If Politicians Have Short Attention Spans, Then Why Do Economists (Or Anyone) Ever Think About Long-Term Problems?

-- Posted by Neil H. Buchanan

One of the most widely accepted, and most universally deplored, aspects of modern representative democracy is that politicians are almost necessarily myopic.  U.S. Representatives serve two-year terms, so that they are never more than a year or so away from their next possible primary challenge.  Presidents are often accused of spending their first four years trying to achieve short-term policy victories that will matter immediately, because wise policies that take decades to pay off will only help someone else get re-elected.  Even U.S. Senators, who win six-year terms, now find themselves in the "money primary" as soon as the last election is over, thus thinking at all times only about what can make supporters happy as soon as possible.

This conventional wisdom, in turn, has led to the creation of systems of governance that are deliberately insulated from short-term political winds.  The most important of these is the Federal Reserve, which Congress created a century ago, and to which Congress delegated its Article I power "[t]o coin money [and] regulate the value thereof."  Even the Fed's statutory political independence, however, has not removed people's suspicion that it bends to the political winds.  The most obvious example was the Fed's pumping up of the economy in apparent support of President Nixon's reelection campaign in 1972, but there is always lingering suspicion among both liberals and conservatives that short-term politics, not wise policy, is at work in the Fed's decisions.

Of course, if it is true that we get the government that we deserve, then the problem is not that politicians' reelection concerns and fund-raising demands force them to think only about the short term, but that the people who vote for them and fund them are themselves myopic.  People talk about "our children and grandchildren" all the time, usually as a way of talking about the short-sightedness of one policy or another.  Yet if people wanted to improve long-term policy for their progeny, they could do so by electing politicians who will enact sensible long-term policies, while punishing those who are trying to pander to short-term interests.

I suspect that there is more than some truth to the idea that people are myopic and impatient, that politicians are also myopic and impatient, and that there is a complicated symbiotic relationship between the two groups.  Here, however, I want to discuss what appears to be a contradiction.  If politicians, either because of their own imperatives or as proxies for their myopic supporters and voters, would be rationally uninterested in policies that do not provide nearly immediate bang for the buck, then why would economists and other policy entrepreneurs ever bother talking about long-term effects of policy?

This question arose during my recent series of posts (last Friday's being the most recent) about "deep" economic theory, focusing especially on the Cambridge Controversies of the 1960's.  As usual, Dorf on Law's commenters set a high standard of engagement throughout that series of posts, giving me plenty to think about.  In my post two Fridays ago, I tried to lay out why that long-ago intramural debate among Keynesians still matters in developing a "longer-term strategy for improving economic outcomes."  One commenter (who is, like me, a "recovering economist") objected that I had made myself irrelevant by trying to say that longer-term strategies matter at all, because clearly U.S. politicians do not care about anything but short-term outcomes.

Although I offered an immediate response on the comment board (with which I am still comfortable), I do think that it is worth thinking a bit more about these questions: If political decision-making is inherently skewed toward short-term results, does longer-term thinking ever matter?  And, do scholars who talk about long-term effects reveal themselves to be irrelevant and woolly-headed, with no hope of ever having any impact on the world?  (I should add that, if the answer to the second question is "yes," then that might still not change how I conduct my life.  But maybe that is just me.)

After some further thought, I have surprised myself by concluding that the conventional wisdom on which these questions are premised is almost completely, 180-degrees wrong.  That is, it is not only possible to find politicians taking seriously policies that will have effects long after the next election, but that is the norm rather than the exception.

The most extreme example of this point is provided by the political reaction to Thomas Piketty's blockbuster book.  Piketty's analysis is, in essence, the ultimate in long-term thinking.  He argues that, left to itself, capitalism will inevitably concentrate more and more money in the hands of a dynastic elite, over the space of many decades.  Paul Krugman has further pointed out that, even though the skewed wealth and income distributions in the U.S. do not currently fit Piketty's story, they will do so within a generation or two, because the "labor income" that is being earned by hedge fund managers and various titans today will become part of the concentrated, dynastic wealth of coming generations.

Piketty thus calls for efforts to prevent the re-emergence of "patrimonial capitalism" over the course of the next few generations, and conservatives then freak out and call him a communist.

If everyone were short-term thinkers, however, this should not be happening.  Liberals should not care about whether someone in 2064 will be dealing with the third generation of the Koch family, and conservatives should not be trying so frantically to prevent the enactment of policies that would not affect anyone in any serious way for decades.  (No one on the left has made this offer, but we can be certain that conservatives would roundly reject an offer from liberals to enact Piketty's policies in 2024, rather than 2014.)

And it is not just that people are mobilizing real resources to argue about policies with future effects, which might emerge from the popularity of Piketty's book.  We are now in our third decade of battles over the estate tax, with Democrats agreeing to changes that collect less money today because they fear the argument that the estate tax will break up family businesses and farms -- a claim that is not only completely unsupported empirically, but that also lacks any immediate consequence for all but a tiny, tiny fraction of the population.

Furthermore, as Krugman has also pointed out, the broad fascination with Piketty's book is actually rather bizarre when compared with what we could and should be doing.  We are currently suffering the ongoing damage of the Great Recession, with long-term unemployed people still not finding jobs (even after being given the "incentive" to find work that the Republicans so generously provided, by cutting off unemployment benefits), and with the economy still well below its capacity in the here and now.  Yet we are all talking about whether Piketty's decision to use one data set over another fatally compromises his claim that inequality is self-reinforcing over the span of generations.

Beyond that extreme example, think about the general run of economic policy debates.  Social Security is supposed to be "broken" in the sense that its trust funds might be exhausted in about twenty years, at which point the benefits will be cut by about 25% (which, because they will have risen in the meantime, would return them in real terms to current levels).  Real present-day political battles are informed by economists and other analysts who have long-term theories and long-term predictions about Social Security, and Social Security's long-term future is very much a hot-button issue.

Fiscal policy generally, in fact, is debated almost entirely around questions about its long-term effects.  Can we spend more now, or will that reduce the incomes of our children and grandchildren?  Should we invest in infrastructure, to increase the long-term growth rate of GDP?  If the conventional wisdom were true, and politicians really did win reelection simply by distributing candy to the myopic masses, then we would have overreacted to the Great Recession by enacting too much fiscal stimulus, not too little.

Indeed, if the only thing a politician is willing to hear is advice about how to have an immediate impact on people's pocketbooks, why would Congress have created the Fed?  And, if the answer is that Congress is now more short-term in its thinking than it used to be, then why has it not simply eliminated the Fed?  Could Congress not just print money, in response to complaints that people do not have enough money right now?  Perhaps, however, that is the the limit of the logic, because the likely impact of simply sending everyone checks would be almost immediate inflation (and no increase in real living standards), not merely the possibility of future inflation.

Short of that, however, it is actually rather remarkable that so much of our policy debate is driven by competing narratives about long term effects of policies.  Conservatives say that social spending will, over the space of decades, create a culture of dependency from which today's poor children will never extricate themselves, so we cannot help those poor children's parents today.  Liberals say that we need to spend more money on education, to keep the country economically competitive in the decades ahead.  The ACA was enacted (with, it should be noted, a multi-year roll out) on the promise of some immediate impact, but much more because of its non-immediate effects.

Even beyond economic policy, it is a challenge is to find U.S. policy debates that are not waged over longer-term questions.  Military strategy?  Foreign policy?  Same-sex marriage?  The payoff on these things, either way, is either minimal or non-existent in the immediate sense, but potentially enormous over time.  A policy analyst who thinks that politicians will not listen to a compelling long-term story is likely to be both grievously surprised and completely ignored.

Note that I am not saying any of this as a matter of defending politicians, voters, economists, or anyone else.  Instead, I find myself truly surprised by how backward the standard story turns out to be, upon examination.  People seem to be myopic and impatient, and politicians also seem to be myopic and impatient, yet the vast bulk of our arguments and actual policies focus on effects that stretch far beyond the next election.

Hippie Punching Among the Econ Nerds

-- Posted by Neil H. Buchanan

My post this past Friday completed, at least for the time being, my extended response to the "left-on-left action" that recently erupted among some liberal American economists.  As my series of posts demonstrates, the substantive issues at stake are hardly new, extending back at least half of a century, and bearing on a fundamental set of questions that have defined the insider/outsider status of economists for several generations.

Today, with nothing more to write on the substance, I nonetheless think that it is worthwhile to add one further point on the "sociology" of all of this.  In my May 8 Dorf on Law post, I tried to explain why people like Paul Krugman (avatar of the Orthodox Left) see the world as "jerks to the right of me, and jerks to the left of me," as opposed to "jerks to the right of me, and unjustly excluded frequent allies to the left of me."  This is, after all, a truly odd state of affairs.  As described so well in Professor Hockett's recent Dorf on Law post, there seems to be no space at all between the two "lefts" with regard to current macro policy, or even about how to think about the the key underlying theoretical questions (regarding private debt dynamics, consumption propensities, and risk/uncertainty).  So why the animosity?

The answer that I offered on May 8 was, I think, correct but incomplete.  There, I noted that even calling something the "sociology of economics" is inimical to the self-images of orthodox economists on the right and left alike, because the most important element of self-identification among orthodox economists is that they are True Scientists, unlike those soft, squishy, non-rigorous people in the Political Science, Anthropology, Psychology, and -- ughh! -- Sociology Departments, who dare to call themselves social scientists.  There is a reason that economists love to call their field "the queen of the social sciences," after all.

Recall, for example, that during the squabble earlier this year over the false claim that "Obamacare will kill 2.5 million jobs," an orthodox-right economist was quoted as saying that his opponents' arguments made him unhappy "as an American, as an economist. Those kind of conclusions are tarnishing the field of economics, which is a great, maybe the greatest, field."  Similarly, in one of my gigs as an economics professor at a small, liberal arts college, the other three professors in the economics department very excitedly told me that they were going to petition to have Economics moved from the social sciences division into the natural sciences division.  (I objected, "because economics is, you know, actually a social science.")

This is all to emphasize that nothing I say here should be read as backing off of the "we can't be seen as sociologists" explanation of why right and left orthodox economists band together, policy preferences and ideology notwithstanding.  Their common view of economics, at its essence, must still adhere to the supply/demand and optimization approaches that now define the field.  (A lot of gratuitous mathematics also satisfies the need to guard against being accused of softness.)  This necessarily means that all analyses must be based on methodological individualism, and it rules out studying things like "power," which is deemed too vague to be measured or to have any real meaning -- even though "utility" is perfectly fine.

Krugman is a particularly interesting supporting example of this sociological explanation.  He has shown that he is willing to stand apart from his colleagues and (quite appropriately) savage them for their intellectual dishonesty, deliberately removing himself from polite conversation and proudly suffering the slings and arrows from offended EU officials and conservative economists alike.  He is willing to be weird, but not so weird as to stop being a Real Economist.  So why is he so intent on repeating (completely out of context, as I described last Friday) that the British Cantabrigians were wrong?  Apparently because accepting their critique would undermine the core starting point on which Real Economics is built.

Having thus re-emphasized my initial sociological explanation of orthodox economists' defensive death grip on their methods, what else is there to add?  As I have noted, one of the perks of being an orthodox left economist, rather than a heterodox left economist, is access to political power.  Democratic politicians lavish attention on people like Larry Summers and Janet Yellen, but it is rare indeed that they listen to heterodox lefties.  (Again, Summers and Yellen are often correct on the policy -- certainly as compared to the people who advise Republicans.  That, however, is a separate issue.)  True, Democrats will occasionally invite Jamie Galbraith to join groups of economists who are gathered to give policy advice, but it is hard to escape the sense that they do so simply to be able to claim that they are open-minded, with the orthodox lefty economists knowing that there is no danger of unwelcome ideas from the heterodox lefties ever being taken seriously.

The frantic insistence with which those on the orthodox left distance themselves from their heterodox fellow travelers, therefore, can also be explained as a matter of careerism in the form of maintaining political relevance.  In fact, I think the best way to understand it is as yet another form of "hippie punching."  As I described in a recent post, hippie punching describes efforts by people on the nearer left to reassure others that they are not TOO FAR to the left -- not like those crazy hippies over there!  As Elvis Costello once sang, "Even a scapegoat needs someone to hate."  The glee with which mainstream liberals engage in this distancing exercise is something to behold, especially because there appears to be no such tendency on the right.  If anything, mainstream conservatives feel the need to reassure people that they are truly men of the right.

What makes the hippie-punching explanation so interesting in the context of my recent recapitulation of the Cambridge Controversies is that Joan Robinson, one of the key players on the British side of that debate, was quite explicitly "hippie punched" during her later career.  (Also, as a matter of personal style, Robinson was unfortunately the ultimate "jerk on the left," which helps to explain -- but only partially -- the failure of the British side to, er, capitalize on its victory in the Cambridge Controversies.)

Robinson was a punching bag, but she did not need to be red-baited, because she was increasingly willing over time to embrace socialism openly, and she spoke positively of real-world communist regimes.  The entry on Robinson in The Concise Encyclopedia of Economics begins: "She was in the same league as others who received the Nobel Prize; indeed, many economists expected her to win the prize in 1975. Business Week was so sure of it that it published a long article on her before that year’s prize was announced. It did not happen. Was the Swedish Royal Academy biased against Robinson? Many economists believe it was, but not because Robinson was a woman. Rather, her political views became more left wing as she aged, to the point where she admired Mao Zedong’s China and Kim Il Sung’s North Korea. These extreme views should not have affected her chances of getting an award for her intellectual contributions, but they probably did."

Of course, Robinson's substantive work in economics was compatible with modern mixed capitalism, no matter her political views.  Even so, she was the ultimate hippie to punch.  During the Cold War, I suspect that it would have been too scary for American left-leaning economists to say, "We are now going to develop ideas based on the work of Joan Robinson and her colleagues, because they have shown that our theoretical approach is incoherent."  There was a very, very strong reason for economists who still wanted to be invited to cocktail parties in Washington, and to work in the U.S. government, to distance themselves from Robinson.

So, the timidity of orthodox left economists is not just a matter of protecting their self-image, clinging to the belief that they are almost physicists -- and certainly not sociologists.  It is also a matter of seeking power and influence, which is a different sociological explanation for their behavior.  In any case, with the Cold War long since over, it is notable that one of the strongest reasons for American Keynesians to distance themselves from British Keynesianism has long since disappeared, but the habits of mind persist.  And economics, to say nothing of the world, is the worse for it.

Anticipatory Countermobilization

by Michael Dorf

In my latest Verdict column, I ask whether the post-Windsor unanimity of the lower courts (thus far) in striking down SSM bans will have any impact on the SCOTUS when the case eventually makes it there. Spoiler alert: I say the answer is yes. Here I'll discuss a related question about how we got to where we are today.

In an earlier post, I included a citation of a recent article in Law & Social Inquiry by me and my Cornell Government Dep't colleague Sid Tarrow. (Sid is probably the world's leading experts on social movements; it was a great honor to work with him, and to co-teach a seminar with him a few years ago.) The article is titled: Strange Bedfellows: How an Anticipatory Countermovement Brought Same-Sex Marriage into the Public Arena. Because of the journal's policy, the full-text version is behind a paywall, although if you're accessing the blog from a .edu domain, your institution probably has a site license for Wiley Online.  (OpenAthens is another possibility for some. L&SI is not available on Lexis or Westlaw.)  In any event, here's the abstract:

Since the 1980s, social movement scholars have investigated the dynamic of movement/countermovement interaction. Most of these studies posit movements as initiators, with countermovements reacting to their challenges. Yet sometimes a movement supports an agenda in response to a countermovement that engages in what we call “anticipatory countermobilization.” We interviewed ten leading LGBT activists to explore the hypothesis that the LGBT movement was brought to the fight for marriage equality by the anticipatory countermobilization of social conservatives who opposed same-sex marriage before there was a realistic prospect that it would be recognized by the courts or political actors. Our findings reinforce the existing scholarship, but also go beyond it in emphasizing a triangular relationship among social movement organizations, countermovement organizations, and grassroots supporters of same-sex marriage. More broadly, the evidence suggests the need for a more reciprocal understanding of the relations among movements, countermovements, and sociolegal change.

The germ of the article was my observation to Sid some years ago that I thought it was ironic that the anti-SSM groups on the right probably hastened the legalization of SSM because their opposition led the LGBT rights groups to fight for marriage equality. Sid noted that in the literature of social movements it is usually assumed that a movement puts an issue on the public agenda, whereupon a countermovement opposes it. We first wrote up a popular version of the story for CNN and then went about doing the research for the shcolarly paper.

Some of the conceptual work of that paper is devoted to coming up with non-circular definitions of "movements" and "countermovements" so that our thesis can even be evaluated, whereas the bulk of the paper is devoted to compiling evidence (from the existing literature and our own interviews) about what actually happened. We began with the hypothesis that "anticipatory countermobilization" catalyzed the marriage equality movement, and we found substantial evidence for that hypothesis, but as the abstract indicates, we also (somewhat unexpectedly) found that there was also a complicated dynamic between movement activists and the grass roots.

What about anticipatory countermobilization more broadly? The paper concludes by proposing a research agenda for enterprising scholars interested in describing the circumstances in which it is likely to occur. We note that the picture is likely to be quite complex.  Here is what we say:

[O]ur confirmation of the important, though not exclusive, role that anticipatory countermobilization played in leading the LGBT rights movement to champion same-sex marriage led us to wonder whether sociological accounts of movement/countermovement dynamics ought to be revised to include the dynamics of anticipatory countermobilization. At the least, this could be a fertile field for comparative research. We would guess that evidence of anticipatory countermobilization would most likely be found in movements concerning social issues, broadly defined, because such issues tend, by their nature, to be polarizing. For example: 

Did segregationists’ invocation of miscegenation spur civil rights activists to embrace interracial marriage at an earlier point than might otherwise have been expected? 

Did the pro-life movement’s efforts to ban so-called partial-birth abortion lead the pro-choice movement to define the targeted procedures as within the ambit of the abortion right it sought to protect? 

Has the gun rights movement in the United States been led to adopt ever-more absolutist positions by the gun-control countermovement’s backing of measures such as waiting periods and an assault weapons ban? 

We do not wish to prejudge the answers to these and other questions. Anticipatory countermobilization can lead a movement to rally around the cause that the countermovement attacks in anticipation, but it also can lead movement leaders to distinguish their cause from the one under attack. For example, the modesty of the US labor movement in the post–World War II United States relative to Europe’s can be understood as partly a reaction against the strength of US anticommunism: rather than embrace a radical agenda, labor leaders were often at pains to renounce one. Likewise, when opponents of the Equal Rights Amendment warned that it would lead to women being drafted into the military, some women’s rights activists responded by distancing themselves from that position, rather than embracing it.

Put differently, anticipatory countermobilization is real, but accurately predicting it is difficult. We hope that our case study and theorizing inspires further research into these questions.

A Federal Courts Exam Featuring a Racist Client and More

By Michael Dorf

[N.B.  In keeping with my recent tradition, I'm posting the exam I administered to my Federal Courts students this past semester. It was an 8-hour open-book take-home, set in the fictional jurisdiction of Hughes and the 13th Circuit. Submit answers in comments but I won't grade them.]

John “Johnny Eyeballs” Jones was convicted and sentenced to life imprisonment without eligibility for parole by the Hughes Superior Court in October 2013 in connection with his role as the lookout in the gangland murder of three rival drug dealers. He appealed as of right to the Hughes Supreme Court, which affirmed his conviction in January 2014.

Eyeballs, who is white, was sent to the Hughes State Penitentiary, where he was assigned to share a cell with an African American prisoner. Although Eyeballs initially accepted this assignment, in April 2014 he complained to Warden Wilma Warren that the cellmate assignment violated his “religious freedom and right of association.” Eyeballs claimed that he had recently joined the Aryan Brotherhood, a white supremacist prison gang, stating that “so far as I’m concerned, being in the Brotherhood is what God intended for me.”  Warden Warren rejected his complaint in writing on the ground that “the Aryan Brotherhood is not a religion and prisoners have a limited right of freedom of association under both Hughes law and federal law.”

Eyeballs then filed a written grievance with the Prisoner Grievance Review Board (PGRB), as permitted by Hughes law. His grievance read, in its entirety: “Giving me the wrong color cellmate is against my rights as a citizen of Hughes and of America.” Two days later, the PGRB (appointed to a two-year term by the Governor and consisting of a retired Hughes Superior Court judge, a prison social worker, and a deputy attorney general) summarily rejected the grievance in a one-word written order: “Denied.”

Hughes law provides that “any prisoner may appeal an adverse PGRB ruling by filing an original action in Hughes Superior Court within 60 days of the PGRB ruling. Such court may only reverse a PGRB determination on the ground that it rests on one or more clearly erroneous factual findings or an unreasonable determination of one or more questions of law.”

On the same day that the PGRB rejected his grievance, Eyeballs met with his lawyer, Saul Goodman, who informed him that the time for filing a petition for a writ of certiorari in the U.S. Supreme Court to review his conviction and sentence would expire soon, and asking whether Eyeballs wanted Goodman to file such a petition. Eyeballs said no, and also said no to Goodman’s offer of assistance with an appeal of the PGRB ruling to Hughes Superior Court, after Goodman informed Eyeballs that his case would go before the same judge who presided at his trial and sentencing. Eyeballs told Goodman, “there’s no way I’m going to go begging to that [expletive] for anything.”

However, Eyeballs added that he did want Goodman’s help in filing a federal court lawsuit to get him a white cellmate and “to make that warden pay for violating” his rights. Goodman told Eyeballs that he would need to do some research to see whether that was a viable option.

While Goodman was driving back from the prison to his office, Congress enacted the First Amendment Exceptions Act (FAEA). It provides, in pertinent part:

Any person seeking an exception from a general law or policy on the ground that such law or policy infringes his or her First Amendment rights, or his or her federal statutory rights to free exercise of religion, shall be entitled to a determination of eligibility by an administrative law judge in the U.S. Department of Health and Human Services, applying the provisions governing agency adjudications in the Administrative Procedure Act, except that all administrative determinations of law and fact shall be final, notwithstanding any other provision of law. No court of the United States shall have jurisdiction, by appeal or as an original action, to hear any claim eligible for determination under this provision. To the extent that any part or application of this provision is unconstitutional, the remaining parts or applications shall be severable. This law shall take effect immediately.

You are an associate working for Goodman. He tells you that he is considering asserting claims for damages and injunctive relief against Warden Warren under the Hughes Bill of Rights (which has a provision that parallels the language of the federal First Amendment), the federal First Amendment, and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §§ 2000cc-1 et seq. Goodman tasks another associate with researching the strength of these claims on the merits. He asks you for a memo addressing the procedural obstacles to a federal court granting relief for any claims presented on behalf of Eyeballs, whether brought in a habeas petition, a §1983 action, an Ex Parte Young action, or otherwise. Do not address merits questions except insofar as they bear on the procedural questions.

Why Policy Debates Are Like Law School Exams, Not Economic Models

-- Posted by Neil H. Buchanan

I expect this to be my final entry in this series of posts about economic methodology.  (Of course, I cannot guarantee that something new will not move me to return to these issues at some point.)  Readers can find links to the previous five entries in the series via yesterday's post.

Here, I want to explore a core reason why I continue to worry about the tendency among left-leaning mainstream economists (whom I have been referring to as the Orthodox Left, led by Paul Krugman) to think that it does no harm to start with conservative models and tweak them to generate more realistic (and liberal) outcomes.  I say this even though I do sincerely believe, as I have said multiple times, that the Orthodox Left has been almost completely right about nearly everything for the last seven years or so.  The issue, therefore, is not about the recent past, but about lessons for the future.

An analogy might help.  When I was in my first year of law school, I was sitting on the students' side of the lectern for the first time in fifteen years, having spent the intervening time as an economics teaching assistant and then professor.  Unlike most 1L's, I did not think that I needed to worry about exam-taking strategies, and all of that "think like a lawyer" stuff.  My many lawyer friends told me that it was all ultimately about logic and clear thought, which I had reason to think that I could at least fake.  The Fall semester curriculum included the required Constitutional Law course.  What joy!  I loved every minute of the class, the professor and I had great talks outside of class, and everything looked like it was falling into place.  I glanced over a few sample exams, reviewed my notes, and took the exam.

Oops.  When grades for that course were reported, the lowest grade of my academic career stared me in the face.  I went to the professor's office hours, and we went over the exam together.  For each question, I asked: "OK, what did I get wrong?"  Each time, the professor said, "Well, you really didn't get it wrong."  Imagine my confusion.  After some further conversation, it finally became clear to me that on some of the questions I had written the best right answer, while on others I had written an answer that was still right, but I had not written the best right answer.  But that was not the whole story, because the professor explained to me that I was supposed to have explained, for each question, a range of possible approaches, describing the strengths and weaknesses of each, and explaining why the best right answer was truly the best.

Dorf on Law readers who have attended law school are surely now saying, "Well, duh!"  This is what issue-spotter exams are supposed to do.  How could I not know that?  The answer, of course, is that I was purely an economist, and I had not bothered to find out that the educational enterprise in law is different.  When I spoke with my ConLaw professor, I had a difficult time not being sarcastic, because all I could think was, "Wait a minute, I was right on every question, but I didn't get an A+.  How ridiculous is that?"  Economists, especially because so much of their self-worth is tied up in being "scientific," which mostly translates into doing a lot of math, simply look for the right answer.  If you figure that out, then you win.

This is not, however, merely a matter of pedagogical differences.  The law school model is based, in the first instance, on the idea that legal cases might be won on any number of bases.  We "argue in the alternative," discussing different routes to victory for our clients.  Even when the matter is not to be litigated, the logic of the law school approach is that whoever assesses one's arguments might surprise us, accepting what we think are the weaker arguments and never even taking the "right answer" seriously.  (Think, for example, of a slam-dunk promissory estoppel claim.  It would be malpractice to rely solely on such a claim, no matter how strong, given the hostility of many judges to the very existence of the promissory estoppel doctrine.)  The best lawyers develop as many arguments as they can, rather than putting all of their proverbial chips on one spin of the roulette wheel.

This, therefore, brings us back to my first post in this series, where I suggested that it was a mistake for Paul Krugman not to argue against the false claim (based on orthodox production functions) that capital and labor are paid according to their respective levels of productivity.  That conclusion is at the core of orthodoxy, and the orthodox right uses it to say that the government should not intervene in the economy to "tilt" the playing field toward labor, because that would inefficiently undermine the presumptively-correct market outcomes.  Krugman is right that, even if we grant that capital itself is paid fairly, we still have a strong argument that capital should not be owned by so few people (however much it is paid).  But what happens if we lose that argument?  Where is the fallback position?  And is that even the best argument?

Similarly, we can return to an argument repeatedly offered by orthodox conservative economists like Greg Mankiw, who claim that the government should simply enforce the laws and then get out of the way.  Regarding Piketty's blockbuster book, for example, Mankiw wrote: "Like President Obama and others on the left, Piketty wants to spread the wealth around. Another philosophical viewpoint is that it is the government’s job to enforce rules such as contracts and property rights and promote opportunity rather than to achieve a particular distribution of economic outcomes. No amount of economic history will tell you that John Rawls (and Thomas Piketty) offers a better political philosophy than Robert Nozick (and Milton Friedman)."

Contrast this with a quotation from Tom Palley, which I have referenced in earlier posts: "The conventional character of Piketty’s theoretical thinking rears its head in his policy prescriptions. His neoclassical growth framework leads him to focus on taxation as the remedy. There is little attention to issues of economic institutions and structures of economic power because these are not part of the neoclassical framework."  Palley's point is much broader than the specific question about using tax policy, because his argument further suggests that using a neoclassical (orthodox) framework, even from the left-leaning perspective, leaves one ill-equipped to respond to Mankiw.  An analyst who starts from neoclassical premises has accepted the baseline of current laws (which determine the distribution of wealth), and thus cannot ask Mankiw the obvious questions: Where did those rules come from, and why are they beyond question?

On that territory, the left's task is not impossible, of course, but it is much more difficult if one cannot challenge the baseline.  As I put it in a recent post: "Conservative economists (and, to be clear, many liberal economists who buy into the basic framework of modern economics) take for granted the body of laws that allow a modern economy to function.  When criticizing a policy as 'inefficient,' the unstated assumption is that the other laws and policies are the baseline from which we can measure deviations from efficiency."

Again, it is still possible to win arguments with conservatives, even when working from their baselines.  Sometimes, in fact, it is embarrassingly easy, which is what Krugman is talking about when he mocks the half of the orthodox economics profession who cannot even get the basic IS/LM analysis right during a liquidity trap that lasts for years.

Krugman, however, apparently wants to believe that it is always that clear and easy.  When he took a swipe at Jamie Galbraith's critique of Piketty's book, Krugman wrote: "And what’s going on here, I think, is a fairly desperate attempt to claim that the Great Recession and its aftermath somehow prove that Joan Robinson and Nicholas Kaldor were right in the Cambridge controversies of the 1960s."  But Galbraith was most definitely NOT talking about the Great Recession and its aftermath.  He was talking about the debate over the concentration of wealth, which was Piketty's subject, and saying that Piketty's stripped-down orthodox approach gives away that game.  Krugman himself has noted with some amusement that, in the midst of the ongoing damage from the Great Recession, the Big Debate about economics is a death match about long-term trends in wealth concentration.  Debating about Piketty is not debating about short-term macro.

And if we try to fight the inequality debate only with Piketty's tools, which means accepting the production function-based orthodox theory of distribution, then anything that people like Krugman argue will be deemed "inefficient," as a baseline matter.  One can overcome that baseline, but the infrastructure of neoclassical theory is a rather large presumption to rebut.  And given that we actually know that production functions are logically incoherent (thanks to those British Cantabrigians whom Krugman dismisses, especially Robinson and Kaldor), the baseline should definitely not be that, absent a "special case," capital and labor are paid their appropriate shares of national income.

This is a very real debate, with on-the-ground consequences for policy, and the theories that we use will determine the arguments that we can make.  Just because we can see a way to get the "right" answer via one path does not mean that it is wise to give up others, especially when those others pose far fewer hurdles.  This is like law school, not an economic theory course.

Why It Matters If You Start From Bad Assumptions

-- Posted by Neil H. Buchanan

To my surprise and disappointment, my post last Thursday on the IRS non-scandal scandal turned out not to be the last thing I would write on that topic.  Perhaps my new Verdict column today will be.  Even if I do end up returning to that subject, however, I will not do so here.

Instead, I will continue my discussion of the orthodox-versus-heterodox debate in economics that erupted again recently, in response to Thomas Piketty's blockbuster book.  My most recent entry on this topic, last Friday, includes links to my previous four posts in this series.  Readers might also want to read (or re-read) Professor Hockett's recent Dorf on Law post in which he questioned the usefulness of the orthodox/heterodox delineation.

In last Friday's post, I concluded that Paul Krugman, the most prominent member of the orthodox left, had unexpectedly come to sound like the conservative icon Milton Friedman, who argued in essence that the assumptions underlying an economic model did not matter, so long as the model successfully predicted the real world.  I concluded that Krugman was, in short, a modernist.

I was surprised to find myself concluding that Krugman was a methodological Friedmanite, because Krugman has otherwise shown himself to care very much about the assumptions in economic models.  He rightly mocks the "new classical" economists from Chicago for making crazy assumptions, and he complains that austerians and sado-monetarists (usually the same people) have abandoned established economic theory in order to make economics a morality play.  In a blog post last week, he wrote: "But is it really too much to demand a model, or at least a carefully spelled-out mechanism?"

Even more to the point, I noted in an after-hours update to my post last Friday: "About a half hour after I published this post, Paul Krugman posted 'Faith-based Freaks' on his blog.  In that post, he explicitly distanced himself from Milton Friedman's extreme positivism.  In the post below, I had criticized Krugman's defense of his own work against the Heterodox Left, likening it to Friedmanian positivism.  Even if I thought that Krugman reads Dorf on Law (which I don't), the timing was too close for his post to have been written in response  to mine.  In any event, I view it as a good thing that Krugman is trying to distinguish his methodology from Friedman's, and I plan to return to this issue soon."

Krugman is certainly right to resist the idea that economic models are mere black boxes, to be assessed only on the basis of their predictive power.  On the other hand, he has defended his own use of extremely unrealistic assumptions, noting that assumptions are by definition "wrong," but that they can still be practical.  (Economists will often analogize to the physical sciences.  For example, they can point to the virtues of assuming, say, that a lever is frictionless.  An unrealistic assumption to be sure, but a harmless one in most contexts.)  As I wrote in the comments section on last Friday's post, in response to some very good comments from readers, it is a struggle to come up with an explanation for Krugman's approach that does not boil down to: "Trust me, I know what I'm doing."

Krugman's rejection of the heterodox left then falls into two categories: (1) Everything useful that they say can be (and has been) brought into good orthodox left models.  (In a sense, this is Professor Hockett's point as well.)  (2) The heterodox guys are obsessed with things that are simply not useful or relevant.  Specifically, they need to get over the Cambridge Controversies, because proving definitively that production functions are incoherent (as the British side did) does not mean that production functions cannot be usefully employed (no pun intended) to improve economic policy.  Frictionless levers are not real either, guys!

To a point, the heterodox guys agree.  Galbraith's review of Piketty's book, as I noted in one of my earlier posts, agrees that one can make Piketty's (actually quite narrow) point about wealth concentration without getting into details about measuring capital correctly, or any of the other points debated in the Cambridge Controversies.  Instead, the heterodox argue that the simplifying assumptions that one makes in one context are harmful in another.  And if those assumptions become a matter of habit, the consequences can potentially be disastrous.

Krugman has argued repeatedly that the economists who supported non-Keynesian policies were simply dishonest.  But maybe some of them got it wrong because they made a mistake.  It is hardly a radical claim to say that one's starting point can increase the likelihood of making mistakes.  And it is not just a matter of making mistakes.  Argumentative power derives from the underlying assumptions as well.  For example, in a comment on one of my earlier posts, Professor Dorf suggested as an example the debate over the minimum wage, where it is possible to start from orthodox foundations and make enough correct analytical moves to "get it right," but by giving ground up front, the likelihood of losing the debate increases.  This obviously carries over to the debate over providing extended unemployment benefits, but with even more powerful macroeconomic consequences.

And this is where the Cambridge Controversies come back into the story.  As I described last week, one of the policy take-aways of that debate is that there is no theoretical connection between interest rates and business investment (and ultimately GDP).  The models that Krugman describes as "harmlessly simplified" generally assume, contra reality, that reducing interest rates increases businesses' desire to own "capital."  If we use the orthodox models, we then are more likely to rely on monetary policy to reduce interest rates; and we are more likely to worry about crowding out of investment from expansionary fiscal policy.

Now, it turns out that the orthodox models can "get it right" in the sense that interest rate cuts can expand the housing sector, which expands the economy, which then feeds back and expands business investment.  So what's the harm?  The harm is that, when one listens to policy discussions among orthodox economists, they talk as if the interest rate cuts directly raise business investment and productivity.  But if the effect is indirect, and if some of the expansionary effect is through the increased production of single-family homes rather than productive capital, then the policy prescription is much more of a mixed bag thatn we generally acknowledge.

Again, this does not mean that one cannot get to the right answer by being careful enough and honest enough.  I admire Krugman's work greatly, in large part because he takes textbook Keynesianism and gets the policy analysis right almost all of the time.  But the suggestion that the concern about the Cambridge Controversies, or other things that the heterodox care about, is somehow an annoying side show is simply not defensible.

Of Execution and Slaughter

by Sherry F. Colb

In my Verdict column for this week, I discuss the parallels between the concepts, respectively, of "humane execution" and "humane slaughter," in the wake of the botched execution of Clayton Lockett in Oklahoma last month.  In the column, I take up the question whether there is anything inherently paradoxical about the idea of "humane" killing and, if not, whether there is nonetheless tension inherent in executing a prisoner or slaughtering an animal in a purportedly "humane" way.  In this post, I want to discuss an important difference between the execution of prisoners and the slaughter of animals, a difference that has less to do with humaneness than with the underlying meaning of each practice and what meaning can teach us about the two practices.

Let me begin with a story.  When I was a law clerk for Justice Blackmun in the 1990's, I recall a debate that broke out over e-mail between a number of law clerks from the different chambers.  As I recall, the Justices were considering an application for a stay of execution from a petitioner who was challenging the particular method by which he was to be executed as cruel and unusual punishment under the Eighth Amendment.  I do not believe that the challenge went anywhere at the time, but one of Justice O'Connor's clerks emailed all of us, marveling at the fact that we humanely kill dogs and cats at shelters all the time but seem unwilling or unable to extend the same mercy to an actual human being.

I was not a vegan yet at the time.  Indeed, other than loving dogs in general and my dog Scooter in particular, I had not remotely awakened to the contribution that my own daily consumption habits to the infliction of suffering and death on animals.  Yet I was nonetheless offended by what this law clerk had written about the purportedly "humane" killing of mere "animals" in shelters.  I should add here, before I say what my response to the email was, that I did not (and do not) support the death penalty.  Still, this is what I said (paraphrased, from memory):

"I agree that it is wrong to inflict pain on the condemned during an execution.  I am, however, offended by your suggestion that the condemned is necessarily entitled to a more humane death than the cats and dogs who die at animal shelters.  The condemned prisoner has been convicted beyond a reasonable doubt of murdering another human being and of doing so in a particularly cruel and sadistic fashion, a fashion which -- by the way (I was snarky back then) -- was far more lacking in humane considerations than anything that the State of Texas has planned for the petitioner.  By contrast, the dogs and cats who live in cages at animal shelters waiting to be killed have done nothing wrong and are utterly innocent creatures.  They deserve neither punishment nor death; they are dying only because no one wants to adopt them. I accordingly do not appreciate the implication in your email that there could no less deserving recipient of mercy than a mere "animal" in a shelter.

If I were to converse with the 26-year-old author of this email now, I would ask her why, given the position she takes on the killing of animals, she continues to consume the flesh and secretions of the sentient beings who are as innocent as dogs and cats and who die in far more gruesome ways at slaughterhouses, not because they are guilty of any wrongdoing, but because well-meaning people like [me at age 26] are largely oblivious of how their own demand for such products keeps the farms and slaughterhouses running.  I would encourage her to put her money where her mouth is and become vegan (and I would offer to support her in that process, as I have done for others in her shoes).

As a separate point, I think the exchange between the younger me and the other law clerk inadvertently highlights an important difference between execution and animal slaughter:  execution assumes about humans what animal slaughter denies about animals.  Executing someone for murder, in one sense, shows a profound respect for the human who is executed (and for humans more generally).  This may seem counter-intuitive, but we visit the death penalty upon a prisoner in recognition of the fact that he autonomously chose to act in a manner that made him deserving of death.  Indeed, some retributivists have argued that when an autonomous person kills another (without justification or excuse), then we owe it to that person to take his life.  To do otherwise would be to deny him the just consequences of his own choice.

One need not favor the death penalty, moreover, to understand that just punishment inherently recognizes the capacities of the person being punished to have done otherwise, to have chosen to do what is right.  By choosing to do what is wrong instead, this person selected his path, and that path rightly includes a reckoning, whether through capital punishment, imprisonment, shaming, or some other modality of penalty.

We see the truth of this observation in Supreme Court decisions that prohibit the execution of some classes of human individuals, in recognition of those individuals' lack of capacity.  People who are intellectually disabled, for example, may not be executed for their crimes, under Atkins v. Virginia,  because the Court regards them as categorically incapable of the sort of culpability that characterizes someone who can be deserving of the death penalty.  Similarly, a person who has become incompetent to be executed, in virtue of an inability to understand that he is being killed or why he is being killed, may not be executed either, as a matter of constitutional law, under Ford v. Wainwright.  Someone with these diminished capacities is not "qualified" for a penalty such as death, which requires a moral agent with a baseline level of cognitive functioning.  We do not, moreover, look at humans as a group to determine who may be executed for his crimes; we look very specifically at the individual who is to be killed and ask whether he in particular had (at the time of his crime) and has (now) what it takes.

Animal slaughter is very different.  The animals who are trucked to slaughterhouses to have their throats cut to satisfy the demand for flesh and other animal products are indisputably innocent of any wrongdoing.  They are innocent as individuals and as a group.  Indeed, their innocence is part of what people argue makes them appropriate for slaughter as "mere animals."  We do not look at the particular individuals (who number in the tens of billions) facing terror, pain, and death, and ask questions about what he or she is thinking or feeling relative to his or her fate.  On the contrary, we dismiss the individuality of animals and refer, as though to an undifferentiated substance, to "chicken," "beef," "pork," and "fish," rather than to chickens, cows, pigs, and fishes.  We do so in part because, we argue, these creatures purportedly lack some allegedly significant cognitive ability that would qualify them to be free of the indiscriminate violence they face at human hands. Unlike individual humans on trial for their lives, animals are classified by species DNA (as "not human") and accordingly dispatched instrumentally, for human consumption.

To say this differently, we circumscribe the death penalty -- in the United States -- and limit it to those individuals who are, among other things, (1) guilty of a heinous crime, (2) capable of understanding what is happening to them and why, and (3) capable, as a chronological and developmental matter, of intellectual performance that exceeds that of the population of humans who are intellectually disabled.  Thus, despite the moral difficulties that many of us (including me) have with the death penalty, it does make an effort to attend to a person's individuality and capacity in a way that shows respect for autonomy, life, and the abilities that typify "normal" humans who make the choice to do the wrong thing.  By contrast, we allow ourselves the "liberty" to slaughter all manner of living beings who think, who suffer, and bond with one another, and who experience fear just as we do, precisely because they lack the sorts of abilities that are a prerequisite to eligibility for the death penalty among humans.

This difference tells us something about an inconsistency in our thinking about "capacities."  When it comes to humans, a diminished capacity leads us to grant mercy and care, as a matter of law and -- for many of us -- as a matter of how we interact with people in the world.  We rightly regard as bullies those people who mock or otherwise inflict suffering on those humans among us who are intellectually disabled or otherwise lack some of the capacities that supposedly "raise" our species above all others in the world.  But when asked why we permit ourselves to cause great suffering and harm to animals, we say it is because "they" lack some special trait that distinguishes "us" from "them," a trait that is typically identified with our ability to use language (which many humans lack), our ability to make a life plan (which many humans lack), or some similar (and similarly irrelevant) capacity that those lucky among us have (for at least part of our lives).  Our mercy seems, in other words, to go in precisely opposite directions, depending on whether we are dealing with homo sapiens (where incapacity and vulnerability trigger mercy) or with our earthling relatives of other species (where incapacity and vulnerability trigger contempt, exploitation, and moral demotion)..

I believe we can learn something important from the moral growth that we have undergone when it comes to our thinking about the death penalty.  We correctly understand that rather than justifying cruelty and bullying, a human's lack of capacities rightly entitles that human to care and compassion and to freedom from violence and bullying.  We must come to understand that the same is true for the other animals.  I do not believe that other animals are "dumb," but to the extent that they lack some the abilities that have given humans power to decide their (and our own) fate, this vulnerability should lead us to grant them mercy and freedom from the extreme violence that is so pervasive in the form of cheeseburgers, fish patties, egg omelettes, and dairy yogurt.

Another point I would make on the issue of executions is that a major component of why many people have come to oppose the death penalty is the fact that people who are sentenced to death and executed are generally not, in fact, blessed with the same capacities and privileges that the rest of the population enjoys. Typically, such people have grown up with severe disadvantages, have often been abused themselves in violent environments, and are vulnerable in a variety of other ways.  In other words, the sort of autonomy that grounds our willingness to execute a person for his crime may often be lacking in the people who find themselves on death row, not because they are necessarily intellectually disabled (although quite a few are, and fights abound about who gets to "qualify" as intellectually disabled under Atkins) but because they may suffer from mental disorders (as a disproportionate number of prisoners generally do, relative to the rest of the population) short of insanity and of incapacity to be executed and may, on the whole, fall short of the image of the person who has freely chosen to commit a vicious crime on which a just system of punishment is based.

Some opponents of the death penalty have also documented and cited the racial disparities in sentencing that infect the death penalty and suggest that rather than showing respect for autonomous decisions-making, the death penalty may instantiate the sort of violence that once typified slavery and the post-civil-war era of lynchings:  violence against vulnerable and defenseless individuals who never really had a chance.  Whether one accepts this characterization of the criminal justice system or the death penalty, though, it is clear that what drives many objections to executions has a lot to do with the vulnerability of the death row population and the consequent unfairness of targeting such individuals for violence.  This objection can be made as effectively against the wholesale captivity, breeding, and slaughter that service consumer demand for animal products taken from innocent, vulnerable, and doomed domesticated animals.

In the Footsteps of Dog Vomit, Monkey Pus, and Painful Rectal Itch

by Michael Dorf

A recent article in The New Yorker alerted me to what may be the worst-named product since the original Saturday Night Live cast gave us (fake) jams with names like Dog Vomit, Monkey Pus, and Painful Rectal Itch. As in, "with a name like Painful Rectal Itch you gotta bet that it’s great jam."

Unlike Painful Rectal Itch jam, this new food product is real. And it's called . . . wait for it . . . Soylent. That's right, Soylent, as in "SOYLENT GREEN IS PEOPLE!" That's your cue, Charlton.



Even stranger is the fact that the people behind (but not in!) Soylent did not accidentally give their product a name that evokes cannibalism. They did so deliberately, or at least knowingly. Go to the Soylent home page and there, directly under the heading "What's Soylent Made Of?" but before the ingredients info, you will find the following text: "Hint: It's not people." So Soylent's creators are aware of the, uhm, likelihood of confusion, and they've chosen to run with it. Elsewhere on the website, one learns that the name Soylent was taken from the novel Make Room! Make Room!--on which the film Soylent Green was based. To be sure, in the novel, Soylent is not made from people, but I'm guessing more people are familiar with the film than with the novel.

So much for marketing. What about the product itself? Here things get even weirder. As profiled in The New Yorker story and on its own website, Soylent aims to free us of the hassle and expense of eating. The first image on the homepage shows a 20-something pouring a blender of Soylent into a glass, with the caption "What if you never had to worry about food again?". That would be a good question if addressed to poor people in the developing world or here in the U.S. who were worried about food security--i.e., worried about food in the sense that they were worried about being able to grow or buy enough food to survive. But while cost-savings is one of the ostensible benefits of Soylent, it appears to be chiefly marketed to busy students and professionals. "What if you never had to worry about food again?" turns out to mean "What if you never had to waste time on that horrible process of finding, preparing, and, worst of all, eating food?"

In other words, the Soylent vision of eating (non-Soylent foods) is very much like Larry David's view of going to the toilet. In an episode of Curb Your Enthusiasm, Larry dies and goes to heaven. There he is thrilled to discover that no matter how much he eats or drinks, he doesn't feel the urge to, or need to, relieve himself. He exclaims in his inimitable way, "pretty nice." So too, the Soylent people would have us believe, with eating.

Now, to be fair, Soylent's creator, Robert Rhinehart, says that Soylent can be used as a staple source of nutrition, with other (solid, etc) food used as a kind of entertainment. And I concede that there are obviously some people who regard much of their eating as a chore. If there weren't, there would be no market at all for Soylent, and there evidently is a market for it.

But I have a very hard time imagining that Soylent will gain more than a niche following for the obvious reason that most people actually like to eat, and like to eat with some variety. I say that as someone who has just about the exact same thing for breakfast every day -- a pot of green tea and a smoothie made from coconut water, kale, berries, banana, apple, orange, lime, walnuts, dates, chia seeds, and flax seeds. Given the time and money I could save by just pouring the Soylent package into a blender, I should be the target audience for Soylent.  And if I thought Soylent were as nutritious and tasty as my smoothie, I might well switch. But I'm not remotely tempted.

Why not? For starters, the feedback on Soylent ranges from barely drinkable to not bad, whereas my smoothie is really good.  I suppose I might like Soylent a whole lot more than other people do, but I see no reason to think that I would.

What about nutrition?  The nutritional philosophy behind Soylent is that foods are essentially delivery devices for nutrients.  That's partly right: if you don't get enough vitamin C you get scurvy; if you don't get enough vitamin D, you get rickets; etc.  But most foods (and especially fruits and vegetables) in their natural state contain so many "micronutrients" that you're better off just eating the whole foods than trying to isolate and consume the big-name nutrients.

For example, the first ingredient listed in Soylent is maltodextrin, a synthetic polysaccharide made from corn or wheat. It's not necessarily bad for you, but calories you get from maltodextrin do less other good for you than, say, calories derived from fruits, vegetables, or whole grains themselves. Likewise for the next two ingredients: rice protein and oat flour. There then follows a list of mostly unpronounceable chemicals which may well be nutrients but are only nutrients. They include at least two that may be affirmatively harmful: excess copper and zinc have both been linked to Alzheimer's, although oddly, there is some evidence that deficiencies of these metals are also linked to Alzheimer's. Given the uncertainty and the fact that Americans get plenty of copper from the water they drink (which travels through copper pipes), it's hardly clear that an ideal food should contain added copper and zinc.

Of course, the nutrition question that should be asked is: compared to what? I have little doubt that a diet of 100% or even 50% Solyent would be an improvement for people eating the Standard American Diet (SAD). And the environmental impact of Soylent is much milder than the impact of the SAD; plus, Soylent powder is vegan, which greatly reduces harm to animals, as well as the environment, relative to animal agriculture. (Soylent consists of a powder plus an oil mixture; the stock version of the latter contains fish oil; the Soylent website helpfully instructs vegans and vegetarians to buy only the powder and substitute their own mix, using flaxseed oil).

So . . . where does that leave me? I guess I end up hoping that Soylent sells like hotcakes, even though I'm doubtful that it will. I suppose they could start marketing it with the tag line "with a name like Soylent, it's got to be good."

The Story Behind the Story Behind the Case--And a Chance to Meet the Prop 8 Plaintiffs

by Michael Dorf

As the editor of Constitutional Law Stories, one of the books in the Foundation Press series that tell the stories behind the leading cases of various legal fields, I know that recitations of the facts in appellate opinions usually omit important social, economic, political, and personal background information. They do so for a reason of course: The law is meant to be impartial, doing equal justice to the rich and poor, the famous and the anonymous, the wicked and the good; and so, concentrating too much on the actual facts of a case can get in the way of deciding that case according to the law; facts are thus abstracted and stylized. The Law Stories project aims to restore the missing context that the law's "abstractification" has removed.

One reason for that restoration of the missing background is knowledge for its own sake. It's interesting to know what really happened before a case reached the Supreme Court, or after it left. Law Stories is non-instrumentally valuable in the way that history more generally is non-instrumentally valuable.

The background stories of the people in the cases can also be used to make some larger point. For example, Norma McCorvey's particular story was mostly irrelevant in Roe v. Wade, and to the extent that it was reported, it was reported inaccurately. Later, when McCorvey (who was Jane Roe) changed her views, she became a particularly effective spokesperson for the pro-life movement. In principle, it shouldn't have mattered that McCorvey changed her views about abortion. Undoubtedly lots of people change their views each year, in either direction. Nonetheless, McCorvey was a powerful symbol for the pro-life movement, and has become still more powerful in recent years as that movement has promoted the idea of "abortion regret syndrome." If even Jane Roe herself now regrets having had an abortion, the argument goes, then abortion is not a valuable right for women, but a victimization of women.  (Just to be clear, I'm not endorsing that view; I'm merely noting how McCorvey's own story provides some support for it.)

Another, somewhat more complex, example is the story behind Lawrence v. Texas.  Speaking for the Court, Justice Kennedy wrote there: "When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring." That's a fine sentiment, but it's certainly false. A one-night stand or a visit to a prostitute is an "overt expression" of "sexuality" but it's not an element of any "more enduring" "personal bond." And Dale Carpenter's book Flagrant Conduct shows that the protagonists of Lawrence were hardly a gay version of Ozzie and Harriet. So why did Justice Kennedy say what he did?

Partly we have here a simple gilding of the lily. A robust case can be made for sexual freedom outside of committed relationships. After all, a state that enforces sexual morality is likely to have totalitarian features. But an even more robust case can be made for sexual freedom inside of committed relationhsips. And so by portraying the encounter at the heart of Lawrence as "but one element in a personal bond that is more enduring", Justice Kennedy broadened the audience for his argument.

But in doing so, he reinforced a transformation of the LGBT rights movement. The modern gay liberation movement had its roots in the sexual revolution--a revolt against traditional sexual morality. A number of developments led the movement away from those roots. Among these, the HIV/AIDS epidemic of the 1980s was important in at least two ways: First, it made anonymous, promiscuous sex dangerous and thus less attractive to gay and straight people alike; second, as a population of mostly gay men faced decline and death from HIV/AIDS, they--and their committed partners--became the new, sympathetic, face of the gay rights movement: a movement that sought rights to next-of-kin status for hospital visits, insurance policies, and inheritance. What had begun in large part as a movement for a right to opt out of bourgeois sexuality had mostly become a movement for the right to share in it.

Many people in the LGBT rights movement, and especially in the academy, remain wary of what they regard as the heteronormativity of the movement's focus on marriage equality. But in mainstream society, that focus has become almost single-minded. Even when movement actors look beyond marriage, they take up (or resume the fight for) other mainstream causes that emphasize how much LGBT persons are similar to everyone else--like the enactment of legislation to expand federal workplace antidiscrimination law to cover sexual orientation and gender identity.

That story--LGBT people are just like straight people--is not just a story, of couse. For although Lawrence may not have been about a gay Ozzie and Harriet, United States v. Windsor kind of was. Justice Kennedy did not need to gloss the facts to make a love story out of the lives of Thea Spyer and Edith Windsor. Nor would he have had a hard job had the Court decided the merits of the Prop 8 case, Hollingsworth v. Perry. If you don't believe me, watch the video of a discussion last month at Cornell Law School, moderated by me and featuring one of the two lead couples in the Perry case, Kris Perry and Sandy Stier. You will see what ideal plaintiffs they were.



The discussion shown above occurred shortly after the release of Jo Becker's controversial book, Forcing the Spring. The controversy over Becker's book mostly concerns the credit she gives to the team behind the Perry litigation and the credit she fails to give to others who paved the way (and in some cases actually won on the merits).  For the most biting critique, see Andrew Sullivan here, here, and here.  For what it's worth, I mostly agree with Sullivan and the other critics. In a new article in Law & Social Inquiry, political scientist Sid Tarrow and I discuss the much broader movement for SSM over the last several decades (more about that article next week); it would not have occurred to us to place the Perry litigation at the center of that story.

Having said that, I should hasten to add that the controversy over who deserves how much credit for the progress that has been made towards marriage equality in no way undermines the very compelling personal story of Kris and Sandy. But the controversy does have implications for how we think about law stories.

The story behind a case will typically be the story of individuals who, deliberately or not, come to stand in for a larger set of concerns--either accurately, as in Windsor and Perry, or somewhat fictionally, as in Lawrence.  Knowing the story behind the case will provide insight into how the lawyers and judges framed an abstract issue out of concrete circumstances.

But to understand the larger forces that shape the law, one needs to know more than the story of the particular litigants and lawyers. One needs to know the story behind the story behind the case. If one thinks, as I do, that in the long run, social and political movements and trends play a larger role in shaping the law than do three-part doctrinal tests or the fortuity of which case wins the race to the courthouse, then one wants to know about how those larger forces interact with the legal system. That's why the stories I collected in Constitutional Law Stories mostly aim to tell the latter sort of tale, using the stories of the particular litigants as illustrative or exemplary.

Some Policy Stakes in the Left-on-Left Brawl

Update: About a half hour after I published this post, Paul Krugman posted "Faith-based Freaks" on his blog.  In that post, he explicitly distanced himself from Milton Friedman's extreme positivism.  In the post below, I had criticized Krugman's defense of his own work against the Heterodox Left, likening it to Friedmanian positivism.  Even if I thought that Krugman reads Dorf on Law (which I don't), the timing was too close for his post to have been written in response to mine.  In any event, I view it as a good thing that Krugman is trying to distinguish his methodology from Friedman's, and I plan to return to this issue soon.


-- Posted by Neil H. Buchanan

Over the last few weeks, I have written a series of posts about a "left-on-left" debate that recently re-emerged among economists.  (See here, here, here, and here.)  I am calling the two warring camps the "orthodox left," which includes liberal economists who are in the top levels of academia and who (therefore) rotate into and out of jobs in Washington, and the "heterodox left," which includes liberal economists whose theoretical approach has -- largely at the behest of the orthodox left -- resulted in their banishment from the top levels of academic economics, and therefore has made them all but invisible in real-world policy debates.  For those who want to put faces to labels, the "captain" of the orthodox left is Paul Krugman, and his heterodox counterpart is arguably James K. Galbraith.  (Revealingly, although he is a top-flight economist, Galbraith's academic position is not in an economics department.)

The bulk of my analysis in my first three posts was actually not focused on the substance of the theoretical or policy disagreements between the two camps.  I was, instead, describing the "sociology of economics," which is a deliberate tweak to the orthodox left, for whom the worst possible insult is to be called "sociological."  (Sociological then translates into non-rigorous, anecdotal, bad at math, and other horrible slights.)  Notwithstanding the irony, the point is that there is nothing to be gained by the orthodox left when it insults and marginalizes the heterodox left, because there is no chance that the orthodox will lose anything that they might care about, in terms of prestige and power, by taking the arguments of the heterodox seriously.  Yet we regularly see nasty snark directed from the orthodox toward the heterodox.

In an upcoming post, I will return to the question of why the orthodox are so obnoxious in their attacks on the heterodox.  I do think that there is more to it than the commitment to particular methodologies that I described in my third post in this series.  Be that as it may, today I want to pick up where my most recent post left off.  There, I had begun to explain why the left-on-left debate matters to real people.  I summarized a famous debate in the 1960's called the Cambridge Controversies, which was remarkable for its definitive outcome.  While most academic debates seem never to change anyone's mind, the Cambridge Controversies saw the Orthodox Left concede defeat to the Heterodox Left.  Paul Samuelson said, "Our argument does not work," and stated without equivocation that the British side had won.

Why does it matter which side won that obscure debate?  And more importantly, why does it matter that the side that lost soon simply acted as if it had won?  In short, where is the real-world impact that I promised in my previous post?  What is the on-the-ground difference between the two sides?  As I have noted, after all, the two sides often are in near-complete agreement about economic policy in the real world.  Regular readers of this blog certainly cannot have missed the fact that I admire Krugman's work greatly, and that I cite him frequently in my writing.  Yet I think that he is on the wrong side of this debate, and I think that he does damage by being gratuitously unpleasant in his dealings with the heterodox left.

As I described last Friday, the question at issue in the Cambridge Controversies was whether there is a meaningful way to measure "capital," such that it would be possible to derive "production functions" to describe how the economy works.  This might seem abstract, but it is quite powerful.  If it were possible to measure a variable, K, that accurately measured the sum total of all buildings, machines, transportation networks, utilities, and so on, then we could put that number into an equation that, along with the labor inputs in the economy, would determine the GDP of the economy.  If we then wanted to know how to make the economy grow over time, then we would know that we need either to put labor and capital together in more productive ways (that is, to improve technology, and thus to change the equation itself), or to use more labor, or to use "more capital."

I put scare quotes around "more capital" for a specific reason.  As I described last Friday, the winning side in the Cambridge Controversies showed that there is no consistent way to measure an economy's stock of capital.  But if that is not possible, then it is axiomatically impossible to say that the economy is using "more capital" or "less capital" today than yesterday.  So, if the lesson from the losing side in the debate includes the claim that we can make the economy grow by making it use "more capital," but we do not know when we have more capital or less capital, then there is a serious problem.

And how does this translate into policy?  One of the standard building blocks in orthodox economics (left and right) is that prices determine demand.  And since interest rates are said merely to be the "price of capital," then it must be true that higher interest rates are associated with demand for less capital, and lower interest rates are associated with demand for more capital.  This is what we hear in policy debates all the time: The Fed lowers interest rates, and this makes businesses buy more capital, which makes the economy grow in both the short-run and the long-run.

What does it do to that theory when we know that there is no meaningful way to measure capital in the first place?  One possibility is to say, "Well, I don't really need to rely on a broadly-consistent general theory, as long as my models work."  After all, one can draw rough analogies to physics and mechanics and point out that the day-to-day practical applications of physical "laws" are essentially unaffected by the emergence of the theory of relativity, quantum mechanics, or whatever.  Loose analogies to the "hard sciences" are, of course, a favorite move among defensively rigor-obsessed economists.

Krugman, for example, defends his use of right-orthodox models by saying, in essence, "Well, of course these assumptions are wrong.  That's what assumptions are supposed to be, because they are simplifications of reality.  I just use these assumptions to focus on what I need to focus on, to answer the question at hand."  He is, somewhat ironically, relying on Joan Robinson's defense of modeling (which I described in my post last Friday), but twists that into saying that he does not care about the rightness or wrongness of his assumptions.  He can assume that people are hyper-rational, even though he knows that they are anything but, just as he can assume that capital can be measured coherently, even though Robinson and her team proved otherwise.

But if we replace what we know as a theoretical matter, which is that capital cannot be measured coherently, with convenient short-hand quasi-theories that are known to be wrong, then the only way to know if the "incorrect theory" is nonetheless good enough for down-and-dirty policy making is by knowing in advance what the answers should be.  Krugman is confident that he can do so.  But this is where things become interesting, because Krugman here is relying on an argument advanced by Milton Friedman, the supposed bete noire of the orthodox left, who remains an icon of American and British conservatives, and who argued vigorously against government intervention to improve the economy.

Friedman was the consummate "modernist," arguing that his models do not need to make sense as long as they work.  In some of his early work, he claimed to have found an "empirical regularity," on which he based a theory about monetary policy.  When asked to defend why that empirical regularity would not change, or in other words, to offer a theoretical explanation that should give people confidence that the empirical regularity was not mere happenstance, the best he could do was to offer a theory that relied upon indefensible assumptions about the way people really think.  Friedman defended himself by drawing an analogy to an expert billiards player, who consciously knows nothing about the mechanics of rotation, force, momentum, drag, and so on, but who makes his shots as if he understands those things.  It does not matter, Friedman said, what the man is thinking, so long as he achieves his goal.

As I mentioned in an earlier post, this theory has been severely attacked by post-modernists.  Among many other things, Friedman makes his task far too easy by analogizing to a situation in which everyone knows how to observe success.  What happens if there is debate over what counts as success in the first place?  And more to the current point, what if the billiards table warps, but the player is not able to notice or adjust to the new contours of the game?  We can simply assume that he is good enough to do that, one supposes, but since Friedman says that we are not supposed to care what he thinks or how he does what he does, we can only rely on his expertise in the future if we assume not just that he is good at playing on today's table, but that he can adapt to all plausible tables on which the game might be played in the future.

To bring this back to economic policy in today's debates, I repeat that I generally agree with the Orthodox Left, mostly because the current situation is utterly lacking in nuance.  When things are this bad for this long, and the other side is so consistently wrong, then it should not surprise anyone that Krugman can rightly claim a string of victories.  Success and failure are easy to measure, and Krugman plays billiards on the current table quite well.

What "hangs up the heterodox" (to adapt Krugman's dismissive phrase), as Tom Palley's original post kicking off this debate so well described, is the longer-term strategy for improving economic outcomes.  When people like Krugman (and Piketty) adopt an orthodox approach, including an explicit rejection of the correct outcome of the Cambridge Controversies -- and, per Palley, a willful ignorance about economic and social institutions -- then we can no longer be sure that the Orthodox Left will push us toward success.  At the very least, there should be a vigorous debate about these things, rather than the continued marginalization of the one group of people who not only are right about current policy but who do not rely on a theory that they know to be wrong.

There is definitely more to come on these topics.

A Year Later, Still No Scandal at the IRS, But Plenty of Wasted Time and Effort (and Money)

-- Posted by Neil H. Buchanan

Last year at this time, while I was on a gig as a visiting professor in Austria, news broke back home about a HUGE SCANDAL involving the IRS.  Using the power of the interwebs, I closely followed the media circus, and within a week of the emergence of the story, it was already blindingly obvious that there was nothing especially noteworthy about the whole affair.

My first blog post about the non-scandal scandal was published a year ago tomorrow.  This was quickly followed by a Verdict column, with an accompanying Dorf on Law post.  Barely a month after the story broke, I was back in the U.S., and the idea that there was a scandal was essentially over, as I summarized in another Verdict column, and a Dorf on Law post carrying the title: "The IRS Non-Scandal Scandal Collapses on Itself."

But House Republicans simply would not let go.  Even today, incredibly, they are still trying to drag out the non-scandal scandal.  As reluctant as I am to write anything further about this completely contrived political show trial, at this one-year mark I decided to write the equivalent of the old Saturday Night Live fake-news joke: "Generalissimo Francisco Franco is Still Dead."

A quick review might be helpful.  The IRS had been using non-lawyer employees in its Cincinnati office to review applications from groups who requested special nonprofit status as Section 501(c)(4) organizations.  To qualify for that status, the law requires that such a group be "operated exclusively for the promotion of social welfare."  The IRS had long interpreted "exclusively" to mean that less than 50% of a group's funds be spent on political activities, meaning that the law had already been stretched in a very generous manner, to allow more organizations to qualify as 501(c)(4)'s than would have been able to qualify under a natural reading of the law.

The suspicion that something scandalous might have been happening at the IRS broke into the news when an inspector general's report said that the Cincinnati staffers had used search terms like "tea party" and "patriot" as part of their triage operation.  We found out later that words like "progressive" and "occupy" had also been used, but by that point, it had become common for news outlets to say that "conservative groups had been targeted by the IRS," and similarly explosive descriptions.

Even though the initial report said that this was entirely a matter of errors by low-level employees, and that the mid-level IRS lawyer who found out about it had fixed the problem, the scandal-mongers decided that this was all a big plot by the IRS, as directly ordered by the Obama Administration, to punish Tea Party groups.  That there was no meaningful consequence, and no political advantage for President Obama, for any group to receive extra scrutiny in the 501(c)(4) process was also brushed aside.

In the immediate aftermath of the screaming headlines, the Obama people forced the IRS's acting commissioner to resign, after which they ran for the hills.  As I noted at the time, late-night comedians acted as if something big was going on, and even some liberal groups, like The Progressive magazine, strangely jumped on the scandal bandwagon.

As I noted above, however, it was obvious by mid-June that there was nothing to the story.  What has happened during the past year?  The IRS has been forced to respond to endless Republican demands for documents and testimony, using staff time and agency resources at a total estimated cost of over $14 million so far -- all in an environment in which a bipartisan budget deal was cutting over $500 million from the IRS's budget (almost a 5 percent cut, even as the agency's responsibilities are being increased).

The Republicans' claim all along has been that an investigation is necessary, to make sure that there really is nothing more to this story.  Of course, the people who have been most vocal about the non-scandal scandal have said all along that they simply will not believe that a lack of evidence implies a lack of culpability.  Despite their tenacity,  even a Fox News show last month found Chris Wallace telling a House Republican that the whole thing adds up to nothing.

The Republican diehards' last gasp is to try to force testimony from Lois Lerner, the long-since-fired mid-level IRS employee who initially reported what had happened in Cincinnati.  When Wallace asked if there was "any evidence, after a year of investigation," that this is an actual scandal, his Republican guest's response was that, no, there is no evidence, but that is because Lerner refuses to talk.  The House then voted along party lines to hold Lerner in contempt, with Speaker Boehner saying that the House would refer the contempt charge to Attorney General Eric Holder.  And of course, when Holder fails to drag Lerner in chains before the House of Representatives, the Speaker can then insinuate that the Obama people are protecting their hatchet woman.

The problem is that we have never been told why anyone thinks that Lerner has information that could shed light on potential evil-doings by the White House.  Lerner took the Fifth Amendment last year, after Boehner and others talked about charging her criminally.  As Wallace pointed out, the House could grant her immunity, and she could sing like a bird.  The problem, from the Republicans' standpoint, is that she almost certainly has no song to sing.

Investigators tend to focus on potential witnesses on the basis of corroborating evidence, or on leads that suggest that a witness could provide probative information.  Typically, one will hear prosecutors say things like, "We believe that Big Mike will be able to testify as to the location of the bodies that his gang dismembered and buried."  Here, House Republicans are simply saying, "We don't know what she hasn't told us, so we're going to keep asking."

Happily, at this point only the House Republicans and their most committed activists seem to care.  Certainly, continuing to victimize Lois Lerner is not going to get the attention of the media or the public at large.  Republicans keep hoping that something, anything, will turn up, but they are getting even less traction on this story than they are getting on the insane Benghazi investigation, where Republicans last week considered it hugely important to release an email showing that the Obama Administration had discussed how best to present the story on the Sunday talk shows.  (Gasp!)

Republicans keep saying that they just need time to get to the bottom of the story.  But as Fox's Wallace put it: "You’ve had a year sir.  You’ve had a year.”  Unfortunately, they show every intention of making it two.