Monday, May 30, 2011

"Look, I am a career criminal, but I've only been convicted of one felony. I'm not a drug addict like [Halko]."

Best character attack ever.

Saturday, May 28, 2011

The US Postal Service is a dinosaur.

Is it on the verge of extinction?

Surely not.  But it is on the brink of bankruptcy, as described in this must-read article.  The article contains several almost unbelievable passages.  Here's one example:
Joanne Veto, a USPS spokeswoman, said in an e-mail that the USPS had hired outside consultants who examined some of these digital mail offerings [offered by other countries] and advised the agency not to pursue them: "While foreign posts did make money by diversifying their products, it took as many as 20 years before a profit was realized. In the short term, there was limited or no profit. We do not have 20 years."
So, let me get this straight:  Other countries started doing this twenty years ago??  And our excuse for not starting it now is "it will take too long"?

Good grief.

The future of the USPS

Tuesday, May 17, 2011

"if incentives don't matter in individual cases, they can't matter in the aggregate"

So says Mr. Gillette, in critiquing Andrew Leonard's critique of Tyler Cowen's blog post about that French dude who allegedly raped a hotel maid, a blog post which I lampooned a few minutes ago.

Mr. Gillette is ....

WRONG!

What Mr. Gillette is overlooking is the concept of probability.  Incentives, properly understood, are probabilistic.  The idea is that a guy like DSK is less likely to do something batshit crazy than somebody with much less to lose.  "Incentives" are not a law of nature that forecloses certain choices.  They are, rather, nudges that have effects on a population-wide basis, over time.  In other words, they may not make a difference in an individual case, but they matter in the aggregate.  

To understand this, imagine two slightly psychopathic people.  One is accomplished and rich, with a lot to lose; the other is a failure, and poor, with nothing to lose.  Since both are slightly psychopathic, both of them occasionally have an urge to do something really naughty.  In fact, both of them usually resist this urge.  After all, even the worst criminals have only a few dozen criminal moments during their trillion-moment-long lifetimes.

(The "true economist" would say that this low level of crime-committing even among the slight psychopaths is a matter of incentives.  Even very naughty people understand that they're likely to get punished for being naughty.   So that pragmatist on their right shoulder is usually able to out-argue the devil on the left.  But the devil gets his due....)

Anyhow, it's reasonable to assume that, at any given moment, the poor slight-psycho is somewhat more likely to commit a crime than the the rich slight-pyscho.  It's just a matter of probability - the poor guy's got a 2% chance of giving into his naughty side at any given moment, and the rich guy has a 1% chance.  This is because these guys -- though equally naughty -- are still rational actors with some ability to control themselves.  The more reason they have to control themselves, the less likely they are to be naughty.

This is how "incentives" can "not matter" in individual cases but still still matter in the aggregate.  It's only in 1 out of 100 moments that the difference in incentives has an effect.  Still, over the course of a billion temptations, incentives will take their toll.

"I always wonder how the 'true economist' should react."

So muses Tyler Cowen, about that French dude -- who allegedly raped a hotel maid -- as Mr. Gillette points out.  Mr. Gillette really should have graced us with a block quote from Mr. Cowen's priceless post:
Dominique Strauss-Kahn has been arrested, taken off a plane to Paris, and accused of a shocking crime.  When I hear of this kind of story, I always wonder how the “true economist” should react.  After all, DSK had a very strong incentive not to commit the crime, including his desire to run for further office in France, not to mention his high IMF salary and strong network of international connections.  So much to lose. 
Should the “real economist” conclude that DSK is less likely to be guilty than others will think?
The supposition, as I understand it, is that an "economist" should (perhaps) conclude that any rich person is less likely to have committed a (non-financial?) crime than "others will think."  Apparently, this is because "others" will not understand that privileged folks like DSK will have less "incentive" to commit crimes of passion (madness?) than regular old poor folks.

This is all very absurd, of course.  The sin is clear: reductionism with a multiplier of monomania.  These days, most educated people become well versed in a particular school of thinking.  For example, you and I, Mr. Gillette, were trained in "legal reasoning."  As a result, we subconsciously (or consciously) apply that kind of reasoning in all facets of our life -- just ask my wife.  It turns out, however, that legal reasoning has its limits.

Just ask my wife.

My broader point is that we all tend to take our area of expertise and generalize it.  We try to solve all the world's problems with the tools we have, even when our best tool happens to be one of those cheap Swiss-army knives that comes with only a 3-inch blade , a useless 4-centimeter "saw," and a ... toothpick?

Mr. Cowen's blog post is a tour de force of provincial thinking -- the idea that "because this thinking can solve a certain problem, it can solve ANY problem!"  And when I say "tour de force," I mean "reductio ad absurdum."  That's a kind of logical argument.  And, as a philosophy major who concentrated in logic, I can assure you that logic solves all problems.

Monday, May 16, 2011

Sometimes we just don't understand the incentive.

As you know, Dominique Strauss-Kahn, the head of the International Monetary Fund, has been accused of sexual assault and is currently being held without bail at Rikers. Mr. Strauss-Kahn is an renowned economist and, until this happened, a possible candidate for the French presidency.

Tyler Cowen at the Marginal Revolution blog, asks a question no one thinks to ask (sort of like we do here), how should a "true economist" should react to the news? Mr. Cowen notes that Mr. Strauss-Kahn has strong incentives not to commit sexual assault but is now accused of committing one. The post questions whether the economic theory that incentives can predict individual behavior is central to economics and whether it should be central.

Andrew Leonard at Salon criticizes the post and suggests that reasonable economists think that incentives only matter in the aggregate and not in individual cases. But that can't be right because if incentives don't matter in individual cases, they can't matter in the aggregate.

It seems to me that incentives can be used to predict individual behavior. The trick is to understand the incentives. If the charges against Mr. Strauss-Kahn are true, it could be that that the incentives to commit the crime are larger than the things Mr. Cowen views as incentives not to commit the crime.

By way of example consider, Peter Elliott. As the Milwaukee Journal-Sentinel reports, Mr. Elliott is a disbarred attorney who was sentenced to ten years in prison for committing fraud involving his trust account. Normally, we would assume that people awaiting sentencing for crimes have strong incentives not to commit additional crimes. If they commit another crime they could be sentenced to even more time in jail.

What we might call the normal incentives (desire to avoid punishment, desire to get out of prison as quickly as possible) apparently did not apply to Mr. Elliot. Instead of keeping his nose clean while awaiting sentencing, Mr. Elliott spent some his time robbing a bank. His robbery of a bank in Wales Wisconsin netted him $9,516.

Anyway, as a result of the robbery, Mr. Elliott is now looking at an additional five years in prison. Mr. Elliott earned $1,903.20 per additional year of prison time. That does not seem like a very good return on his crime.

So what were the incentives that drove Mr. Elliott to commit the robbery? He told investigators that he used $2,600 of the money to get his daughter's vehicle "out of hock." Put another way, he felt his child needed his help. As a 62-year-old man facing a ten-year prison sentence, Mr. Elliot may expect to die in prison. Thus, he may have thought this was the last time he would ever be able to help his child. If we view Mr. Elliott's incentive that way, his decision to rob a bank seems less irrational. Mr. Elliott's incentives were simply not the normal ones we might expect from a criminal awaiting sentencing.

It seems possible that Mr. Cowen and Mr. Leonard have simply failed to identify the incentives that would drive Mr. Strauss-Kahn to behave as he is accused of behaving. I can't identify any incentives either. However, just because I don't recognize the incentives does not mean that none exist.

What do you think Mr. Torvik? Is Leonard right? Is Cowen asking the right questions? Should a non-economist be even thinking about these sorts of things?

Bad weekend

For those of us who root for the Minnesota Twins, it was a bad weekend. In addition to getting stomped by the Toronto Blue Jays, it was announced that Harmon Killebrew has decided to stop treating his esophageal cancer. Joe Posnanski, my nomination for official sportswriter of the Gillette-Torvik Blog, has a nice post about Mr. Killebrew.

Tuesday, May 10, 2011

Gayer than a what?

As we have noted before, judges say some weird things when they sentence people to jail. Waupaca County Circuit Court Judge Phillip Kirk may have won the prize for weirdest thing said in a courtroom.

As reported by Fox News, Judge Kirk was sentencing 71-year-old Delton Gorges for sexually assaulting four boys. Mr. Georges, despite his conviction, maintains that he is a heterosexual and not a pederast or pedophile. Judge Kirk, perhaps overlooking that homosexuality is not the same thing as pederasty or pedophilia, did not believe Mr. Gorges.

Among other things, Judge Kirk said, "I think that if anyone believes that in the last 10 years or 15 years all of a sudden you developed an interest in homosexuality and young boys, then I must have looked ravishing in my prom dress this year." One is left to wonder if injecting transvestism into the conversation was really all that helpful. Perhaps using the more traditional, "I've got a bridge in Brooklyn to sell you" line would have worked better. Certainly it would have spared us the mental image of the judge in a prom dress. As an aside, I hope Judge Kirk was not thinking strapless for his hypothetical prom dress. That would be a bad look for him.

Judge Kirk also expressed some sympathy for homosexuals in central Wisconsin during the time of Mr. Gorges's youth. He said, "No one knew there was a closet to come out of in those days. You know you had to be very careful, because you could have found your penis floating in the Wolf as walleye bait. It was a terrible life to have to live."

None of the lines I've mentioned is what caught my attention as a really weird thing to say. Judge Kirk's strangest comment was when he said, "I think you were born gayer than a sweet smelling jock strap." The comment raises a lot of questions. What does the comment mean? Is it an actual expression? A Google search indicates that Judge Kirk is the first person to utter it. If one was to chart gayness, where does a sweet smelling jock strap belong? While it is clear that Mr. Gorges is more gay than a sweet smelling jock strap, the comparison only works if you know Mr. Gorge. What else is more gay than a sweet smelling jock strap? Also, what is less gay than a sweet smelling jock strap? Are jock straps intrinsically gay? Are sweet smells gay? Is this really the best simile Judge Kirk could come up with when he was thinking about what he would say at the sentencing? Do Judge Kirk's comments alter your position that all thoughts should be expressed?

Saturday, May 7, 2011

The boney's hoagie is no more.

While jogging this morning, I ran past one of our favorite lunch places when we were in law school. I am sad to report that Bullwinkle's has closed. If I read the notice on the door correctly, it closed because it lost its liability insurance. In Minnesota, that will cost an establishment its liquor license.

Friday, May 6, 2011

How many traitors have served on the Supreme Court?

As I am sure you know, this year marks the start of the Civil War's sesquicentennial. As part of the celebration, the New York Times has started the "Disunion" blog. "Disunion" attempts to cover the events of the war from the perspective of what happened 150 years ago on the date of the posting. It is an interesting blog. Although, it does not capture my imagination the same way that the "Bicentennial Minute" did when I was 9 (I wish those were on DVD).

Anyway, last night the Disunion entry for April 29th caught my eye. Ostensibly, the post is the story of Thomas Dwight Witherspoon, a Presbyterian preacher who served with Company G of the 11th Mississippi Infantry. The article contains this paragraph:
Witherspoon enlisted in the Lamar Rifles, a local militia company named for Lucius Quintus Cincinnatus Lamar, a member of the House of Representatives who resigned to join the Mississippi Secession Convention. Lamar drafted the ordinance that severed ties with the Union. He went on to serve in the Confederate army and government; later, despite his secessionist activities, President Grover Cleveland appointed him to the Supreme Court.
(emphasis mine). I read the highlighted sentence and thought, "Wait, what? The guy who drafted Mississippi's secession ordinance was appointed to the Supreme Court after the war?" Turns out the Times is correct. Not only did Justice Lamar draft the secession ordinance, check out this quote he made about the Confederacy. According to the Wikipedia page about Justice Lamar, the Ken Burns documentary "The Civil War" quotes Justice Lamar as saying this about Mississippi's secession, "Thank God, we have a country at last: to live for, to pray for, and if need be, to die for." Apparently prior to secession, Justice Lamar, who was a member of Congress until Mississippi left the Union, did not think the antebellum United States was a country worth living for, praying for, or dying for.

This got me wondering, what cases did this traitor to his country help decide? As Justice Lamar served from 1888 to 1893, he was an associate justice for the last year of the Waite Court and the first five years of the Fuller Court.

The Waite Court issued a number of cases that we read in law school. It is responsible for such classics as Pennoyer v. Neff, United States v. Cruikshank, and the Civil Rights Cases. However, by the time Justice Lamar joined the Waite Court, its most famous decisions were behind it. Unless you are a patent lawyer.

The Fuller Court is most famous for Plessy v. Ferguson. However, Justice Lamar was dead when that case was decided, so we can't blame him for that. During the brief time that Justice Lamar served, the Court's most notable decision was Davis v. Beason, which upheld a law requiring voters to swear that they did not belong to organizations that promoted polygamy from a First Amendment challenge. It also decided Nix v. Hedden which found that tomatoes, while not a de facto vegetable, are a de jure vegetable.

Learning about Justice Lamar also made me wonder if any other people who betrayed the Union later served on the court after the war. It turns out that three other justices either fought in the Confederate Army or had roles in governing the Confederate States of America. One of them, Edward Douglas White, was actually named Chief Justice by President Taft. Another, Horace Lurton, was apparently paroled from a Union prisoner of war camp due to the intervention of President Lincoln. The third, Howell Jackson, was appointed by Benjamin Harrison. Thus, it came to pass a former brigadier general in the Union Army (and grandson of a hero of the War of 1812) appointed to the Supreme Court a guy who once served the Confederate States of America as a receiver of property confiscated from Unionists during the Civil War and whose brother was a Confederate brigadier-general. Justice Jackson was appointed to replace Justice Lamar and Justice Lurton was appointed to the same seat following the death of Justice Rufus Wheeler Peckhamm(who was appointed to replace Jackson). Maybe this seat was viewed as the "Confederate Seat" or something.

Justice Lurton served on the court at the same time as Justice Holmes. One wonders what Justice Holmes, who was wounded three times while serving in the Union Army and who kept his blood stained uniform and the bullets that wounded him until his death in 1935, thought of serving on the court with somone whose rebellion caused his wounds.

I don't know about you but I find it very odd that these people were appointed. I would like to say that the Reconstruction policies that allowed these former rebels to fully participate in American life after the war were a merciful thing. However, I can't really do that because letting people who secceded from the Union back in power directly led to the creation of the Jim Crow era in the South. So what do we call it, misguided mercy?

Wednesday, May 4, 2011

Evidence that the Supreme Court needs to hear more cases.

Back in 2009, the New York Times published a story about how the Supreme Court hears significantly fewer cases than it did in the 1970s and 1980s. From a Minnesota standpoint, the article is interesting because it quotes former University of Minnesota Law School and current Minnesota Supreme Court Justice David Stras. As the graph in the story shows, the court used to hear around 150 cases and now they hear 80. Combined with having the summers off, this seems like good work if one can get it.

While I am sure there are sound public policy reasons for hearing fewer cases, I think we have reached the point that the justices have too much time on their hands. As the Odd Clauses Blog noted, the other day Justice Scalia gave the citizens of Wyoming a new name. In his dissent in Montana v. Wyoming, refers to the citizens of Wyoming as "Wyomans." Justice Scalia does so because he thinks that Wyomans "deserve better" than to be called Wyomingite. This is apparently because Wyomingite is also, according to the 1957 edition of Webster's dictionary that Justice Scalia cites, a type of lava.

Setting aside the irony of using "man" to describe all the citizens of the "Equality State"(Given that Wyoming was the first state to allow women to vote, perhaps Wyominger or Wyomian would be better), doesn't Justice Scalia have better things to do than ponder the best thing to call the people of Wyoming? Also, if the Justice's clerks have time to track down a Webster's dictionary from 1957, they may not have enough to do.

At least they hear cases.

As Mr. Torvik has noted, the members of the Wisconsin Supreme Court do not seem to get along with each other very well. On the other hand, at least they show up to work. As WVNS-TV reports, all five justices on the West Virginia Supreme Court of Appeals recently recused themselves on a case involving work done by one of the justices when she was lawyer. Or perhaps it is a case about how little work she did. In any event, and perhaps mindful of the spanking the United States Supreme Court gave them about recusals, the court is turning this over to a collection of West Virgina circuit court judges.

The thing that caught my attention about the case is that, according to her bio on the court's website, Justice Workman has been a judge since 1981 (and the first woman elected to statewide office in West Virgina at that) and on the West Virginia Supreme Court since 1988. Since she has been a judge for 30 years, how is it that she is also running Margaret Workman Law L.C., the respondent on the appeal? It turns out that Justice's Workman's bio omits the fact that she was not on the West Virginia Supreme Court from 2000-2008. When running to return to the court, she told the Wheeling Intelligencer and News-Register that she stepped down to stay at home with her children. That does not appear to have been entirely accurate because if it were the citizens of West Virginia would not be paying their supreme court justices to stay home.

Tuesday, May 3, 2011

Coincidence or powers beyond our comprehension?

Struggling Minnesota Twins pitcher Francisco Liraino throws a no-hitter against the Chicago White Sox on the same day I make my first post of the baseball season. Could there be a connection?

“Every billion more people makes life more difficult for everybody — it’s as simple as that."

Says John Bongaarts, a demographer at the Population Council, a research group in New York.

What's the evidence for this assertion?  Seems to me that the average standard of living for human beings has been on a fairly consistent upward climb for a long time, even as the population has been exploding.

So I have a prediction:  The population will continue exploding until life actually does start getting worse for people.  And then it will start contracting.  It will be almost as if forces of nature are at work!

Mr Bongaarts also says: "We obviously would be better off with a smaller population."  But who, exactly, is the "we"?  Sure, if you divide the total wealth of the world by a smaller number of people, the remaining people -- the "we" -- are going to be "better off."  But I wonder about those missing folks.  Are they better off?  Is modern life so terrible that we don't feel the need to make any accounting for a billion people never born?

It's true that more people means more suffering, more conflict, and more competition for resources. But it means more of everything good too -- more happiness, more joy, more birthdays, more epiphanies, more love, etc. It takes a dark worldview to elide all that.

I think about this sometimes when people talk about limiting families to two children as a form of population control.  That sounds nice in theory, but as a third-born son I feel kind of compelled to object.  And, maybe for the same reason, I feel a certain kinship with those billion people -- "them," I guess Mr. Bongaarts might call them -- that Mr. Bongaarts prefers would never come to exist.

Sometimes judicial philosphy has nothing to do with it.

Probably because he has been keeping this blog afloat while I dealt with some nasty health and work issues, Mr. Torvik made a rare misstep recently. While discussing Wisconsin Supreme Court justice David Prosser's age and the proper focus of judicial elections, he pointed to the recent Iowa retention elections as an example of a proper judicial election. Mr. Torvik wrote:


What should a judicial election be about? In my view, it should be solely about judicial philosophy. For example, the campaign to "unretain" the three justices who joined the Iowa Supreme Court's unanimous decision overturning the state's law banning same-sex marriage was at least focused on an issue of judicial philosophy: restraint versus activism. You can argue the merits of the issue all day long, but at least it was an argument about judging. Unfortunately, those are not the kind of issues being argued about in the recent Wisconsin judicial elections.
As discussed in Noah Feldman's book "Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices," the debate over the theories of judicial restraint versus judicial activism began in the 1930s when Franklin Roosevelt's various appointees to the Supreme Court started arguing over how to rule on New Deal legislation. Judicial activism, defined by Black's Law Dictionary as a philosophy of judicial decision-making that allows judges to use their personal views about public policy to guide their decisions, was practiced by Justice William O. Douglas. Judicial restraint, the theory that judges should defer to the Legislature about matters of public policy, was practiced by Justice Felix Fankfurter. Mr. Feldman's book is a good read and I heartily recommend it. Mr. Feldman points out that the first proponent of Originalism was liberal Justice Hugo Black. An interesting counterpoint the next time some swell at a cocktail party says that originalism is a doctrine made by conservatives to rule the way they wish to rule. I digress, however.

As a person who is inordinately proud to have been born in Iowa, I would love to believe that Iowa voters went to the polls to thinking about whether Justice Douglas or Justice Frankfurter was correct. However, I don't think there is any evidence that suggests Iowans were considering these things. They were thinking about a specific ruling, not the judicial philosophy behind the ruling. Put another way, the retention election appears to have been about anti-gay bias. First, as this article notes, 57% of voters in Iowa's recent judicial retention elections "opposed gay marriage." Moreover, the article also notes that two out of state anti-gay marriage groups, the American Family Association and the Family Research Council, spent nearly $700,000 in television ads and other efforts to defeat the justices. Are we to believe that if the justices in Iowa had found a right to gay marriage while practicing judicial restraint, that these groups would not have spent money to defeat them? The Iowa Court of Appeals judges, who also ruled in favor of gay marriage, were not defeated. If the election had been about judicial philosophy, one would expect a similar defeat. The appellate court judges weren't defeated because Because they weren't targeted by the interest groups. Judicial philosophy had nothing to do with it.

As I noted here, the results of the Iowa retention election are depressing. The results tell judges if they want to keep their job, they need to rule in favor of the majority regardless of whether the rights of the minority are being trampled and without regard for any particular philosophy of judicial interpretation. There is no way that is a good result and certainly not one that should be held up as an example of a good judicial election.