The Volokh Conspiracy

In light of Eugene’s recent post on language matters, I thought I would repost something I put up here back in 2007. Various so-called prescriptivists argue against descriptivism, claiming that descriptivists — because they go by usage — have no basis to correct anyone’s English.

Of course this is completely false, and reflects a misunderstanding of what descriptivism is. Usage is a harsh mistress! There was a post on Language Log once (I think, though I can’t find it now) that expressed it well. Roughly, it went like this: In some communities of English speakers, people say “The team is winning.” In other communities of English speakers, people say “The team are winning.” In still others, people say “The team be winning” or “The team winning.” But there are no communities of English speakers (to my knowledge) where people say “The team am winning.” Of course I might be wrong. But if I’m right, all those previous expressions would be correct to use if you’re in the appropriate group, and “The team am winning” is (almost) never correct to use.

Thus, the descriptivist has plenty of grounds to correct people. Most language “rules” also correspond to everyday usage. In those cases, the prescriptivist and descriptivist agree with each other. The arguments happen when “rules” (as stated by whomever) diverge from usage. But that’s a minority of cases. The descriptivist and prescriptivist are equally willing to correct people’s English (if they feel they’re in a position where correcting is appropriate, like, say, English teacher); they each recognize a standard of correctness that can be (and often is) violated; just their standards differ.

O.K., but back to my original goal, which was to repost something from 2007, where I explained why I don’t even like these terms “descriptivism” and “prescriptivism”. Here goes:

—–

This whole series of posts just underscores why I don’t like the words “descriptivism” and “prescriptivism.” When one says one’s a descriptivist, this immediately makes people think one doesn’t want to prescribe. This is of course completely false, and I would have thought that my posts (and Eugene’s) would have put that idea to rest. But no, this misconception dies hard.

Am I a descriptivist? Yes! Because I think usage is the ultimate guide to what English means. I’d think that even self-described “prescriptivists” would say the same thing if, as anthropologists, they encountered a new tribe in the Amazon and tried to describe their language. To know what the language means, you have to observe its practitioners and see what rules they themselves follow in speech.

Am I a prescriptivist? Yes! I’ve been an editor of a journal in the past (and so has Eugene), and I still act as editor when I read friends’ drafts and my students’ work. When I write an article, I send it to Eugene, who tells me how I should rewrite it. Heck, Eugene has even written a book called Academic Legal Writing, in which he gives the reader expressions to avoid!

And it’s clear why we’re interested in prescribing usage: In my case, my only rule is to speak in ways that make you best able to accomplish your goals. Since my goals are usually communicative, I believe in speaking in ways that are clear and comprehensible to my target audience. (And since my target audience often changes, the content of “clear and comprehensible” also changes.) Anyone’s “rules” are only valuable to me insofar as they serve my goal. But once I’ve stated a goal, for instance effective communication with and persuasion of legal academics, there is probably an objectively best way to pursue that goal.

Therefore, to the extent a particular phrase makes my thought unclear, marks me as uneducated and therefore reduces my credibility with my readers, or something else along those lines, then using that phrase is a mistake — because it’s a less effective way of pursuing my goal. (When people correct language mistakes in my posts, most of the time I myself would agree that it’s a mistake!) The best way to pursue my goal might even be formalizable by means of rules — and most of these rules are indeed the ones we learned from our 7th-grade English teachers — but there’s no necessary relation between the one and the other, and of course, in case of conflict, it’s the English teacher’s rules that should go out the window.

So the notion that I don’t think there are better and worse ways of speaking — that I wouldn’t teach my kids how to talk and how not to talk — is silly. The difference between self-described “prescriptivists” and “descriptivists” isn’t that the first gang prescribes while the second gang describes. When I say that my students are speaking or writing incorrectly, I mean that they’re expressing themselves in ways that I don’t think are likely to achieve what I think their goal might be (and of course I have to explain why the words they use are ineffective). And when I choose how to speak, I likewise choose the words that I think are most likely to achieve my goal.

This “functional prescriptivism” business is a difficult exercise, and miles away from the “anything goes” that some people use as their caricature of descriptivism.

What should be my next French novel to listen to in audiobook form, The Charterhouse of Parma (Stendhal) [files here] or Swann’s Way (Proust) [files here]? (Both available from Litterature audio.com.)

Dan Markel, an important criminal law scholar, has comments on PrawfsBlawg on my Prison Vouchers article.

I’m running a panel on legal history at the 47th International Congress on Medieval Studies, May 10-13, 2012, in Kalamazoo, Michigan. The title of the panel is Law as Culture: Legal Development and Social Change. The general call for papers is here. The Law as Culture series has been going on at Kalamazoo most years since 1994, sponsored much of the time (including this time) by the Selden Society; for the last couple of years, I’ve been co-organizing these panels with medieval historian Paul Hyams of Cornell. [UPDATE: Here's are a few paragraphs I wrote about it; the last paragraph has been recycled from earlier CFPs:

Law was an important part of medieval culture, just as in modern culture. High and low people alike regularly attended some court or other -- serfs attended their lord's court while barons attended the royal court -- and rates of litigation (for instance in medieval England) were surprisingly high (by modern standards). Feudalism, an important medieval institution, was largely (though not exclusively) a set of legal rules, and disputes over the overlapping jurisdictions of secular and ecclesiastical courts played a large role in the evolution of church-state relations. The legal system shaped medieval society just as it was shaped by it. The historian of medieval law must study social, economic, and cultural history, but the historian of medieval society, economy, and culture must also study the law.

This panel, therefore, will explore the intersection among law, economics, and culture in the context of the evolution of medieval European law.

This session is part of a series of panels under the general title of "Law as Culture in the Middle Ages" that ran first from 1994 to 2003, and was revived in 2010. The Anglo-American Selden Society has stood sponsor for much of this time. The series has succeeded in bringing together literary scholars, lawyers and historians in the special atmosphere of Kalamazoo and to their mutual benefit, to consider the contributions, good and bad, which Law made to the culture of the Middle Ages. Papers have been presented by scholars of the two learned laws (canon and Roman), of secular laws (especially the Anglo-American Common Law), and of vernacular literatures (especially Old French, Old and Middle English). They have drawn enthusiastic audiences that have filled and on occasion overflowed from the rooms allotted them. We have been able to offer a hearing to young scholars alongside some very well known ones.]

For this panel, I welcome any papers on medieval legal history.

English legal history is welcome; so is Continental legal history, canon law, or any other tradition practiced in the medieval West, e.g. Jewish or Islamic law.

The concept of “medieval” at Kalamazoo tends to be fairly broad, so you often find papers dealing with late Antiquity on one end, and the Renaissance on the other.

Especially, as the title “Law as Culture” hints, papers are encouraged that draw connections between law and other fields, especially in the humanities or economics (though doctrinal legal papers are also fine).

Those who are interested should send me an abstract at volokh at post dot harvard dot edu by September 15, 2011.

To summarize the Latin for election season, we have:

Nominabamini a Romney

meaning “y’all were being nominated by Romney”, which you can expand into:

“Nominabamini a Romney”, dixi eligenti Pawlenty

meaning “‘Y’all were nominating being nominated by Romney’, I said to the person electing Pawlenty.”

But my friend Chris Monsour suggests that, in Greek (which I don’t know), you can say:

μὴ πάλιν ἡ Πάλιν

meaning, roughly (if you take the adverb as implying a verb of motion, and take the proper name as indeclinable): “never again this Palin woman”.

UPDATE: A Hebrew-speaking friend of mine says that the word כן, which is pronounced “keyn” and therefore sounds like (Herman) Cain, means “Yes!” Note, though, that in Yiddish, “keyn Cain” would mean “No Cain”. If all this is correct, Hebrew and Yiddish speakers can make opposing signs for their political rallies.

With Romney just having gotten to 30% on InTrade, I thought you might want to practice saying “Y’all were nominating Romney” in Latin: Nominabamini Romney.

UPDATE: This is what I get for carrying this around in my head for a long time and then typing it without thinking. What I meant was: either “Nominabamini, Romney”, meaning “Y’all were being nominated, Romney!” (I know the verb is plural and Romney is singular, but note that we here in the South also use “y’all” for the singular, which is why we invented “all y’all” for the plural); or, “Nominabamini a Romney” (Romney is indeclinable, so the ablative is unchanged), meaning “Y’all were being nominated by Romney.”

Also, note “eligenti Pawlenty” means “to the person electing Pawlenty”.

UPDATE 2: Commenter Byung Kyu Park suggests “Romnius” to Latinize the name. Now normally I wouldn’t want to do this, because the whole point of the exercise here is that “nominabamini” rhymes (more or less) with “Romney”. But hey, if we put in “Romnius”, then for the first option above, we’d put it in the vocative and get “Romni”, which comes out to the same thing.

UPDATE 3: Several real Southerners (unlike me, who have merely lived in Atlanta for two years) point out that “y’all” isn’t really used in the singular. I’ll point out that whether it does is controversial; but in any case, my statement didn’t derive from any actual Southern expertise; it was just my attempt to rationalize the otherwise nonsensical “Nominabamini, Romney”. If that fails, we have to go with “Nominabamini a Romney”, “Y’all were being nominated by Romney”, where the preposition “a” in the middle unfortunately breaks up the rhythm.

Acting Solicitor General Neal Katyal said today, in oral arguments before the Eleventh Circuit, that the individual mandate provisions of the health-care law “may violate the constitution of Ayn Rand, but they do not violate the Constitution of the United States”.

Ilya and I have covered presidential candidate Gary Johnson a few times on this blog: see, e.g., here, here, and here (and see here for a post by Todd). I’ve gotten slightly involved with his campaign in the form of gathering some “Academics for Johnson” signatures.

Johnson has now been excluded from the New Hampshire debate; here’s the text of the letter to CNN from Johnson advisor Ron Nielson:

Having heard nothing to the contrary from you, the debate sponsors, we assume the decision not to invite Governor Johnson was based upon your “objective” polling criteria. Certainly, you have to apply criteria. We get that. However, the idea that inclusion – or exclusion – from a critical debate in a critical state will be based entirely upon polling arithmetic, seven months before a single vote is cast, is not only absurd, but counter-intuitive to the very purpose of a debate.

At this point in the process, a candidate’s ranking in the polls is almost entirely a factor of name identification, news coverage by outlets such as yours, money, and/or previous exposure on the national level – including that gained from previous unsuccessful campaigns. In short, relying solely on polling numbers at this stage simply grants an enormous advantage to “establishment” candidates – and excludes a successful two-term governor whose express purpose in running is to give Americans an alternative to business as usual, and who actually has a track record to back it up.

Given that poll rankings at this point are largely the result of decisions by the elite media, such as CNN, about who and what to cover – and to whom to give precious air time, it is more than a little ironic when those same media use those poll numbers to deem certain candidates deserving and others not. That irony is not lost on Republican primary voters who most assuredly do not want media elites pre-selecting their candidates for them.

Consider: In early 1991, then-Governor Bill Clinton was in 11th place in presidential primary polling with 2%. By November of 1991, he was only at 6%, a fact which led one commentator to later observe: “If the front runners in the 1992 Democratic primary had been successful in excluding all the “non-serious” candidates, Bill and Hillary Clinton would have never made it to the national stage.” The “frontrunners” in 1991, by the way, were Mario Cuomo and Jerry Brown.

And there is this excerpt from a memorandum sent to supporters by the Mitt Romney campaign in 2007: “Carter, Dukakis, and Clinton were all governors of small states who began their campaigns with low national exposure and went on to win their party’s nomination. At this point in 1975, Carter was polling at 1%; in 1987, Dukakis was polling at 1%; in 1991, Clinton was at 2%.”

In short, applying your criteria, the ultimate nominees in several modern elections would likely not have been invited to a CNN debate. And in each case, they were Governors of relatively small states who simply had not enjoyed the advantage of the national media’s attention – a rather precise description of Governor Johnson. The polls were not predictive then, and they are not now.

The fundamental unfairness of relying solely on polling criteria aside, there are obvious problems with the polling criteria themselves. Even the most extensive and professional political polls carry margins of error from 3-5%. When reporting polls in which candidates are separated by margins within that range, the news media invariably points out that those candidates are essentially tied or the race is “too close to call”. While we have not seen your precise calculations, based on the polls we have seen, we have to assume that the “margin” between Governor Johnson and some of those who were invited to the debate were equally “too close to call”. Yet you made a call – and decided to exclude Governor Johnson.

Adding to the mystery of your arithmetic is the simple fact that Governor Johnson was not even included in much of CNN’s own polling during the month of April – one of the time periods you used to determine eligibility. It is hardly surprising that a candidate would not fare well in a poll in which he was not included.

Debates play an important role in the American political process. They uniquely provide an opportunity for voters to hear, see, contrast and compare candidates – on a level playing field uncluttered by funding, name I.D., past notoriety and public relations machines. Rather, they are about credentials, ideas, philosophies and policies.

By those measures, a two-term Republican governor from a Democrat state — who turned a deficit into a surplus, vetoed 750 bills, and successfully governed from a philosophy many, many Republicans are today seeking – deserves a chance to participate in the June 13 debate. Early and largely irrelevant polling arithmetic certainly should not trump the obvious: Gary Johnson has a record, a resume and the proven accomplishments to merit inclusion among any serious gathering of Republican candidates for president.

We respectfully ask that the decision to exclude Governor Johnson be revisited, and that the American people be given an opportunity to hear a voice on June 13 that otherwise will not be heard.

For more on the Johnson exclusion, see Conor Friedersdorf’s article from The Atlantic.

UPDATE: Petition here. Also, Gary Johnson gives details about how to contact people.

This is the fifth and last in a series of posts serial-blogging my new article, Prison Vouchers, forthcoming in the Penn Law Review. The first post in the series is here (I recommend reading it for an overview of the entire paper), the second post is here, the third is here, and the fourth is here. If you want to know everything immediately, with all the supporting footnotes, you should look at the full version on SSRN.

I’d appreciate comments (especially informed ones, which have a greater chance of making it into the final version, with thanks in the author footnote).

In this post, I speculate on the politics of prison vouchers and conclude.

* * *

The Politics of Prison Vouchers

I have already discussed how, to the extent prison vouchers improve prisons from prisoners’ perspective, the current political dynamic may be completely reversed. Government will actually have to intervene to keep prisons from becoming too “good” (from the prisoners’ perspective).

This may be all the more important in the prison context than in the school context: there seems to be more hope to reform schools politically, without using choice, because at least society at large empathizes with students in failing schools (or at least claims to), whereas prisoners are generally despised, tend to come from communities without a lot of political power, and are themselves (at least felons) often disenfranchised.

This proposal, of course, is subject to the same critique as all reform proposals that propose to remedy a politically insoluble problem. If the problem is politically insoluble, there are presumably political constituencies opposed to remedying the problem. If so, why should this reform, even if it’s perfect, ever be adopted? Section A discusses how prison vouchers could be adopted; Section B speculates on the political fate of vouchers after they are adopted.

An Adoption Coalition

The foregoing discussion gives us clues as to how a prison voucher proposal could succeed politically, or at least how the support for a prison voucher proposal would be different from the support for an arbitrary prison-conditions reform, such that the political infeasibility of the latter need not imply the political infeasibility of the former.

The “cultural cognition” literature suggests how constituencies can be mobilized by a clever packaging of reforms that convinces different groups that their concerns are being taken into account. For instance, Dan Kahan and his co-authors have argued that conservatives during the George H.W. Bush Administration were convinced to support the Clean Air Act Amendments of 1990 because environmental improvements were packaged with an emissions permit trading scheme. Similarly, when nuclear power is packaged as a way to reduce reliance on fossil fuels responsible for global warming, not only do environmentalists become more likely to support nuclear power, but also people who are not generally sympathetic to environmental concerns can become more likely to support action to address global warming.

A similar dynamic could occur with prison vouchers. The left wouldn’t be inclined to support vouchers, but this could change if the program is packaged as a good way to improve prison conditions. Economic conservatives might not be highly interested in improving prison conditions, but they might warm to the idea of vouchers being tested in a new field, both because this would allow greater operation of market forces and because a success of vouchers in prisons may strengthen the case for vouchers in other areas, like education. And while some social conservatives care about prison conditions, and some social conservatives care about vouchers, a leading motivation for social conservatives to support prison vouchers could be that such a program would be the best way for faith-based prisons to operate constitutionally. (A left-right prison-reform coalition isn’t unheard of: it was a bipartisan coalition that enacted RLUIPA, based on reports of the heavy-handed treatment of prisoners’ religious claims.)

And this scenario is possible even if we don’t accept “cultural cognition” theory. Cass Sunstein has disputed Dan Kahan’s account of the Clean Air Act, arguing that conservatives supported emissions trading because the Bush White House was under pressure to pass air quality legislation and emissions trading was the cheapest way to do it. Similarly, there needn’t be anything cultural about voucher support: The left and different wings of the right can support prison vouchers for rational reasons, if they’re convinced that vouchers can improve prison conditions by harnessing market forces and allow for the constitutional operation of faith-based prisons.

This sort of coalition gives an explanation of how vouchers could be enacted—with all the possible beneficial effects for prisoners—even though there isn’t enough of a political constituency to improve prisoner welfare by more direct means. The entire coalition needn’t be motivated by prisoner well-being. And once vouchers are enacted, one no longer needs to “urge” legislators or administrators to act contrary to their political self-interest; rather, the changes happen automatically, through market mechanisms.

Continue reading ‘Prison Vouchers — part 5’ »

This is the fourth in a series of posts serial-blogging my new article, Prison Vouchers, forthcoming in the Penn Law Review. The first post in the series is here (I recommend reading it for an overview of the entire paper), and the second post is here and the third is here. Some of the concerns expressed in comments to past posts are addressed in this or later installments (though if you want to know everything immediately, with all the supporting footnotes, you should look at the full version on SSRN). Also, I see that many commenters are making the casual assumption that I’m in favor of the scheme I’m laying out; note, though, that I don’t make such a claim anywhere in the paper.

I’d appreciate comments (especially informed ones, which have a greater chance of making it into the final version, with thanks in the author footnote).

In this post, I discuss the disadvantages of the prison voucher idea. (Non-empirical arguments against prison vouchers were discussed in the previous post; this post only covers empirical disadvantages.)

* * *

“Market Failure” Arguments Against Vouchers

So let’s suppose that there’s nothing about a voucher proposal that’s philosophically inconsistent with the idea of incarceration. Would prison vouchers work?

The discussion above of how prisons would accommodate prisoners’ values if they had to compete for prisoners assumes that market forces would lead prisons to offer more valued amenities. Here, I discuss possible market failures that could prevent this from happening.

Barriers to Individually Maximizing Decisionmaking

Information. Convicted defendants may not know the actual quality of prisons, just as parents may not know the actual quality of schools. Does this argument apply with more or less force in prisons than in schools?

Someone sentenced to prison for the first time may not know much about different prisons. Even repeat offenders might have little direct experience with prisons if they’ve mostly spent time in jails instead of prisons; and even someone who’s been in one prison may not know about the others.

But one can find out about prisons from several sources.

First, one might have friends or neighbors who’ve been in prison, and information can spread by word of mouth.

Second, prisons can advertise, and reviews of prisons by current or former inmates may be available on the internet.

Third, there are already ways to evaluate prisons, such as reports of monitoring agencies or the Logan quality of confinement index. One can even require that prisons publish such information, as well as other information that would result from the voucher program, like the length of the wait list and the rate of transfer out of the prison, as part of their advertising. One possible model for prison information disclosure would be the federal government’s “Nursing Home Compare” site, which conveniently pulls together nursing home information already collected by the government.

Fourth, if the voucher program allows one to transfer out after a while, one will at least have some direct experience of one’s own prison, and if that experience is bad enough, it can be worthwhile to take the chance on another prison.

So far, the arguments look similar to those for schools. But the informational problem seems to be less severe in the prison context because the people who choose the prison are the same as the people who experience the service. With schools, there is an agency problem: The parents make the choice, but because they don’t directly experience the school, they have less of an incentive to become well informed (even if they’re altruistic toward their children) and they’re also less able to do so. Parents are imperfect agents of their children, whereas inmates are perfect agents of themselves.

A convicted defendant may also have some help from his lawyer, just as lawyers now try to get their clients into drug abuse programs or military enlistment. The government could also provide a default assignment or a list of recommendations, though the bureaucrats who currently assign an inmate’s prison may well be less favorably inclined to prisoners than school bureaucrats are to kids.

Ultimately, what convicted defendants lack in information, they may make up for in motivation, both to acquire information and to act on it.

Finally, even if information problems continue to be serious, this is an argument in favor of having prisons run by the nonprofit sector, just as information problems in education are often taken as an argument in favor of nonprofit schools.

Continue reading ‘Prison Vouchers — part 4’ »

Well, I think the title of this post is pretty self-explanatory. There was such a guy, at least in L.A. in the ’90s. He also scribbled on a large dry-erase board. Does anyone remember his name?

This is the third in a series of posts in which I’ll be serial-blogging my new article, Prison Vouchers, forthcoming in the Penn Law Review. The first post in the series is here (I recommend reading it for an overview of the entire paper), and the second post is here. Many of the comments to past posts are addressed in this or later installments (though if you want to know everything immediately, with all the supporting footnotes, you should look at the full version on SSRN). Also, I see that many commenters are making the casual assumption that I’m in favor of the scheme I’m laying out; note, though, that I don’t make such a claim anywhere in the paper.

I’d appreciate comments (especially informed ones, which have a greater chance of making it into the final version, with thanks in the author footnote).

I’m skipping over constitutional issues related to prison vouchers — that’s the subject of another full article that I may discuss here in due course. In this post, I discuss some possible benefits of prison vouchers, as well as some possible disadvantages. Of the disadvantages, this post discusses only the non-empirical arguments against prison vouchers; the empirical arguments (based, for instance, on market failure considerations) will be the next post.

* * *

The Potential Benefits of Vouchers

Let me recap how vouchers could improve prison quality. Under a voucher system, inmates would control where they went. Therefore, they would tend to choose prisons that best satisfied their own preferences. This choice might be very different from the one that would be made under the current system by prison officials, whose humanity and professionalism can’t always be taken for granted, whose interests don’t necessarily coincide with those of prisoners, who may be steering prisoners to particular prisons for political reasons, and who (also for political reasons) may be opposed to prisoner welfare.

If inmates’ preferences are very heterogeneous, this could just result in a reallocation of inmates among prisons, so there would be a better match between prisons and inmates. That alone would be a significant benefit from prisoners’ point of view, even if “quality” in some objective sense didn’t rise.

But many amenities are likely to be broadly desired: safety, good medical care, less high-security segregation, better activities and programming, and more floor space. Inmates may also value opportunities to work, which may reduce recidivism.

So it seems reasonable to expect that prisons, if they’re put in the position of having to compete for prisoners, will offer these broadly desired amenities; I’ve suggested a list of them earlier in this Article. The prisons that are the very best according to those attributes will be oversubscribed, so some inmates will have to go to their second, third, fourth, or even last choice.

Under conditions of substantial overcrowding, perhaps no prison, not even the worst one, will lose inmates, so in a static world, prisons may not benefit from being more attractive. But, assuming that the voucher amount is generous enough, prisons will want more inmates, so oversubscribed prisons will benefit from building extra wings and extending their business model.

Prisons would thus improve by competing with each other on attributes valued by prisoners. Moreover, the benefits to individual prisons from adding extra valued features would be substantial. First, (at least private) prison providers would be able to implement a feature directly, without having to convince a procurement officer that the feature is a good idea and a wise use of funds. Second, a prison could benefit from a valued feature more immediately than under the current regime, as it could “poach” existing inmates from other prisons through transfers rather than having to wait for an influx of new prisoners as they are convicted. (As noted above, even if an amenity is expensive, a prison can benefit from adding it if, as a result, its inmate population increases sufficiently. )

These choice-driven improvements thus bypass the barriers to legislative, administrative, and judicial reform. As for privatization, the mechanism by which it may improve quality in a non-choice allocation regime is the process of competitive bidding and reputation-building. But this depends crucially on the competence and benevolence of the officials who run the bidding (which, like those of the officials who assign prisoners, aren’t guaranteed). Once a private provider gets a prison contract, if reputational and contract-renewal concerns are weak, there are strong incentives to reduce quality. Choice prisons, on the other hand, have less of an incentive to reduce quality because at least some quality reductions are directly observed by those whose choices matter. If prisoners can transfer out, quality reductions can result in a loss of inmates, and even if the possibility of transferring out is limited, quality reductions could harm the prison’s reputation, which would reduce the inflow of new prisoners.

Choice can also have long-run effects on the entire prison system. “[C]hoice can affect productivity through a variety of long-term, general equilibrium mechanisms that are not immediately available to a[ prison] administrator.” This includes increases in wages of higher-ability prison managers or corrections officers, which may attract higher-quality people into those professions. Prisons may find it in their interest to “issue more information about their achievement and may thus gradually make [inmates] into better ‘consumers.’” The need to attract “customers” may make prisons more responsive to evidence-based techniques rather than fads that appeal to bureaucrats.

While the “active” inmates under a voucher system are those who transfer from one prison to another, or make an initial choice to go to a different prison than the one they would otherwise have been assigned to, choice could also improve the prison experience even for those who never transfer or who choose to go to their default prison. In fact, this could be the most important vehicle for improvements if many inmates don’t actively use their ability to choose. In the short term, this “would greatly extend the benefits of . . . choice beyond the [inmates] who are first to take up the opportunity to attend . . . [new private prisons].” Moreover, if public sector quality rises enough, this could overcome any negative spill¬overs on certain inmates, for instance based on peer effects, discussed below. Along these lines, there is evidence that vouchers have improved productivity in Milwaukee public schools and that charter schools have improved productivity in Michigan and Arizona public schools. (But note that the likelihood of competitively driven improvements in public sector quality depends crucially on how public sector funding reacts to the use of vouchers. )

Continue reading ‘Prison Vouchers — part 3’ »

We had an exchange student from Germany live with us for a semester last year (attending the local high school), and we enjoyed it very much. I thought I’d plug the program we used, the Academic Year in America program from the AIFS Foundation. (Apparently they like to do full academic years, but one can also find students who only want to spend a semester.) Students in this program can come from any of about forty countries in Europe, Asia, Africa, or Latin America; there are probably other organizations out there that handle different countries. If you’re interested in this sort of thing, let me know.

This is the second in a series of posts in which I’ll be serial-blogging my new article, Prison Vouchers, forthcoming in the Penn Law Review. The first post in the series is here. I’ve skimmed some of the comments to that post — some of the commenters’ concerns were addressed right in that first post, and others will be addressed as the series progresses (though if you want to know everything immediately, with all the supporting footnotes, you should look at the full version on SSRN). I’d appreciate comments (especially informed ones, which have a greater chance of making it into the final version, with thanks in the author footnote).

In this post, I discuss the mechanics of how a voucher scheme would work: how choice would operate, why choice isn’t the same thing as privatization, some funding details, and some statutory restrictions.

* * *

Choice

Inmates today have little or no choice of prison. In Texas, for instance, convicted defendants can’t ask for a particular prison at the outset; prisoners are assigned based on their supposed needs. There’s no formal way to “bargain” with the court or with the prosecutor. Voluntary transfers are limited. In the federal system, the Bureau of Prisons takes the court’s recommendations into account, but there’s no guarantee that the court will convey the prisoner’s preferences, and generally there’s no systematic way for prisoners to have their preferences satisfied.

In California, there’s a limited amount of choice in jail assignment: through “offender self-pay” programs, minimal-risk offenders can, for a fee and with court approval, opt out of the regular jail system and be housed in the jail equivalent of a “five-star Hilton,” where they get distance from violent offenders, work furlough rights, and perhaps even the right to bring computer equipment. But this California system is both unusual and inegalitarian.

So under the standard regime, prisoners are assigned primarily based on a state correctional employee’s judgment of available space, as well as inmate needs like proximity to family or substance abuse or sex-offender treatment programs.

Prison choice would supersede this mechanism. The process would begin at conviction. The convicted defendant would receive a coupon, good for incarceration for the duration of his term, which he would be required to redeem at a participating prison (sorry, no choice there). The set of participating prisons may or may not include private prisons. In fact, as I discuss below, choice is conceptually independent of privatization, and—even though some arguments for or against vouchers are often made with private providers in mind—one can talk about vouchers even without privatization.

Imagine a convicted defendant awaiting sentencing, presumably with a lot of time on his hands. He can spend his time flipping through a book, perhaps like the Yellow Pages, with ads for different prisons—or perhaps the “flipping” can be done online if he has internet access. To get an initial view of dimensions along which prisons might compete, let’s take a more detailed look at some of the problems prisoners face today. Each of the problems listed below suggests possible reforms that inmates might find attractive. (Prisons could advertise such reforms with color photos, supporting statistics, and inmate testimonials.)

Continue reading ‘Prison Vouchers — part 2’ »

This is the first of several posts in which I’ll be serial-blogging my new article, Prison Vouchers, forthcoming in the Penn Law Review. I’d appreciate comments (especially informed ones, which have a greater chance of making it into the final version, with thanks in the author footnote).

* * *

In this Article, I invite the reader to indulge in a thought experiment. What would the world look like if, instead of assigning prisoners to particular prisons bureaucratically, we gave them vouchers, good for one incarceration, that they were required to redeem at a participating prison?

School vouchers have been debated to death ever since they were proposed by Milton Friedman in 1955 and championed by progressives in the 1960s. Vouchers have also been discussed and used for other government services, like housing and health care.

Vouchers are also no stranger to criminal justice: We see them used for halfway houses, mandatory anti-alcohol programs, and criminal defense lawyers for the indigent. A voucher system was implemented in a few states in the 1970s to allow inmates to buy training and education as part of “Mutual Agreement Programs” (also called “contract parole” programs) that helped inmates work toward parole. This last idea was taken up in the Model Sentencing and Corrections Act in 1978, which suggested that prisoners get vouchers to purchase “specified treatment programs and services directly from either public or private agencies,” though this feature of the Model Act apparently hasn’t been adopted anywhere.

But, as far as I can tell, no one has ever discussed vouchers as a serious possibility for prisons.

This is a shame, because some of the same factors that led early education reformers to suggest school vouchers apply with equal, if not greater, force in the prison context. Both prisons and schools face a similar confluence of three factors:

1. Both face widespread and serious problems.
2. The problems in both areas have proven hard to solve through the usual political, administrative, or judicial means.
3. And allocation of students to schools, and of inmates to prisons, is predominantly done bureaucratically, with limited possibilities for choice.

The prima facie case for considering a market solution, in which the subject population would become consumers and thus drive reform by voting with its feet—essentially, getting rid of (3) to bypass (2) and thereby solve (1)—thus seems strong.

Continue reading ‘Prison Vouchers’ »

On the minus side, I called Gary Johnson’s campaign before the recent presidential debate to see how I could get onto some “Academics for Johnson” list or similar, and they still haven’t gotten back to me on this. How dare they neglect the very influential Academics demographic! But if you’re an Academic for Gary Johnson, let me know.

Here’s the third (and final) installment of my Houston Law Review piece on Rationality or Rationalism? The Positive and Normative Flaws of Cost-Benefit Analysis. (Click here for the first installment and here for the second installment. See the printed version, 48 Hous. L. Rev. 79 (2011), or the SSRN version, for all the footnotes.)

* * *

Finally, there’s the normative point, which has already been extensively covered by critics of utilitarianism. Deciding whose costs and benefits count is normatively loaded—this is why Cass Sunstein got into trouble for his concern with the interests of animals. So is deciding how costs and benefits should count—this is why the question of intergenerational discounting is so contentious. So is deciding what is a cost and what is a benefit. When a regulation results in a reduction in suicides, it’s common to count this reduction as a benefit; Dean Revesz does so, for instance, when discussing the benefits of auto emission limitations and a similar claim is often made in the context of gun control. But calling suicide prevention a benefit is (or should be) ethically controversial both from a “consumer sovereignty” perspective and from a libertarian perspective that sees suicide as a choice like any other.

[Footnote (citations omitted): Revesz defends a concern for suicide prevention on the grounds that “[a] person’s choice to undertake suicidal behavior may not be a reflection of her true self and her self-inflicted death could be an act that she would, in calmer and clearer moments, recoil at.” Because suicidal thoughts may be connected to mental illness, a suicidal person’s “rational autonomy” might be compromised, so that “the decision to engage in suicidal behavior [might] not [be] a reflection of one’s considered values or aims.” But this sort of reasoning is precisely what should be morally controversial. To count suicide reduction as a benefit means that one is privileging some hypothetical “true self” that has “considered values [and] aims,” rather than the currently existing self that has actual values and aims. The idea that the cost–benefit analyst can identify a “norm,” deviations from which are considered a “mental illness” and can justify overcoming an actor’s revealed preference, clearly shows the interventionist (and possibly illiberal) potential of cost–benefit analysis.]

But the biggest problem isn’t particular choices about how to implement the utilitarian basis of cost–benefit analysis; it’s the utilitarian basis itself. Dean Revesz answers the critique that cost–benefit analysis inappropriately commodifies human life or wilderness areas, correctly pointing out that assigning a price to life shouldn’t be understood to diminish its inherent worth. Pets, homes, and wedding rings are, after all, traded in markets. But this is still a bit too glib: the purpose of formal cost–benefit analysis isn’t just to assign a number, but to do so in order to see whether that number can be trumped by a bigger number on the other side.

Dean Revesz’s phrasing makes the moral collectivism clear: cost–benefit analysis “allows us to spend money to the point at which the last dollar spent buys one dollar of risk reduction. If we spend beyond that point, we will pay more than we receive. But if we spend any less, we forego risk reductions that are socially desirable.” I’ve added the emphasis to show how seamlessly one slips from the we who pay and receive to the we who receive and forego. But these are different groups, and there is neither a common pocketbook nor a common valuing mind. Coase notwithstanding, there is no social cost. Cost–benefit analysis legitimizes a social welfare function that treats it as unobjectionable to, without compensation, take a book from Derek, who values it at $2, and give it to Amartya, who values it at $3. But, as Ronald Dworkin asks, is the world after the transfer “in any respect superior” to the world before the transfer?

I do not mean whether the gain in wealth is overridden by the cost in justice, or in equal treatment, or in anything else, but whether the gain in wealth is, considered in itself, any gain at all. I should say, and I think most people would agree, that [the world after the transfer] is not better in any respect.

[Footnote to Dworkin blockquote: Dworkin may be pushing this point too far. Perhaps a single such transfer doesn’t make the world better off in any way, but two such transfers, one from Amartya to Derek and one from Derek to Amartya, could make both parties better off, and this would make the world better off in some way, at least to someone who thought that Pareto improvements make the world better off, other things being equal. If these two transfers make the world better off, then surely one can say that each individual transfer plays a role in making the world better off provided it’s embedded in some structure of reciprocal transfers. But Dworkin is still on to something: there’s generally no guarantee that the reciprocal transfers will take place; there’s nothing in the logic of cost–benefit analysis that guarantees that this regulation will be counterbalanced by other regulations that benefit today’s harmed parties; and today’s political losers are likely to be people without much political power, who are likely to continue to be political losers tomorrow.]

Commodification, here, isn’t the primary problem. I think commodification is great and encourage its more widespread use in the law, whether for sexual services, human organs, or human life. A basic tenet of libertarianism is self-ownership, and what’s more fundamental to ownership than transferability? Thus, preventing people from agreeing to suffer a risk of death (on any basis they see fit, including for a price) is morally indefensible. But while I favor treating most rights as commodities that can be alienated, traded, and sold, I would also insist that these commodities be treated as the property of their owners and not of society. Cost–benefit analysis asks us not only to commodify but also to transfer the right to the commodity to the highest valuer.

Continue reading ‘Rationality or Rationalism? The Positive and Normative Flaws of Cost-Benefit Analysis, Part 3’ »

It’s been a while since the first installment of my Houston Law Review piece on Rationality or Rationalism? The Positive and Normative Flaws of Cost-Benefit Analysis. (See the printed version, 48 Hous. L. Rev. 79 (2011), or the SSRN version, for all the footnotes.) Sorry about that — I was at the Kalamazoo 46th Annual International Congress on Medieval Studies. Anyway, here’s the next installment.

* * *

First, the questions that cost–benefit analysis asks may sometimes be simply incoherent. What’s the value of not damming the Grand Canyon or not polluting the Prince William Sound? Environmental economists have a couple of theoretical answers—“[c]ompensating [v]ariation” or “[e]quivalent [v]ariation.” For any change in the level of an environmental amenity, the “compensating variation” is the change in income that, after the change, would keep me at the same utility level. (If the change is for the worse, this is the “willingness to accept compensation” to assent to the change; if the change is for the better, this is the “willingness to pay” to obtain the change.) And the “equivalent variation” is the change in income that would lead to the same utility change as the change in the environmental amenity. (If the change is for the worse, this is the willingness to pay to avoid the change; if the change is for the better, this is the willingness to accept compensation to forgo the change.)

These two amounts are generally different, at least because of income effects, so the environmental economist has to commit to whether to use compensating or equivalent variation—basically, equivalent variation implies a property right in the change while compensating variation implies a property right in the status quo, so the choice between measures will inevitably involve some noneconomic thinking. (That valuations change based on the allocation of rights is itself a challenge to the cost–benefit approach.) But once the value-laden question of who gets the implied property right is resolved, estimating willingness to pay or willingness to accept is a “merely” technical problem.

What, then, does the economist do with an environmentalist who rejects both willingness to accept and willingness to pay? Willingness to accept might be literally infinite: “There’s no amount of money I’d accept to tolerate the damming of the Grand Canyon.” One might think that willingness to pay is more serviceable because, at least, it’s bounded above by one’s total lifetime net worth; but what if one rejects the question on moral grounds?

Practitioners of contingent valuation surveys, which try to estimate natural resource values from survey data, routinely have to deal with “protest response[s],” where respondents give a willingness to pay of zero or refuse to answer the question. These protest responses are thrown out because they don’t represent true economic valuations—at least if the subject indicates that his zero bid is a protest, not a true zero valuation. But surely the problem lies more with having to shove everything into contingent valuation mode than with those pesky moral environmentalists who refuse to state a willingness to pay. These people may really not think of an amenity in monetary terms, and if you force them to reconsider their answer (at least you can warn those who state zero that their result will be either thrown out or taken to mean a valuation of literally zero), the number they come up with may be meaningless. I may value sex with a loving partner very highly, but if the question is how much I’d be willing to pay for it, we’re now measuring a different sort of experience entirely.

With these infinite valuers, or even just with people who don’t think of the environment as something monetizable, cost–benefit analysis, in demanding some (finite) number for the value of the environmental amenity, is asking the impossible. It wants to use a number that, for some of the affected population, just doesn’t exist because for these people the very question commits a category error.

Continue reading ‘Rationality or Rationalism? The Positive and Normative Flaws of Cost-Benefit Analysis, Part 2’ »

I’m pleased to have gotten the reprints of my Houston Law Review piece, Rationality or Rationalism? The Positive and Normative Flaws of Cost-Benefit Analysis. It was part of their Frankel Symposium on environmental cost-benefit analysis; the main piece was Ricky Revesz and Michael Livermore‘s “Retaking Rationality: Two Years Later”, a follow-up to their (two-year-old) book, Retaking Rationality: How Cost Benefit Analysis Can Better Protect the Environment and Our Health.

I’m going to post the text of my article in installments over the next few days, though I encourage you to consult the full version on SSRN, or the version in 48 Hous. L. Rev. 79 (2011), for the footnotes. The first installment follows below the fold.

Continue reading ‘Rationality or Rationalism? The Positive and Normative Flaws of Cost-Benefit Analysis’ »

My friend Nick Ragone has just published Presidential Leadership: 15 Decisions That Changed the Nation, which looks at, inter scalia, the Whiskey Rebellion, the Louisiana Purchase, the Emancipation Proclamation, and the “evil empire” speech. Here’s a review of the book from the Washington Times.

I’ve just posted a draft of a recent article, Everything We Know About Faith-Based Prisons, on SSRN. Here’s the abstract:

This Article examines everything we know about the effectiveness of faith-based prisons, which is not very much.

Most studies can’t be taken seriously, because they’re tainted by the “self-selection problem.” It’s hard to determine the effect of faith-based prison programs, because they’re voluntary, and volunteers are more likely to be motivated to change and are therefore already less likely to commit infractions or be re-arrested. This problem is the same one that education researchers have struggled with in determining whether private schools are better than public schools.

The only credible studies done so far compare participants with non-participants who volunteered for the program but were rejected. Some studies in this category find no effect, but some do find a modest effect. But even those that find an effect are subject to additional critiques: for instance, participants may have benefited from being exposed to treatment resources that non-participants were denied.

Thus, based on current research, there’s no strong reason to believe that faith-based prisons work. However, there’s also no strong reason to believe that they don’t work. I conclude with thoughts on how faith-based prison programs might be improved, and offer a strategy that would allow such experimentation to proceed consistent with the Constitution.

Doug Berman at the Sentencing Law and Policy blog calls it a “must read” — thanks!

For Pi day, let me plug David Blatner’s The Joy of Pi, a short tome of fun facts about pi, whose main advantage is that it cites me, saying something along the lines of “Sure, memorizing digits of pi isn’t useful, but saying that math has to be useful is like saying that the English language is only good for ordering pizza.”

What was that all about? Back in 1996 [UPDATE: actually 1994, but I publicized it in 1996], I and some friends made up a little mnemonic paragraph to remember the value of pi to 167 digits. (There may be a slight error in there; I no longer remember.) That item was picked up in a number of places, including The Scientist and Ivars Peterson’s MathTrek column.

Otherwise, I’ve never profited from this invention, so I share it with you now for free lest it be lost forever. Of course, there are a great many pi mnemonics out there, some much longer than 167 digits; see, e.g., Poe, E.: Near a Raven (740 digits), which isn’t even the longest.

In other news, if you type in “pi” in the iTunes store, you find a number of interesting songs called “Pi”, some of which sound interesting. Downloads of the day?

UPDATE: I forgot to mention Nobel laureate Wislawa Szymborska’s poem about pi. Here it is in Polish; here’s one English translation, and here’s another.

I’ve seen various bloggers attack the assertion that Japan’s earthquake will be good for the economy (see, e.g., David Bernstein’s post below) as an example of the broken window fallacy.

Now I like the story behind the broken window fallacy as much as the next guy. Yes, GDP might go up, but this only shows how meaningless GDP is. GDP is just, roughly speaking, the sum of prices in transactions, so anything non-market goes uncounted. If you bomb a building and then hire people to rebuild it, the bombing counts as 0 for GDP (not a negative) and the rebuilding counts as a positive; so you can bomb the building ten times and have it rebuilt each time for a super boost to GDP! But clearly, from a real point of view, you’re just using up real resources without creating anything on net. Or, in Bastiat’s terms, consider the “jobs created” by the bombing; without the bombing, that money would have been spent in other ways, perhaps creating jobs elsewhere, but that’s unseen.

Still, I’m not sure the broken windows fallacy is necessarily a “fallacy”. Yes, there are people who don’t understand the seen/unseen distinction as described above. But there are more sophisticated claims one could make, which might be true:

• The rebuilding money goes to particular people, e.g. construction workers. The money otherwise might have gone elsewhere, e.g. symphony orchestras. The spending induced by the disaster clearly has a redistributive effect, which one might consider desirable if one has particular redistributive goals.

  Yes, maybe one could accomplish those redistributive goals directly. But (1) the existing tax system may not be able to identify the same set of beneficiaries — what if your target group is not “the poor” but “construction workers”?; and (2) even if one could imagine some tax break or subsidy that would benefit exactly that group, it might not be politically palatable in the absence of the disaster. So the disaster might eliminate a political barrier that otherwise would have existed.

• The rebuilding money goes to consumption, whereas without the disaster it might have gone to savings or investment. Now savings and investment may well be good because they increase future productivity; but there’s also the paradox of thrift and, generally, the view, associated with Keynes, that consumption spending is inefficiently low during recessions. Now maybe Keynes is wrong, but I don’t have a super-strong view on that.

  And, as before, it would be better not to have a disaster but to just vote to spend the money, but there might be political resistance to this by taxpayers, libertarians, Tea Partiers, etc. So one can argue — as, indeed, (perhaps) Keynes and (definitely) some others do — that, if the only way to get that spending is to have disasters, wars, etc., then at least those events will have good economic consequences by removing the political barrier that would otherwise exist.

• Independent of the recessionary point, there might just be some productive government spending out there, like perhaps some infrastructure spending, that’s efficient regardless of whether we’re in a recession. So if the rebuilding replaces old infrastructure with new and better infrastructure, then that will be an improvement. And unlike the previous points (redistributive policy or counter-cyclical policy), this one will affect long-term growth.

  Yes, it would have been better to have just upgraded the infrastructure without the disaster, but, I think you see this coming by now, political barriers.

• David himself has suggested, in the comments to his post: “To the extent that the government is about to waste money on nonsense, say, high-speed rail from Tampa to Orlando, and a natural disaster forces the government to redirect that spending to rebuilding basic infrastructure that was in need of replacement anyway, the economic consequences of the natural disaster could be offset by the appropriate redirection of government priorities.” David thinks this is unlikely — “But more likely the government will just add new spending on top of whatever nonsense it would doing before.” — but of course that’s an empirical question.

  Here, the political problem was in a pro-government-spending direction, but it was in the direction of bad government spending, and now we’d have more productive government spending.

None of this is to deny that there is a fallacy somewhere in there: if someone seriously doesn’t understand that you have to take the resource destruction into account, that’s fallacious, and once you take it into account, it’s unlikely you’ll have anything to show for it in the end.

But if any of the above are true — if there’s a valid distributional argument in favor of the people who would get the post-destruction money; if counter-cyclical expenditure is a good idea; if infrastructure spending is a good idea and the disaster causes an upgrade; or if the disaster diverts funds from worse government projects to better ones — and if those problems couldn’t be better addressed in other ways because of political barriers, then, indeed, disasters, wars, etc., may have beneficial economic effects on net.

UPDATE: Commenter Le Poisson points out correctly that destruction of physical does get taken into account. It shows up in the national income accounts as “consumption of fixed capital”. So just ignore the GDP-related prologue to the argument.

UPDATE 2: Commenter awp points out that I was too quick in my correction, so my original version was right after all! (So I’ve uncorrected my previous correction.) GDP – consumption of fixed capital = net domestic product. So NDP falls when a building is destroyed, but GDP doesn’t. So the destruction has a zero effect on GDP, and the reconstruction is all positive.

UPDATE 3: Welcome, visitors from Instapundit, and happi Pi Day!

I’m holding out for this one.

I agree with Jonathan below that the Constitution (through the spending power) allows Congress to spend tax money to protect the Earth from an asteroid.

On the other hand — and at the risk of confirming Mark Kleiman in his belief that libertarians are loopy — I don’t speak for all libertarians, but I think there’s a good case to be made that taxing people to protect the Earth from an asteroid, while within Congress’s powers, is an illegitimate function of government from a moral perspective. I think it’s O.K. to violate people’s rights (e.g. through taxation) if the result is that you protect people’s rights to some greater extent (e.g. through police, courts, the military). But it’s not obvious to me that the Earth being hit by an asteroid (or, say, someone being hit by lightning or a falling tree) violates anyone’s rights; if that’s so, then I’m not sure I can justify preventing it through taxation.

Bryan Caplan once suggested the asteroid hypo to me as a reductio ad absurdum against my view. But a reductio ad absurdum doesn’t work against someone who’s willing to be absurd, and I may be willing to bite the bullet on this one.

On the other hand, if you could show that, once the impending asteroid impact became known, all hell would break loose and lots of rights be violated by looters et al. during the ensuing anarchy, I could justify the taxation as a way of preventing those rights violations; but this wouldn’t apply if, say, the asteroid impact were unknown to the public.

This does make me uncomfortable, much like my view that patents are highly useful but morally unjustifiable, so I’m open to persuasion.