Surveillance Considered as a Time Machine

It would be both interesting and educational to be able to view my own past, to see how my life looked without the filter of memory. It is too late for me, but in the not very distant future the surveillance technology discussed by David Brin in The Transparent Society and by me in Chapter 5 of Future Imperfect may let other people do it.

Imagine a future where everything that happens in public spaces, and perhaps much in private spaces as well, is routinely recorded, saved and searchable. In that future, the man of thirty gets to watch himself at fifteen on his first date, judge how reasonable or otherwise the quarrel that ended a friendship at eighteen was, see how his parents treated him and he them, with perhaps useful lessons for bringing up his own children. At fifty he gets to look back at what he was doing when he was thirty, recognizing faults or errors invisible to him at the time.

It works for shorter time periods too. After the political argument or lovers quarrel in which my behavior was, as I saw it, entirely reasonable and the fault all on the other side, I get to rerun an outside view—and perhaps see how my voice tones, gestures, facial expressions conveyed a very different message than I chose to remember.

Google's usenet archive already provides a pale ghost of such an opportunity, limited to a string of text messages. The future may expand that to full motion, living color, perhaps even 3D.

The Future of Behavioral Economics: A Conjecture

Conventional economic theory is based on the assumption that individuals act rationally. Behavioral economics modifies that by trying to take account of various observed patterns of predictable irrationality. A recent post of mine on a different blog discussed my somewhat mixed views of the project. Thinking further on the subject, a conjecture about the future of behavioral economics occurred to me.

Most of the applications of the theory that I have seen concern decisions by individuals, employees, firms in the general area covered by price theory, more commonly and misleadingly labeled "microeconomics." My conjecture is that where behavioral economics will actually matter, if it matters, will be in disequilibrium theory, more commonly labeled "macroeconomics."

Price theory is a reasonably well understood structure of ideas that works reasonably well. Markets are observed to successfully solve the complicated coordination problem underlying any but the simplest economy; steel mills don't shut down because nobody is mining enough ore, or car companies because nobody is producing enough steel. Obvious predictions of the theory—surpluses when price is fixed above the market level, shortages when it is fixed below, increases in price when supply is restricted, market prices responding to (estimates of) future as well as present supply and demand—are routinely observed. The theory is not, of course, a perfect description of reality, and behavioral economics might improve it a little. But, at the fundamental level, there is no need to fix something that isn't broken.

Disequilibrium theory, the theory that is supposed to explain business cycles, involuntary unemployment, and similar observed phenomena, is much more of a problem. If you simply take the tools of price theory and turn the crank, you get clear answers to the relevant questions. The price of labor equates supply and demand on the labor market as on other markets, so there is no involuntary unemployment, save when minimum wage laws prevent wages from moving to their equilibrium level. Firms and employees make their decisions taking account of rational predictions of future as well as present conditions, so there is no business cycle. The analysis is straightforward. And the conclusions are wrong.

There have been a variety of attempts to solve this problem over the past century or so. Fifty years back, the Keynesian version of macroeconomics was pretty general accepted. It turned out that it too gave incorrect predictions, and academic economists largely abandoned it, although it retained its popularity with journalists, politicians, and much of the general public and was revived with great confidence in response to recent problems. A variety of other attempts to solve these problems have been made. So far as I can tell—it is not my field, so I am judging as an observer, not a participant—none of them has combined a clear, convincing analysis with a correct prediction of real world observations.

If the rational model gives, for this set of questions, the wrong answer, perhaps the solution is a model that incorporates irrational behavior. That is what behavioral economics attempts to provide. If it succeeds, that will be an important contribution to economic theory, a much more important contribution than a collection of observations about particular mistakes made by individual economic actors.

Loaded Dice Continued

A commenter on the previous post writes:

“I would suggest that it's more likely that the questions were chosen because they were the most significant and common misunderstanding raised and that the fact that they are more common among rightists is not surprising in light of the literature suggesting that such misconceptions are more common among rightists.

Indeed, trying to select questions with the intention of "balancing" left-leaning and right-leaning errors rather than selecting questions impartially would really be loading the dice.”

Seen from one angle, the question is evidence of the problem pointed out in the biblical phrase about motes and beams. It apparently didn’t occur to the commenter that his view of what errors which people make might be affected by his own beliefs. I have, after all, just offered a sample of “the literature” on that subject as written by people on one side of the political spectrum and explained how they can get their result whether or not it is true.

But from another angle, it raises a legitimate question. If one side makes more errors, then isn’t an “unbiased” set of question actually biased? If so, how could one control for that problem?

The best solution that occurs to me is to test not for number of errors but for number of people who believe each error. Write a list of questions in which about equal numbers are errors popular with each side and see what fraction of people on each side subscribe to their side’s errors. There are still potential problems—you could bias the test by picking wildly implausible errors on one side and only mildly mistaken ones on the other. But at least you have eliminated the particular source of bias I discussed in my previous post.

You still have the problem of making sure that your right answers are really right, but I suspect someone who had the same biases as the authors of the survey we are discussing but was both more competent and more honest could manage it. One way would be to ask someone with the opposite biases to check over the answers and see if there were ones that he could offer legitimate arguments against.

My other response to the comment was to compile a list of questions designed to expose misinformation on the left. Here are some candidates:

According to the Congressional Budget Office, the top 1% of households pay what share of federal income tax?

Less than 10%

Between 10% and 30%

More than 30%

According to the Congressional Budget Office, the bottom 60% of households pay what share of federal income tax?

More than 20%

Between 2% and 20%

Less than 2%

After the 1929 stock market crash, Republican Herbert Hoover, during the rest of his term, responded by:

Sharply cutting government spending

Doing nothing in the expectation that the problem would cure itself

Sharply increasing government spending

The average tuition at private schools is:

Substantially lower than the average per pupil expenditure at public schools

About the same as the average per pupil expenditure at public schools

Considerably higher than the average per pupil expenditure at public schools

In the opinion of a majority of American economists, the usual effect of raising the minimum wage is:

To reduce poverty among low income workers

To increase employment by transferring income to poorer people more likely to spend it

To increase unemployment among low income workers

American K-12 teachers are paid:

Less than the average wage of American workers

More than the average of American workers but less than the average for college graduates

More than the average for college graduates

Including wages, pensions and other benefits, the average employee of the Federal Government is paid:

Substantially less than the average employee in private industry

About as well as the average employee in private industry

Much more than the average employee in private industry

Of the questions on this list, there is one which I would want to check before including it in a survey; I am pretty sure I know what the answer was a few decades back but not entirely certain that it is still the same.

Readers of this blog, even left wing readers, are a poor population for the test, since several of the questions have been discussed here. But they are invited to offer it to friends without any explanation of how it has been designed and see what the result is.

More Loaded Dice

Several years ago I had an exchange on this blog with Professor Robert Altemeyer over his claim that authoritarianism was more common on the political right than on the political left. I argued that the survey on which his claim was based was, probably not intentionally, loaded. Questions about respect for authority consistently referred to authorities more popular on the right than the left, questions about people bravely defying authority referred to forms of defiance more popular on the left than on the right, hence people on the left would appear, by their score on his questions, less authoritarian than they were, people on the right more. I recently encountered the same problem in a different context, this time an article describing a study that purported to show that people on the right are more often misinformed about public issues than people on the left.

The obvious way to rig the results of such a poll is to select questions where the answer you consider mistaken is more popular with one side than the other. Most people who believe Obama was not born in the U.S. are on the right. Most people who believe the Chamber of Commerce used foreign money to influence the most recent election are on the left. By my count, for at least seven of the eleven questions the answer that the study's authors considered misinformed was a view more popular with the right than the left. One—the Chamber of Commerce question—went the other way.

A second problem with the study was that, for at least three of its eleven questions (whether stimulus had saved several million jobs, whether the economy was recovering, whether Obamacare increased the deficit), the right answer was unclear. In none of the three did the study's authors provide adequate support for their view—which, in each case, coincided with the claims of the Administration.

I first heard of the study via a critical piece on Reason's blog. A while later, I came across another reference to it, a Usenet post by someone who obviously approved of its conclusions. I responded and pointed out the problems.

With regard to the three questions where the study's answer was less obviously correct than its authors thought, I can easily imagine a reasonable person disagreeing with me, arguing that the study at worse mildly exaggerated how clear the right answer was. I do not, however, see how any reasonable person could fail to see the way in which the selection of questions was biased, once it was pointed out.

I am now waiting to see if there is anyone reading that particular Usenet thread who is willing to admit that the evidence for a conclusion he likes is bogus.

The Invisible Elephant: The Payroll Tax Cut

Most discussions of the tax bill that finally passed treat it as a compromise in which Obama, in order to get the bill through the Senate, had to make it more favorable to rich people than his original proposal. In fact, it may well be the opposite. Exact calculations depend on a variety of assumptions about who actually ends up paying what tax, but my guess is that what actually passed made the tax system, on net, more progressive than what was originally proposed, that high income tax payers will end up paying a larger fraction of federal taxes than they would have if the bill had simply extended the Bush tax cuts for lower and middle income taxpayers.

The federal income tax is paid almost entirely by upper income people—in 2007, almost 40% of federal income tax came from the top one percent of the income distribution, while the bottom 60% contributed just over 1% of the total (Figures from the CBO). The payroll tax, on the other hand, is a fixed percentage up to a maximum. The result is that the lowest quintile of the income distribution, which on net pays less than nothing in federal income taxes, pays about 9% of its income in payroll taxes, including (as the CBO does) both employee and employer share.

The bill held the top rate of the income tax at 35% instead of letting it go back to 39.5%. It reduced the employee's share of the payroll tax from 6.2% to 4.2%, reducing the total (employee share plus employer share) from 12.4% to 10.4%. A little arithmetic should convince you that the percentage reduction in the payroll tax is more than the percentage reduction in the top rate of the income tax. The change in the payroll tax in the bill is for only one year; we will have to wait and see whether it, like the Bush tax cuts, ends up lasting for longer than that.

While the actual incidence of the payroll tax—who really pays it—does not depend on whether it is collected from the employer or employee, it does depend on the elasticity of the supply and demand for labor, which determine how much of it ends up as a decrease in wages, how much as an increase in the cost of labor—a point ignored by the CBO in its analysis of tax incidence. Further complications would include other features of the bill—its effect on tax rates on dividends, inheritance, and the like. A full calculation would be complicated and the results would depend on assumptions, in part arbitrary, about who actually ends up paying each tax.

What is clear is that a large and under reported part of what the bill contains is a cut in the one part of the federal tax system a significant part of which is paid, at least directly, by people in the bottom sixty percent of the income distribution.

That is the elephant in the room.

The Intensive Margin: Math vs Econ

I was recently told, by an undergraduate a top school who had been planning to major in economics, that the required courses had turned out to contain a great deal more mathematics than economics. That report was confirmed by a senior faculty member at the same school with whom I raised the question, who agreed that the situation was an unfortunate one.

Presumably, the content of such courses reflects what professors believe that their students must learn in order to go to graduate school and end up as academic economists publishing articles in leading journals. That fits my not very expert impression of the current state of academic economics, that it is heavy on what Gordon Tullock used to refer to as "ornamental mathematics," advanced tools used to demonstrate the author's mathematical sophistication but contributing little to the substance of the analysis.

I have not been much involved with the world of journal submissions for a long time—I prefer to write books and blog posts—so am in a poor position to make blanket judgments. But some years back, reading an interesting article by Akerlof and Yellin on why changes that should have reduced the number of children born to unmarried mothers had been accompanied instead by a sharp increase, I was struck by the fact that they had used game theory to make an argument that could have been presented equally well, perhaps more clearly, with supply and demand curves. Their analysis was simply an application of the theory of joint products—sexual pleasure and babies in a world without reliable contraception or readily available abortion. Add in those technologies, making the products no longer joint, and the outcome changes, making some women who want babies unable to find husbands to help support them.

Assume, for the moment, that I am right, that both economics in the journals and economics in the classroom emphasize mathematics well past the point where it no longer contributes much to the economics. Why?

The answer, I suspect, takes us back to Ricardo's distinction between the intensive and extensive margins of cultivation. Expanding production on the intensive margin means getting more grain out of land already cultivated, expanding it on the extensive margin means getting more grain by bringing new land into cultivation.

In economics, the intensive margin means writing new articles on subjects that smart people have been writing articles about for most of the past century—new enough, at least, to get published. One way of doing it, assuming you don't have some new and interesting economic idea, is to apply a new tool, some recently developed mathematical approach,. It has not been done before, that tool not having existed before, so with luck you can get published.

The extensive margin is the application of the existing tools of economics, and mathematics where needed, to new subjects. Examples include public choice theory, law and economics, and, somewhat more recently, behavioral economics. The same thing can be done on a smaller scale if you happen to think of something new that is relevant to more conventional topics. I have considerable disagreements with Robert Frank, some exposed in exchanges between us on this blog a while back. But when, in Choosing the Right Pond, he showed how the fact that relative as well as absolute outcomes matter to people could be incorporated into conventional price theory, he really was working new ground and, in the process, teaching the rest of us something interesting.

My conclusion is that, if you want to do interesting economics, your best bet is probably to work on the extensive margin—better yet, if sufficiently clever and lucky, to extend it.

The Transparent Society: v 0.1

In The Transparent Society, David Brin argued that developments in surveillance technology were leading us to a world where everything you did would be observed, recordable, and searchable. That outcome could not, in his view, be prevented. The best we could hope for was transparency in both directions, a world where the cops can watch us but we can also watch them.

Early evidence that he might be right appeared in incidents where police officers made the mistake of misbehaving when someone had a video camera—more recently a cell phone—pointed at them. Thinking about the WikiLeaks case, it occurred to me that it was a further development in the same direction. The origin of the information was a conventional leak, not high tech surveillance. But it is modern technology that makes it virtually impossible for the governments affected to prevent widespread public distribution of the leaked information.

In that sense, what we are seeing is an early stage of the transparent society.

----

David Brin's web site

The chapter on surveillance technology in my Future Imperfect.

Jury Nullification: True and Dangerous

I was recently involved in an exchange with a prominent jurist on the issue of jury nullification—the doctrine that jurors are entitled to nullify bad laws by refusing to convict a defendant who did something that is illegal but, in their view, should not be. He pointed out, correctly, that it is a very dangerous doctrine. If everyone believes in jury nullification and one person in five believes that it is all right to murder abortionists, someone who murders an abortionist is unlikely to be convicted. Similarly for any other target group that a significant minority believes deserves death.

He is correct that it is a dangerous doctrine. He may well be correct that we would be worse off if more people believed in it. But that does not tell us whether or note the doctrine is true. It is possible, after all, for something to be both true and dangerous. To take one obvious example, it is true that if you put together a certain mass of U235 in a certain way the result will be a very large explosion—but we might all be better off if nobody knew that it was true.

My rebuttal to his argument—which, as it happened, I did not have a chance to offer—is quite simple. Sodomy was a capital offense in England and parts of the U.S. into the second half of the 19th century. Suppose someone has been caught in the act and charged and you are offered a place on the jury. You believe that the other jurors will vote for conviction and that the defendant, if convicted, will be executed. You have three options:

1. Tell the judge that you are unwilling to decide the case according to the law, since you think the law unjust. You will be dismissed from the jury and replaced by another juror who will probably vote for conviction.

2. Agree to decide the case according to the law. Since the man is guilty, you vote for conviction and he is hanged.

3. Tell the judge (falsely) that you are willing to decide according to the law, remain on the jury, and vote for acquittal.

The first two alternatives result in the hanging of a man who has, in your view, done nothing wrong. The third is jury nullification. Which choice is morally correct?

Turning Behavioral Economics Around

I am currently involved, elsewhere online, in a discussion of behavioral economics. One point it raises is that arguments from behavioral economics—observed patterns of irrational behavior—tend to be used to support positions that those using them already believe in. Much the same is true of arguments from market failure. As I pointed out some time ago in the course of an exchange with Robert Frank, the argument he was making had a perfectly straightforward implication—that instead of subsidizing schooling, at both high school and college levels, we should tax it. It was not a conclusion that he drew, or even acknowledged and responded to when I drew it.

Consider the case of behavioral economics. One of the observed patterns is a status quo bias—a tendency to over weight potential losses relative to potential gains. I am not sure if it has occurred to any of those arguing for behavioral economics that two of the most striking examples of that pattern are the precautionary principle and the campaign to slow or prevent global warming.

The essence of the precautionary principle is that one ought not to do anything—build nuclear reactors, say, or create genetically engineered crops—unless all possibility of very bad results can be eliminated. The principle does not permit balancing some risk of very bad results from doing something against a risk of very bad results from not doing it. Still less does it prescribe always doing something unless one can show that there is no chance that failing to do it will have very bad results. Hence it makes sense only if bad effects from change are weighted much more highly than good.

Or consider the widely held view that global warming on the scale suggested by the IPCC reports—a few degrees C over about a century—would obviously be a catastrophe. It cannot be based on the idea that humans cannot live with somewhat higher temperatures, since humans already exist, indeed prosper, across a much wider temperature range. It cannot be based on the idea that increased temperature is inherently bad, since there are obviously lots of places that would be better suited to human habitation if a little warmer, including most of Canada, Alaska and Siberia. The world was not, after all, designed for our benefit, so there is no reason to believe that current climate is optimal for us. There has been a good deal of talk about higher sea levels, but most of it ignores the fact that the increase suggested by the various IPCC models is only a foot or so—much less than the usual difference between high tide and low.

Rapid climate change is presumptively undesirable, since our present way of doing things—what crops we grow where, where our housing is located and how well it is insulated—is optimized to present conditions. But over a hundred years, farmers will change crops several times over, a large fraction of the housing stock will be replaced or modified, we will change what we are doing for lots of reasons unrelated to climate change. Hence it is hard to argue any strong presumption that climate change at the rates suggested by current models is bad.

Yet discussions of the subject almost always take it for granted that it is not merely bad but catastrophically bad, worth bearing very large present costs to prevent. A clear case of status quo bias.

For one final example, consider the case of Social Security. Behavioral economics provides an argument in favor of it. Individuals badly underweight costs and benefits in the distant future—so-called hyperbolic discounting. Hence they will be less willing than they should be to provide voluntarily for their old age. Hence the government must solve the problem via a program of forced saving.

The problem with the argument is that hyperbolic discounting, insofar as it is real, applies to voters and politicians as well as to people saving for their old age. Hence it is predictable that the force will be real but the saving will be imaginary—there are always politically profitable ways of spending money that happens to be lying around—leaving the system with a trust fund full of IOU's.

Readers are invited to contribute other examples, other situations where behavioral economics provides arguments against the sort of things that most behavioral economists appear to be in favor of.

Promises, Pensions, Problems: A Proposal

You are a state governor dealing with a strike of state employees. To end it, you must offer them something. One possibility is to raises their wages. Another is to agree to a more generous pension plan.

Higher wages will come, at least for the next few years, out of your budget—and there are a lot of other things you would like to spend the money on. Higher pensions will be paid, almost entirely, from the budget of later governors. It looks like an easy choice. And, since you aren't the one paying, there is no good reason for you to be stingy in your offer, especially if being generous might end the strike sooner and buy you future political support from the currently striking union. Follow out the logic of the situation and one can see why many U.S. states currently face serious budget problems, in part due to very generous employee pension plans.

There is a fairly simple solution to the problem. Change the relevant laws so that a contract with the state government as a party is enforceable against that government only until the end of the term of the present governor. The governor still has the power to pay people with promises, but only promises that are binding for his current term in office.

Suppose, however, that pensions really are the right answer, that for one reason or another the state employees would rather get a thousand dollars worth of pension than a thousand dollars worth of salary, both figures calculated properly allowing for when and with what probability the money will be paid. The solution is for the state to provide pensions—and pay for them. That could be done by putting money into a fully funded pension plan. It could be done by buying pensions from a private firm. The one way it could not be done would be by making binding promises of future state payments.

My proposal does not, of course, solve all problems. The governor may have ways of binding his successors that do not depend on legally enforceable contracts—if he agrees to a pattern of wages in the future based on number of years of employment, it may be politically costly for his successor to reneg on that promise. And it solves the problem only for state governments. I will leave to readers the problem of how one constructs corresponding rules for the federal government.

Nor is the problem limited to governments. To take an obvious recent example, GM was able to buy peace with the UAW by promises of future pension payments. When it turned out that GM was unable to make those promises good, the federal government intervened to bail them out. Presumably the UAW's willingness to accept pensions instead of pay raises in part reflected their correct prediction that, if the situation arose, that would happen.

The same issue can arise, to some degree, even without government involvement. CEO's of private corporations are limited in their ability to make their performance look good at the cost of creating future obligations for their successors by the rules of accounting, which show, or at least are supposed to show, future obligations as present liabilities on the balance sheet. But the process is, given the limits of accounting methods, imperfect.

Concerning WikiLeaks

Listening to discussions of the case, one repeated theme is that there are some things the government should be allowed to keep secret. That is not an unreasonable view, but I do not think it has much to do with the case. If the government had kept its cables secret, they would never have reached WikiLeaks.

The question at this point is whether when the government fails to keep something secret, when it gives access to its secrets to someone who proceeds to pass them on, it is entitled to put the genie back in the bottle by making everyone whom they have been passed on to, at least everyone with the ability to publicize them, shut up.

Legally speaking, the answer is that they are not—as in the case of the Pentagon Papers. I think that's the right answer. If keeping things secret is important, the government should keep them secret, not let them out and then do its best to gag the press in order to keep the general public from learning them.

Instead, as best I can tell by public discussions, the U.S. government labels a wide range of things secret and then lets a wide range of people have access to them.

Open Source Stories

From time to time, I come up with an idea I like for a story that I have no interest in writing. It eventually occurred to me that someone else might want to write one of them, so I put a page of story ideas up on my web site.

As you can see by going to the page, at least three people have now sent me stories they wrote based on my ideas and given me permission to web them. What I find particularly satisfying is that in some cases the author took the story in a direction that had never occurred to me, and it worked.

Real vs Virtual: The Coming Great Divide?

Humans divide along many lines—gender, politics, race, religion, football teams. Another division is, I think, becoming increasingly important, one defined by what things matter: Real vs Virtual.

From one side, what are important are real world accomplishments—planting a tree, bringing up children, doing a useful job, writing a book. Games, online or elsewhere, can be a pleasant form of entertainment, but accomplishments in them don’t count towards whether you feel that you are, in a metaphorical sense, paying for the space you occupy, the air you breath, whether you will be entitled to die with a sense of accomplishment, a life well lived.

Seen from the other side, real world activities—earning enough to pay for food, housing, an internet connection and a WoW subscription—are merely necessary inconveniences, absorbing time that might be better spent getting your characters to level 80, killing the Litch King, growing your guild.

I put the distinction as real vs virtual because that is a particularly striking version, but the issue is both broader and older than online gaming and first came to my attention in a very different context. I am a long time participant in the SCA, an organization that does historical recreation. Some of my fellow participants are able and energetic people who earn their living at one or another not particularly interesting or demanding job while putting their real abilities, energy, passion into their hobby. Other examples of the same pattern can be found in the worlds of bridge playing, science fiction fandom, “horse people,” and many others. Accomplishments exist in, for the most part only in, the context of the particular game, subculture, activity. Training a horse is a real world activity. But in a world where horses no longer function for transport or pulling plows, it is, in an important sense, no more real than learning to be very good at killing enemy players in World of Warcraft. The point is point encapsulated in the story of the man who explained that he played golf to stay fit. Fit for what? Golf.

I have made the distinction sharper than it really is. When my daughter translated a 15^th century Italian cookbook, she was contributing to the SCA game. But she was also adding one more crumb of knowledge to historical scholarship and, in the process, fulfilling a requirement for her college, which had a one month winter term which students were supposed to spend doing approved projects. Even in the case of purely virtual activities, one player’s activity in WoW, building a guild or leading a raid, contributes to the entertainment of other players. Arguably that is a real accomplishment in the same sense that writing and publishing a novel is.

Nonetheless, I think the division is real, important, and based on a disagreement about values, about what matters. It is in that sense a religious division. And it is one that may become increasingly important as improvements in the relevant technologies make possible and attractive something close to a fully virtual life, the experience machine that Robert Nozick described in his Anarchy, State and Utopia. If some people are living most of their life online, getting most of their feeling of worth and accomplishment from virtual achievements, while others continue to base theirs on things done in realspace, how will the two sorts regard each other?

TSA: The Problem of Trust

The Transport Safety Administration, the President, the Secretary of State, and very nearly everyone else agrees that that the full body searches and alternative pat downs the TSA has started to implement are intrusive. The TSA, however, insists that they are a necessary precaution to prevent future aircraft bombings.

This would be a persuasive argument if the rest of us had any reason to take claims by the TSA seriously, but we don't. Whether or not this particular requirement makes sense—I have seen arguments by people better qualified to judge than I am who think it does not—enough past requirements were clearly security theater rather than security to destroy any claim the organization might have had to be trusted.

To take the earliest and most striking example, the TSA used to, for all I know still does, interpret the rule against knives to cover the inch long nail files sometimes built into nail clippers, with the result that anyone who happened to have a nail clipper with him and did not want to trash it was required to let them break off the file. To take a long continued example, the TSA insists that its agents be able to search our luggage but has failed to take the most elementary precaution to keep them from pilfering valuables—including in the note enclosed in searched luggage a number identifying the agent who searched it. In these ways and others, the organization has demonstrated that its concern, insofar as an organization can be said to have concerns, is with something other than the welfare of the people it claims to protect.

And, for the latest example, the TSA initially insisted that the new search requirements applied to pilots as well as passengers. Only after someone pointed out to them that a pilot who wanted to crash the plane he was flying didn't need explosives to do it—and, more important, after it became clear that enough pilots were unwilling to go along with the requirement to provide, at the least, a very serious public relations problem—did they reverse that part of their policy. The implication is either an organizational IQ at the idiot level or, more plausibly, an organization more concerned with image than substance.

Trust, once lost, is hard to get back.

Translucent Backs for Laptops?

I'm writing this post on an 11" MacBook Air, in a car on the highway; my wife is driving and I am connected to the internet via the moving hotspot generated by my Android phone. It's bright out and I was having some trouble reading the screen—with the exception of a patch in the middle, which had a brighter background and so provided more contrast, a patch produced by the translucent white Apple logo on the screen

Which suggests an interesting possibility. Why not make the whole lid out of a translucent material, thus providing a brighter background at no cost in power. It would only work in a bright environment—but then, that's when it is most needed.

Eventually it occurred to me to check the setting for screen brightness. With that turned up, the rest of the screen is readable too. But the translucent back still seems as though it might make sense.

Perhaps under some circumstances it would be a disadvantage, although I'm not sure what those would be. If so, use the high tech version. Two layers of polarizing material, one of which can have its polarization switched, vertical to horizontal or left handed to right, to make the combination opaque.

Tax Cuts: A Prediction

Just for fun, I thought I would establish my prediction of the outcome of the current disagreement over tax cuts, to demonstrate how much I do (or don't) know about political strategy.

The agreement will be a temporary continuation, probably for two years, of the Bush tax cuts for everyone.

Why? Because the alternative compromise is a permanent extension for the lower income group, temporary for the high. Do it that way and when the temporary expires, the issue can be presented as whether to give rich people a tax cut--not whether to give everyone one. That's a strong political position for the Democrats, hence one the Republicans will be reluctant to set up.

Sustainability: Part II

A commenter on my previous post informs me that:

The generally accepted definition comes from the Brundtland Report, which defines sustainable development as: "development that meets the needs of the present without compromising the ability of future generations to meet their own needs".

There are two problems with this definition. The first is that implementing it requires us to predict what the future will be like in order to know what the needs of future generations will be. Consider two examples:

1. The cost of solar power has been falling steeply. If that fall continues, in another couple of decades fossil fuels will no longer be needed for most of their current purposes, since solar will be a less expensive alternative. If so, sustainability does not require us to conserve fossil fuels.

2. A central worry of environmentalists for at least the past sixty years or so has been population increase. If that is going to be the chief threat to the needs of future generations then sustainability requires us to keep population growth down, as many have argued.

A current worry in developed countries is population collapse, birth rates in many of them being now well below replacement. With the economic development of large parts of the third world, that problem might well spread to them. If so, sustainability requires us to keep population growth up, to protect future generations from the dangers of population collapse and the associated aging of their populations.

It's easy enough to think of other examples. Generalizing the point, "sustainability" becomes an argument against whatever policies one disapproves of, in favor of whatever policies one approves of, and adds nothing beyond a rhetorical club with which partisans can beat on those who disagree with them.

There is a second and related problem with the definition: whether it is to be defined by individual effects or net effects. If a particular policy makes potable water less available to future generations, with the result that many of them get drinking water in bottles rather than from the tap, but also makes future generations enough richer to more than pay the cost of that bottled water, is that policy consistent with sustainability?

Or consider the issue of global warming. Assume that it can be slowed or prevented, but at the cost of slowing the development of much of the world. To make the point more precise, suppose that global warming imposes an average cost on future generations of 10 utiles (or whatever unit you prefer to use to measure the ability of future generations to meet their own needs), but the policies that prevent it impose a cost of 20. Is permitting global warming sustainable? Is preventing it?

If we define sustainability in terms of individual effects, treating as unsustainable anything which makes future generations less able to meet any one of their needs, there may be no policies at all that are sustainable, since each alternative alters the future in different ways and any alteration is likely to be bad in at least one respect. If, more plausibly, we define it in terms of net effects, then the demand for sustainability turns into the demand that we not follow policies that make future generations worse off than the present generation.

What policies make future generations better or worse off is one of the things people who argue about policy disagree about. It was obvious to a large number of intelligent and thoughtful people early in the past century that socialism made people better off; it is obvious to most such people now that it had the opposite effect. Similarly with current arguments over almost anything, from gay marriage to genetically engineered crops. "Sustainability" becomes an argument for both sides, each interpreting it by its view of the consequences of the policies it supports or opposes.

Not only does the requirement of sustainability add nothing useful to the conversation, it takes something away. It implies that the one essential requirement is making sure our descendants are as well off as we are; whether they end up better off than we are, as we are better off than our ancestors, is relatively unimportant. That surely impoverishes any serious discussion of policies that affect future generations.

I am grateful to the commenter for providing me with a definition, but it does not alter my conclusion. To regard sustainability as a useful and important goal is indefensible.

Sustainability

My university is very big on sustainability. A quick search of its web site failed to produce any clear definition of the term, but I think a reasonable interpretation, based on the word itself and how I see it being used, is that it means doing things in such a way that you could continue doing them in that way forever. If so, the idea that sustainability is an essential, even an important, goal strikes me as indefensible.

To see why, imagine what it would have meant c. 1900. The university existed, it had a lot of students and faculty. None of them had automobiles. Many, presumably, had horses. Sustainability would have included assuring a sufficient supply of pasture land for all those horses into the indefinite future. It might have included assuring a sufficient supply of firewood. It would, in other words, have meant making preparations for a future that was not going to happen.

The same is true today. Making sure we can continue our present activities into the indefinite future makes sense only if we believe that we will be doing those things into the indefinite future. Judged by what we have seen in the past and can guess about the future, that is very unlikely. We do not know what the world of forty or fifty years hence will be like, but it will not be the same as the present world, hence it is very unlikely that we will be doing the same things in the same way and requiring the same resources to do them with.

The issue was recently brought to my attention when a colleague at a faculty meeting gave a glowing description of all the good things that were being done or planned in support of sustainability, up to and including a future teach in. I asked him one question—whether any part of the plans included presentations of arguments against sustainability. His answer was that any arguments against sustainability would be presented by speakers who were in favor of it.

That is not how universities are supposed to function.

Carrying a Laptop: A Social Puzzle

I am writing this post on my newest acquisition, an 11” Macbook Air. It’s a lovely piece of machinery, very small and light and surprisingly powerful—it can, for instance, run World of Warcraft at respectable frame rates without my having to turn the graphics settings down low.

It is small, but not small enough to fit in any of my pockets. The obvious solution is to buy or make a carrier for it, a cloth or leather pouch big enough for the computer and perhaps its charger, with a strap that leaves my hands free. Which raises some design questions.

Given the size of the computer and the shape of the human body, the most convenient way to design such a pouch is lying over my chest, a reasonably flat area of about the right width, supported by a strap going behind my neck. Baby carriers are often made that way, with some additional straps—most babies are heavier than most laptops. WWI soldiers carried front packs as well as back packs; for all I know soldiers still do. But I do not think I have ever seen a case for a laptop, or papers, or anything similar designed to hang in front of the carrier’s chest. All such seem to be designed either to go on your back or to hang by your side. What I don't know is why.

Pursuing that question further, I try to imagine making and wearing a case for my new toy designed along what seem to be to be sensible lines. My response to the imagined scene is discomfort, embarrassment. I feel as though I would be doing something odd, violating some unspoken norm. People would look at me oddly.

Why I feel that way, and why carry bags are designed as they are, I do not know. One possibility is that it is because the most common such device is a woman’s purse and women’s purses normally hang at their sides, perhaps because women’s breasts would get in the way of a frontal design. But that is only a guess, and one made by a not very observant guesser; perhaps some women’s purses are designed in the way I have just suggested that they are not and I have just not noticed them.

My best evidence is inside my head, where I seem to have internalized a norm mandating bad design for the case for my new toy.

Clothing Naked Statues: An Instructional Fable

In a recent online discussion, I came across the following, with reference to John Ashcroft:

"Wasn't he the one who ordered clothing be put over statues of women with naked boobies?"

Curious, I did a quick Google, and located the relevant information on Wikipedia. The fact on which the story is based involves not statues of women with naked boobies but one statue of one woman with one naked boobie, a representation of the spirit of justice located in the headquarters of the Department of Justice. It was veiled not with clothing but with curtains that could be used to block the view of the statue during speeches, when it would otherwise have been a feature of the background. The curtains were initially installed not by Ashcroft but by, or at least during the tenure of, his predecessor, although the installation was made permanent under Ashcroft.

Or in other words, most of the content of the story, with its implication of Ashcroftian puritanism, is bogus. Which I take as support for my general rule of thumb: Regard with suspicion any historical anecdote that makes a good enough story to have survived on its literary merit.

And just to balance myths of left and right, I note the recent widely circulated claim that Barack Obama's visit to India is costing $200 million a day. It's a good story, and obviously fits well with the view of Obama as fiscally profligate. But its sole basis seems to be a single news story from India, sourced to an anonymous "top official of the Maharashtra Government privy to the arrangements for the high-profile visit." Which did not prevent it from being widely published as fact in online (and, I presume, print) sources in the U.S.

By now most reputable media that mention it have reported it as bogus—but twenty years from now, if the Internet is still functioning more or less as it now does, the story will be alive and well. For my favorite example of the phenomenon, this time a deliberate prank by one of the 20th century's greatest journalists, google the Bathtub Hoax.

The Most Expensive Research Project Ever

As in observer of, but not a participant in, the macro wars of the past fifty years, I was struck by the way in which 1960's Keynesianism, largely abandoned by academic economists due to its inability to explain real world events, was suddenly revived in response to recent economic difficulties. Not only revived, but presented by its supporters, including President Obama, as what all economists believed in—a claim that provoked a newspaper ad signed by a large number who didn't.

The truth is that, as Gary Becker puts it in a recent blog post, "The unpleasant fact we economists have to face is that there is not strong evidence on the actual effects of governmental spending on employment and GDP. The usual claimed effects are generally based on predictions from highly imperfect theoretical models of the economy rather than from strong direct and clear evidence on the employment consequences of different fiscal stimuli."

Which is one reason why, as Becker goes on to point out, the contrast between the current policies of the U.S. and the U.K. should be of considerable interest to economists. The U.S. policy, confidently predicated on the theory that deficit spending reduces unemployment, has been to greatly expand both spending and deficit relative to their long term levels, with spending up from about 20 percent of GNP to about 25 percent. The U.K., in contrast, is proposing to reduce its deficit, mainly by reductions in spending, by about 1.5% of GNP for each of the next four years; if they carry through, they will have cut spending, relative to GNP, by about as much as Obama and Bush have increased it. At the same time, Obama's fiscal policies are combined with a substantial increase in government involvement in economic affairs, most notably in health care, while Cameron is at least proposing a decrease.

There are, of course, lots of other differences between the U.S. and the U.K. But such a drastic difference in policy ought to produce results large enough to outweigh them. If the current position of the U.S. administration and its economists is correct, their policy should decrease unemployment by a substantial amount while the U.K. policy increases it by a comparable amount. If on the other hand, as I suspect, the U.S. recession has been so severe not despite Obama's policies but because of them, and similarly for the Great Depression and FDR, the prediction reverses. It will be interesting to see.

Economists should be grateful to President Obama and Prime Minister Cameron for arranging something reasonably close to a scientific experiment on the effects of government policy. Other people might look at the matter somewhat differently. Whichever of the two turns out to be wrong will have imposed a very large cost, quite possibly in the trillions of dollars, on the population he is experimenting on.

Which is the justification for the title of this post.

To be fair, there is a competing claimant to the title. One could view the communist states of the 20th century as a similar research project, this time on the effect of central economic planning. Seen from that point of view, measured in human cost and perhaps also measured in dollars, it was a still more expensive experiment.

Three Wrongs Don't Make a Right: Thaler on Estate Taxes

In a recent New York Times piece, Richard Thaler discusses alternative ways in which the estate tax might be revised. I have no strong opinions on optimal taxation, other than wanting it to be as low a possible, but it struck me that one part of his argument was wrong in an interesting way. Thaler writes:

"First, it is incorrect to say the estate tax amounts to double taxation. The wealth in many large estates has never been taxed because it is largely in the form of unrealized — therefore untaxed — capital gains. A 2000 study found that for estates worth more than $10 million, unrealized capital gains represented 56 percent of assets."

The problem with this is that capital gains are calculated on nominal, not real, values. To see why that matters, consider someone who bought an asset in 1981 for $100 and sold it in 1998, the year the study's figures are based on, for $200. On paper, he has a capital gain of $100. But over those seventeen years, prices doubled; $200 in 1998 was worth the same amount as $100 in 1981. His real capital gain is zero. If instead he sold the asset for $300, the capital gain reported on his schedule D will be $200, his real capital gain only $100.

As you can check by downloading the study Thaler cites (his link only gives you the abstract), its figure of 56 percent of assets was calculated using the conventional definition, hence consists largely of imaginary capital gains. One cannot tell how large the overestimate is without additional information on when and for how much the assets were bought. If we assume that my imaginary asset bought for $100 in 1981 and worth $300 in 1998 is typical, Thaler's figure is off by a factor of two—real capital gains represent 28% of those estates, not 56%, which makes his dismissal of the double taxation argument substantially less persuasive.

Why does all of this matter? It matters because what Thaler is implicitly arguing for in this part of his piece is balancing one error in the tax code with another, while ignoring a third.

What are the three errors, seen from the standpoint of measuring and taxing the real gains from buying and selling assets?

1. The failure to index capital gains, to measure them in real rather than in nominal terms. At a zero inflation rate this wouldn't matter, but if inflation is substantial it taxes investors on imaginary profits, heavily discouraging any form of investment activity that will eventually show up on a schedule D.

2. The failure to retain the basis for capital gains when an asset is inherited. Under current law, when my imaginary investor dies in 1998 and his son inherits his $300 asset, the basis for the asset shifts up, so neither the real $100 gain nor the imaginary $100 gain ever pays capital gains tax.

3. The estate tax. Instead of paying capital gains tax on either the real or the imaginary capital gains, the son is taxed on the amount of the estate, some unknown fraction of which consists of actual capital gains. This is double taxation on part of the estate, single taxation on another part, and, given the exemptions in the estate tax law, zero taxation on a third part.

Richard Thaler's piece is offering advice to Congress on how to deal with the changes in the estate tax currently scheduled for the end of this year. I will accordingly end this post with my alternative. Index capital gains. Base capital gains on the original basis for an asset, whether or not it has been inherited in the meantime. Abolish the estate tax.

The result would still transfer money from private individuals to the government, which I regard as a bad thing although I presume Thaler does not. But it would at least do so in a consistent and coherent way.

Three wrongs don't make a right.

Three Party Politics

Watching the election returns this week, it occurred to me that they were producing a potentially interesting situation—a three party House of Representatives. On paper, the Republicans have a majority. But that majority depends on the support of a substantial number of representatives who got nominated despite opposition from the Republican establishment, mostly with Tea Party support. They, like everybody else who reads the poll results, are aware that, unpopular as the Democratic party is with voters at the moment, the Republican party is only a little less unpopular.

Suppose the Tea Party representatives respond to that situation by forming their own caucus, as they well may, and functioning as an independent body, a virtual third party. In organizing the House, they will presumably sell their support to the orthodox Republicans in exchange for a positions for some of their members. But in future legislative struggles, matters may not be that simple.

Considered as a three party game, and ignoring divisions with the Democratic party, the logic is simple. Obama and the Democrats cannot pass legislation. Neither can the Republicans. Neither can the (hypothetical) Tea Party caucus. Neither can the Republicans allied with the Tea Party. But an alliance of Obama with either of the other two provides majorities in both houses; that plus the President's signature is, short of a successful filibuster, sufficient. And it is not entirely clear that the Republicans, absent the support of Tea Party senators, could mount a filibuster.

It is tempting, but boring, to assume that since the Tea Party is in some sense on the opposite side from the Democrats, no alliances are possible. Reason to reject that assumption is provided by recent British political history. The Liberal Democrats, by most views, were positioned to the left of a Labor party that had become increasingly centrist in the years since Maggie Thatcher's successful Tory rule. But when an election produced a majority for neither of the major parties, it was the Conservatives, not Labor, that they ended up in coalition with. So far, that coalition seems to working.

I admit, however, that I have had a hard time thinking up plausible issues on which the Tea Party and the Democrats might align against the Republicans. It would be easier if the Tea party were more consistently libertarian—one could imagine, for instance, an alliance to pass a federal medical marijuana law, supposing that it occurs to Obama that scaling back the War on Drugs is at this point a more popular policy than strengthening it. But that one strikes me as implausible and nothing else at the moment occurs to me.

Suggestions?

If the Web Had Come First

Thinking about the incident described in my previous post, it occurred to me that the web provides a much cleaner mechanism for dealing with issues of copyright and credit than print media, making it interesting to imagine how the relevant norms and laws might have developed if the web had come first and whether they can and should now be revised to fit the new technology. Consider the simple issue of quoting, in print, something someone else has written. Under current law, before doing so you must:

1. Decide whether your use is fair use; if not you require permission in order not to violate copyright law.

2. If it isn't, or might not be, fair use, you have to figure out who holds the copyright and how to contact him, not always easy, especially for something published some time ago and/or in a foreign country.

3. You then have to get permission from the copyright holder. In many cases, including the Cooks Source flap, the amount you would be willing to pay the copyright holder is small enough so that it probably isn't worth his time and trouble responding to your query and investigating to see just who you are and how you are likely to use his material.

4. Whether or not you conclude it is fair use, in order not to violate the norms against plagiarism you have to identify who you are quoting—sometimes easy but sometimes, especially if you are putting together a work that involves quoting lots of things from a lot of people, a good deal of trouble. It's particularly difficult if you are picking up something relevant to what you are writing not from the original source but from someone else quoting it—possibly with no attribution, possibly with a false attribution.

5. In order not to engage in what I described in my previous post as reverse plagiarism, attributing something to someone that he did not write, you have to trace the quote back to the original source to make sure you have it right. To observe how rarely people do so, try googling on ["David Friedman" "the direct use"]. Then download my Machinery of Freedom, which is what is being quoted, and do a quick search for "the direct use" to find the actual quote.

I have just done the experiment. The first eight hits had the quote wrong. The ninth was my webbed book.

6. In addition to any legal problems associated with quoting things, there is also the moral issue: are you unjustly making use of someone else's work to benefit you but not him?

All of which makes the reuse of other people's writing, a useful and productive activity, difficult and costly.

Now consider the same issue on the web. In my previous post, I provided my readers with the full text of two magazine articles and a Google Docs spreadsheet. Before doing so I obtained no permissions, made no effort to determine who held the copyright or deserved the credit for them, spent no time at all making sure I had the text right. None of that was necessary because, instead of quoting them, I linked to them.

Doing so also resolved any moral reservations I might have had about making use of the authors' work. They put their work up on the web in order that other people could read it. My links funneled readers to them, hence helped them to achieve the very objective for which they had written and webbed the pieces.

If the web had come first, issues of copyright and credit would have applied only to the rare case where someone chose to copy instead to link. Indeed, the relevant laws and norms might never have developed, since the very fact that what you were reading was a quote rather than a link, written by the quoter rather than the quotee, would be sufficient reason not to trust it.

The only difficulty I can see with applying this approach online today, linking instead of quoting, in order to work around the inconveniences of laws and norms developed in the context of print publication, is that you may want to quote only a part of what someone else has webbed. I am not sufficiently expert in HTML to know whether there is any convenient way of linking to a page in a way that will highlight the passage starting at character 583 of the target document and ending at character 912, in order to signal to the reader that that is the part you are quoting.

If there isn't, there should be.

What Do You Call Reverse Plagiarism?

There has been a considerable online furor recently over a magazine, Cooks Source, that is apparently in the habit of publishing material lifted from the internet, sometimes without credit, sometimes with credit but without permission. The controversy started when Monica Gaudio, the author of an SCA article on medieval apple pie, discovered that an edited version of her article had appeared, with her name but without her permission, in Cooks Source. She complained to the editor and got back an extraordinarily snarky email informing her that everything on the Internet is public domain—which is, of course, not true—and that she ought to be grateful for the editor's effort improving her article.

As the story spread, a considerable number of people spent time and effort going over back issues of Cooks Source to identify the sources of its material; there is now a Google docs spreadsheet up that provides a list of stolen articles. So far as I can tell, they didn't steal any of my medieval recipes; perhaps I should feel insulted.

The story raises an interesting terminological, and legal, question. Publishing something I wrote over someone else's name is plagiarism. What about publishing something I didn't write over my name? Monica's article was published over her name but had been edited without her permission, so some of what was published was not what she had written.

Putting aside the fact that publishing it without her permission, with or without credit, was a copyright violation, what was the legal status of attributing to her words she had not written?

Shrink=Trainer=Coach

When I was a graduate student at the University of Chicago, a very long time ago, it was common for undergraduate acquaintances to have, and talk about having, a shrink—a psychoanalyst. I never saw much evidence that psychoanalysis was improving their psyches to any significant degree, which led me to suspect that the real function of the shrink was to make the patient feel better, and perhaps more important, by paying attention to him or her. A friend who was getting his doctorate in psychology asked one of his professors what the evidence was that psychoanalysis worked, read the articles the professor suggested, and concluded that the evidence was that it didn't; I take that as at least mild support for my interpretation of the role of the shrink.

So far as I can tell by very casual observation, the shrink has pretty much vanished from that particular role, being replaced by the trainer, aka coach, someone hired to provide advice to his client on how to live his life. As best I can tell, being hired for that job does not, in practice, require any evidence of expertise in living one's own life.

Nor does it require the eight years of medical school plus residency that were the entry requirements for becoming a shrink, but not truly essential for the job of making clients feel as though someone is paying attention to them. It's nice to see progress in the world.

The Election: What Does Obama Want? What Do I Want?

I want the Republicans to take the House, since I view divided government as a good thing—the less the government does, ceteris paribus, the less damage it does. I am less sure of my desires with regard to the Senate. Are we better off with House and Senate fighting each other or both of them fighting the administration?

Obama's (hypothetical) preferences are more interesting. Everyone takes it for granted that he wants the Democrats to do as well as possible, and it may well be true. On the other hand ... .

Suppose he believes that most of the things that are going badly now, most notably the unemployment rate and the deficit, will still be going badly two years from now. If the Democrats retain control Congress there will be nobody but the Democrats to blame, which could have negative consequences for an incumbent running for reelection. If, on the other hand, the Republicans control one or both houses ... .

Returning to my preferences, there is one more factor. The better the Republicans do, the more emphatic the public rejection of Obama's policies. Since most of the policies in question—stimulus, bailout, Obamacare, and cap-and-trade—strike me as bad ones, that would be good. It would make it less likely that later politicians will repeat what I view as his mistakes.

Constitutional Chaos

I recently read a paper by a colleague discussing the lawsuits currently being pursued by various states against the new health care rules. His conclusion was that some of the arguments made by the states were legitimate and that there was a real possibility that one or more of them would convince a majority of the Court.

One of the lines of argument he covered struck me as raising some broader issues. The new rules require states to expand medicaid coverage in expensive ways. The states argue that this amounts to commandeering them, compelling states to implement, and pay for, policies imposed on them by the federal government.

The other side argues that there is no compulsion. Medicaid is a program run by the states, although largely paid for by the federal government, and any state unhappy with the new rules is free to abolish its medicaid program—and, of course, stop receiving federal dollars to pay for it. The states respond that that is not a real alternative, both because many of their citizens are now dependent on the program and because the amount of money involved comes to a sizable fraction of the total state budget. My colleague's view is that the states are unlikely to win on this one, since past cases have made it clear that the federal government can get states to do things—impose a 55 mile per hour speed limit, for instance—by threatening to reduce or eliminate federal subsidies if they don't.

Which raises the following question ... . Suppose the federal government wants to force the states to do something which, according to the Supreme Court, is not within its power—for instance to ban firearms within 1000 feet of a school (United States v. Lopez —but see this Wikipedia article for complications). It does so by creating an income surtax calculated to bring in fifty billion dollars a year, and announces that the money will be used to help states with their budget difficulties—but only states that have passed the ban. To make the logic of what it is doing even clearer, it adds a second condition—states that accept the new money must use it to give every citizen a credit on his state taxes equal to the amount of the surtax.

Aside from some extra paperwork, the law has no effect on states that agree to pass the ban, but acts as a steep fine on states that do not. My colleague's opinion was that such a law—absent the final step, which hadn't occurred to me when I put the question to him—would be found constitutional. There is no constitutional requirement that federal expenditures be allocated fairly among the states, whatever that might mean.

There is a requirement with regard to allocating taxation—Article I Section 2 ("Representative and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers ..."). Later amendments changed the details, but I believe it would still be found unconstitutional for the federal government to announce a tax that would be collected only from some states but not others—not, for instance, from states that had passed regulations the federal government wanted them to pass. So the federal government can evade constraints on its power over the states by targeted expenditures but not by targeted taxes.

When the Constitution was written, that may have been sufficient. So long as all expenditure was for "the common Defense and general Welfare," targeting would not be an issue—although no doubt, in practice, ways were found of promoting the welfare of some people more than others.

My conclusion is that the destruction of one part of the original Constitutional scheme resulted in the indirect destruction of a different part. Once it is accepted that Congress has an almost unrestricted power to tax as much money as it wants to be spent in whatever way it likes, it becomes impossible in practice to restrict its ability to make states do things. All it has to do is take enough money away from their citizens and offer to return it if, and only if, the states are suitably obedient to Congressional commands.

What Defines a Sham Marriage?

A recent story on Fox News concerns a Lebanese man convicted of entering into a sham marriage with an American citizen in order to get permission to stay in the U.S. What made the story newsworthy was that the woman was later an aide to Senator Harry Reid. There is no clear evidence that Reid knew about the case until recently, when the story broke—at which point the aide apparently quit or was fired. I expect that his opponent in the current election will argue either that he knew, that he should have known, or that hiring someone who would do such a thing is evidence of poor judgment. Very likely Reid's people are now combing through the public records in search of some similar misdeed by an employee of the other side, assuming they don't already have evidence of one in stock and ready.

What struck me about the case was not the political element but the question of what, for purposes of immigration, makes a marriage a sham. Married couples usually live together, usually sleep together, usually share income and meals. But none of those is a defining characteristic of marriage. If a couple goes through the usual legal formalities, what more do they have to do in order that their marriage count as real?

It's a serious issue in the context of immigration. Eighty years ago, when marriage was a more serious and divorce a more difficult matter and the reputation for female virginity a significant asset on the marriage market, marrying someone you didn't love or plan to live with was a costly way of getting him or her permission to immigrate, although I expect it occasionally happened. In our current society, those costs are a great deal less. Permitting anyone married to a U.S. citizen to live in the U.S., perhaps to become a citizen, looks like a yawning gap in the barriers that the U.S. puts up against would-be immigrants. But how, given the difficulty of defining what makes a marriage real, can that gap be closed?

Apparently the INS has an answer to that question. Anyone know what it is?

Separation of Church and State or Public Schools: Pick One

A commenter on my previous post asks what the content of a creationist course would be, readings from the book of Genesis or merely bad science, and adds that "teaching Marxist ideas of 'laws of history' is peddling a form of religious pseudo-science. Some of the environmental dogma being taught in schools is also on par with this stuff."

This suggests a more general point—is the existence of a public school system consistent with a serious commitment to the separation of church and state?

I think the answer is that it is not. While teaching a fundamentalist version of the origin of life is indeed taking a side in a religious dispute, teaching a conventional account of biology and geology is is also taking a side in that dispute, just the opposite side. I do not see how I can honestly tell a fundamentalist that it is a violation of the separation of church and state to teach children that his religious beliefs are true but not a violation to teach children that they are false.

The conventional view is, in this case, the one I believe is true. But then, if they were teaching creationism, they would be taking the side he believes is true. So what purports to be separation of church and state ends up as the opposite—the state supporting a particular view of religious questions. That comes pretty close to the established church that the First Amendment explicitly forbids.

Of course, these are not only religious questions, they are also scientific questions. But then, most religious questions are also scientific, or historical, or philosophical, questions. If the rule is that the state can teach whatever it believes is true provided that here is some basis for that belief other than religion, that leaves the state free to teach the truth or falsity of pretty nearly every religion. The doctrine of separation of church and state then becomes the doctrine that one can only teach the truth, which sounds fine as rhetoric but has some practical difficulties in a world where different people have different views of what the truth is.

So far, I have considered a case where the school teaches what I believe is true. In the real world there is no such limitation, as the quoted comment with which I started this suggests. When schools teach children that they have an obligation to take care of Mother Earth they are teaching religion, whether or not they put it in an explicitly religious form; religions are not limited to beliefs about gods. And I find it hard to draw any sharp line between religions and secular ideologies such as Marxism or libertarianism.

Eliminate all content that is in a broad sense religious and there is nothing left. Even eliminate all content that is religious in a narrow sense, where that includes claims that religions are false as well as claims that they are true, and there is not a whole lot left.

In practice, the application of separation of church and state in the American public schools usually comes down to not teaching what most of those concerned see as something that one would believe only for religious reasons. A century or more ago, that mostly meant that teaching Christianity was fine, since practically everyone took it for granted that Christianity was true. Today, insofar as matters are decided at the local level, it means that teaching things that the locals almost all agree with are fine—which can be Christian fundamentalism in some places and environmentalism and left-wing politics in others.

Problems arise when there is a conflict either between local and national views or between the views of the local parents and the views of the teachers and/or administrators running the schools. It is only at that point that what one group sees as obvious truth gets attacked by another as teaching religion.

The Constitution and the Separation of Church and State

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Christine O'Donnell has been widely mocked for expressing doubt as to the presence in the Constitution of separation of church and state. As you can see from the First Amendment, quoted in full above, she is correct and her critics are mistaken. Not only do the words not appear in the Constitution, the idea does not appear either. Establishment of religion was a well understood concept; it meant an official state church, supported by government money. England had had such an arrangement since at least the sixteenth century and still does. So, currently, do Denmark, Norway, and Iceland (all Lutheran), as well as lots of Muslim countries. When the First Amendment was passed, Connecticut and Massachusetts had established churches.

Teaching creationism in the public schools—not a burning issue in those pre-Darwin and pre-public school days—is not an establishment of religion. Nor is having the government contract with religious groups to do things it wants done. The modern concept of the separation of church and state, based on a phrase used by Jefferson, is a creation of the courts that goes well beyond the language of the First Amendment. For details, see this post by Jim Lindgren, who teaches law at Northwestern.

That so many observers took it for granted that O'Donnell was demonstrating her ignorance rather than theirs is testimony to the power of that particular civic myth.

Wanted: A Taped Alarm Clock

I spent the weekend at a libertarian conference (libertopia). A common problem at such events is keeping to the schedule. A speaker goes overtime, the next speaker, having started late ends late, and the schedule gradually fades away. This one did better than most—I think there was only one day when talks ended up starting noticeably later than they should.

I have observed a similar problem at academic workshops, where a speaker is supposed to have a limited amount of time to present his paper, with the remaining time for questions and discussions. It is a particularly serious problem at Chicago style workshops, where the theory is that everyone in the audience has read the paper so the speaker does not have to read it to them; his fifteen or twenty minutes are supposed to be spent talking about his paper. The more often speakers end up breaking the rules and using most of the time to present the paper the less likely those attending are to bother reading it in advance. The fewer read it in advance, the greater the incentive for the speaker to spend the time presenting it instead of discussing it.

I have a techno-social solution. It consists of an alarm clock that can have multiple settings, and will ring at each for a fixed length of time, say five seconds. At the start of the conference day, it is set to ring when each speaker is supposed to be finished. Once it has been set, the mechanism for changing the setting is ceremonially (but temporarily) disabled, perhaps by putting a strip of tape over the relevant button, and the alarm clock is put next to the podium. Now schedule drift can happen only by an explicit decision to change the rules, not by a gradual erosion.