The Volokh Conspiracy

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).

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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.)

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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.

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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.

Someone told me a few hours ago that the Superbowl was today, and that apparently the Packers and Steelers are playing. On this occasion, I thought I’d share my unpatriotic attitude toward sports: Whoever wins is presumptively the best team and therefore deserved to win, so (though I would never watch the game) I’m happy however it turns out. But it follows that (assuming, counterfactually, that I watched the game) I wouldn’t know whom to cheer for until the end.

I’ve only read one book by Piers Anthony — I believe it was Shade of the Tree (1986), perhaps thirteen years ago. It was very forgettable, probably even bad, but one bit I remember went something like this:

He hadn’t had a lot of relationships, and those he had had had been bad. Had had had!, he thought. What atrocious grammar!

Or something like that; please excuse any lapses in my memory. Of course there’s nothing atrociously (or at all) ungrammatical about this, and it’s not even necessarily bad word choice.

But I would have suggested that, since the author wanted to go that route, he could have chosen “…and those he had had had had problems.”

(See here for other instances of “had had had been” in books. Also try to punctuate the following sentence: james while john had had had had had had had had had had had the teacher’s approval.)

UPDATE: Oh yes, also what I remember was the repeated use of “welkin” as a synonym for “sky”.

Anyone interested in renting an apartment in glamorous Beverly Hills 90211?

It’s a second floor apartment, one block from La Cienega and Wilshire (the corner where the Flynt Publications building is located). 1210 sq.ft. 2 bdrm, 2 bath. Newly remodeled, all new appliances: washer-dryer, dishwasher, stove, built-in-microwave. Rooftop swimming pool, small exercise room.

If you’re interested, please write to me directly at volokh at post dot harvard dot edu.

I recently finished, and greatly enjoyed, Gal Beckerman’s When They Come for Us, We’ll Be Gone: The Epic Struggle to Save Soviet Jewry. (See the New Republic book review here.)

My family emigrated from the Soviet Union in 1975, and Beckerman’s book is a history of the movement (starting in about 1963) that led to tens of thousands of Jews emigrating from about 1972 to 1979. It should be especially interesting to Soviet Jewish emigrants like me, as well as to people who are interested in U.S.-Soviet relations and in Jewish history generally, but it’s actually well written and enjoyable in its own right, telling the story as it unfolded from the Soviet, American, and Israeli perspectives.

One thing I didn’t know is that 1975, the year we left, was actually a very low year for Jewish emigration. Another thing I wasn’t fully conscious of was how bad the early 1980s were for Jews who stayed behind. (Actually, the really bad times described in the book were for activists of all kinds, including general pro-democracy and pro-human rights activists, as well as for Jews who applied to emigrate. All this might not have applied to Soviet Jews who kept their heads low and didn’t try to leave.)

I was also pleasantly surprised to learn of the positive role played in the movement by my former colleague, the late Bob Drinan. I wish I could have discussed these issues with him when he was alive. Same goes for my current Congressman, civil rights figure John Lewis. Also, mainly because of my basic ignorance of the history of that period, I didn’t realize just how much Henry Kissinger opposed much of the anti-Soviet and pro-emigration activism of the time, including the Jackson-Vanik amendment (which I discuss below), though I now realize that this all fits in perfectly with his general outlook on foreign policy.

But the main surprise for me in the book related to the Jackson-Vanik amendment, the handiwork of Cold War Democrat Scoop Jackson. The idea of the Jackson-Vanik amendment (see a CRS report here) was to deny most-favored-nation trade status to communist countries, but to allow Congress to waive the amendment if the countries allowed emigration. I had always assumed that the Soviet Union had allowed emigration as part of this “bread for Jews” deal. But it turns out that the Jackson-Vanik amendment was never waived for the Soviet Union until 1990, when there was almost no Soviet Union anymore. At the times of high Jewish emigration — something like 1972-74, 1977-79, and after 1987, if I remember correctly — the Soviet Union was letting Jews out for other reasons. In the ’70s, it was mainly to soften up public opinion on other matters, and in the ’80s, it was for Gorbachevy reasons.

The Jackson-Vanik amendment may have been useful in a number of ways: (1) the Soviet Union may have made emigration concessions before 1974 (like repealing the emigration tax and letting some Jews out) to prevent its passage; (2) the amendment itself, without the waiver, prevented the Soviet Union from getting some trade benefits, which may have been good all by itself; (3) agitation in favor of the amendment was important in the organization of American Jews as a political force; and (4) the existence of the amendment may have played a useful role in shaming the Soviet Union internationally. But the effect of the amendment that I had always assumed was primary — getting the Soviet Union to let Jews (including my family) out by offering trade benefits — seems to have been essentially nonexistent.

In any event, I highly recommend Beckerman’s book.

P.S. A couple of Russian errors crept into the book, but that won’t be of interest to anyone but Russian nerds.

My maternal grandmother, Ida Glouberman, was born on January 1, 1911, so she would be 100 years old today if she were alive.

Note, though, that I’m not sure how well this statement stands up in light of Russian calendar reform (see here for general interesting issues about the Soviet calendar). To bring the Russian calendar in line with the calendar in the West, January 31, 1918 was immediately followed by February 14, 1918, so 13 days were dropped.

We celebrated my maternal grandfather’s birthday on September 12 (he was born in 1898 in modern-day Belarus), but apparently this was New Style; that is, when he was born a calendar in the West would have read “September 12″ but a calendar in Russia would have been something like August 31.

So if this is right — if contemporary Russians all “modernized” their birthdays — that means that when my grandmother was born, it would have been January 1, 1911 in the West, but December 19, 1910 on a Russian calendar, and she would have started calling her birthday January 1 after 1918. So we’d be correctly celebrating her 100th birthday today.

But would everyone have modernized their birthday in the same way? If your birthday was December 19 on a Russian calendar, you’d be happy to modernize it to get an awesome date like January 1. But if your birthday was already the awesome January 1 on a Russian calendar, mightn’t you be loath to change it to January 14? I don’t know how fluid birthday modernization customs were back then — maybe, with a Revolution and Civil War going on, they had more important things to do than police people’s self-reported birthdays? — and I don’t think we have any old documents to check.

About four and a half years ago, I wrote to the Oxford English Dictionary about the word “absent” in its prepositional sense (“absent X, we cannot do Y”). The word had been listed as “quasi-prepositional,” and the first recorded use was listed as 1944. I found a 1888 use, and questioned why “quasi.” I’m glad to report that now, if you look up “absent” in the OED, you see that it’s now a full-fledged preposition — no more quasi — and its first recorded use is:

1888 Southwestern Reporter 8 898 If the deed had been made by a stranger to the wife, then a separate estate in her would not have been created, absent the necessary words.

Similarly, I also wrote to the OED about the use of “Mirandize” as a verb. They listed it, but their first recorded use was 1984. I gave them a 1971 usage. Sure enough, now we see:

1971 California Reporter 96 128/1 The Court did not Mirandize the defendant.

Surely now I’ve hit the big time.

I just read this roughly two-week-old NPR story about private prison lobbying for the Arizona immigration law. The idea is this: “NPR spent the past several months analyzing hundreds of pages of campaign finance reports, lobbying documents and corporate records. What they show is a quiet, behind-the-scenes effort to help draft and pass Arizona Senate Bill 1070 by an industry that stands to benefit from it: the private prison industry.”

I take an interest in this, since my 2008 Stanford Law Review article, Privatization and the Law and Economics of Political Advocacy, took a look at the argument that private prison firms will lobby in favor of measures that increase incarceration. I argued there that there was no clear theoretical reason why private prison firms would do this (essentially, they would, under plausible assumptions, prefer to free-ride off of the advocacy expenditures of the larger public-sector actors interested in incarceration, for instance the prison guards’ unions), and very little empirical evidence that they’ve done it. So if this NPR article is right, then this is potentially an important piece of empirical evidence going the other way.

Trouble is, the NPR story is very short and low on details. So if anyone knows more, I’d be happy to know.

First, the story explains how the Arizona legislator who thought up the idea ran it through the American Legislative Exchange Council (ALEC), a conservative organization that writes model legislation. Various corporations, including private prison firms, are members of ALEC. Private prison firms are also members of ALEC’s Criminal Justice Task Force, which worked on this legislation. But this is ambiguous evidence of private prison involvement in pro-incarceration issues, since the Criminal Justice Task Force also deals with prison privatization, where we’d fully expect private prison companies to be involved. So I don’t take the reported ALEC activity to be any kind of smoking gun.

(By the way, for what it’s worth, CCA says it “doesn’t participate in or lobby for stricter sentencing”, though that’s vague enough to not rule out participating in a process that increases legal penalties for certain activities. Also, in 2006, a CCA executive told me that CCA hadn’t participated in, voted on, or endorsed any stand on model legislation for sentencing or crime policies within ALEC. Not that we should necessarily take the corporation’s statements at face value; just know that this is what they say.)

Later in the article, it says that some of Governor Brewer’s advisors are former private prison lobbyists. I don’t take this to be a smoking gun for private prison influence either: (1) it’s not surprising that private prison lobbyists would have common ideological ground with Republicans (note, though, that private prison companies give to both Republicans and Democrats), and (2) Republican support for privatization is sufficient to explain most contacts between Republican officials and the private prison industry.

But here’s an interesting set of claims:

As soon as Pearce’s bill hit the Arizona statehouse floor in January, there were signs of ALEC’s influence. Thirty-six co-sponsors jumped on, a number almost unheard of in the capitol. According to records obtained by NPR, two-thirds of them either went to that December meeting or are ALEC members.

That same week, the Corrections Corporation of America hired a powerful new lobbyist to work the capitol.

The prison company declined requests for an interview. In a statement, a spokesman said the Corrections Corporation of America, “unequivocally has not at any time lobbied — nor have we had any outside consultants lobby – on immigration law.”

At the state Capitol, campaign donations started to appear.

Thirty of the 36 co-sponsors received donations over the next six months, from prison lobbyists or prison companies — Corrections Corporation of America, Management and Training Corporation and The Geo Group.

If there really was a significant spike in lobbying activity, specifically by private prison companies, right at the time when the immigration bill was being considered, that would be interesting.

Does anyone know where I can find more details on this?

To summarize: Behind every non-tape-recorded contact between a politician and the private prison industry, there may be advocacy not only of privatization but also of greater incarceration. Who knows. I’m just saying is that there’s almost no hard evidence of it. I’d like to find evidence if there is some, but I’ve looked at most of the claimed instances and found them to be mostly innuendo. Put the lack of evidence together with the theoretical model of free-riding (which I discuss at the beginning of my Stanford Law Review article), and it looks likely that there’s no there there.

But, as I’ve said, I’m interested in getting to the bottom of this incident to see if this is really a good piece of evidence on the other side.

I imagine there must be a substantial literature on whether sometimes, you should boycott a process you feel is illegitimate rather than trying to ameliorate its effects by participating. For instance, should a democratic political party participate in substantially unfree elections, or should one collaborate with an illegitimate regime? I would appreciate pointers to relevant important literature on the subject.

I’m looking for critiques of regulatory cost-benefit analysis from a libertarian perspective. (Not just yours that you might think up, but articles or books.) Any suggestions?

What also might count: A critique of neoclassical economics from a libertarian perspective, for instance along the lines of “people think this perspective is all free-market but it’s not necessarily, and if you’re into natural rights you should think twice before going there.” Such critiques could continue “… and therefore you should go Austrian,” or “… and therefore you should use moral arguments exclusively,” or what have you.

Does anyone have any views on the following Administrative Law casebooks?

• Koch Jordan Murphy
• Rogers Healy Krotoszynski

Views on other books are fine too, but these are the main two I’m thinking of right now.

What are the earliest five constitutions of independent countries? [UPDATE: Why limit ourselves to five? Let's just go no further than 1799. Also, I forgot the most important part: they must be written. Every country has a constitution, but most old ones are unwritten!]

A bit of definitions and clarifications to start us off:

1. The countries may or may not still exist.
2. The constitutions may or may not still be in force.
3. The constitution must self-consciously be a constitution; i.e., the Magna Carta doesn’t count. [UPDATE: Perhaps this point might be said to imply the "written" point that I've also clarified above. Note that most early codes are just law codes, not "constitutions" in the modern sense. To qualify here, a constitution should, at a minimum, purport to establish the state, define its officers, etc.]
4. The country involved must consider itself independent; if there’s debate over whether the country really exists (like if many countries don’t recognize it), I resolve the doubt in favor of independence.
5. There might be some debate over the status of the earliest U.S. state constitutions, e.g. the South Carolina constitution of early 1776. Therefore, exclude the original 13 states from the answers.

Cornell historian Paul Hyams and I are organizing a panel on medieval legal history at the International Congress on Medieval Studies at Kalamazoo, Michigan, May 12-15, 2011.

Here’s the call for papers:

In the high middle ages, land in medieval Europe was the most important source of political power, social status, and material wealth. Even in the earlier centuries. control over land was a [rime goal for the ambitious, and much conflict was fought out as disputes over its control and enjoyment. So land title and the vocabulary and discourse with which it was contested occupies a rather central position in medieval culture as a whole. It is, therefore, fitting that as medieval European legal systems matured, they put a great deal of effort into developing their land law and minutely elaborating concepts like “fief,” “seisin,” “tenure,” “dominium,” and “proprietas.” The result was a transformation of the relationship between people at all levels and the land on which all depended in the last resort for their sustenance. To understand medieval society, economy, and culture, we must understand the institutions relating to land and those who directly cultivated it with the strength of their bodies, or claimed it as theirs and sought to defend their right and enjoy its fruits — lordship, ownership, and the diverse rights and interests behind our modern Western concept of property.

The technical vocabulary of land law was derived from the everyday vernacular of speech, especially Old French. Latin “feodum” and its French equivalent “fief” were familiar terms to all who witnessed charter grants or were stirred by chansons de geste or romance. In return they re-entered secular culture as metaphor and image. Men whose ancestors had “sat” upon land were in time deemed to “hold” their fees or fiefs by this or that tenure. When Chaucer said of his Man of Law that “al was fee symple to hym in effect,” his lay readers and listeners took his point.

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

Please send abstracts (as instructed by the Kalamazoo authorities) in the first instance to me, Paul Hyams, History Dept., Cornell, Ithaca NY 14853-4601 or by e-mail to prh3 at cornell dot edu.

Sorry for the late notice, but I believe Paul and I need abstracts no later than September 15, ideally somewhat earlier.

I’m not sure I understand the bit in Jack Balkin’s post (see also Randy) where he says that “If the Court’s argument about Congress’s intent in McDonald is correct, [i.e., if §1981 already applies the whole Bill of Rights to the states,] it follows that the main holding in McDonald is completely superfluous and the Court reached out unnecessarily to decide a constitutional question.”

Suppose it’s true that §1981 really does apply the Bill of Rights to the states. We’d still need to know whether §1981 is within the powers of Congress (most plausibly under §5 of the Fourteenth Amendment). This would require a holding that the Fourteenth Amendment authorizes applying the Bill of Rights to the states — in other words, a holding about incorporation.

Jack seems to deal with this objection in the following paragraph. (More or less; the following paragraph actually appears before the part about the superfluousness of the constitutional holding, and is aimed more at objections to the argument that §1981 incorporates the entire Bill of Rights, an argument I’m assuming to be correct for now.)

Fourth, we can argue that although Congress reenacted this language under its powers to enforce the Fourteenth Amendment, section 1981 is not congruent and proportional to the rights guaranteed by the Fourteenth Amendment, citing the Court’s modern section 5 jurisprudence in cases like Boerne and Garrett. It is therefore unconstitutional to the extent that it attempts to enforce the Bill of Rights. The difficulty here is twofold. First, a law which the Reconstruction Congress believed enforced the same rights as the Fourteenth Amendment must be congruent and proportional to the Fourteenth Amendment if any law is. Second, the fact that the Reconstruction Congress — consisting of the same people who passed the Fourteenth Amendment — passed the 1866 and 1870 Acts strongly suggests that the law is constitutional, and that Courts’ modern section 5 jurisprudence is simply wrong if it suggests otherwise.

This is possibly a good argument that the Fourteenth Amendment (whether §1 alone or §1 with §5) should be read as totally incorporating the Bill of Rights, and that current incorporation doctrine (and/or congruence & proportionality doctrine) is invalid. That sort of argument is not a shocker! Note, though, that most of the Justices do believe in precedent to a certain extent; Scalia has written that incorporation is probably wrong as an original matter but settled enough that it’s worth following as a matter of stare decisis.

But this doesn’t mean the constitutional holding in McDonald is superfluous. Finding that §1981 applies the Bill of Rights to the states requires a constitutional analysis of whether §1981 is within Congress’s §5 powers, which may or may not involve an analysis of whether the Bill of Rights is contained within the guarantees of §1. Under modern doctrine, we do this using our modern incorporation analysis, which is exactly what the Court did. Even if the Court (inadvertently?) held that §1981 applied the whole Bill of Rights to the states, that would require a modern incorporation analysis as part of the §5 inquiry in every case, as long as the Court continues to hold to modern incorporation doctrine. But a constitutional holding of some sort would have been required even if the Court had followed the reasoning in Jack’s paragraph above, junked modern incorporation doctrine, and taken §1981 as inherently within the scope of the Fourteenth Amendment.

Elie Mystal, who graduated from law school at the same time as I did, has bad memories of Elena Kagan from when he had her for Civ Pro as a 1L. [UPDATE: Read The Whole Thing, the commenters remind me to say.] For what it’s worth, here are my own impressions of Elena Kagan:

• I had Kagan for Administrative Law in Spring 2002. She showed sound judgment early on by giving me a high grade in the class, and wrote me a very gracious letter afterwards (which no doubt will fetch a high price on eBay) in which she added, by hand: “I loved everything you said in class. Thanks for making things interesting. EK”.

Slightly more substantively:

• I enjoyed her class a lot, and she was very good at eliciting all the relevant points of view through questioning. I recall saying some fairly libertarian stuff in the class, which she welcomed.
• My scribbled Admin notes for Tuesday, February 12, 2002, say the following. (This was after a discussion of Myers, Humphrey’s Executor, and the “unitary executive theory.”) “Kagan thinks this is all total garbage — so manipulable. Pitch for honesty: everyone needs one area where policy views ≠ constitutional views. Kagan is a total unitarian for policy reasons. But doesn’t think this is a constitutional command. The constitution says so remarkably little that to take this issue away from political decisionmaking is a mistake — courts shouldn’t make these decisions.”
• As has been well documented elsewhere, as dean, Kagan was a good friend (though not a fellow traveler!) of the Federalist Society and of conservative/libertarian professors.
• In particular — and despite her presumably pro-gun-control views (see the David Kopel post below), she was a good friend of the HLS Target Shooting Club, which I founded in Fall 2001 and was the president of for two years. At this link to my old web site for the club, you can see a link (now defunct) to the video of an April 8, 2003 debate on gun control, co-sponsored by my club, and featuring Eugene, Alan Dershowitz, and Dennis Henigan of the Brady Center. Kagan was glad to agree to moderate — this was before she became dean — and her appearance at the debate was one of her first acts after becoming dean.

So there you have it. I know very little first-hand about her actual policy views, except for the snippet above about her views on the unitary executive theory; otherwise, she’s a great person, a great professor, (as far as I was in a position to experience) a great dean, and a friend of campus conservatives and libertarians at a time when, unfortunately, you can’t take that for granted.