Archive | March, 2013

Summing Up: The Urgent Need to Adapt Political Decision Making to Technological Acceleration

Reflecting on the vastness of time in which extraterrestrial life could have reached the earth, the physicist Enrico Fermi wondered, “Where are they?” One of the most plausible explanations of the absence of such extraterrestrial visits is also one of the most disquieting. It is intrinsic to the nature of intelligent life to expand knowledge over time and for its civilization to develop at an accelerating rate. But it may be also intrinsic to its nature to destroy that civilization as the rate of change exceeds its capacity to adapt to the challenges that this acceleration produces.

In my new book Accelerating Democracy; Transforming Governance Through Technology, I argue that one way to beat these possibly cosmic odds is to use technology to increase our capacity to make wise political decisions. Throughout human history individuals have invented new devices for human benefit. These inventions in turn alter the relations of people to one another, creating opportunity and need for better decision making. Thus, accumulating acts of individual genius often prompt humans to improve collective governance.

More information-rich forms of social governance are needed to solve problems technology itself creates. The technology that created agricultural surpluses made cities possible, generating new issues, like the mass disposal of human waste, requiring new social coordination. By accumulating wealth within a compact space, cities also attracted marauders, requiring new policies for defense.

But besides such specific problems, technological innovation generates more general difficulties for governance because such innovation renders the social environment more and more distant from that in which we were adapted to live. In the evolutionary era, humans inhabited small communities where members were related by sexual bonding or by blood to many other members. But as the polity moves from the tribe, to the city state, and then to the [...]

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“Unfit for Work: The Startling Rise of Disability in America”

NPR’s Planet Money recently posted this important story about how federal disability payments have largely taken the place of federal welfare payments. An excerpt:

“That’s a kind of ugly secret of the American labor market,” David Autor, an economist at MIT, told me. “Part of the reason our unemployment rates have been low, until recently, is that a lot of people who would have trouble finding jobs are on a different program.”

Part of the rise in the number of people on disability is simply driven by the fact that the workforce is getting older, and older people tend to have more health problems.

But disability has also become a de facto welfare program for people without a lot of education or job skills. But it wasn’t supposed to serve this purpose; it’s not a retraining program designed to get people back onto their feet. Once people go onto disability, they almost never go back to work. Fewer than 1 percent of those who were on the federal program for disabled workers at the beginning of 2011 have returned to the workforce since then, one economist told me.

People who leave the workforce and go on disability qualify for Medicare, the government health care program that also covers the elderly. They also get disability payments from the government of about $13,000 a year. This isn’t great. But if your alternative is a minimum wage job that will pay you at most $15,000 a year, and probably does not include health insurance, disability may be a better option.

But, in most cases, going on disability means you will not work, you will not get a raise, you will not get whatever meaning people get from work. Going on disability means, assuming you rely only on those disability payments, you will be

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Rights and Consequences

My blog post, “Experimenting in Same-Sex Marriage and Other Matters,” raised questions about the relation between rights and consequences. Some commentators thought I was arguing that constitutional rights should be curbed if they had some bad consequences.

I think this was based on misunderstanding of my position. It true that I think the determining what rights to grant in writing a Constitution should depend on a consideration of the consequences. But in a world in which individuals have limited knowledge, rights against the government are very useful once we have determined that their exercise leads to enduringly greater costs than benefits.

The supermajoritarian constitution making process in our nation is the best way to make that determination, as Michael Rappaport and I argue in our forthcoming book Originalism and the Good Constitution . We need such processes, because the appropriate full set of rights is not self-defining a priori.

The premise of my discussion of same-sex marriage was that this right could not be located in the original meaning of the Constitution. (I did not defend this premise, because my post was about empiricism, not constitutional interpretation). Many people argue nevertheless that the Supreme Court should grant such rights through “an evolutionary process,” in the words of Ted Olson. I disagree, because federalism provides us a better way of testing the course of evolution by allowing us to consider the consequences of granting a new right.

Lest this seems excessively abstract, let me note that previously sexual freedom has received a substantial aid from the operation of our federalist system. Citizens who felt oppressed by local sexual regulations migrated to more tolerant jurisdictions like New York and San Francisco. There they have publicized their life style, and used the media to make case that previous sexual inhibitions can be relaxed [...]

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The Real Standing Problem in the Marriage Cases

Some commentators mistakenly think a federalism-based approach to the DOMA case will cause a flood of litigation and generate massive legal uncertainty, but that’s not the real chaotic threat at the Court.  Orin notes the practice of paying people to stand in line for you to get into the Supreme Court for oral argument in important and highly publicized cases.  I can speak to this phenomenon first-hand. I attended the oral argument in the marriage cases on both days and witnessed it up close, along with even more questionable queueing practices.  Forget about federal court jurisdiction.  What’s happening in the lines outside the Court in these big cases is a scandalous display of bad manners.  It was the real standing problem in the marriage cases.

There are actually two lines to get into the chamber, which has very limited seating capacity.  One is for the general public, and in high-profile cases it’s quite long.  The other is for lawyers who become members of the Supreme Court bar.  Bar members enjoy a limited number of reserved seats at the front of the audience, right behind the lawyers for the parties in the case.  The public sits in the back, although given the small size of the courtroom their seats are very good — if they show up early enough to snatch a place. 

I joined the Supreme Court bar ($200 one-time fee) in order to get into the marriage arguments. I knew the lines would be long, so I arrived Tuesday morning at about 3:15 a.m., thinking that would be good enough to get me in.  I was about 57th in line at that point for about 100 seats in the bar section.  In front of me were mostly paid line-standers who had been waiting in the 30-degree temperatures all [...]

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The Exact Same Word May Mean Different Things For Purposes of State Law and Federal Law

Section 3 of the Defense of Marriage Act (DOMA) defines the word “marriage” for purposes of federal law. In a recent post, Randy argues that this provision must be unconstitutional, because otherwise one could be “married” under state law but not under federal law, or vice versa, and “that is crazy.”

With all due respect, this is not crazy. It is, in fact, an utterly commonplace feature of our federalism that the exact same word may mean different things for purposes of state law and federal law. Ed Whelan demonstrates that this is true of the word “marriage” itself, even without DOMA. Orin Kerr points out that it is actually true of Randy’s favorite example, the word “property,” even though property law is generally core state law. And I have pointed out that it is true of the entire Dictionary Act, including the word “county,” see 1 U.S.C. 2, even though one might have thought that defining subdivisions like counties was the single most fundamental state function.

I would just add that this is also true of literally hundreds of other words throughout the U.S. Code. Many, perhaps most, of the words in the U.S. Code also appear in some state statute. It is utterly unsurprising to find that many of these words mean different things in different statute books.

To be sure, Congress can, if it wishes, piggyback on state definitions. But the Court has never suggested that Congress is required to do so. In fact, the presumption traditionally runs the other way. See Jerome v. United States, 318 U.S. 101, 104 (1943) (“in the absence of a plain indication to the contrary, … Congress when it enacts a statute is not making the application of the federal act dependent on state law.”); cf. McCulloch v. Maryland, 17 [...]

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Prediction Markets and Political Ignorance

In two recent posts, guest-blogger John McGinnis makes a strong case that the US government should legalize prediction markets, that these markets are valuable sources of information, and that claims that prediction markets can easily be “manipulated” are overblown. I agree completely on all counts. Nevertheless, I am somewhat pessimistic that prediction markets will do a lot to overcome the problem of political ignorance.

As I discussed in my previous post commenting on John’s excellent new book Accelerating Democracy, voters are rationally ignorant about politics, and are often unaware of even very basic information about government and public policy. Thus, even if prediction markets make high-quality data readily available for free, most voters may pay little or no attention to it, just as they currently ignore most of the information already available from other sources. In this context, it’s worth noting that there’s little if any evidence that more than a tiny fraction of voters have been paying attention to prediction markets over the last few years that the data has been available. Although I haven’t seen any survey data on the subject, I would not be surprised if a majority of Americans have not even heard of prediction markets, much less been paying attention to the data they generate. Obviously, as John points out, voters who actually place substantial bets on prediction markets do have a strong incentive to pay attention to them. But that is likely to be only a small proportion of the population, just as currently only a small proportion are highly active sports bettors.

Even those voters who do pay some attention to prediction markets may not evaluate their results with anything approaching objectivity. Just as voters tend to overvalue other types of information that confirm their preexisting views, while undervaluing any [...]

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The Court’s Seven Options in the California Same-Sex Marriage Case

Before oral argument in the California Proposition 8 gay marriage case, Georgetown law professor Marty Lederman wrote a post outlining five possible options before the Court; I commented on it here. Since the argument, Lederman believes the number of possible options has grown to seven, as he outlines in this interesting post. The two new options are that “the Court might dismiss the petition as improvidently granted – a “DIG”; or that the Court could vacate the court of appeals’ decision and remand the case for reconsideration in light of whatever the Court does in Windsor, the DOMA case.”

Like most commentators, Lederman predicts there is a substantial likelihood that the justices will dismiss the case for lack of standing. Like me, he still believes there is a good chance the Court will strike down Proposition 8’s ban on same-sex marriage if the justices do make a decision on the merits. [...]

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Promoting Limited Government and More Informed Decision Making

Thanks so much to Ilya for his generous post on Accelerating Democracy. I see Ilya’s and my projects not as antagonistic but essentially complementary.

I share Ilya’s belief that more limited government is likely better government. I thus expect that that by providing more accurate information about policy results, more people will move over time to recognize the virtues of markets and limited government over centralized regulation in most instances. Ilya argues that limiting government will help citizens better update on information about policy by restricting the range of government programs to which they must pay attention. We may have a virtuous circle here.

I would also note that one of the most important recommendation in both our books is similar—the promotion of federalism in particular and decentralization in general. Decentralization can simultaneously promote experimentation and foot voting. Empiricists evaluate the results of policy through analysis but so do citizens by moving jurisdictions.

More generally we both want the political process to rely more on the market. Ilya focuses on federalism as a market for governance. I focus on information markets as a tool for guiding governance. Both build structures of governance on Hayek’s great insight that information is dispersed among many people.

I also agree with Ilya that because of rational ignorance in politics that information will make far less difference in people’s political decisions than in their personal decisions. That is a good argument for limited government and Ilya develops it superbly in his forthcoming book, Democracy and Political Ignorance . But precisely how limited government should be depends on the dangers of externalities that markets and other means of voluntary coordination cannot address. The costs and benefits of limitations are themselves empirical questions that may change depending on the technology of the time.

I think any [...]

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Commentary on DOMA and Federalism

Whatever the merits of the federalism concerns I and others have raised about the Defense of Marriage Act (DOMA), the issue is garnering a fair amount of attention.  Here’s a brief round-up of some recent commentary:

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Answers to Ed Whelan’s Questions

Over on Bench Memos Ed Whelan asks some questions.

QUESTION:  So, Randy and Jonathan, do you agree with your co-signatory Ilya Somin that if DOMA is invalidated on federalism grounds, a couple that enters into a lawful same-sex marriage in one state will be entitled to receive federal marriage benefits when they move to a state that does not recognize same-sex marriages? Do you agree, in other words, that the federalism argument that you’re advancing against DOMA would have the federalism-defeating effect of nationalizing federal marriage benefits for same-sex marriages?

ANSWER:   Ed, thanks for asking for our views on this question.  Jonathan, and also Dale, can speak for themselves, but I do not agree with Ilya about this, for the reason you intimate.  I agree with you here when you say “I doubt that Somin is actually correct on this point (which he merely asserts).”  As you know, I often agree with you, as I did about the standing issue with respect to Proposition 8.  But this provides me the opportunity to stress that the signatories of the federalism scholars brief hold a variety of views on the Constitution and federalism in general, and on same-sex marriage in particular.  What we all agree about is that Section 3 of DOMA — as drafted — is unconstitutional for the reasons we expressed in our brief, which we all actively participated in drafting.   No doubt there are other issues like this one on which we will disagree.

QUESTION:  Or do you agree with SSM supporter Noah Feldman that a ruling against DOMA on federalism grounds would create “legal chaos” and “nightmarish barrage of new litigation”?

ANSWER:  I do not agree about with Noah Feldman about this.  Your own position contemplates the bifurcation of state marriage regulations and federal benefits, which you apparently

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How I Became a (Minor) Victim of Academic Plagiarism

Today, the Baltimore Sun published a detailed story about Towson University Professor Benjamin Neil, who has been accused of numerous instances of plagiarism, especially in a 2012 article on Kelo v. City of New London and post-Kelo eminent domain reform which has since been withdrawn by the Journal of Academic and Business Ethics:

A longtime Towson University professor has resigned his post as the head of the city school system’s ethics panel amid allegations that his published academic articles contain content from dozens of sources without proper — or in some cases any — attribution.

University officials and journal publishers say they are reviewing several articles submitted by Benjamin A. Neil, a legal affairs professor, after a librarian at another university alerted them to the issue.

A Baltimore Sun review of five papers published by Neil shows passages with identical language and others with close similarities to scholarly journals, news publications, congressional testimony, blogs and websites. In many cases, there was no attribution.

Neil, who has taught at Towson for more than 20 years, says he properly attributed work from other authors.

“I don’t think I’ve done anything wrong,” said Neil, 62. “The issue seems to be that I didn’t put things in quotes. But I’ve given attribution to people….”

Meanwhile, some of his colleagues across the country and authors of the original material who were contacted by The Sun criticized what they called “lazy plagiarism” and a breach of academic integrity. Experts say the incident highlights the pressures that professors feel to publish.

“It’s completely unacceptable conduct, particularly for a professor,” said Jeffrey Beall, a scholarly initiatives librarian at the University of Colorado, Denver who contacted Towson officials and journals about the alleged plagiarism.

It so happens that I was one of the scholars whom Neil plagiarized [...]

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Combating Bias: More Reason to Favor Prediction Markets and Oppose Earmarks

The information delivered by new technologies about policy results will be more effective insofar as it changes people’s minds. But many people are biased. They hold to their preconceptions about the wisdom of policy, regardless of the new evidence presented. Thus, another urgent task for adapting to technological acceleration is to help democracy better update on the new information generated by our new technologies.

In my book Accelerating Democracy , I offer a variety of electoral reforms, like introducing top-two primaries, that make politicians more responsive to the electorate as a whole and thus cabin the effect of partisan bias. Here I discuss two more unusual reforms that would also facilitate democratic updating.

The first recommended reform for constraining bias is again prediction markets. In addition to injecting more information into collective decision making, prediction markets can help with bias. Cognitive scientists have shown that forcing individuals to consider the alternative is one way of combating bias. Conditional prediction markets—markets that predict consequences both in the event a policy is adopted and in the event it is not– by their very nature force the consideration of alternatives.

For example, a conditional market on a capital gains tax cut forces people to consider the alternative economic situations where a capital gains tax is cut and where it is not, thus forcing both proponents and opponents of capital gains tax cuts to confront the preferred policy world of the other and observe the predicted results. A market considering both conditions also prompts consideration in a relatively non-partisan context. The absence of partisan cues reduces bias.

The second reform is the permanent elimination of earmarks. Earmarks are the practice by which individual members of Congress target appropriations for their own district outside of any competitive process and or other neutral criteria. The usual [...]

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Reflections on John McGinnis’ Accelerating Democracy

Guest blogger John McGinnis’ new book Accelerating Democracy is an outstanding analysis of the ways in which modern technology and social science can improve the quality of decision-making in government and society. It is probably the most important book on that subject in a long time.

Much of John’s thesis is compelling. He is right that modern social science enables us to evaluate the effects of public policy far more accurately than in the past, and that modern technology makes it easier to disseminate the resulting knowledge. I also agree with John’s argument that the technological and social scientific revolutions strengthen the case for political decentralization, enabling lower-level governments to experiment with new types of policies. We can now evaluate such experiments much better than in the past, which increases their value to society. John is especially persuasive in arguing that we should legalize prediction markets, which are an extremely valuable source of information, even if imperfect.

I do, however, have two reservations about John’s conclusions: Because of the problem of rational political ignorance, voters may fail to exploit much of the new information available to them. We will be able to make better use of new data if we make more of our decisions by “voting with our feet” than by voting at the ballot box. And in many cases, such foot voting is best facilitated by limiting state and local government power, as well as that of Washington.

I. How Political Ignorance Reduces the Benefits of New Information.

As John effectively demonstrates, recent technological advances both give us new policy-relevant information and make it easier for the public to access it. The problem is that voters have little incentive to actually learn and make use of the new data. Because any one vote has only an infinitesmal [...]

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Three Senses in Which DOMA Implicates Federalism

Overnight, it seems, federalism has become a major ground on which the Defense of Marriage Act is being contested.  This is surprising because, as we saw Wednesday in the arguments of Roberta Kaplan and the Solicitor General, there were no real advocates for federalism as an issue during the oral argument in United States v. WindsorNo advocates, that is, except for five of the nine people sitting behind the bench.

But what exactly is the federalism objection to DOMA?  Despite some misapprehension to the contrary, it doesn’t rest principally on Tenth Amendment case law establishing an “anti-commandeering” principle.  And it’s not that marriage is a subject over which the federal government must always, forever, and for every purpose be obedient to individual states’ whims. That would present what we might call a reverse anti-commandeering problem.

Instead, the federalism concern with DOMA breaks down into at least three different but related types of problems.

(1) The federal-power problem. DOMA is an exercise of federal power. So the first question is, where does the federal government get the power to enact a comprehensive definition of marriage? George Will thinks DOMA is a “usurpation of state power.”  James Taranto at the Wall Street Journal agrees.  Michael McConnell, perhaps the leading conservative judicial scholar of his generation, put it this way in an op-ed in the Wall Street Journal:

The leading argument against DOMA all along has been that the federal government lacks authority under the Constitution to create and enforce a definition of marriage different from that of the state in which a couple resides. It is hard to think of an issue more clearly reserved to state law under constitutional tradition than the definition of marriage.

The federalism amicus brief in Windsor argues this point in [...]

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Orthodox Easter: What’s up with that? — Part 2

Yesterday, I posted about the difference between the Gregorian calendar that we use in the West and the Julian calendar that’s still used by most Eastern Orthodox churches. There’s a 13-day difference between them for the period between 1900 and 2100, so any given day (e.g. October 12) shows up 13 days later on the Julian calendar than on the Gregorian calendar. So someone with a Julian calendar would celebrate October 12 on a day that shows up as October 25 on our Gregorian calendars.

Now, step 2 in understanding Easter: how is Easter defined? As an initial matter, note that Easter Sunday is the day when Jesus Christ rose from the dead, and the Gospels say that happened when he came to Jerusalem to celebrate Passover. So in principle, you could think that Easter happens at Passover — more precisely, on 14 Nisan, the day before Passover starts on 15 Nisan. (See also various verses in chapter 19 of the Gospel according to John.) Now the Jewish calendar is a complicated thing, but the bottom line is that 15 Nisan is always on a full moon after the spring equinox. How do they guarantee that this happens? Intercalation, that’s how. Because Jewish months are lunar, the folks in charge of the calendar stick in a whole nother month, called Adar II, before Nisan just to ensure that Passover is on a full moon after the equinox.

So why not tie Easter to Passover and celebrate it whenever 14 Nisan would fall in the Jewish calendar? The Christians who believed you should do this were called Quartodecimans, or “fourteeners” if you will. Various Christian communities followed the “14 Nisan” rule and just asked their local Jews when Passover started, but after controversies in the second and third [...]

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