you underestimate the benefits of immigration, or the evidence in favor of the theory of evolution, what happens to you? In all probability, the same thing that would have happened to you if you knew the whole truth.One quibble I have with Bryan’s approach is his willingness to rely on the opinion of “experts” to judge when the voters are wrong. Bryan defends reliance on experts against charges of bias related to (say) the experts’ income or socio-economic background by observing that even when we control for those factors, expert opinion still diverges from voter opinion. But I think there’s a real source of bias that cannot be factored out so easily: the tendency of experts to exaggerate the importance of their own field. When I blogged about this phenomenon before, I dubbed it “psychological rent-seeking.” People want to believe what they’re doing is important and worthy of support.
In a sense, then, there is a method to the average voter's madness. Even when his views are completely wrong, he gets the psychological benefit of emotionally appealing political beliefs at a bargain price. No wonder he buys in bulk.
Probably the best example is education; teachers and others in the field constantly tout the importance of education, the need to increase funding and boost teacher salaries, etc. And despite the self-serving quality of their recommendations, they are probably sincere in their beliefs. Yet if these people are regarded as the experts, a bias is introduced into our identification of correct beliefs. Now, I feel sure that Bryan wouldn’t regard teachers as the experts on education, but his expert-friendly position could surely be taken that way. If a teacher isn’t an expert on education, who is? A bureaucrat at the Department of Education? He, too, is probably afflicted by psychological (and well as standard-issue) rent-seeking.
The same problem emerges if we treat doctors or public health advocates as the experts on health policy, or environmental scientists as the experts on environmental policy, or trial lawyers as the experts on tort law.
Bryan focuses on economics as an area in which voters are particularly likely to be wrong, and he shows this by contrasting the opinions of voters and professional economists. I find the argument compelling – but then again, I’m an economist. Besides, as I argued in the post linked earlier, economists may be less vulnerable to psychological rent-seeking because their training imbues them with an awareness of trade-offs and a tendency to balance competing goals (since nearly any goal is subject to diminishing returns at some point). Thus, Bryan may be biasing the case in his favor by choosing an area in which the experts are less susceptible to the sort of bias we should be concerned about.
Arguably, one aspect of voters’ irrationality is their credulity about the claims of supposedly public-minded experts. As Bryan’s colleague Don Boudreaux points out, a candidate’s being “pro-teacher” is quite different from the candidate’s being “pro-education.” Similarly, “pro-union” does not necessarily mean “pro-worker.” Yet voters will often conflate the two. Although I agree with Bryan’s overall perspective, I wonder if his deference to the opinions of experts might exacerbate a prominent source of voter error.
Monday, August 15, 2005
Voting Not to Play
I was surprised to find Tyler saying the following, in the context of Colorado’s strict spending cap:
I would be surprised if this kind of initiative proved to be a long-run political equilibrium in many states. Voters could simply cut spending by voting for anti-spending politicians [sic], if they were truly convinced of the merits of that position.Basic public choice theory says otherwise. It’s entirely possible – indeed likely – for a voter to prefer less spending to more spending overall, while nonetheless favoring more spending on her own special interest. Politicians have a systematic incentive to cater to special interests, even when total costs exceed total benefits; politicians who fail to heed the logic of concentrated benefits and diffuse costs will tend to get the boot. Knowing this, any voter who gains less from spending on her own special interest than she loses from the cumulative spending on everyone else’s has good reason to support the global spending cap.
The logic is akin to that of a prisoners’ dilemma: while each player has good reason to act in a selfish fashion that leads to an undesirable outcome for all, each player also has good reason to favor switching to a different game in which selfish play is ruled out.
Thursday, November 04, 2004
What Counts as Counting?
Said John Edwards, "We promised the American people that every vote would count, and every vote would be counted." Now, what exactly is the difference between a vote counting and a vote being counted? Is this just a pretty redundancy, or did Kerry and Edwards perceive a distinction?
I'm pretty sure I know what it means for a vote to "be counted"; it means for a person or machine to process the ballot and increment the selected candidate’s total by one. So that leaves the question of what it means for a vote to "count." Assuming it's distinct from "being counted," I figure it must mean something like "matter" or "make a difference." But that is something that Kerry and Edwards emphatically could not guarantee, no matter how many lawsuits they filed. For example, thousands of Californians cast votes that did not make a difference. Some, like me, did so deliberately by voting for a third-party candidate. Most did so incidentally, because their votes could not (on the margin) have altered the allocation of California’s electoral votes. That’s true even if you look at the marginal effect of a large quantity of votes instead of just one vote at a time, since Kerry’s margin of victory was rather large in California. The margin of victory was even larger (for one candidate or the other) in many other states. Nothing that Kerry and Edwards did could have changed that in any substantial way. So what exactly did Kerry and Edwards mean when they promised to make every vote count?
Tuesday, November 02, 2004
Inefficient Voting, Efficient Abstention
Says Michael Totten on Instapundit:
People who vote for the other guy aren’t stupid, brainwashed, or evil. They are your friends and family. Someone you love will almost certainly cancel your vote. (My wife cancels out mine.)Now, this raises an interesting question: if you and your spouse’s votes cancel each other out (let’s suppose that they cancel out for every item on the ballot), then wouldn’t everyone be better off – or at least no worse off – if both of you abstained and went on a date instead? The outcome would not change at all, both members of the couple would avoid the cost and inconvenience of voting, and other voters’ wait in line would be shortened by a tiny bit.
Turns out there’s a kind of prisoners’ dilemma at work. Let’s say that each of you places a value of X on having one added vote for your candidate of choice, and negative X on each added vote for the opposition. The cost of voting, in terms of time, effort, and forgone opportunities (like a date) is Y. Assume X > Y, meaning you’d like to vote if doing so actually increased your candidate’s net vote total. And assume you support different candidates, with only two candidates on the ballot. The matrix below shows your payoffs:
The red payoffs are the husband’s, green the wife’s. Notice that each person has voting as a dominant strategy. When the other person is voting, you should vote because - Y > - X; and when the other person is abstaining, you should vote because X – Y > 0. So both spouses vote, and each ends up with – Y. They would both have been better off avoiding the polls and going to a movie. And to the rest of the world, it’s a wash.
The problem generalizes, because your vote can be canceled by anyone voting on the other side, not just your spouse. It would make more sense collectively if people started abstaining in pairs (one person favoring each candidate), until only a number of voters equal to the dominant candidate’s margin of victory remained. For example, if 1,000,036 people preferred candidate A and 1,000,002 preferred candidate B, it would be more efficient if just 34 supporters of A voted and everyone else did something else. The outcome would be no different, and everyone involved would be better off or at least no worse off. Unfortunately, the incentives of the prisoners’ dilemma structure gives people incentives contrary to efficiency.
Is there a way to achieve something closer to the efficient solution? Here is my modest proposal.
Just for record, I realize I’m leaving a lot of things out here. I’m aware that some people consider voter turnout important for its legitimizing effects, though I’ve never found that argument very persuasive. Other people – including me – value participation in the process for its own sake, or for entertainment value, regardless of the impact on the vote total. Still, the current system certainly expends a great deal of resources just to establish a tiny margin of victory.
Monday, October 11, 2004
Electoral Triage, Cont.
Eugene Volokh emails the following, in response to my post below about the Electoral College and voting errors:
It's an interesting theory, but the flip side is that with a winner-take-all, more is at stake because of each contest. So while you're right that we can imagine a 266-266 electoral college split with three one-electoral-vote disputes all over the country, where with a winner-takes-all system none of the disputes would matter, we could also imagine a 268-262 split with one 8-vote state being close, where a proportional-share system wouldn't have yielded any real controversy, since it would have given someone well over 269 votes in any event. How can we tell whether the number of close contests effect is likely to swamp the more at stake effect, or vice versa?An excellent point. (But notice that it is directed at the choice between proportional and winner-take-all allocation of electoral votes, not between the Electoral College and direct popular election - more on this below.)
To take the obvious historical example, suppose Florida had allocated its electoral votes proportionally in 2000, and hold all other states’ allocation systems constant. Not including Florida, Gore had 266 electoral votes to Bush’s 246. Florida had 25 electoral votes, and its popular vote was so close that – regardless of the recounting scheme – a proportional share system would have given Gore at least 12 of them. Gore would have won with at least 278 electoral votes. Given that margin, initiating a recount would have been pointless. (See the numbers here.)
But there are two important caveats: (1) We have to assume people would have voted in the same way under the two systems. But that’s not necessarily so; for instance, GOP voters in California might have a greater incentive to bother voting under a proportional-share allocation. (2) Holding the other states’ allocation systems constant is crucial. Supposing that all 50 states plus D.C. had used proportional-shares and that voting behavior were unchanged, my quickie calculations indicate that Bush would have gotten a bare majority of electoral votes. More importantly, in many (at least 12 by my reckoning) of the states, small changes in vote totals could have generated single-electoral-vote shifts in one direction or the other. In short, I think proportional allocation would have created even more controversy in 2000.
Nonetheless, Eugene’s theoretical point is correct: proportional allocation of electoral votes would generate offsetting effects, so it’s not clear whether it would increase or decrease the relevance of voting errors.
Eugene’s argument only addresses the choice between winner-take-all and proportional allocation of electoral votes within the Electoral College system. Would his point alter my main argument, which was that the Electoral College reduces the relevance of voting errors relative to a direct popular election? I think it might. We can imagine an election in which a popular vote would have generated a national margin of victory larger than the national margin of error, but with a disproportionate number of voting errors having occurred in states where the margin of victory was much closer. In such an election, the Electoral College would result in more relevant errors (and hence recounts) than would a direct popular election.
So what’s the bottom line? It depends. If aggregation tends to cancel out margins of error while magnifying the margin of victory, then a popular vote would be preferred for dispute-minimizing purposes. But if aggregation tends to cancel out margins of victory while magnifying the margin of error, the Electoral College looks better. My suspicion is that aggregation tends to cancel out margins of victory (look at the 2000 numbers: despite the very close national total, Bush and Gore each won by landslides in many individual states), and that would tend to support the Electoral College. But if margins of error also tend to cancel out in the aggregation process then it’s still unclear which system is better.
Friday, October 08, 2004
Electoral Triage
A Politics Blog post (linked by Eugene) on the potential for an electoral debacle in Colorado reminded me of something I’ve been thinking for a while: the Electoral College system, while created for reasons abstrusely related to federalism, has an ancillary benefit that was not (at least to my knowledge) imagined by the framers of the constitution. Specifically, it minimizes ordeals attributable to voting problems such as miscounts, missing ballots, ballot-stuffing, and so on.
This might seem an odd claim in light of Florida 2000. But notice that the problem was limited to that one state. It’s unlikely that Florida was the only state in which voting problems occurred; indeed, I seem to recall some news reports about one or two other states that might require recounts. But Florida was the only state for which both (a) the size of the margin of error from voting anomalies exceeded the margin of victory for the state, and (b) the number of electors at stake could have altered the outcome in the Electoral College.
Imagine if presidential elections were decided by popular vote. In that case, recounts (and the associated meshugas) would be demanded in every county that had any voting anomalies, so long as the magnitude of all potential errors exceeded the national margin of victory. Suppose, for instance, that California voted Democratic by a 60-40 margin, with in-state errors equivalent to a potential 2% of the vote, or a 4% swing. Under the Electoral College, those errors could safely be ignored, because California’s electoral votes would go to the Democrat regardless. Under a popular vote, those errors would suddenly become relevant.
Allocating electoral votes on a proportional rather than winner-take-all basis, as Colorado might choose to do, would tend to increase the number of states for which the margin of error mattered, since a small margin of error could still correspond to an elector or two. But demanding recounts would still only be worthwhile if the number of electors at stake could affect the national result.
In short, the Electoral College creates a modular voting structure that insulates the system against large-scale impacts from small-scale errors. Errors within modules (that is, states) need only be examined and corrected when the errors are sufficiently large and the module is sufficiently important to the system-level outcome.
Monday, September 27, 2004
No Poll-Box Paradox
Chris Bertram of Crooked Timber raises an objection to the notion of rational non-voting (the idea that people don’t vote because the miniscule expected benefits are swamped by the costs):
What’s wrong with this argument? Well, one thought, which I remember hearing first from my friend Alan Carling, is this: the argument involves inconsistent assumptions about rationality. The assignment of a low probability to my vote making a difference assumes what the conclusion of the argument denies, namely, that rational persons would vote. But the argument says they wouldn’t. Well if they wouldn’t then I would be the only voter (a dictator, in effect). In which case I would certainly be rational to vote since I can count the full expected benefit of $1000 in favour of doing so. But if that’s the case, and I should vote, then so should everyone else … in which case I shouldn’t … in which case nor should they … in which case I should ….It sounds like a paradox, but really it’s not. I play on the seeming paradox when I say to my students, “For economists, the question is not why people don’t vote; it’s why they ever do!” But even that question is not terribly difficult to answer.
First, “rational” is not synonymous with “self-interested” or “materialistic” or “concerned only with outcomes.” It simply means acting consistently with one’s own preferences, whatever they might be. There is nothing irrational about voting because (a) one feels a civic or moral obligation to do so, or (b) one derives some kind of direct pleasure from the expressive act. And indeed, that is probably a sizable chunk of why most people vote. Some people entertain the myth that “every vote makes a difference,” but most will admit – at least upon prodding – that their one vote will almost certainly not alter the outcome of the election. They continue to vote because they derive some kind of direct psychic benefit from voting (or perhaps a psychic cost from shirking).
But second, even if we assume people are solely concerned with their votes’ effects on electoral outcomes, no paradox arises. The reason is that the expected benefits of voting decrease as the number of voters rises. If no one else were going to vote, your vote would be decisive. If ten other people planned to vote, it would still make sense to cast a ballot. Even if a hundred or a thousand other people intended to vote, it would not be outrageous to think your vote could stand a chance of making a difference. When the number of other voters numbers in the millions, of course, the expected benefit is vanishingly small. The rational non-voting argument, like most economic arguments, is a claim about the marginal chooser – in this case, the voter right on the cusp between voting and non-voting. Since the marginal benefit of voting declines with the number of voters, there is a turning point at which the marginal benefit sinks below the cost. For the marginal voter, the expected benefit should be approximately equal to the marginal cost.
The two arguments work best in concert. The rationality of voting when few others will vote assures that at least a certain number will vote. Feelings of civic duty and self-expression pump up the marginal benefits further. Together, these factors assure a large enough voting public to make the probability of your vote affecting the outcome tiny relative to the material costs. Only if your psychic benefit of voting is large enough to cover this rather sizable gap will you choose to vote.
Chris’s objection can be rejuvenated by observing that while it’s rational for some people to vote, the model does not determine which people will vote. Suppose, for instance, that the marginal voter’s expected benefit of voting – including all psychic benefits – dips below the cost when the number of other voters reaches (say) 10,000, in an overall population of 100,000. There is still a question of which 10,000 voters will vote. Why these 10,000 people instead of those 10,000 people? The problem has multiple equilibria, and there’s no obvious means of determining which equilibrium will in fact occur (a common feature of economic models that produce multiple equilibria). But the most plausible argument (to me, at least) is that the voting contingent will consist of those voters with the highest psychic benefits, which are independent of the number other voters.
To recapitulate: The rational non-voting theory is a theory of the marginal voter. It is fully consistent with the existence of a situation in which some people vote and others don’t, even if people assess the benefits of voting purely based on its electoral effects. However, recognizing the existence of benefits derived from the act of voting itself allows for a more complete explanation of (a) why as many people vote as do and (b) which people do in fact vote.
UPDATE: I originally attributed the CT post to Henry Farrell, an error I've now corrected.
