Author Archive
I recently discovered a blog devoted entirely to privatization, called, appropriately enough, Privatization Blog. The blog was started several months ago by Dru Stevenson at South Texas College of Law, who now has a handful of co-bloggers. The top article is about my Prison Vouchers article from University of Pennsylvania Law Review, which I blogged about here some time ago. A bit further down, you can find a write-up of a paper by my student Sarah Sternlieb, When the Eyes and Ears Become an Arm of the State: The Dangers of Privatization Through Government Funding of Insular Religious Groups (forthcoming in the Emory Law Journal). It’s the blog to watch if you’re interested in privatization!
Also, speaking of prison vouchers, Giovanna Shay of Western New England School of Law has a response to my prison vouchers article up on PENNumbra, One Market We Do Not Need. Here’s Giovanna’s abstract:
Professor Volokh is right that American prisons are considered to be “low quality,” and that they suffer from “high violence rates, bad medical care, [and] overuse of highly punitive measures like administrative segregation . . . .” But his proposed solution—a system of “prison vouchers” that would permit prisoners to choose their facilities and thus create a market for prison services—would provide only an illusion of choice. Even worse, such a system runs the risk of strengthening the self-interested forces that drive our overgrown system of incarceration.
I commend Professor Volokh for drawing attention to the problem of abysmal prison conditions and for making the important, and too often ignored, point that “bad prison conditions often indirectly hurt the rest of society.” And I thank him for creating the opportunity for a thoughtful exchange about these critical issues. However, his proposal—though fascinating—is flawed.
It is easy to quibble with the specifics of Professor Volokh’s proposal and to suggest ways in which it will not work. In the piece, he identifies and counters some of the critiques that I will expand on in this brief Response. But the central problem of the proposal is not the possibility of “market failure” or “market success.” Fundamentally, what makes me uneasy about Professor Volokh’s proposal is that it reinforces a market mindset toward prisons and the people that they contain.
Download it (and the original) while it’s hot!
By the way, I hope you were all ware of the Ides of March yesterday. I didn’t blog this yesterday because, flush from the Pi Day festivities, I spent all day being ware.
Note also that the title of the post is the correct form (even if it was never actually used on the actual day), which you can trot out next year. The word for “Ides” takes the name of the month as an adjective, and in fact month names generally are adjectives in Latin. “Idus” is a fourth-declension feminine plural.
Arizona’s Senate Bill 1359 adds the following section to the Arizona Revised Statutes:
12-718. Civil liability; wrongful birth, life or conception claims; application
A. A person is not liable for damages in any civil action for wrongful birth based on a claim that, but for an act or omission of the defendant, a child or children would not or should not have been born.
B. A person is not liable for damages in any civil action for wrongful life based on a claim that, but for an act or omission of the defendant, the person bringing the action would not or should not have been born.
C. This section applies to any claim regardless of whether the child is born healthy or with a birth defect or other adverse medical condition.
D. This section does not apply to any civil action for damages for an intentional or grossly negligent act or omission, including an act or omission that violates a criminal law.
My reading of the statute is that this doesn’t prevent a doctor from voluntarily assuming a duty to disclose everything (or, in the alternative, compensate a parent or child). (I would think that if this and similar statutes pass, there would be an industry of doctors trying to attract more sophisticated customers with assurances of truth-telling.) If a patient or child then litigated under such a contract, perhaps this wouldn’t be a “civil action for wrongful birth” or “civil action for wrongful life”, as required by subsections A and B, but rather just a contractual litigation based on the misrepresentation.
But it seems that the statute could also be interpreted more strictly: if the doctor commits to compensate “for wrongful birth or wrongful life”, then the measure of damages would still be wrongful birth or wrongful life, so perhaps the action, though contractual, could still be labeled a “civil action for wrongful life [or birth]“, and thus the statute could be construed to bar even such a contractual litigation?
Even under that reading, it seems that a doctor could still commit to disclose everything or else pay some liquidated fee, say $10,000.
I haven’t read any cases or commentary on this issue, so it’s entirely possible that this has been discussed already. What do you folks think?
Now is probably as good a time as any to remind the world of my press release from 16 years ago. The item ended up appearing in The Scientist and was mentioned in Ivars Peterson’s MathTrek, and a quote made into David Blatner’s The Joy of Pi. I vaguely recall there may be a mistake somewhere in the mnemonic, but figuring out whether that’s so is left as an exercise to the reader.
Mathematics Buff Develops New Way To Remember Value of Pi
Mnemonic gives 167 digits of famous geometric constant
MARCH 4, 1996 — LOS ANGELES, Calif. “How I need a drink, alcoholic of course, after the tough lectures involving quantum mechanics.” The slogan of mathematics fraternities? The tormented cry of the disgruntled physics student? Not quite. It’s the standard way scientists remember the value of pi, one of the most important constants in all of mathematics. Count the number of letters in each word, and you get 3.14159265358979.
Now, Alexander Volokh, a writer and amateur mathematician living in Los Angeles, has developed a system for easily remembering the first 167 digits of pi, which he says may change the way mathematics students worldwide remember their favorite number.
Pi is approximately equal to 3.14 and represents the ratio between the circumference of a circle and its diameter. “For almost as long as mathematicians have been studying pi, they’ve been making up mnemonics, or cute ways of remembering its digits,” Volokh explains. “Unfortunately, the 32nd digit after the decimal point is a zero, which has usually nipped this method in the bud. Even mathematicians don’t know any words with no letters in them.” But Volokh claims to have solved this problem by using many sentences, with the end of each sentence representing a zero.
Volokh’s mnemonic goes as follows:
“How I need a drink, alcoholic of course, after the tough lectures involving quantum mechanics; but we did estimate some digits by making very bad, not accurate, but so greatly efficient tools! In quaintly valuable ways, a dedicated student — I, Volokh, Alexander — can determine beautiful and curious stuff, O! Smart, gorgeous me! Descartes himself knew wonderful ways that could ascertain it too! Revered, glorious — a wicked dude! Behold an unending number: pi! Thinkers’ ceaseless agonizing produces little, if anything! For this constant, it stops not — just as e, I suppose. Vainly, ancient geometers computed it — a task undoable. Legendre, Adrien Marie: ‘I say pi rational is not!’ Adrien proved this theorem. Therefore, all doubters have made errors. (Everybody that’s Greek.) Today, counting is as bad a problem as years ago, maybe centuries even. Moreover, I do consider that variable x, y, z, wouldn’t much avail. Is constant like i? No, buffoon!”
By counting the number of letters in each word, and considering the end of each sentence to represent a zero, one can easily reconstruct the value of pi to 167 digits after the decimal point:
3.1415926535 8979323846 2643383279 5028841971 6939937510 5820974944 5923078164 0628620899 8628034825 3421170679 8214808651 3282306647 0938446095 5058223172 5359408128 4811174502 8410270.
“This mnemonic makes remembering digits as easy as pi,” Volokh explains. Volokh owns a pair of French socks with the first few dozen digits of pi on them, but they are of little help, as they stop being correct after the seventh digit.
Will the mnemonic be useful? “No,” Volokh concedes. “All you ever need to know is 3.14 — only two digits after the decimal point.” But, Volokh points out, it’s no more useless than, say, Shakespeare or the Mona Lisa. “To say that math has to be useful is like saying that the English language is only good for ordering pizza.”
Volokh graduated from UCLA in 1993 with a B.S. in mathematics/economics and a B.A. in English/world literature. He developed the system with David Tazartes . . . and Steven LaCombe . . . .
UPDATE: Clayton Cramer shows how this mnemonic actually is useful, if you’re in Boise.
On Friday, I posted the introduction to my latest paper, Prisons, Privatization, and the Elusive Employee-Contractor Distinction. On Monday, Tuesday, Wednesday, and Thursday, I posted following sections. You can find the whole paper here on SSRN.
Here’s my conclusion. Thanks again to all the commenters, some of whom I’m answered and some of whom I haven’t (hey, I’ve got other papers to work on!). Some of your points will make it into future drafts of the paper.
* * *
Throughout, I’ve focused on private prisons. But these non-empirical arguments are often used to oppose privatization in other areas as well—from the military, policing, and air transport security (which, like prisons, raise “privatization of force” concerns) to social services like water provision, education, health care, and Social Security.The limitation to prisons was useful for illustrative purposes, but the employee-contractor distinction has similar problems in these other areas.
It should be clear, though, that I’m not making a general argument in favor of privatization. I’m only arguing against the use of certain non-empirical arguments related to the employee-contractor distinction. My goal here is merely to clarify the discourse, and clear away arguments that I believe are unproductive.
On empirical grounds alone, there are plenty of possible reasons to oppose privatization. I’ve already mentioned many of them in the Introduction: critiques based on factors like cost, quality, democratic influence, accountability, and penal policy, to name just a few. Privatization critics have been vocal about the “[f]raud and waste,” “[i]nsufficient oversight,” and reductions in “transparency” and “accountability” that, in their view, have accompanied private contracting.One can complain that private firms will use anticompetitive tactics, opportunistically hold out for favorable contract renegotiations when circumstances change,use their position of incumbency to outbid competitors in later bidding (or even avoid later bidding altogether),fail to develop institutional norms of professional service,or go bust and leave an unprepared government holding the bag.
I’m not taking a position here on whether these empirical critiques are justified. I’ve argued, in other work, that at least some of these empirical critiques are overblown. But enough respectable people have made enough respectable empirical arguments strongly opposing privatization that an entirely empirical case against privatization in particular spheres may well be fully adequate.
On Friday, I posted the introduction to my latest paper, Prisons, Privatization, and the Elusive Employee-Contractor Distinction. On Monday, Tuesday, and Wednesday, I posted following sections. You can find the whole paper here on SSRN.
Here’s the last substantive section, on symbolism and expressive concerns. The conclusion should come tomorrow.
* * *
A. Public Perception
Suppose my arguments are correct, and there’s no inherent difference between public employees and private contractors. But suppose the public nonetheless feels differently. Of course, because public and private providers can differ in their attitudes or in the actions they take, public attitudes might be molded by these differences; so, to keep the hypothetical clean, let’s again assume that public and private providers don’t differ empirically. Suppose public attitudes against privatization are entirely based either on incorrect beliefs about empirical differences or on a perceived “social meaning” of privatization.
Perhaps such attitudes are based on a view among the public that private companies have illegitimate private purposes. Martha Minow, for instance, writes that private prisons “may jeopardize the legitimacy of government action because the public may suspect that private profit-making—rather than public purposes—is being served.”Justice Arbel of the Israeli Supreme Court strikes a similar note:
[E]ven if it is not possible to point to a specific violation, the transfer of the power to operate a prison to a private enterprise creates the impression that irrelevant considerations are involved . . . , something that undermines the moral authority underlying the activity of that enterprise and public confidence in it, since even if justice is done, it is not seen to be done.
Or the relevant perceiving community may be the inmates themselves rather than the public at large: Richard Lippke writes that “[p]rivate prisons may add insult to injury and thus fuel social discontent, since it may not go unnoticed that such facilities, in effect, turn offenders into raw materials for corporate profit.” Similarly, Michael Walzer writes, “[t]he critical exposure is to profit-taking at the prisoners’ expense, and given the conditions under which they live, they are bound to suspect that they are regularly used and exploited.”
Though I’ve rebutted the “private purposes” argument above—public employees, too, are private people with their own purposes—that’s not important for the “public perception” argument. The “public perception” argument based on private purposes works even if people are quite wrong to perceive private prisons this way. The public perception might stem from an assessment of the empirical record of public vs. private prison management, or a prediction thereof—or it might not. But what’s relevant for this argument is people’s feelings about private prisons, not whether these feelings are correct. Indeed, let’s assume for now that the feeling has no empirical basis.
On Friday, I posted the introduction to my latest paper, Prisons, Privatization, and the Elusive Employee-Contractor Distinction. On Monday and Tuesday, I posted following sections. You can find the whole paper here on SSRN.
Again, thanks to the commenters for participating in the discussion. Some of you may show up in my star footnote.
Again, I’ll stress: if your problem with contracting out (prison, military, or otherwise) is that you think it will work badly, will harm prisoners, will cost more money, will distort the substantive criminal law through lobbying, will reduce the effectiveness of government, won’t be seen as legitimate by citizens or inmates, etc., I concede all your points for the purposes of this paper. This isn’t a policy paper on whether privatization is a good idea; it’s purely a paper about philosophical foundations. If your argument is that privatization doesn’t work well, even if you think it will never work well because it’s unlikely that it can ever be adequately reformed, your argument may be super-strong, but it’s empirical. So comments stressing these points are unlikely to be helpful.
On the other hand, if you’re willing to engage with the hypothetical, “What if private prisons and public prisons acted in exactly the same ways, and no one actually cared about the mode of provision?”, then this paper is for you and I encourage your comments. Regardless how unrealistic you think this hypothetical is, it’s the proper way of teasing out whether objections to privatization are empirical or not (what I call “inherent,” though you’re free to suggest different terminology).
O.K., here goes with the next round of suggested arguments, which I call the “private purposes arguments.”
* * *
So far, we’ve seen two non-empirical arguments. The first, the argument from accountability, turned out not to be inherently about privatization at all. The second, on the other hand—the argument from moral burdens—really was about privatization as such, but it failed to adequately distinguish between public employees and private contractors, both of whom are private people who do the state’s bidding for money.
The argument from moral burdens didn’t assume anything particular about the private actor. The private actor’s moral judgment was “private” in the sense that anyone’s judgment is his own, but the argument didn’t assume that the private actor was motivated by, say, a profit-making desire. This makes sense, since the argument also covered shaming punishments, which are designed to be administered by ordinary people like you and me, with no pecuniary expectations in the matter.
But the next set of arguments, which I label “private purposes” arguments, are more specifically targeted at private corporations and their profit motive. As we’ll see, though, this line of argument, too, fails to distinguish between public employees and private contractors. To the extent that private purposes animate the latter more than the former, this is an empirical question.
On Friday, I posted the introduction to my latest paper, Prisons, Privatization, and the Elusive Employee-Contractor Distinction. On Monday, I posted the next section. You can find the whole paper here on SSRN.
A number of issues have come up in the comments, which I think I should bring up into the text here. By the way, thanks to the commenters for showing me where I need to be more explicit about what I’m doing.
In the first place, is this a straw man? No: The arguments I’m presenting are actually advanced by real people in high-profile places, like the Cornell Law Review or the Israeli Supreme Court.
In the second place, what’s the point of such an argument? Surely the main arguments against prison privatization relate to how prisoners are treated. Surely the problem with prison privatization is that private prison companies have an incentive to cut costs in harmful ways. Indeed, these are the main arguments, which are of course empirical. I’m not questioning these arguments in any way here. But these aren’t inherent problems with privatization. They’re problems with the current implementation of privatization. Perhaps contracts can be written in a better way — for instance, how about paying companies inversely with recidivism or post-release employment rather than per diem? What if we invested in massively more and better monitoring? Etc., etc. We can argue about this — maybe these suggestions are kind of pie-in-the-sky — but what these empirical arguments show is that the argument is necessary. We can’t just dismiss them.
Basically, arguments against the current state of prison privatization are merely arguments for reform, not for abolition, unless you also argue that the problems you raise are unlikely to be solvable. And even if the ultimate conclusion is that prison privatization should be abolished, it will be because of a sophisticated analysis using arguments about how different types of contracts produce different actions. It’s far removed from the sort of metaphysical arguments I’m dealing with. I’ll repeat: if you oppose prison privatization for any of the “real-world” reasons I’ve mentioned above, I have no quarrel with you. In fact, I explicitly concede the validity of all these arguments for the purposes of the article (though, outside of this article, we can surely debate them).
But now, let’s go on, with the “moral burdens” argument against privatization.
* * *
But can we develop a theory that would ascribe significance to the private nature of the actor as such, even if legality and accountability are taken care of? One possibility would be a novel theory against privatizing the infliction of criminal sanctions, pioneered by Alon Harel, both alone and co-authoring with Ariel Porat: an “argument from moral burdens.”
This theory applies both to the delegation of punishment to independent private actors, as is the case with “shaming punishments,” and to the delegation of punishment (and other applications of force) to corporations by contract, as is the case with private probation service providers and private prisons. However—at least as applied to contracting out—the moral burdens argument turns out to be unable to adequately distinguish between public employees and private contractors.
Suppose the state (by whatever means) convicts a criminal defendant and determines his proper sentence. Now suppose the state asks me—some random person off the street—to inflict the sanction. May I do so?
On Friday, I posted the introduction to my latest paper, Prisons, Privatization, and the Elusive Employee-Contractor Distinction, which you can find here on SSRN.
Based on reading the comments to the last post, let me make one thing clear: this article is only about the non-empirical arguments against privatization. If you oppose private military companies because you think they’ll do a bad job or not be seen as legitimate or tarnish the image of the U.S. or won’t have a professional ethic or will kill more innocents than the public military, this argument is not aimed at you. If you oppose private prisons because you think they’re more expensive or mistreat prisoners or don’t rehabilitate prisoners as well or lobby for stricter criminal laws, then this argument is not aimed at you.
The only arguments I’m attacking are the non-empirical ones — that is, arguments that oppose doing the job through contractors rather than employees even if it could be shown that no one cared about it in the world and that it affected no actions. I’m going through the arguments made in the literature, and arguing that (1) the argument is actually empirical, or (2) the argument isn’t actually about privatization, or (3) the argument is wrong.
Finally, this paper shouldn’t be read as endorsing any sort of utilitarianism, consequentialism, or anything else: for purposes of the article, I concede the validity of all sorts of potentially non-consequentialist, non-instrumentalist concerns (e.g., accountability has inherent importance, those who incarcerate must be motivated by public purposes, society must engage in moral dialogue with the prisoner); I merely deny that using contractors is inherently contrary to any of these concerns.
Anyway, with that out of the way, here’s the next section of the paper, about accountability and legality concerns.
* * *
A. Accountability Concerns
I’ve already alluded to the argument that private providers are less accountable—in other words, that contracting out for prison management violates core commitments of public law.
Mostly, these concerns turn out to be instrumental: accountability is valuable because it ensures that the agent does what the principal wants and is held accountable for any failures. The political accountability that comes from elections, the legal accountability that comes from lawsuits, and the administrative accountability that comes from agency oversight—all these are justified primarily as ways of preventing or punishing abuses. And the instrumental focus implies an empirical analysis. So, right or wrong, accountability-based critiques of privatization seem to be entirely legitimate on my view.
Some accountability-based arguments purport to be tougher on privatization, though, and in fact claim to rule it out on non-instrumental, non-empirical grounds. As Malcolm Thorburn writes: “Surely the bite of these objections remains even if private contractors regularly produce good outcomes; the simple fact that they do so without having to account for their conduct, that their operations are hidden from public scrutiny, and so forth is reason enough to object.”
I’ve just sent out my latest paper, Prisons, Privatization, and the Elusive Employee-Contractor Distinction. [UPDATE: You can find it here on SSRN.] Here’s the introduction:
Critics of private prisons often argue that privatization is inappropriate because of inherent differences between the public and private sectors. There are, of course, plenty of arguments that focus on empirical issues—on the one hand, “mere accounting” concerns like whether private prisons are cheaper; on the other, larger questions like whether private prisons mistreat their inmates. But the “inherent” critics use a different sort of discourse, one that supposedly transcends contingent, empirical claims, instead staking out a position based on high-level political or moral theory, the purposes of criminal punishment, liberal legitimacy, liberty and dignity, symbolism and social meaning.
Thus, criminologist John DiIulio has written:
[T]o remain legitimate and morally significant, the authority to govern behind bars, to deprive citizens of their liberty, to coerce (and even kill) them, must remain in the hands of government authorities. . . . The badge of the arresting policeman, the robes of the judge, and the state patch on the uniform of the corrections officer are symbols of the inherently public nature of crime and punishment.
These concerns are echoed in the law as well. In 2009, the Israeli Supreme Court ruled that prison privatization violates “the constitutional rights to personal liberty and human dignity of inmates who are supposed to serve their sentence in that prison. This is because of the actual transfer of powers of management and operation of the prison from the state to a private concessionaire that is a profit-making enterprise.”
Alon Harel and Ariel Porat argue in a recent Cornell Law Review article:
[C]ertain tasks[, particularly tasks involving the infliction of violence, such as criminal sanctions,] . . . must be performed by public officials not because public officials are better at performing them (or can perform them more cheaply) but because the identity of the agent who performs these tasks is considered to have an intrinsic value. . . . [T]his view is grounded in foundational intuitions concerning political legitimacy.
And Mary Sigler has similarly recently argued that private prisons implicate “the nature and justification of punishment in a liberal democratic polity”:
Punishment under law is a profound exercise of state power the meaning and justification of which depend on the social and political institutions that authorize it. In a liberal state . . . punishment is inflicted for public wrongs in the name of the people. . . . The delegation of punishment through prison privatization attenuates the meaning of punishment in a liberal state and undermines the institution of criminal justice.
These aren’t just throwaway paragraphs in otherwise empirical pieces. Sigler’s and Harel and Porat’s arguments avoid empirics entirely. And the Israeli Supreme Court, in invalidating private prisons, declined to consider their real-world functioning—in fact, explicitly assuming that, as between public and private prisons, “the term of imprisonment . . . is identical and . . . the violation of . . . human rights that actually takes place . . . is identical.”
The Israeli Supreme Court’s assumption suggests a simple hypothetical implicit in many of these arguments. Even if switching from public to private provision didn’t change any actions in the world, and even if nobody cared whether provision is public or private—so these arguments imply—privatization would still be illegitimate.
I believe that this line of attack is generally unsound. For purposes of this Article, I don’t deny that, as a matter of political theory, only the state should punish. But the argument that the provision of all these services must therefore be undertaken by public actors—by state employees rather than by private contractors—misunderstands what it means for the state to act.
Continue reading ‘Prisons, Privatization, and the Elusive Employee-Contractor Distinction’ »
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.)
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.
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.
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. )
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.)
