Legal Theory Blog

Rappaport on a Really Really Bad Clerkship

Mike Rappaport has some personal observations about a clerkship from hell.  Read it!

Ruhl on the Hierarchy of Legal Scholarship

J.B. Ruhl has a really great post on Jurisdynamics entitled The Hierarchy of Legal Scholarship.  He ranks categories of scholarship from 0 (least significant) to 10 (most significant).  Here are his categories:

0 – Blog posts

1 – Publication of what are essentially blog posts with footnotes:

2 – Doctrinal review of the state of the law:

3 – Doctrinal study of interesting questions of law:

4 – Doctrinal synthesis of developments in law:

5 – Normative policy analysis of law:

6 – Normative policy analysis of law with substantial reform proposals:

7 – Legal theory:

8 – “Law and” interdisciplinary studies:

9 – Empirical study of legal institutions:

10 – Empirical study of law’s impact on society:

Good clean fun.  It won't surprise regular readers of LTB that I wouldn't quite agree.  Initially, the whole idea of such a list, while amusing, assumes that there is a meaningful hierarchy.  Moreover, Ruhl's categories are conceptually odd.  Some of the distinctions are explicitly normative.  Categories 0 and 1 are differentiated by quality, as are categories 2 and 3.  Other categories go the methodology, e.g. the distinction between 6 and 8.  And then one methodology, empirical study of law is elevated to the top two rungs of the hierarchy, 9 and 10.

If we really want to rank importance or quality of legal scholarship, the criteria will be multidimensional and at least partially incommensurable.  At the very top will be research projects that fundamentally transform the way we we study law--the clearest example in the history of modern legal thought is Bentham's project, which reconceptualized the nature of law along postivist lines and reworked normative legal theory into utilitarianism.  Indeed, Ruhl's hierarchy is actually a legacy of Bentham's project--with Ruhl implicitly relying on a Benthamite conception of the purpose of legal theory in constructing his categories and his rankings. 

Here are some additional examples of transformative legal scholarship.  Coase's work --on mutliple problems but especially on transaction costs and the theory of the firm--would be another example of transformative scholarship.  So would Hohfeld's work on the structure of legal norms, Holmes's protorealist theorizing, and Dworkin's normative theorizing (distinguished from his work on the nature of law).  Even doctrinal work can be transformative--McKinnon's work on sexual harassment and hostile workplace environment in antidiscrimination law is an example.

It is rare for empirical work to have this kind of influence--empirical studies of law can only be transformative if they are integrated into a normative paradigm.  I'm a big fan of empirical legal studies, but their significance is derivative of theoretical work on legal instrumentalism and normative work on consequentialism in normative legal theory.  And even within the domain of empirical work, creativity and generative potential are important in assessing importance.  Many empirical studies add very little useful knowledge, while the best empirical work changes the way we investigate legal institutions or their consequences.

My apologies to Ruhl--blindly following Dale Carpenter I attributed his post to Jim Chen!  But I wonder what Jim thinks.  And thanks to Dale for the link!

Cox Critiques Susntein

Over at Opinion Work Product, Justin Cox has a nice post entitled A Critique of Cass Sunstein on Risk.  Here's a taste:

The short form of Sunstein's argument is that risk and regulation evaluations ought to be handed to technocrats insulated from political and public pressure because the public is bad at making accurate risk assessments. Kahan et all argue that the public must brought into these conversations, and insists that consensus can be built by crafting policy and rhetorical appeals that reaffirm the various worldviews that come into conflict over such things as gun control and the death penalty.

Sunstein seems to think that these various worldviews don’t have any role to play in risk assessments. He insists that a straight cost-benefit analysis is most appropriate, and that technocrats are the most appropriate people to make those judgments.

My question for Sunstein, then, is what values are to guide the technocrats? He seems to argue that values have no role to play and that our decisions ought to be guided by mere cost-benefit analysis. What he seems to ignore or sidestep, I think, is that a cost-benefit analysis is itself value-laden.

Civil Disobediance & the Virtue of Justice

Over at Law & Society Blog, Brian has a nice post entitled Democracy and Civil Disobedience responding to The Ethics of Activism by Richard Chappell at Philosophy, et cetera. From Chappell's post, which starts with a description of action by animal rights activists:

Such hubris is what repels me from radical politics more generally. These dogmatists feel so assured of the infallibility of their moral opinions that they're willing to coercively impose them on others. This implies a startling disrespect for one's fellow citizens. If you're really in the moral right, then you ought to be able to persuade your fellow citizens of this, and hence get the needed reforms implemented through legitimate democratic processes. Hence, if you can't succeed democratically, perhaps it's just as well...

Alternatively, if you're not in a properly functioning liberal democracy, then your overriding goal should be to establish the necessary institutions. Any first order political objectives are of secondary importance, and should wait until they can pass the liberal-democratic test. (It'd plainly be disastrous were every self-righteous moralist to go about trying to coerce everyone else into following their dictates.)

Do these principles imply the impermissibility of civil disobedience? Perhaps. If our democratic institutions are properly responsive to reasons, then illegal forms of protest should be quite unnecessary. Though I guess some might worry that the antecedent condition is unrealistically utopian. (That would pose obvious problems for the principles in my previous paragraph.) Perhaps we could argue that civil disobedience is itself an accepted part of our democratic process, so long as the protestors take care to cause no harm, and submit to the subsequent legal punishment?

Here's a taste of Berkey's reply:

But it seems also to be the case that even in societies that can reasonably be considered democratic, it is false that, “If you’re really in the moral right, then you ought to be able to persuade your fellow citizens of this.” Just as radical activists tend to have an inflated degree of confidence in their views, so the general public tends to have an inflated degree of confidence in prevailing views on the very same moral issues that motivate radical activism (and others besides). Indeed, radical activists are often motivated to engage in civil disobedience out of (often legitimate) frustration with attempts to convince others of the importance of their cause. Animal rights activists, for example, are often portrayed by the media as out of control vigilantes (the above link shows that this characterization isn’t always wrong), even though most surely aren’t, and this is one reason that most Americans tend to be not just uninterested, but hostile to animal rights claims, despite the fact that the arguments in favor of greater moral consideration for animals are quite strong. The strength of the arguments for a cause, at least in some cases, does not mean that there is much chance that the public can be convinced that the cause is just.

Two fine posts.  If I might be permitted to add a small comment: One interesting way of approaching this issue is from an aretaic (or virtue-centered) perspective.  What does the virtue of justice require?

One influential conception of the virtue of justice is based begins with the premise that the just and the lawful are separate and distinct. Of course, the view is not that all laws or unjust or that no just norms are law. Rather, the idea is that there is no necessary connection between legality and justice. If this were so, then the most plausible conception of the virtue of justice might be articulated as follows:

The Virtue of Justice as Fairness: A judge, J, has the virtue of justice as fairness, V(j-f), if and only if P is disposed to act in accord with the best conception of fairness, F, in situations, S, where fairness provides salient reasons for action.

One might think that a judge who possessed V(j-f) would act solely on the basis of fairness with reference to the law, but this is not the case. If this were true, it would provide the basis for a devastating objection to the fairness conception—because it would require each judge to substitute her private judgments about what fairness requires for the duly enacted constitutions, statutes, and rules. Although I shall not provide the argument here, it seems plain that this would be a recipe for chaos. But a defender of the fairness conception need not admit that a judge who acted on the basis of fairness would disregard the law entirely. Why not? Because the existence of legal norms will frequently give rise to considerations of fairness that will transform the moral landscape, creating salient reasons of fairness that motivate a judge who has V(j-f) to act in accord with the law.

An example may help to clarify and illustrate this point. Suppose there is a dispute between Ben and Alice over Greenacre—a vacant and unimproved parcel of land. The law gives Ben title to Greenacre, which he has purchased, but Alice has begun to use Greenacre by planting a garden. In the absence of the institution of property law, it might be the case that Ben would have no claim on Greenacre—how would he acquire such a claim without some use or improvement of the land—but that given the existence of property law, Ben would have a claim of fairness, because he has paid for Greenacre and has reasonably relied on the legal institution of property. If this is so, then the law has created a claim of fairness that otherwise would not exist and a judge with V(j-f) would decide in favor of Ben—assuming, of course, that there were no other circumstances that created an overriding reason of fairness to decide in favor of Alice.

Nonetheless, the fairness conception faces a formidable objection because of the role that private judgment plays for judges with V(j-f). To articulate this objection, we need to highlight the distinction between two questions about fairness—which I shall call “first order” and “second order” questions of fairness. A first order question of fairness is simply the question, “Which action is fair given the circumstances?” A second order question of fairness concerns whose judgment about first order questions will be taken as authoritative. Thus, the question, “Given the fact of disagreement about the correct answer to a first-order question of fairness, whose judgment should be taken as authoritative?,” is a second order question of fairness. One possible answer to a second-order question of fairness is that one ought to rely on one’s own private judgment about what action is fair. A quite different answer is that one should rely on some source of public judgment. For example, one might rely on duly-enacted and public laws.

The fairness conception implicitly requires judge’s to exercise private judgment about first-order questions of fairness. In exercising that judgment, the judge may conclude that expectations generated by reasonable reliance on the law provide reasons of fairness—as in the case of Ben, Alice, and Greenacre—but this is a conclusion of private judgment. One judge might conclude that Ben’s reliance on property law was reasonable, and hence that fairness required a decision for Ben. A different judge might conclude that no one could reasonably rely on property law in cases in which they were allowing valuable land to lie fallow when others could make productive use of the land—and therefore decide for Alice. Yet a third judge might conclude that because of pervasive economic inequalities, the whole institution of property is unjust and award the land to a third-party, Carla, who was in greater need than either Ben or Alice. Because each judge makes a private judgment about the all-things-considered fairness of following the law in each case, these judgments can (and we expect will) differ with the moral, religious, and ideological views of the particular judge.

The objection to the fairness conception of the virtue of justice is that disagreements in private judgments about fairness would undermine the very great values that we associate with the rule of law. Because the fairness conception requires each judge to exercise her own private judgment about what fairness requires—all things considered—and because such judgments will frequently differ, the outcome of disputes adjudicated by judges with V(j-f) will be systematically unpredictable. If this were the case, then the law would be unable to perform the function of coordinating behavior, creating stable expectations, and constraining arbitrary or self-interested actions by officials.

How bad this would be is a matter of dispute. A Hobbesian answer to this question is very bad indeed—in the absence of coordinating authority, life would be “solitary, poore, nasty, brutish, and short.” A Lockean answer is that reliance on private judgment leads to “inconveniences,” but even a optimistic realist would surely concede that the inconvenience of a society that cannot secure the rule of law would be serious.

If the fairness conception of the virtue of justice is unsatisfactory, is there an alternative? In the Nicomachean Ethics, Aristotle suggests an alternative understanding of justice as lawfulness, but to understand Aristotle’s view, we need to take a look at the Greek word nomos which is usually translated as “law.” For the ancient Greeks, nomos had a broader meaning that does “law” in contemporary English. Richard Kraut, the distinguished Aristotle scholar, explained the difference as follows: [W]hen [Aristotle] says that a just person, speaking in the broadest sense is nominos, he is attributing to such a person a certain relationship to the laws, norms, and customs generally accepted by some existing community. Justice has to do not merely with the written enactments of a community’s lawmakers, but with the wider set of norms that govern the members of that community. Similarly, the unjust person’s character is expressed not only in his violations of the written code of laws, but more broadly in his transgression of the rules accepted by the society in which he lives.

There is another important way in which Aristotle’s use of the term nomos differs from our word ‘law’: he makes a distinction between nomoi and what the Greeks of his time called psēphismata—conventionally translated as ‘decrees’. A decree is a legal enactment addressed solely to present circumstances, and sets no precedent that applies to similar cases in the future. By contrast a nomos is meant to have general scope: it applies not only to cases at hand but to a general category of cases that can be expected to occur in the future.

We can restate this last point by using our distinction between types of judgments (first and second order, private and public). If judges rely on their own private, first-order judgments of fairness as the basis for the resolution of disputes, then it follows inexorably that their judgments will be decrees (psēphismata) and not decisions on the basis of a second order, public judgment—in other words, not on the basis of a nomos.

In other words, a judge who decides on the basis of her own private judgments about which outcome is fair—all things considered—is making decisions that are tyrannical in Aristotle’s sense. “How can this be?,” you may ask. “Aren’t decisions that are motivated by fairness the very opposite of tyranny?” But framing the question in this way obscures rather than illuminates the point. Of course, if there were universal agreement (or even a strong consensus) of first-order private judgments about fairness, then decision on the basis of such judgments would be nomoi and not psēphismata. But our private, first-order judgments about the all-things-considered requirements of fairness do not agree. So in any given case, a decision that the judge believes is required by fairness will be seen by others quite differently. At best, the decision will be viewed as a good faith error of private judgment about fairness. More likely, those who disagree will describe the decision as a product of ideology, personal preference, or bias. At worst, the decision will be perceived as the product of arbitrary will or self interest. In no event, will a decision based on a controversial first order private judgment of fairness be viewed as outcome of a nomos—a publicly available legal norm.

We are now in a better position to appreciate why rule by decree (psēphismata) is typical of tyranny. Decision on the basis of private, first-order judgments about fairness is the rule of individuals and not of law. From Aristotle’s point of view, a regime that rules by decree does not provide the stability and certainty that is required for human communities to flourish. Kraut continues: We can now see why Aristotle thinks that justice in its broadest sense can be defined as lawfulness, and why he has such high regard for a lawful person. His definition embodies the assumption that every community requires the high degree of order that that comes from having a stable body of customs and norms, and a coherent legal code that is not altered frivolously and unpredictably.

Justice in its broadest sense is the intellectual and emotional skill one needs in order to do one’s part in brining it about that one’s community possesses this stable system of rules and laws. And with that point in place, we can now formulate the lawfulness conception of the virtue of justice:

The Virtue of Justice as Lawfulness: A judge, J, has the virtue of justice as lawfulness, V(j-l), if and only if P is disposed to act in accord with the nomoi (positive laws and stable customs and norms), N, in situations, S, where the nomoi provide salient reasons for action.

On the lawfulness conception, the virtue of justice does not require action in conformity with one’s private, first-order judgments of fairness. Justice as lawfulness is based on a second order judgment that judges (or more generally, citizens) should rely on public judgments. The content of the public judgments are the nomoi—the positive laws and shared norms of a given community. Someone with the virtue of justice is disposed to act on the basis of the nomoi.

Given the lawfulness conception of the virtue of justice, the virtuous human will rarely engage in civil disobediance in a well-ordered society--a society in which the nomoi function normally (to enable human flourishing), in which the nomoi support the positive law, and in which the positive law is in harmony with deeply held and widely shared social norms.

Posner & Becker on Medical Care for the Elderly

Richard Posner's post at the Becker-Posner Blog is Extending Life, which discusses the very high cost of medical treatment near the end of life.  Here is a taste:

The only solution to the problem that I can think of, brutal as it sounds, is to reduce Medicare benefits. If the slack is taken up by increased private spending, well and good; that would just show that the elderly and their families really do place a very high value on trivial extensions of a not very pleasant life. But the slack will not be taken up fully by private spending, because most people have limited financial means. Although hospitals will not refuse emergency treatment to people who cannot pay for it, they will not provide the most advanced treatments to such people. So cutting public benefits would result in a real reduction in medical spending on the elderly. There would be a loss of utility but in my judgment it would be more than offset by the savings to the taxpayer. If my father's case is typical, expensive efforts to extend the life of elderly people by a few months do not generate proportionate benefits.

Becker comments:

Still, several considerations seriously qualify the conclusion that too much is spent on extending the lives of elderly American men and women. One mentioned in passing by Posner I consider quite important; namely, that the vast majority of people have an enormous fear of death. Given this fear, people try to postpone the inevitable as long as they can, even if that would mean spending much of their own resources on modest extensions of their lives. They would partly spend indirectly by contracting for expensive private health insurance that covers payments even for small life extensions. Old persons would spend less if they did not receive subsidies since the elderly who get sick have fewer resources than taxpayers, but older persons would still spend a sizable fraction of their own resources to extend their lives.

Still, several considerations seriously qualify the conclusion that too much is spent on extending the lives of elderly American men and women. One mentioned in passing by Posner I consider quite important; namely, that the vast majority of people have an enormous fear of death. Given this fear, people try to postpone the inevitable as long as they can, even if that would mean spending much of their own resources on modest extensions of their lives. They would partly spend indirectly by contracting for expensive private health insurance that covers payments even for small life extensions. Old persons would spend less if they did not receive subsidies since the elderly who get sick have fewer resources than taxpayers, but older persons would still spend a sizable fraction of their own resources to extend their lives.

One more thing, children and spouses of the elderly may care very much about the lives of their parent and spouses.  Many childern and spouses (but not all) will be willing to spend all of their resources and to exhaust their borrowing power to purchase either a short-time extension of life or the hope (read low-probability expectation) of a miracle recovery.  These expeditures have far different social consequences that do similar expenditures by the elderly themselves--and in the case of children may have ramifying effects on the grandchildren and great-grandchildren of the dying elderly patient.  Without generous end-of-life social insurance, the children of the elderly will inevitably be forced to make very difficult choices about their own financial well-being and that of their own own children and grandchildren.

Leiter on Soames with Special Reference to American Philosophy of Law & a Comment about Dworkin

I posted recently on Scott Soames's marvelously compact essay on "Analytic Philosophy in America."  My post quoted from his description of the revival of normative ethics, but I had nothing to say about Soames's quite peculiar description of analytic philosophy of law in the United States.  Brian Leiter has some very astute and acute comments in his post Soames on "Analytic Philosophy," and the Special Case of Philosophy of Law.  Here is a snippet (and what follows is described by Leiter as a "minor point"):

[Soames] compares the "revival" in political philosophy effectuated by Rawls and Nozick to the "revival" in philosophy of law effectuated by Dworkin.  But surely it was Hart who brought about the integration of jurisprudence into English-speaking philosophy generally, and rejuvenated philosophical interest in law; Dworkin, Feinberg, Raz, Finnis and others simply continued that development.  (One can acknowledge this point without agreeing with my stronger claim that the Dworkinian program is now discredited and defunct.)  Indeed, among philosophers who think about law, Raz's influence is far greater than Dworkin's.

(And by the way, Leiter has more to say about the accuracy of Soames's remarks in the very interesting & spot-on comments that he describes as "major".) Brian is surely right about his characterization , although Soames might reply that his essay was about analytic philosophy of law in the United States and that (for better or for worse) Dworkin's program was (or "is") the most influential American program--if one excludes "contemporary" work, by which I mean work done in the last twenty years or so.

But I should like to suggest that all of this misses something important about Dworkin and his influence on legal theory.  The philosophy of law is sometimes conceived very narrowly--with a focus on the "what is law" question.  Conceived in this way, Hart is the giant of the analytic tradition and Raz is the most influential contemporary figure.  This may come as a surprise to nonspecialists, who might get the impression that Dworkin's role in the "what is law" debate is central and that Raz is a less significant figure.  That's surely wrong, even if one rejects Leiter's "Death of Dworkin" thesis.

However, in my opinion, the whole focus (implicit in Soame's essay) on "what as law" as the primary contribution of so-called "analytic philosophy of law" to legal theory is wrongheaded.  In the long run, the "what is law debate" is mostly of interest to a small (but important) group of specialists.  The most important contribution that philosophy makes to legal theory is to normative legal theory.  If I might be permitted the luxury of a very sweeping generlization, the question "what are the criteria for the normative evaluation of law" is the central question of legal theory and it is a the heart of the academic study of law.

And when we focus on normative legal theory, Dworkin's influence and importance comes back into perspective.  Of course, Raz has important things to say about the normative foundations of law, but judgments about the importance of his work on foundational normative questions are not the the subject of the same kind of wide and deep agreement as are judgments about the importance of his work on the nature of law.  But it is, I think, beyond doubt that Dworkin's normative work has had a profound influence on contemporary normative legal theory.

Read Leiter's post & if you are at all interested in getting a broad overview of analytic philosophy in the United States, read Soame's accessible essay.

Brooks on Nussbaum on Shaming Punishments

Check out Martha Nussbaum on shame punishment by Thom Brooks on The Brooks Blog.  Here's a taste:

In her Hiding from Humanity, Martha Nussbaum claims that society should not impose shame punishments. I will argue that she correctly directs our attention to the fact that emotions are integral to any proper understanding of our laws. Her views are not only consistent with current law, but perhaps go further than she realizes. Nussbaum does not endorse the use of shame punishment primarily on the grounds that shaming offenders often amounts to their losing dignity. Yet, her concerns about dignity and insistence that shaming ought never be imputed purely for the sake of humiliating offenders have, in fact, been addressed by the courts in a way which overcomes her important reservations. Thus, her account of law is not only correct to highlight the relationship that exists between emotions and the law; but, in addition, her views are also consistent with the legitimacy of shame punishment in current practice as well. As a result, she need not be opposed to the use of legitimate shame punishment.

More in Brook's article

Shame on You, Shame on Me? Nussbaum on Shame and Punishment.

Economics, Distributive Justice, and Value Theory

Updated!  Scroll down for the new material.

Josh Wright has a wonderful post titled Economists’ Indifference, Straw Men, and the Costs of Regulating Inequality at Truth on the Market. Here's an extended quote:

[T]he claim that economics is indifferent to market structures is something that any undergraduate economics student knows is wrong. To the extent that a policy of maximizing social welfare (in the economic sense), or consumer welfare, carries an opportunity cost of decreasing “social justice” (let’s just call it that for now), that’s fine. We can talk about the trade-offs. But as J.B. Ruhl notes in his comment to Frank’s post at Jurisdynamics:

I need to know what we are getting in return before I can say whether the “costs of inequality” are, when all is taken into account, actually costs or benefits, and I need to know the effects of regulating some particular manifestation of the inequality before I know whether it produces a net gain or loss.

Exactly! And this is why it is so important that we confront the trade-offs head on rather than taking the straw man approach. The mistaken assertion that economics has nothing to say about different market structures, and the economic forces that get us there, might lead one to incorrectly conclude that the cost of regulating some “particular manifestation of the inequality” are zero in economic terms. I’m all for discussing the competitive consequences of regulatory efforts as agents re-optimize and respond to incentives. But keeping the discussion realistic will only improve our ability to make sound policy choices.

I'm not sure I really understand, but I wonder if there is a sense in this post that the normative case for equality must be cashed out in terms of "costs" or "benfits".  If so, this seems to me to miss the point of distributive justice theories (in their most sophisticated forms).  Such theories do not conceive of inequality as a cost--that would be to make a category mistake--confusing a deontic constraint for a consequentialist consideration.  I'm certainly not accusing Ruhl or Wright of making this mistake.  I just can't quite tell what they are trying to say.

Update: More from Wright here.  And to appreciate the full context of Wright's remarks, surf to this post.

Before saying anything more, I want to apologize to Wright for not tracking back to the original context of his remarks.  Having read a bit more, it seems to me that the real debate was about the appropriateness of normative law and economics as a general framework for evaluating antitrust policy in the context of the Apple's dominance of the digital download market and the possibility that it may be extending its market power to the market for MP3 (digital music) players, i.e. the market in which the iPod competes.

As I understand Frank Pasquale's remarks, his essential point could be rephrased as the claim that normative law and economics does not capture the full spectrum of values that are implicated in the debate over Apple's conduct.  The discussion was framed in terms of consumer welfare, but it seems to me that this formulation elides the deeper points.  There are two questions we might be asking.  One question goes to the equation of costs and benefits that can be measured via economic transactions with welfare--where welfare is understood on the preference satisfaction model.  A second question goes to whether preference satisfaction, however measured, should be taken as the the only relevant consequence that counts noninstrumentally, i.e. for its own sake.  Both issues are deep and important ones.

With respect to the second question, there are general reasons to doubt that any theory based on preference satisfaction can ultimately succeed as a general theory of value.  These objections are well known, with an extensive literature.  My sense of the current state of play is that preference-satisfaction consequentialism faces deep and apparently unsurmountable difficulties.  One well-know problem concerns the notion that preferences are "given" and not themselves subject to evaluation on independent (i.e. not preference-based) moral grounds.  This problem is nicely illustrated by the context of so-called "culture" industries--where market power may translate into the power to shape preferences.  If this is the case, then it might well be true that a market structure that is superior when evaluated by standard of quantifiable costs and benefits--that is, in terms of consumer welfare quantified in economic terms--could nonetheless be inferior once preferences themselves are seen as "good" or "bad" or as contributing to flourishing or impoverished lives.  To bring that down to earth, it might be that a market structure that encourages a plurality of shapers of musical taste could result in richer preference structures but less music at a higher cost.  I am ready and eager to learn more, but my understanding of the normative foundations of law and economics suggests that this sort of argument is difficult to translate into conventional economic frameworks.

Of course, there is much more to be said.  I owe Josh Wright a big "thank you" for his very patient attempt to draw my attention to the original context for his remarks.

Farber on Institutions and Complexity

Dan Farber has a nice post entitled Designing Institutions for a Complex World at Jurisdynamics.  Here's a taste:

In a world characterized by complexity, we have to begin by admitting the impossibility of perfecting what we are doing. Perfection requires stability –- the notes in a Beethoven score never change, so it is possible to aspire to a perfect performance. But many of the problems that we encounter are more like a jazz improvisation with unpredictable changes in the players, instruments, and styles. Rather than perfecting the playing of each individual note, we need to be alert for new information that may change old answers; we need to realize that planning must be flexible; and we must avoid locking ourselves into decisions that may later prove misguided. And we also need to be able to enter into shifting partnerships with other organizations, as the scope and dimension of the problem and the need for expertise and resources shift.

Brighouse on School Choice--and on "Feasibility"

Harry Brighouse writes such interesting stuff.  You should really surf over to Crooked Timber and read his marvelous comments on school chocie--Trading Places.  The post discusses tradeable rights to admit highly qualified students, but I was thrilled when I followed the link to an earlier post, Lotteries in Admissions to Academies, which has a fascinating anecdote on the "feasibility" objection.  I've written about this elsewhere.

If I might get up on my hobby horse once again, "feasibility" is just like any other argument: it must be made clearly, backed with evidence, and applied consistently.  It is simply bad argumentation to hand wave and say, "That will never happen."  What do you mean by that?  What are your criteria for feasibility?  What evidence do you have that the criteria will not be satisfied?  Are you willing to apply the same criteria to your own positive suggestions?