Saddam's Trial

Eric Posner (the son and faculty colleague of Richard) addresses the matter of how fair Saddam's trial ought to be. Two concerns, raised by other parties, are that there is "no requirement to prove guilt beyond reasonable doubt", and that there are "inadequate protections for the accused to mount a defense on conditions equal to those enjoyed by the prosecution." Posner addresses them:

Saddam is not an ordinary criminal defendant, and so there is no reason to think that fairness requires that he enjoy ordinary criminal defense protections. Indeed, there is a respectable argument that he deserves none at all. If the function of criminal procedural protections is to prevent the wrongful conviction of innocent people, then there is no reason to apply them to Saddam, because we know that he is not innocent, and indeed that he deserves the harshest punishment that the criminal justice system metes out, whether that is death or life imprisonment.

Due process is not a set of rigid entitlements, but a function of several factors that must be balanced. The Supreme Court identified them in Matthews v. Eldridge (1976):

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Posner argues for more due process for Saddam partly on the basis of the importance of credibility:

But “fairness” here is not about protecting Saddam from wrongful conviction. It is about ensuring that the message that the trial sends is credible. The reason for allowing Saddam or his lawyer to conduct cross-examination, for example, is that otherwise people might disbelieve testimony about his crimes that is in fact truthful. Note that the standard of proof, which is criticized by HRW, really doesn’t matter. The judges will and should convict Saddam, and if they do so under a weaker standard of proof, we nonetheless know that they could have done so using a higher standard of proof – no harm, no foul. It doesn’t matter whether judges or jurors convict Saddam as long as someone convicts him. What matters is that the Iraqi people believe that the conviction was justified by the evidence.

This factor could fall within the third one highligted in Matthews. There are countervailing government interests, of course. There is the need to assure the Iraq citizenry that justice can be meted out. There is the need to prevent Saddam from excessive grandstanding that might be seen as legitimizing surviving dictatorship. There is also the need to bring a conclusion to a trial that is likely to fuel tension and instability.

The Chicago Law Faculty Blog...

...makes me want to take back what I said about group blogs.

Creeping Socialism

Debating the relative merits of a socialist economic system is ultimately pointless. Capitalism is deeply entrenched. Were socialism to supplant it here in America, it would not be by way of rational persuasion. That would be like using gravity to levitate.

This doesn't mean that we can't debate the relative merits of a particular socialized public service. Would we be better served by socialized medicine or socialized higher education? Those are reasonable questions, and answering in the affirmative doesn't commit one to supporting comprehensive socialism.

Yet, I often find that arguments for socializing one sector must often appeal to "supporting measures." In order to maintain public health under a socialized care regime, the government would have to intensify the regulation of other industries (e.g., tobacco, junk food) in order to address moral hazards. It is hard to defend particular expansions of government without having to call for many more. That's why it always seems to come back to the big question: should we ditch the market economy altogether? And that's why leftists rarely gain any ground.

The Virtue of the Private Sector

Pejman says:

[T]hose who regularly preach about the ability of the government to do good seem to forget that at times, government can do a great deal of evil as well. The private sector may strike some as cold and impersonal and perhaps it responds to common notions of morality simply in order to make money. But it does respond to common notions of morality at least for fear of driving away business and losing money. And the ability of the populace to affect the actions of the private sector is far more powerful and manifests itself far more quickly than the ability of the populace to affect the actions of government. Sure, you can throw out elected officials, but that is exceedingly difficult to do. And then there is the bureaucracy--the permanent civil service--to deal with. They aren't subject to elections, you know.

Short answer: You have significant amounts of leverage over the private sector. You have significantly less over government since a large portion of government is simply unresponsive to the electorate. I'm not for abolishing government. But in the end, which sector is going to be most responsive to your concerns? The Post Office won't blink if you take away your patronage--they still get their money from the appropriations process and don't care about pleasing you. But Federal Express and UPS will move Heaven and Earth to make you happy. Curiously, there is nothing in the federal budget providing for them.

Trivia Time

What is the oldest baseball franchise to have never won the World Series?

A franchise survives relocation. So the (San Francisco) Giants, for instance, have won the World Series.

Update: What current major league baseball town has gone the longest (since it first had a team) without hosting a World Series winner?

Advice, Consent, and Shame

Updated: Now that the Miers nomination has been withdrawn, perhaps we are seeing the principle discussed below in action after all...


Randy Barnett maintains that the prospect of the "Advice and Consent" process should prevent prospective Supreme Court Justices like Harriet Miers from ever being nominated. Quoting Alexander Hamilton from Federalist no. 76:

To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. . . . He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.

What Barnett fails to see, I think, is that this is sufficient reason to give the President the benefit of the doubt. Since we have an "Advice and Consent" process, and the Senate would be in a position to shame the President, I would think that he sees a qualified candidate in Miers. If not, why would he lead the both of them to certain embarassment? I don't know whether she's a good nominee. But if the President vouches for her, that's a good reason for us to suspend judgment until she has the chance to make the case for herself.

In Praise of Duty

Keith Burgess-Jackson reconsiders whether one should be praised for doing one's duty

Imagine praising someone for keeping a promise, repaying a debt, not cheating, telling the truth, not stealing, or, god forbid, not murdering. “Did you murder anyone today? No? Good for you! Keep it up!” I used to think one should never be praised for doing one’s duty, but now I wonder. I can think of two situations in which praise is appropriate.

The first is where the duty is onerous. Suppose I have made an extravagant promise, one that is costly for me to keep. Praising me for keeping the promise seems appropriate, since it would have been easy for me to fail. The praise reflects the degree of difficulty of doing my duty. Other things being equal, the harder it is to do one’s duty, the more praiseworthy it is.

Suppose A selflessly performs a difficult task for the good of others, having been under no obligation to do so. We ought to shower him with praise. Suppose B performed the same action, only he had promised to do so beforehand. Is that a reason not to praise him? One might argue that we are really praising him for having promised to perform the action, rather than for actually performing it. Yet, we rarely praise others just for making promises. A more plausible account is that we are praising the promise-keeper for the whole of his conduct: making and keeping the promise.

Making promises that you will go on to keep goes beyond what we call "minimally decently conduct." Minimal decency seems to be the baseline for praiseworthiness. We don't praise conduct that merely adheres to its standards. Rather, we recognize adherence by witholding condemnation. As long as there are duties to be more than minimally decent, we can find occasion to praise those who only do their duty.

George Galloway

Guilty or not, the man is still a disgrace to the country that gave us David Hume and Adam Smith.

More On Price Gouging

Or is it moron price gouging? An oil supplier would indeed be moronic to raise prices above market rates, for competitors could keep their prices lower in response. By undercutting the gougers, the competitors could reap enormous profits. Bill O'Reilly, among others, doesn't understand this.

O'Reilly is right, however, to take the New York Times to task for supporting a federal gasoline tax that would maintain prices at recent high levels. Such a tax, it is argued, would shore up revenues while allowing for equitable income tax reform (i.e., lower income taxes for the poor). Isn't it ironic that one would try to further tax equity by calling for one of the most regressive forms of taxation imaginable? If poor people and wealthy people spend comparable amounts on gas for traveling to work, picking up the kids, etc., then you would find poor people paying much higher percentages of income in taxes then wealthy people would. As a progressive tax, the Federal Income Tax does just the opposite.

It also bears mentioning that gasoline taxes are especially burdensome for the poor. They of course tend to own older and worse maintained vehicles that consume gas less efficiently.

Putting the matter of distributive justice to one side, we should also note that a gasoline tax is not likely to increase revenue in the long run. As Richard Posner discusses in Catastrophe: Risk and Response, such taxes might spur innovations in fuel economy that would reduce overall gas consumption rates. So gasoline taxes might be a good thing, but not for the reasons the Times offers.

Price Gouging

Richard Posner, on government measures addressing price gouging:

What prompts such reactions besides sheer ignorance of basic economics (a failure of our educational system) and demagogic appeals by politicians to that ignorance is the fact that an unanticipated curtailment of supply is likely to produce abnormal profits... Such intervention is nevertheless a profound mistake, and not only from some narrow "economic" perspective that disregards human suffering and distributive justice. If "price gouging" laws or even merely public opinion deters refiners and dealers from charging the high prices necessary to equilibrate demand and (reduced) supply, there will be shortages. Consumers will still be paying a higher price than before the shortage, but they will be paying the higher "price" in the cost of time spent waiting on line at gasoline stations, or (if they drive less because of the shortage) in the form of restricted mobility. And those who need the gasoline the most, not being able to express their need by outbidding other consumers for the limited supply, will suffer the most from the shortages. The only beneficiaries will be people with low costs of time and nonurgent demand.

One visit to Costco yielded ample empirical evidence.

Name That Fallacy

1. Doing x will bring about B.
2. One ought to bring about B.
3. Therefore, one ought to do x.

Health Care Costs

A higher fertility rate is another factor that can account for higher per capita health care spending.

Here is some data on fertility rates for 2002, from the World Bank Database:
All High income Countries - 1.72
Canada - 1.52
France -1.88
Germany - 1.34
Japan - 1.33
Sweden - 1.64
United Kingdom - 1.63
United States - 2.01

Of course, if the amount spent per new person is a constant, then higher fertility rates would not raise per capita health expenditures. However, healthy infants and healthy pregnant moms require more costly services than does the average otherwise healthy person. So countries with higher infant population rates should have greater per capita health expenditures for the healthy. If all other disease and injury rates were constant across these countries, you would naturally expect health care expenses to greater in the countries with higher birth rates.

Moreover, higher fertility rates will lead to a disproportionately higher incidence of health issues requiring intensive prenatal or neonatal care.

Leftists Aren't Always Opposed to Markets

Some would describe this as "complicated."

Joke Time

Good philosophy jokes are few and far between. Here's a gem from Wicked Thoughts:

A philosophy professor gave a one question final exam after a semester dealing with a broad array of topics. The class was already seated and ready to go when the professor picked up his chair, plopped it on his desk and wrote on the board: "Using everything we have learned this semester, prove that this chair does not exist.

"Fingers flew, erasers erased, notebooks were filled in furious fashion. Some students wrote over 30 pages in one hour attempting to refute the existence of the chair. One member of the class however, was up and finished in less than a minute.

Weeks later when the grades were posted, the rest of the group wondered how he could have gotten an A when he had barely written anything at all.

His answer consisted of two words: "What chair?"

More on Motives

Keith Burgess-Jackson on motives:

Philosophers are taught to focus on reasons, not motives—and to supply the best reasons rather than the worst. This is why any self-respecting philosopher should have criticized the leftist argument that, since President Bush was improperly motivated in invading Iraq, the war was unjustified. That's a non sequitur. First, there is no evidence that President Bush was improperly motivated. But even if he were, it would have no bearing on the morality of the war. Bad people can do the right thing, just as good people can do the wrong thing. I think this is another case in which hatred of President Bush led leftists astray. Their obsession with a person—and that person's motives—prevents them from thinking clearly about actions and reasons.

The "leftist argument" is not just a non-sequitur; it changes the subject. When we ask whether the President should have taken one course of action, we are not asking whether he demonstrated morally worthy character. As for motives, they are indeed relevent to moral worth, as Kant maintained. However, as I argued before, raising the matter of motives brings nothing to light when they are only inferred from prior judgments of character.

Immigration

Gary Becker makes a compelling case for increasing the number of permanent visas awarded to skilled foreigners:

To me it seems like a win-win situation for the US to admit annually a million or more skilled professionals with permanent green cards that allow them eventually to become American citizens. Permanent rather than temporary admissions of the H-1B type have many advantages to the US as well as to the foreign professionals. With permanent admission, these professionals would make a much greater commitment to becoming part of American culture rather than forming separate enclaves in the expectation they are here only temporarily. They would also be more concerned with advancing in the American economy rather than with the skills and knowledge they could bring back to India, China, or wherever else they came from. In particular, they would become less concerned with absconding with the intellectual property of American companies, property that could help them advance in their countries of origin, perhaps through starting their own companies.

Let's not fret over losing jobs to foreign competition. Skilled and productive workers create surpluses that pave the way for new opportunities and economic expansion. You'd be hard-pressed to argue otherwise without assuming that immigrants are being paid more than they're worth. That's hardly a cosmopolitan outlook.

Rocky!!!

It looks like Rocky VI has the green light after all these long years. The report states that it will be called "Rocky Balboa", not "Rocky VI." However, "Rocky Balboa VI" can't be more than a couple of decades away.

Although an opponent has been lined up for the Italian Stallion, it's not too late for a substitution. Here is my wish list:

• The robot from Rocky IV

That is all.

Who Should Rule The World?

A summary of the poll results is here.

But isn't this like someone asking me, "when did you stop robbing liquor stores?"

Name That Fallacy

J stands to gain X from action A.
Therefore, X is Js true motive for A.

How often do you hear arguments of this basic form? Would anyone disagree when I call it fallacious? If there's already a designation for this fallacy, I'd love to know it.

Culture v. Science

It's not a good thing that Creationism, Intelligent Design theory, or what have you, is advanced as a plausible alternative to the Theory of Evolution. It's not just the religious right that locks horns with science, however. Virginia Postrel explains.

What is Left of Left2Right?

Left2Right, a group blog featuring many prominent moral, political, and legal philosophers, appears to be sputtering. Although I'm not on the left, I'm very disappointed. Their statement is laudable:

We're a bunch of academics, mostly philosophers but also some lawyers, political scientists, historians, and economists. We're interested in liberal ideas, though we are probably far from unanimous about what "liberal" means, and our being interested in liberal ideas doesn't entail that each of us subscribes to all of them. We think that political debate in this country has deteriorated into a shouting match, a food fight, a flame war -- call it what you will. We'd like to consider whether liberal ideas should be somehow reconsidered -- in some respects revised, in others perhaps merely re-stated -- with the aim of increasing the overall ratio of dialog to diatribe in the American political forum. Some of us will be trying out various ways of re-thinking and re-formulating those ideas; others may end up arguing that such attempts are unnecessary, even counter-productive. And in the course of our discussion, there will be plenty of digressions and asides of the sort that naturally occur at the margins of a group discussion.

Contrary to what some people might think, I am susceptible to rational persuasion. When I'm not convinced, I feel better at least for having gained some insight into other points of view. That must sound trite, and it must be asking for too much. There has been one new post in the last five weeks. There were a grand total of three in September, all prompted by the Katrina disaster. You would think that these philosophers would choose to further the objective of the blog during a "cooler hour." I would have been embarassed by this post.

I've noticed that group blogs starting out many members tend to implode. Perhaps many members weren't very interested to begin with. Or maybe we're witnessing some variant of the bystander effect.

Insuring High Risk Pregnancies

Given the steep costs of prenatal care and the intensive neonatal care that is likely to follow pregnancies with complications, should health insurers encourage moms with histories of complication to adopt? The cost of subsidizing a foreign adoption is just a drop in the bucket compared to long-term hospitalizaton, which is what many second and third time moms are willingly walking into. Wouldn't it make sense for insurers to help these parties to adopt?

You probably couldn't get moms to sign "no future pregnancy" contracts. They would likely be unenforceable. Yet, I would think that having adopted a child makes it somewhat less likely that a parent would then want to have another one, naturally or otherwise. Sure, many still would, but there are limits on what parents can manage. The prospect of easier adoption would probably make another difficult pregnancy a far less attractive alternative.

Of course, many moms with qualifying medical histories who never intended to conceive more children might avail themselves of this program. That would be money down the drain for insurers, but the program might still be a winning proposition in the long run.

Fertility and Infant Health

In response to my post on prenatal and neonatal care, meep raises an interesting point:

Already, there have been noted effects of multiple births as a result of fertility treatments and older mothers (who naturally are more liable to multiple births, even without artificial help). Multiple births are connected to lower birth weights, and other troubles. This undoubtably has effects on infant mortality rates.

I would love to learn more about this. Given the lower birthrates found in many European nations, it's unlikely that fertility treatment is nearly as common over there.

Thanks to Bryan Caplan for bringing some attention to the question I raised.

Intelligent Design Will Win?

A Tech Central Station column advances five reasons why. Victory can be declared, I suppose, if his predictions come to pass:

Intelligent Design theory is destined to supplant Darwinism as the primary scientific explanation for the origin of human life. ID will be taught in public schools as a matter of course. It will happen in our lifetime.

The approach is precisely the sort of haruspicy-based reasoning I deplore: advancing predictions instead of policy argument, so as to persuade that one might as well accept the inevitable. Anyway, here are his reasons. My comments follow each one.

1) ID will win because it's a religion-friendly, conservative-friendly, red-state kind of theory, and no one will lose money betting on the success of red-state theories in the next fifty to one hundred years.

I really don't get the sense that red states are much more or much less red than they have been in the past. It feels like these states are getting redder because the blue alternatives are getting worse all the time. Why, if ID is expected to "win", hasn't it won already?

2) ID will win because the pro-Darwin crowd is acting like a bunch of losers.

I guess you'll just have to finish reading this post and decide for yourself.

3) ID will win because it can be reconciled with any advance that takes place in biology, whereas Darwinism cannot yield even an inch of ground to ID.

That it can reconciled with any biological discovery is indeed a weakness. Given some set of underlying assumptions, we should then be able to formulate falsifiable predictions. This is hardly news. And so what if Darwinism cannot yield an inch of ground to ID? What matters is whether it must yield to new biological discoveries. When it must, it might be supplanted by more sophisticated evolutionary theory. Who says that the choice comes down to ID and Darwinism?

4) ID will win because it can piggyback on the growth of information theory, which will attract the best minds in the world over the next fifty years.

Only if ID is correct after all. If not, perhaps information theory will help to reveal ID's flaws.

5) ID will win because ID assumes that man will find design in life -- and, as the mind of man is hard-wired to detect design, man will likely find what he seeks.

Once we know better, we can check our instincts to some degree. But this whole point is a little misleading, and maybe more than a little. Are we hard-wired to detect design where there is none? Are we hard-wired to detect any "design"? We do tend to detect patterns in nature, even when careful analysis reveals only disorder. People often infer design from perceived patterns. But we frequently chalk up patterns to other phenomena, such as spontaneous order. I see many patterns in our market economy, but I don't infer any grand conspiracies from them.

Why Do So Many Lawyers Blog?

"The short answer, I suppose, is that we suffer from the delusion that we have something to say."

- John Hinderaker

Skill and specialization

Addressing the matter of "output equality" , Jon Henke writes:

It's almost axiomatic that, as US society becomes wealthier, we become more specialized. And as we become more specialized, we require greater skill, knowledge, etc in order to produce that wealth.

A virtuous cycle: specialization increases output, thereby increasing wealth. That stimulates demand, thereby spurring greater specialization. But does this actually raise the level of skill needed of the average individual? That demand for skilled labor increases doesn't entail a decrease for unskilled labor. Moreover, the individual with skills doesn't necessarily have to acquire new ones. New skills will be needed as economic development continues, but as society becomes more specialized, your typical member needs fewer of them to eke out a livelihood.

Human Rights

Isn't it great when people exploit the factor of poverty to gain advantage for the rich? Here are some other recent human rights abuses of note:

• Heating oil for 5000+ square feet homes is not being discounted.
• Local broadcast stations are not transmitted digitally on some cable networks.
• DVD players are not standard in some 2006 SUV models.

Since these depredations of human dignity are going on primarily in the United States, Amnesty International is taking them very seriously

Population Growth

Posner comments on his blog:

A neglected negative effect of population growth is on political governance. There seem to be strong diseconomies of scale in government. Increases in population, and concomitant increases in economic activity, crime, demand for medical services, and so forth make the job of government more difficult. What seems to be an incipient crisis of competence in the U.S. government may be at least distantly related to the doubling of the U.S. population since 1948.

Then again, medicine has a negative effect on disease.

Prenatal and Neonatal Care

Visiting my daughter every day in the NICU for nearly three weeks has allowed me a good look into an area of medicine I knew nothing about. You wouldn't have to spend much time there to understand why intensive neonatal care is a very costly service.

Health care spending per capita is much higher in the United States than in all other industrialized nations. See this table. Yet, average life expectancy , a key indicator of health care quality, is lower in the United States than in many of those countries. See this table. Lifestyle factors might account for some of this disparity, but the numbers are sufficient to give one pause.

I am now wondering whether prenatal and neonatal care accounts for some of the disparity. In a tragic sort of way, inferior prenatal care could actually boost average life expectancy while lowering health care costs. Adequedate prenatal care may reduce the incidence of miscarriage, especially in the second half of pregnancy. Had my wife's perinatologist not detected her dilating cervix in the 22nd week of pregnancy, we would probably have lost our daughter. And she would have been a miscarriage statistic, not an infant mortality statistic. Our insurer and Medicaid (would covers premature infants as disabled persons) would be saving many, many thousands of dollars.

That's anecdotal evidence. This is a little more comprehensive. Late fetal death rates are lower in the United States than in many industrialized countries. Here are some 2001 rates for selected countries, taken from the table:

United States - 3.2
Canada - 3.3
Germany - 3.9
Sweden - 3.8
United Kingdom - 5.3 (2000, latest available data)
France - 4.6 (1999, latest available data)

I need to find information on prenatal health expenditures in these and other countries. The web pages I've highligted don't provide data that specific. My guess is that they are lower.

I am also speculating that lower fetal rates translate into more premature babies requiring very costly care. I could be wrong about this. The ratio of early live births to miscarriages might be higher in countries with worse prenatal care. But the rate of live births in the late second/early third trimester, when intensive, expensive long-term care is required, is probably higher in the United States.

The question, then, is whether health care spending is higher in the United States in part because we spend tremendous amounts of money treating children who, had they been conceived in certain other countries, would not have been born.