Monday, June 27, 2011

Why I always thought "Freakonomics" was a scam

This is the latest "debate" on the intertubes (at least according to Andrew Sullivan and Momocrats). It brings to mind again that fools rush in where angels fear to tread; and not because it's a scary space, but because fools are, well....fools.

As I was saying, we've dealt with these kinds of issues before: if you make a thought experiment of it, it's easy to craft a hypothetical situation which seems too dire to allow for a rational resolution. Yet such a resolution must be found, and suddenly you feel trapped on the horns of a dilemma. That, or you are a first year law student in torts class, where no answer you give seems right, and for every rule of law you'd swear was soundly established, there is a contrary court ruling setting an entirely different precedent.

That is, until you understand torts, and law, and court rulings, and precedent. Until, in other words, you do the hard work required in learning to think like a lawyer. Which is not to say all decisions about law should be left to lawyers, but it is to say there's a reason laws are complicated, and judges and lawyers are educated, and that nobody really gets to put into action arguments about public policy as simplistic as Steven Levitt's (or, if they do, they don't stay in public office long, and the laws get repealed or ridiculed off the books). Honestly, law makes enough mistakes without being this dumb.

There is in the law, for example, the standard of the reasonable and prudent person. Lawyers will immediately recognize that fictional being has almost no relevance here, but this is for the non-lawyers, so bear with me. In trying to figure out hard situation in which justice must be done, but also in which justice must be balanced, the courts long ago recognized the concerns of society and the concerns of the individual, and sought to balance those. Thus appeared the reasonable and prudent person, who...well, here, let me give you the classic definition, courtesy of A.P. Herbert:

The Common Law of England has been laboriously built about a mythical figure-the figure of ‘The Reasonable Man’. In the field of jurisprudence this legendary individual occupies the place which in another science is held by the Economic Man, and in social and political discussions by the Average or Plain Man. He is an ideal, a standard, the embodiment of all those qualities which we demand of the good citizen. No matter what may be the particular department of human life which falls to be considered in these Courts, sooner or later we have to face the question: Was this or was it not the conduct of a reasonable man?
This noble creature stands in singular contrast to his kinsman the Economic Man, whose every action is prompted by the single spur of selfish advantage and directed to the single end of monetary gain. The Reasonable Man is always thinking of others; prudence is his guide, and ‘Safety First’, if I may borrow a contemporary catchword, is his rule of life. All solid virtues are his, save only that peculiar quality by which the affection of other men is won. For it will not be pretended that socially he is much less objectionable than the Economic Man.

Though any given example of his behaviour must command our admiration, when taken in the mass his acts create a very different set of impressions.

He is one who invariably looks where he is going, and is careful to examine the immediate foreground before he executes a leap or bound; who neither star-gazes nor is lost in meditation when approaching trap-doors or the margin of a dock; who records in every case upon the counterfoils of cheques such ample details as are desirable, scrupulously substitutes the word ‘Order’ for the word ‘Bearer’, crosses the instrument ‘a/c Payee only’, and registers the package in which it is despatched; who never mounts a moving omnibus, and does not alight from any car while the train is in motion; who investigates exhaustively the bona fides of every mendicant [beggar] before distributing alms, and will inform himself of the history and habits of a dog before administering a caress; who believes no gossip, nor repeats it, without firm basis for believing it to be true; who never drives his ball till those in front of him have definitely vacated the putting-green which is his own objective; who never from one year’s end to another makes an excessive demand upon his wife, his neighbours, his servants, his ox, or his ass; who in the way of business looks only for that narrow margin of profit which twelve men such as himself would reckon to be ‘fair’, contemplates his fellow-merchants, their agents, and their goods, with that degree of suspicion and distrust which the law deems admirable; who never swears, gambles, or loses his temper; who uses nothing except in moderation, and even while he flogs his child is meditating only on the golden mean.
That is a satirical definition of a fictional figure, but you get the idea. The law (common, not necessarily legislative; there is a difference) considers carefully the difficulties involved in commonly encountered situations, and seeks a way to resolve them that is as fair and just to as many as possible. What it comes up with may be easily portrayed as farcical, but that's because the basis for it is not what any one person might prefer. It is a clear attempt to set a standard that the affected community would largely find equitable, especially given the competing interests present in even the most insignificant of legal disputes.

And then there's Steven Levitt's "Daughter test;" which, frankly, is just stupid. And being stupid, it prompts stupid responses:

There are lots of activities we AP-class types find acceptable — drug use, gambling, etc. — because we sort of assume that everyone has the same level of impulse control that we do. And if you have good impulse control, then drugs and gambling are just pleasant ways of filling in your free time. ... But if you're not part of the AP-class cohort, there's a pretty good chance that your impulse control isn't quite as good as all that, and an excellent chance that even if it is, you're keenly aware that good impulse control isn't exactly universal.
The question of what is acceptable to whom is a valid legislative, and even legal, question. But presuming "we" are different (hem-hem, i.e., "superior") from "them" is...need I go on? Perhaps I should, with a pertinent example:

I had a client, some 20+ years ago now, who was a former narcotics police officer. Driving to a deposition with him (on a personal financial matter, small potatoes, nothing to do with corruption or drugs or anything interesting), I asked him about the drug laws and the "drug war," then not yet 20 years old. He said that if some people could only get ahold of Sterno, they'd use that to get high. You weren't, he said, going to keep certain people from trying to get high, no matter what you did.

I suppose Kevin Drum would say those people had "impulse control" problems. Or maybe they just want to get high, and damn the consequences. I heard in passing that drug testing of wastewater indicates a higher use of methamphetamines in the U.S. than previously thought. I guess a lot of us have trouble with "impulse control."

And, of course, who pays the price for Steven Levitt wanting to treat the world like we are all his daughter? Mexico is collapsing on its northern border, and the violence is spilling into America, because of the demand for drugs in America, and the fact that they are illegal. Drug usage has not diminished, and the costs of the "war on drugs" continue to rise, with no end to the battle in sight, and absolutely no declaration of victory, however minor, in the offing. We in America blithely ignore our part in what is happening. A pipeline has two ends, and that stuff isn't being pushed north, it's being sucked here.

The law, as I said, considers carefully the difficulties involved in commonly encountered situations, and seeks a way to resolve them that is as fair and just to as many as possible. The law doesn't say: "Well, I don't like it, so you can't do it." When it does say that (as it has with current U.S. drug policy, which is a creature of the Legislature, not the common law), it creates far more problems than it solves, and even creates criminal empires where none need exist. It is not a question of impulse control, nor of what I don't want my daughter to do. It is not even reducible to a simple phrase or a simple test.

The idea that public policy should be based on how I can understand its effect on me, personally, is the nadir of the "Me Generation." It isn't, as Douthat avers, a "touch of Kantianism." There isn't even a whiff of Kant about it. It's simply stupid and mindless. But maybe that's the magical thinking that turns apples into oranges.

And in the news today an event which prompts me to publish this post: the Supreme Court has decided that the First Amendment protects minors having access to violence and gore, but not to sex. Why? Because we've always done it that way:

California’s argument would fare better if there were a longstanding tradition in this country of specially restricting children’s access to depictions of violence, but there is none. Certainly the books we give children to read—or read to them when they are younger—contain no shortage of gore. Grimm’s Fairy Tales, for example, are grim in-deed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers “till she fell dead on the floor, a sad example of envy and jealousy.” The Complete Brothers Grimm Fairy Tales 198 (2006 ed.). Cinderella’s evil stepsisters have their eyes pecked out by doves. Id., at 95. And Hansel and Gretel (children!) kill their captor by baking her in an oven. Id., at 54.

High-school reading lists are full of similar fare. Homer’s Odysseus blinds Polyphemus the Cyclops by grinding out his eye with a heated stake. The Odyssey of Homer, Book IX, p. 125 (S. Butcher & A. Lang transls.1909) (“Even so did we seize the fiery-pointed brand and whirled it round in his eye, and the blood flowed about the heated bar. And the breath of the flame singed his eyelids and brows all about, as the ball of the eye burnt away, and the roots thereof crackled in the flame”). In the Inferno, Dante and Virgil watch corrupt politicians struggle to stay submerged beneath a lake of boiling pitch, lest they beskewered by devils above the surface. Canto XXI, pp.187–189 (A. Mandelbaum transl. Bantam Classic ed.1982). And Golding’s Lord of the Flies recounts how a schoolboy called Piggy is savagely murdered by other
children while marooned on an island. W. Golding, Lord of the Flies 208–209 (1997 ed.).
That will undoubtedly be the money quote (or part of it) from this opinion, but this line should not be overlooked:

JUSTICE ALITO recounts all these disgusting video games in order to disgust us—but disgust is not a valid basis for restricting expression.
Unless, of course, you find sex disgusting. Which is a longstanding American tradition, so it's okay to use disgust in that situation.

All of this, of course, could violate Levitt's "daughter" test. My daughter went through a phase where she watched violent movies, the kind of thing that would literally make me sick. It was kind of odd, since she saw a video about animal butchery that put her off meat for a little while; and she faints at the sight of blood, or even when she gets an injection. But she enjoyed violent films. Should I support the ban of violence in books, movies, and video games?

I dunno. I find the whole conversation disgusting. Maybe I should support a law banning it, so my daughter never has to hear about it.


  1. My test for the violent video game has nothing to do with my disgust or with that I wouldn't want my nieces to watch it, not in the first instance. My first test is if the potential killer or torturer hidden in the audience is more likely to be encouraged and instructed in how to kill and torture by repeatedly viewing it. Is it prudent to make an otherwise useless form of entertainment legal if it promotes that kind of behavior in susceptible people? I don't think it is. Judging which content should be restricted would be open to a range of judicial folly and nonsense but every decision judges make decisions on in libel, copyright, and violations of "intellectual property and other allowed restrictions on speech. The claim of the Supreme Court justices that judging where it is a risk is impossible to do is pretty amazing, considering that's the career they pursued. They have no problem with doing it in any other area of life and, as mentioned, they don't have trouble making some pretty arbitrary and irrational decisions on speech in some cases.

    Potential killers are an outlier in the general population and so studying the part of the population that doesn't do that isn't going to be enlightening about the real effect they have. The problems of gathering good data from any population are pretty daunting and collecting good data from the population who are sadistic murderers is probably impossible. I think that means there is no sciency looking means of getting information in this area that is necessary to govern the decisions on these issues, but I doubt the depravity taught in these games doesn't have a very harmful effect on peoples' behavior and the social effect of that.

    It probably has an even stronger, cumulative, effect in a general abandonment of the view of people who have inherent rights which the person inured into viewing people as objects through frequent exposure to the POV contained in these games. I think that idea, which leads to a general erosion of the mutual recognition of rights on which equal rights depend, brings whatever right their is to make and view this stuff into conflict with even more important rights, among those to be free of a fear of violence and murder. For that, I think history has valid evidence, the role that black sterotypes played in promoting lynching and Jim Crow, the media images of Jews in promoting pogroms and genocide, Native Americans and the genocide this country is founded on. It doesn't have the prestigious allure of sociology but its a lot more certain to have happened.

    I would rather take the chance that some marginally depraved promotion of that way of thinking would be ambiguously suppressed than in the free for all the court has just declared. The absurd bans on what entertainment shows on TV and the movies could show in the 60s weren't in any way harmful, they didn't prevent the civil rights laws and Medicare from being passed. The extent to which this kind of thing entered into those struggles would have been that the malignant content that was allowed in the form of racist stereotypes and insurance industry propaganda were minefields that people struggling for those laws had to overcome.

  2. Boy, do I need an editor that early in the morning. Will correct at my place, later.

  3. Was thinking about Scalia's examples this morning, many from Grimm's Fairy Tales. Scalia failed to note the bowdlerized, Disney-fied versions of many of those tales were what children in America grew up on, especially in my generation.

    There may have still been violence in those versions, as there was in Bugs Bunny cartoons, but it wasn't the gore of the originals (where Cinderella's step-sisters, for example, mutilate their feet to fit the slipper the prince brings, and are betrayed only by the blood leaking out of the shoe).

    Once you start picking examples like that, you have to be careful how you pick them. But I still think the cause and effect relationship is tenuous, at best, even among "outliers". So it's still a mixed bag.

  4. Consider the social context in which the original versions of those stories were told, with their casual acceptance of violence against women, Jews, the other in general, animals. And, though it feels so odd to say so, Alito is right, the differences in media make a huge difference in the potency of what message they carry. We've seen the medium of radio being effective in inciting a rapid attempt of genocide in Rwanda and the potency of the use of other forms of mass media in most of the other, records breaking, genocides of the past century.

    I don't see any way that this issue can continue to be avoided. The differences that these forms of expression take does have a different and far more potent form that text on paper doesn't have. It's far easier to consume and repeat the experience, these violent video games combine the allure of sexual sadism with the well planned addictive effectiveness of slot machines. Like it or not, the law's old habits of thought related to print don't apply. Not everyone who tries a slot machine becomes addicted to it destroying their life and the lives of those around them. Not everyone who plays a depraved video game will torture or kill people with the identities of people with the identities the games encourage them to be seen as usable and disposable, but the effect on those who will be disposed to having that effect are there.

    I also don't think the timing of yesterday's rulings is a mere coincidence, the "free speech" ruling in the video game decision was there to bolster the "free speech" decision in the series to destroy an effective opposition to corporate oligarchy. I think they are one in the same for the conservatives, the reason that conservatives have abandoned their anti-porn tradition. In both instances the beneficiaries are the opponents of equality and justice, those who favor viewing other people as objects for use and disposal. It is the reason that Alito can ignore his stated insight into the difference in medium and his dissent in the crush porn decision last year. The traditional liberal line on this is the most obvious way in which liberalism has committed suicide.

  5. Somewhat off-topic but since you bring it up ... obviously the "Reasonable Man" is an abstraction and not a real human, but how far from an actual human being can a "reasonable man" be and still be a useful abstraction?

    I have had many a debate with my wife (who is a lawyer) wherein she will bring up the "reasonable man" standard to which my response is "well, that does sound reasonable, but no actual human would respond that way in the situation we're talking about". Can a person really be held liable for behavior because "a reasonable man would have responded differently" even though no actual person (other than a lawyer who knows what a "reasonable man" would do) would behave differently?

    I guess a similar statement could be made about the "Economic Man" or the "Average Man": it is useful to encapsulate theories/data about human behavior by considering those theories as applying to an "abstract person". But when this person becomes so abstracted from reality that his/her behavior is so very different than how people actually behave, of what use is the abstraction?

    Of course, taking social science data and then making a composite person out of them to describe your theories can also be interesting when the composite person isn't not close to actual people but when the abstract person does exist in reality ;)

  6. Well, DAS, the RPP is not meant to be anything more than a useful fiction (which is what makes Herbert's satire so funny, at least to lawyers). But it serves the purpose of avoiding the pitfalls of a "daughter test" such as Levitt proposes, by at least attempting to look at public policy issues (such as justice) from the perspective of the society, not just the individual or the chosen group. It fails, of course (again, why Herbert's satire is so spot on), but it tries.

    Which is more than somebody like Levitt can manage. Or most of the current Supreme Court, for that matter.

  7. Off-topic, but the "daughter test" reminds me of the late Andre Dubus's (not his son, who is also an author) story, A Father's Story, which concludes with this dialog with God:

    And He says: I am a Father too.
    But You never had a daughter, and if You had, You could not have borne her passion.
    Then you love in weakness, He says.
    As You love me, I say, and I go with an apple or carrot out to the barn.