How I Would Vote on the 2014 Hall of Fame Ballot

Today is something like the last day for Baseball Writers Association of America (BBWAA) members to submit their votes for 2014 induction into the MLB Hall of Fame. This year's ballot is perhaps a uniquely crowded one, because the past few years have seen far more deserving players enter the ballot than depart it through induction, mostly because people have been failing to vote for suspected steroid users or, in some cases, for anyone at all from the "Steroid Era." The names on the ballot can be seen here (note that that page will be updated with the actual vote tallies once those are released), along with their history on past ballots. Now, I obviously don't have a vote, but I have an opinion, so this post will say who I would vote for if I could vote for anyone. This is an unusually complicated question. Normally it's just a matter of looking over the names on the ballot and deciding for each of them whether they deserve induction. But pretty much everyone who isn't a hypocritical curmudgeon admits that there are more than 10 deserving players on this year's ballot, which is a problem since one can only vote for 10 players. So first I'll say which of the eligible players I think are deserving, and then I'll say who I'd actually vote for, as a strategic/game-theoretic matter.

Stop Saying Atheists Think The Universe is Purposeless (And Other Complaints About Ross Douthat)

So, as reported by Kevin Drum, Ross Douthat apparently has some new column or blog post or something that basically beats the old "how can you have morality without religion?" drum. Kevin Drum's response to Douthat is that secular ethics are in fact older than Christianity and are humming along just fine. Mine is slightly different. Here's the central passage from Douthat:

"The secular picture, meanwhile, seems to have the rigor of the scientific method behind it. But it actually suffers from a deeper intellectual incoherence than either of its rivals [the biblical or the spiritual world pictures], because its cosmology does not harmonize at all with its moral picture.

In essence, it proposes a purely physical and purposeless universe, inhabited by evolutionary accidents whose sense of self is probably illusory. And yet it then continues to insist on moral and political absolutes with all the vigor of a 17th-century New England preacher. And the rope bridges flung across this chasm — the scientific-sounding logic of utilitarianism, the Darwinian justifications for altruism — tend to waft, gently, into a logical abyss."

Can we just stop this already? It's hard to actually get to the bottom of how bad this is. I could go through it line by line. There is no sense in which the modern scientific-atheist cosmology describes the universe as "purposeless." Now, it is true that, as best we can tell, our universe was not created by anyone in particular, and therefore not for any particular purpose. It is also true that the universe was not aiming to create human beings, that instead they just arose from a not-particularly-random evolutionary process over millions of years and that they just as easily could not have. But, so what? Who said that the universe has to have been created for the purpose of having humans in it in order for anything to be meaningful or for individuals' sense of self to be real? Oh, that's right: religious people. That's entirely their idea. For most of us secular-scientific intelligentsia types, the quasi-miraculous facts of life and consciousness create plenty of purpose and meaning all by themselves. And they make it seem, well, pretty bloody obvious that the well-being of us conscious living types is important, and that people should generally act so as to increase it.

If Only They Had Signed Reyes

Earlier today the New York Mets signed Curtis Granderson to a four-year contract. He'll be their everyday left fielder in 2014, probably. This is the Mets' second major move of the off-season, after the signing of Chris Young to play right field. Both are good signings, I think, though I was hoping they'd sign Shin-Soo Choo. So, what's left to do? Well, the most obvious remaining hole on the roster is shortstop. Also they don't really have any very good choices for leadoff hitter. Hmmm, I wonder...  who could fill that void?

Oh yeah, this guy:

Seriously, letting Jose Reyes go was the biggest mistake the Mets have made in a long time. Imagine he were on the Mets instead of the Blue Jays right now. They'd have an offense consisting of Travis d'Arnaud at catcher, some sort of platoon of Josh Satin and one of Ike Davis or Lucas Duda at first, Daniel Murphy at second, Reyes at short, David Wright at third, Granderson in left field, Juan Lagares patrolling center, and Chris Young playing right, with the likes of Wilmer Flores, Eric Young, Jr., Matt den Dekker, or Ruben Tejada as backup players. Here's how I'd picture the default lineups with that roster:

vs. RHP:                                    vs. LHP:
Jose Reyes, SS (S)                    Jose Reyes, SS (S)

Daniel Murphy, 2B (L)             Juan Lagares, CF (R)
David Wright, 3B (R)               David Wright, 3B (R)
Curtis Granderson, LF (L)        Chris Young, RF (R)
Chris Young, RF (R)                 Curtis Granderson, LF (L)
Ike Davis, 1B (L)                      Travis d'Arnaud, C (R)
Travis d'Arnaud, C (R)              Daniel Murphy, 2B (L)
Juan Lagares, CF (R)                Josh Satin, 1B (R)

That's a good offense, if you ask me. And it's got plenty of flexibility with Young (Eric) and Tejada on the roster. Instead, Tejada's currently the projected starting shortstop, Wilfredo Tovar is the default backup infielder (I think), and the big free agent shortstop, Stephen Drew, is a bottom-of-the-order guy who does nothing to solve the leadoff problem. If Reyes were still on this team, in other words, it would look to have a very well-rounded, well-balanced offense heading into 2014, with the slightly messy first base situation by far the biggest problem. Instead they're looking at another year, likely, of struggling at the top of the order, which will probably spell trouble for the whole team. And sure, they could do something unconventional like just shift everybody up one, bat Murphy leadoff and Wright second, but that's not likely to happen under Terry Collins.

I'm not necessarily saying the Mets should try to trade for Reyes now, although I'd be overjoyed if they did so for a reasonable price. I'm just saying that the decision not to match Miami's offer two offseasons ago was inexcusable, remains by far the worse thing Sandy Alderson has done as Mets GM, and continues to haunt this team. Reyes is exactly what they need right now, and he's exactly what they don't have.


May the Yankees come to regret letting Robinson Cano go the way the Mets miss Reyes right now. (Off-topic, but necessary)

Eric Posner Doesn't Get How to Fight Tyranny of the Majority

Eric Posner has a column today at Slate arguing that the recent filibuster reform for judicial nominees is a big problem, especially for fans of moderation. Basically he thinks the filibuster was good because it prevented tyranny of the majority. Now, he concedes that given how our government is constructed, requiring 60 votes in the Senate for ordinary legislation is probably unnecessary to prevent tyranny of the majority. For appointing life-tenured judges, however, he thinks that letting the Senate majority plus a President of the same party do whatever they damn well please is a really bad idea. I have a lot of problems with his argument (that he ignores the game-theoretic argument that the old filibuster rules were never a stable state and that, having conceded that Democrats had no choice given Republican intransigence, he then fails to lay the blame for all the problems he describes squarely on the Republicans' doorstep being two of the biggest), but what I want to talk about in this post is the way he misunderstands "tyranny of the majority," and especially how to fight it.

The McCann Signing was a Good One, but the Yankees are Not a Good Team

Yesterday the New York Yankees signed catcher Brian McCann, formerly of the Atlanta Braves for his entire career, to a five-year contract worth $85 million that includes a vesting option for a sixth year that would bring the total to roughly six figures. It's a pretty great signing for them, as detailed here, and also a really obvious one. McCann is a dead pull left-handed power hitter, a perfect fit for Yankee Stadium's absurdly shallow right field fence. Plus, he already has a reputation as the "fun police" or "fun cop," as he started I believe multiple brawls this past season over opposing team's apparent enjoyment of their own success, and the Yankees as we all know are ideologically opposed to fun. It also, most importantly from a baseball standpoint, resolves their extremely messy catching situation, which until they signed McCann consisted of employing career backup catcher Chris Stewart as their everyday catcher and several players not good enough to be a backup catcher as Stewart's backup. Now, presumably, they can just use McCann/Stewart and have a genuinely good catching duo.

A Modest Defense of Democratic Filibuster Hypocrisy

In 2005, Democrats filibustered a few George W. Bush judicial nominees, who they thought were particularly radical. For a while, at least. Then Majority Leader Bill Frist (yeah, remember that guy?) threatened to use the "nuclear option" to change the rules of the Senate while it was in session.* Democrats backed down. A bunch of moderate Senators crafted a deal in which Republicans agreed not to destroy the filibuster and Democrats agreed to stop filibustering. The nominees got confirmed, and hey, guess what? They're particularly radical. During the whole controversy, of course, lots of Democrats said a lot of stuff about how great the filibuster is, and lots of Republicans said lots of stuff about how terrible it is.

On November 21st, 2013, one day before the 50th anniversary of the Kennedy assassination and two days before the 50th anniversary of Doctor Who, the Democratic Senate majority used the "nuclear option" to prevent the minority from obstructing executive nominees or judicial nominees other than to the Supreme Court. This isn't the first time we've had tons of Democrats now saying stuff about how horrible the filibuster is and Republicans writing paeans to it, in a bit of entertaining "everyone's a hypocrite!" theater. There's these two pieces, for example, by Slate's Emma Roller, showing the flip-flops of both President Obama and Senate Minority Leader Mitch McConnell. Mostly I think it's true that everyone's a hypocrite on this, or more specifically that this is a prime example of my long-time theory that no one has any actual beliefs about procedure except as they relate to substance. Republicans, for instance, tend to favor a small federal government because most of what the feds do these days is somewhat progressive economic stuff, regulation and redistribution and all that, but when the feds are criminalizing marijuana, suddenly Democrats love federalism. Except, and I know this is easy to mock coming from a hard-core Democratic partisan, I honestly think the combination of the two Democratic positions, from 2005 and 2013, is a lot more defensible than the combination of the Republican positions, for mostly kind of happenstance reasons.

Yes, Democrats Will Be In The Minority Some Day, That's Exactly Why Filibuster Reform *Now* Is So Brilliant

It finally happened. They reformed the filibuster in a big way. Now it only takes 51 votes to invoke cloture on an executive branch nominee or a nominee to a lower federal court (i.e., not the Supreme Court). This resembles yesterday's trade of Prince Fielder for Ian Kinsler in that it looks to be just the first move of the coming constitutional crisis, or really what I anticipate will be more like constitutional spring cleaning, sweeping out the various cobwebs that are making our government harder to run than it needs to be under the Constitution. Republicans are, predictably, upset, and they're trotting out some masterfully dumb concern trolling. No, I don't mean the thing where they say Democrats have made it impossible to get anything done, because now--unlike before!--the Republicans are angry. That's not exactly concern trolling, it's more like a kind of an attempt to justify their forthcoming chutzpah. "It's your fault that I'm going to stop anything from getting done!" What I'm talking about is the claim that Democrats will live to regret this because one day they'll be in the minority, and they're not gonna like what Republicans do with the power Democrats have just given the Senate minority. Like this tweet from some Republican spokesperson:

Sen. McConnell spokesman: "I'm looking forward to President Rubio stacking the courts."
— Kasie Hunt (@kasie) November 21, 2013

The thing is, though, this oh-so-charitable attempt by Republicans to show the Democrats that this rule change won't always be to our benefit only serves to highlight the critical importance of acting now. Because, you see, while it is probably true that at some point in the future, possibly multiple decades from now or maybe sooner, Republicans will control both the Senate and the Presidency, that day will look very different from this day in one key respect: there won't be a judicial vacancy crisis anymore. There probably won't be, anyway. You see, there are 93 vacancies on the federal bench right now, including 18 open seats on various Courts of Appeals. Since cloture still seems to give the minority the power to waste a day or so of Senate time, this would take a while, but in principle Obama now gets to appoint 93 new federal judges. That's well over one tenth of the federal bench. That's a huge windfall of potential new liberal judges, that Republicans won't be able to get rid of even if they take over in 2016. And once that windfall gets soaked up by somebody, since there's no judicial filibuster any more we'll probably start seeing vacancies get filled pretty much as they occur. This is, in other words, a one-time windfall. If Democrats take advantage of this opportunity, there's every reason to think Republicans will never get a similar one.

Now, that would be enough incentive if it were plausible that filibuster reform might never happen, that the Senate might just keep humming along letting the minority block nominees it didn't like. But that's not plausible. Over the past decade, Democrats and then especially Republicans realized that it's just plain irrational to keep letting the other side put its people on the bench if you have the power to stop them. But every time the minority commits to a stronger form of obstructionism, they only increase the majority's incentive to remove their ability to obstruct. That makes it inevitable, I think, that these rules will get changed, over a long enough time horizon. It's simply too hard these days for the minority to forgo use of a tool they've been legitimately given. So both parties can know that, if they aren't the ones to break the "In Case of Emergencies" glass box, that means it will be the other side. And that means they both know that not only does taking advantage of the judicial vacancy windfall mean the other side won't get to do so, not taking advantage of it pretty much guarantees that the other side will. Or, to put it another way: support some right-wing Republican is elected in 2016 and the Republicans take the Senate, even by a single vote. Who really thinks they wouldn't enact some kind of filibuster reform their very first day in office at least as drastic as what happened today? Of course they would; they know better than anyone how powerful a weapon the filibuster can be, and there's no way they'd let that weapon fall into Harry Reid's hands if they saw a chance to reshape the federal courts for a generation. So making this rules change now is in fact the only way to stop President Rubio from stacking the courts.

Except, y'know, winning Presidential elections for the foreseeable future. But we're working on that, too.

Replay, Challenges, and Making Important What You Can Measure

Harold Koh, my Procedure professor, spent much of today's class telling us all about how the legal system has been thrown into disarray by recent Supreme Court decisions on matters of civil procedure. This tied in with his broader critique of the way civil procedure has been developing over the 75 years since the Federal Rules of Civil Procedure were adopted, with the emphasis shifting to early disposition of cases rather than reaching just outcomes. He quoted some anonymous judge who had said, at a recent conference about the Federal Rules, that, well, we can't measure justice, but we can measure closure of cases, so that's what we focus on. Prof. Koh's point was that this is terrible, and that it reflects the human tendency of, "If you can't measure what's important, you make important what you can measure."

I was reminded of that when I read today's Fangraphs article about the incoming replay system in Major League Baseball. The main point of the article is that, while replay is (in the opinion of the author and most of the Fangraphs-reading community) an obvious and much-needed good thing, the way they're planning on implementing it is all kinds of dumb. That's entirely about this stupid managerial challenge system. I won't get into the details, in part because they haven't been finalized, but the idea is that managers will get a certain number of "challenges" in a game, each of which they can use to request video review of a certain play, and if they use too many challenges on which they lose, they don't get to make any more challenges. Oh, and the challenges will be differently distributed among the various innings. It's really stupid.

But it also, I think, heralds a new era for baseball managers, if it lasts anyway. It was pretty much a throw-away line in the article, but I found interesting the point that "a very obvious outcome [of the challenge system] is the advent of sites like ours beginning to track stats of the success rates of these calls." Yeah. It will be really effing easy to track managers' success rates on challenges. Really easy. And, the internet being a big ol' place, I can guarantee you that it won't take very long before someone has a sortable leaderboard of 2014 managerial challenges, where you can rank managers by total correct challenges or by success rate, or maybe by Successful Challenges Above Average or something. Moreover, this will be the only leaderboard on the entire internet (except for other sites' versions of the same thing) where you'll be able to sort the various MLB managers by some numerical criterion. Currently, we got nothin'. Evaluating managers is pretty much a guessing game at this point, which is why sabermetric types never ever get worked up about the Manager of the Year Award. They think the whole thing is stupid, and that there's no way you even could make it meaningful, or anything other than a proxy for "who was managing the team they did the best, or maybe that most exceeded our (probably irrational in the first place) expectations?"

So what's gonna happen when the only thing about managers we can measure is their skill at using replay challenges?

It's not hard to picture that this will very quickly become one hell of a proxy for overall managerial quality. It is obviously a terrible proxy. There's a ton of stuff that managers do other than make decisions about when to challenge a play. Currently, we call that stuff "managing." The best estimates are that right now, a really good manager can get a team maybe five additional wins over the course of a season, which is the equivalent of adding an All-Star-level player in place of a replacement-level one. No one really doubts that managers are important; indeed, sabermetric types, who love to hate on managers for making idiotic in-game decisions, are among the first to insist that managers are important. But we have almost no way to measure their importance, to really know who are those managers bringing their teams five more wins, and who are the ones preventing their talented roster from winning games. And next year we'll have something to measure, something whose impact will be easy to measure. Hell, I wouldn't be surprised if someone starts up a metric for how many net runs a manager has saved his team through use of challenges. Which means that, 365 days from now, there will be a leaderboard somewhere showing that such-and-such a manager saved his team X runs, while this other manager only saved Y runs.

People are gonna care about that, and they're going to care about it way more than they should because it will be the only thing they can measure with anything resembling that kind of precision. It would be like if the only part of a player's offensive contribution we knew how to measure with any kind of accuracy was their baserunning. It's absurd to say it, since that is in fact one of the tougher parts to quantify, but we'd probably end up saying things about how, well, hitting probably matters, but we're not really sure how much, so we're left with no choice really but to conclude that Jacoby Ellsbury (+11.4 BsR) and Eric Young, Jr. (+9.9 BsR) were their respective League's best players, while Paul Konerko (-8.4 BsR) and Allen Craig (-5.9 BsR) were the worst. Well, okay, the Ellsbury and Konerko parts aren't so far off, but you get the point: it would be absurd. And starting next year, MLB managers are going to produce precisely one set of objective, quantifiable data about their managerial skills, and it will be about a part of that skill-set that has never even existed before. Quite possibly, it won't be long before managers are seen as challenge strategists who happen to do all this other "managing" stuff.



(Of course, since NFL football currently has a challenge system, we don't entirely have to speculate blindly about the impact of this stuff. But, not being a football fan, I honestly just don't have the slightest clue how this stuff works in football. Do people keep track of coaches' success rates? The article suggests that coaches get help from people who were watching on TV, implying that the success rate is probably pretty high, so maybe there just isn't meaningful differentiation among the various coaches. Or maybe there's enough other stuff about coaching strategy and the like that we can measure so that this issue doesn't predominate. Or maybe I'm wrong, and people won't forget that there's more to a manager's life than challenges. Still, I think it's something to worry about, even if it hasn't been a problem in football.)

Since When Is Saving So Virtuous?

I happen to be watching an episode of Doctor Who set in Victorian England, which features a number of lines about "Victorian values," having already today read a Paul Krugman post that mentioned, in passing, the desire of some people for the economy to be a "morality play" where virtuous, hard-working, thrifty savers are rewarded and those who live beyond their means are punished, both at an individual and a national level. The confluence of the two has me thinking: who said saving money is so virtuous? Obviously there's the actual economic policy question. Under conditions of full employment, saving is good because it leads to investment, and investment drives the course of long-term growth, which is good. But when there's excess capacity in the economy, increased individual savings, which must take the form of decreased individual consumption, reduces overall national income, perhaps quite a lot, and can even end up reducing the amount of investment, all of which is bad.

But what is this sense, this pretty clearly deontological sense, in which people want, viscerally, to insist that saving is virtuous, and that therefore the second half of that policy analysis must be wrong? Maybe it's not so mystifying: after all, saving money means foregoing consumption, and consumption is a form of self-indulgence. Consumption is then un-virtuous for the same basic reason that sex is: it's fun. But here's the thing: you aren't deprived of any asset to have sex. Economic consumption, on the other hand, is a trade of money for something other than money, usually something which you just enjoy for a while and that then disappears into the sands of time. So when I decide to consume something, yes I'm indulging myself but I'm also losing money, and that money goes somewhere. It goes to someone other than me. If instead I decide to save, I just keep the money for myself. In the long run, then, individuals who save more appropriate more of the world's resources for themselves, or more to the point they appropriate a larger share of the power to command the world's resources for themselves, holding employment and income constant. What's so selfless or virtuous about that? It's like a dragon, hoarding gold in its cavern. Now, of course, it isn't like that at all, because you lend the money out to fund investments and the like, but that just takes us back out of the deontology into the policy considerations of my first paragraph.

If, therefore, we forget about secondary economic effects, it's not at all clear why we should think that saving money rather than spending it on consumption is virtuous. If you spend the money you earn, it doesn't stay locked up with you, but rather gets spread back out throughout the economy. Yes, the people who receive your money had to produce something for you to consume to get it, but assuming basic economic principles are right, it cost them less to produce the stuff than you paid them for it, so they come out ahead. Yes, you get to consume the stuff, but at the expense of your own long-term wealth. That sounds like generosity to me, not as much generosity as if you just gave the money away in exchange for nothing more than the satisfaction of improving someone else's life. But in a world of peasants and misers, every peasant would prefer that the misers spend some of their money buying stuff from the peasants. (Again, that's excluding the whole "investment makes everyone better in the long run" thing.) It requires, therefore, the invention of an economic ideology of considerable force in order to make those misers seem like the good guys, the people who morally deserve to be rewarded for their great virtue and self-sacrifice. They're not sacrificing short-term consumption for their own long-term wealth, they're sacrificing it for the long-term good of the whole society.

And in many ways that's true, except that (a) there's just a limit on how much money you can spend on consumption that will actually make your life meaningfully better, so when a rich person saves money they're not really sacrificing much, and (b) as soon as aggregate demand stops meeting aggregate supply, the whole thing falls apart and the virtuous economic effects of saving become vicious instead. The basic point, though, is that we most definitely shouldn't let any notion of "saving = virtue," separate from serious economic analysis about the practical effects of savings on the whole economy, infect our thinking, since that notion can only arise in the first place out of a serious though partial such analysis. Sometimes it is true that lower levels of individual consumption and higher levels of individual savings are a good thing, but this is in a sense the exception, not the rule Consumption is of immediate benefit for both the consumer and the producer. It is not, therefore, perverse for increased consumption and reduced savings to be a good thing; in a sense the opposite is the perverse condition, which only ever attains because of a particular mechanism within a particular economic state of affairs. We should be grateful for that perverse condition, since it has been responsible for much of modern prosperity, but this should not confuse us into forgetting that it is an artificial creation of the modern capitalist economy, not some inherent natural state of the world.

Good Job, BBWAA

Whaddaya know? All six of my picks to win the major end-of-year MLB awards won them. And these weren't predictive picks, mind you, these were on-the-merits picks. That would seem to imply that I think the Baseball Writers Association of America did a pretty good job in picking the winners. And I do, although I also think that it is a problem Mike Trout didn't win the AL MVP either of the last two years, given that he was unambiguously the best player in baseball in each of them. My personal feeling is that Cabrera deserved both of the awards, not because he was on a playoff team or had higher RBI totals or whatever, but because he (a) won the Triple Crown, and then (b) led Major League Baseball in batting average, on-base percentage, and slugging percentage all at once, and both of those feats are just kind of trump cards to me, or at least they put an extremely high burden on the case for any other contender. When someone is that offensively dominant, I'm gonna be inclined to give it to them, even though I would also be quite eager in another year to recognize the value of a gifted defensive shortstop or center fielder or catcher who can also hit pretty well. The situation the last two years in the A.L. has been a tough one, and I kind of hope that Trout does his thing again next year and Cabrera goes back to being just really good instead of ungodly, so that they can just give it to Trout already and the argument can stop. But overall I do think they got the awards pretty much right, which doesn't always happen, so good for them.

Nope, Sorry, Supreme Court Justices Aren't Staying on the Bench Longer

This is not the post I expected to write. I expected to write a post offering an alternate interpretation of the statistics in this Slate post advocating an attack on life tenure for federal judges. Basically, they present data showing that more Justices are staying on the Court at least 10, 20, and 30 years since 1900 than did so before that year. My argument was going to be that this wasn't necessarily because the Justices were living longer, but just that the Supreme Court has come to be seen as a more important institution, basically as constitutional law and individual-rights law have grown to their current prominence, and so fewer Justices were just leaving to go do something better. I was going to claim that you could see this in the massive increase of 10-year Justices, and the proportionally similar growth of 20-year ones, and the complete lack of an increase in 30-year Justices. But, as it happens, I'm not going to write that post. Because while I was writing that post I discovered that I couldn't generate their numbers for myself, by looking at the very-publicly-available and not-very-complicated data. In fact they don't state very explicitly how they're getting their numbers, and I can make one assumption that gets me numbers close to theirs, though not the very same numbers. But that's not really my point, I don't care much about whether someone writing a Slate post got slightly wrong how long the various Justices have been in office. No, my point is that my own look at the data suggests that their factual conclusion is just wrong: there has been no long-term trend toward longer terms in office among Supreme Court Justices, though there's some reason to think the current Court might be beginning to exhibit one. The data here is really tricky, but I'll go through it in some detail below the jump.

Unfortunately Lousy Arguments Against the Death Penalty, Courtesy of Larry Flynt

Larry Flynt, renowned purveyor of filth and smut to all the world (not that that's necessarily a bad thing), was apparently shot and paralyzed by neo-Nazi Joseph Franklin in 1978. The state of Missouri is planning on executing Mr. Franklin, and Mr. Flynt wishes they wouldn't. Good for him, and a good if perhaps not-very-representative example of how the pro-death penalty position is not at all the pro-victim position, inherently or empirically. He also seems to be in the "death is too easy" camp; that is, his desire to "spare" Franklin's life is about vengeance, since he sees spending decades rotting in jail as a worse punishment than just being terminated as gently as the state can manage (which isn't very gently, but still). And that's a fine position, though I don't think it can plausibly be very central to the abolitionist argument. But here's a quote from Flynt in the ACLU's statement regarding the case:

“I find it totally absurd that a government that forbids killing is allowed to use that same crime as punishment.”

This is an unfortunately terrible argument against the death penalty. Why? Because oh boy does it prove too much. Specifically, under this logic we shouldn't let the state imprison people ever, since private parties aren't allowed to go around imprisoning other people they don't like. (Unless they get a government contract and call themselves a private prison, but that's a whole different story.) As I argued here, power is central to the very concept of government; it is in the nature of governments that they have a different relationship to power, force, violence, and coercion than do private individuals. This is what we call the "monopoly on the legitimate use of force." So of course the state does things that it simultaneously forbids private persons to do, like telling other people what they can and cannot do under threat of imprisonment and violence if imprisonment is resisted. As such, therefore, the fact that the government forbids murder doesn't tell us that it mayn't also kill people. Now, as it happens, the claim is true, for various ethical, moral, political, and philosophical grounds. And the fact that death is so horrible is the motivating factor both for state opposition to murder and for private opposition to capital punishment. But we need at least a little bit of political theory to make it clear that, while states legitimately enjoy a monopoly on legitimate imprisonment, it shouldn't get to kill people any more than private individuals do.

What Would You Say Was the Cause of Death?

There's a scene in a certain episode of one of my favorite TV shows where one character asks another to say what he thinks the cause of death was for a bunch of apparent corpses. After the other character makes a few guesses, all wrong, the first character divulges that there was no cause of death, because they're not dead. I was reminded of this when I heard a European Tour announcer say, during the broadcast of the Turkish Open, that slow play is "killing the game, at all levels." Now, look, I know everyone seems to hate slow play with a fiery vengeance, but in order for that statement to be true it first needs to be true that the game is dying, or at least shows some sign of being done substantial injury. Is that true? I dunno. I'm not sure how you'd try to measure that. Maybe "number of golfers worldwide," though I don't know how good the data is there. Maybe the ratings for big tournaments? Maybe the number of applicants to the U.S. and British Opens, which I believe keep setting all-time highs each year? Nothing I've seen as an ardent fan and a player myself suggests that golf is losing the interest of the general public, and that's really just in the U.S., let alone Asian countries where the game is booming. People love to gripe about slow play, but I'd like to see some evidence that it has actually damaged the game, as opposed to just annoying people around the top echelon of the game and the subset of amateur players more likely to have business appointments forcing them to be in a hurry while on the course. It's not killing the game, in other words, because as best I can tell nothing is killing the game.

The Deserving 2013 MLB Award Winners

Yesterday I wrote a post giving my opinion on the 2013 Silver Slugger Awards. (Spoiler: J.J. Hardy should not have been in the conversation, let alone won his.) Today I'll do the same thing for the six main end-of-year MLB awards: the MVP, Cy Young, and Rookie of the Year Awards in each league, which have not yet been announced, though the identities of the top 3 vote-getters for each award have been made public in a totally lame attempt to build hype. As for Manager of the Year, well, there's no actual objective way to assess it, so who cares? Analysis below the fold.

The Deserving Silver Sluggers

It's baseball awards season again, which means it's time for some blog posts by this random baseball fan about who should've won various awards. Comeback Player of the Year doesn't really merit its own post, though. Rivera was obvious, and for the NL, well, I thought Marlon Byrd was a really good candidate but part of what he was coming back from was a PED suspension, so I can't really complain about the Liriano pick. (Fun fact, though, this was Liriano's second win!) No, this post is about the Silver Sluggers, which are being announced as I start typing but will be done getting announced by the time I'm done. So I'll say both who did win and who should've won. Note that the award doesn't distinguish between the different outfield positions, just giving three awards to "outfielders" generally, but I'll try to give one to a center fielder in each league unless that's just implausible. The stats I'll be referring to generally are the basic average/on-base/slugging line, home runs, doubles, triples for relevant players, runs scored and driven in, weighted on-base average (wOBA), weighted runs created (wRC), adjuted wRC (or wRC+), and batting runs above average. Those last few are Fangraphs creations that use linear weights to determine the offensive value of each plate appearance. I've never really worked with unadjusted wRC before, but it seems like it might be a decent way of measuring just pure aggregate production. We'll see!

The Left is More Moderate 'Cause We've Been Winning

Kevin Drum has a post today arguing that there's no great mystery why the Republican Party is so much more beholden to its radical wing than the Democrats are: there are a lot more radical right-wingers than radical left-wingers these days. I think that's basically true, but I have another thought: part of the reason why that's true is that the liberals have been winning. Most notably we've been winning the culture wars. Over the last half-century, American society has been remade in a wildly more progressive, individualistic, liberal direction. We're a long way from perfect application of the ideals of egalitarianism and individual liberty, but as a society we are pretty clearly trying, and committed to trying. And the government's been a big part of that. Sure, there have been a lot of Republican Presidents lately, but almost all of the big stuff they did that liberals dislike was about concentrating the economic resources of the extremely wealthy. That's not a trivial issue, but we're a long way from fighting over segregation or rampant sex discrimination. Notably, since post-Reagan Republicans have embraced deficits just for the hell of it, they're been able to pursue this pro-rich agenda without actually doing too much damage to the anti-poverty parts of the budget; programs have been cut a little at the margins, but the only time a central plank of the social insurance scheme was structurally altered was welfare reform and that, apparently, worked out a lot better than most liberals expected. The point is, someone who thirty or forty or fifty years ago felt the need to demand massive liberal changes both from the political process and from society at large would find that they've received a pretty large chunk of those demands, with more pretty clearly on the way in the near future (on gay rights, Obamacare actually taking effect, maybe immigration reform and some sort of executive action on climate change, etc.)

If, however, you were a conservative those same few decades ago, well, the intervening years have been a horror show. Particularly if you were a social conservative, you are now greeted with the spectacle of all these strange people running around acting like they're your equal. (Women, black people, Hispanics, gays, atheists, etc.) It's now just routine that everyone, not just weirdo free-love hippie types but nearly every ordinary American young adult, has a sex life that would've been considered scandalously promiscuous when you were born. People go around cursing all the time. You get the point: a certain vision of how American society should be structured, one held by a not-insignificant portion of the populace, has pretty much died over the past couple of generations. Which turns yesterday's conservative into today's apocalyptic reactionary, no longer merely making the Burkean argument that we should hesitate to make significant changes but forced to argue that changes which have already taken place are in fact destroying American society. That's a much more radical posture, and I think the frantic sense of doom has been really magnified by the fact that we've got a black President now. Nothing gets people riled up like identity politics, and for a long time now the ascendant American identity has been the liberal one.

I'm honestly not sure what explains the over-the-top hostility found these days among the one group within the Republican coalition that's been making out like bandits over this same time period, namely rich people and financiers. One way to look at it would be that they've transmuted the simple desire to have more money, rooted in nothing more than good old-fashioned rational self-interest a.k.a. greed, into a kind of identity politics, where anyone who doesn't just want to back a truck full of cash (and no small bills, please) up to the gates of their mansion is committing some unforgivable slight. That's a phenomenon in itself, but more broadly I think it's true that the liberal identity has been whupping the conservative identity's ass for generations and that this trend shows every sign of continuing. What more explanation do we need for the perceived radicalism gap?

When Legal Realism Gets Internalized

Back in the old days, common law judges had what we would now consider a naively romantic view of their jobs. They did not see themselves as making the law, but rather as using the principles of Reason to "discover" the law. The law, they thought, had external validity. It just existed, out there, somewhere, sort of as natural law was thought to. Some of them might even have said that the common law they applied was natural law, though others might have denied it. Then, starting a little more than a century ago in this country, came the legal realists, who basically demolished this idea. They pointed out, irrefutably so, that an awful lot of judicial decision-making was influenced by the personal characteristics of individual jurists, the politics, the identities, the ideologies, etc. That was the empirical claim. It got kind of wrapped up in a philosophical claim about what law is. To a legal realist the idea of the law's existing independently of the legal system was absurd. Put perhaps a bit too concisely, the law was seen as nothing more than a prediction about the behavior of judges.

This story, of the rise of legal realism and the corresponding fall, and then demise, of the classical view of law, kept occurring to me earlier tonight as I read the line of Supreme Court cases about federal common law. Here the story is as follows: in Swift v. Tyson (1842), Justice Joseph Story declared that, in a case which only gets into federal court because the parties to it are from different states, i.e. where the legal issues are not ones of federal but rather of state law, the federal courts were not bound to follow state common law. Part of the motivation may have been the desire to create a uniform national commercial law through the federal common law. In any event, this was the rule for very nearly a century, until the Court overturned Swift in Erie Railroad Co. v. Tompkins (1938). And I just couldn't shake the feeling that the difference between the two cases is the difference between classicism and realism. Moreover, though I'm not at all sure which of the two cases I think is better, it seems to me that Erie and its progeny showcase the potential dangers of letting the legal system internalize even the most valid insights of the legal realists.

How Far Could We Restrict Abortion?

As promised in my last post, I will now consider the following question: if I were put in total control of federal constitutional law, what is the most restrictive abortion statute I would consider upholding? There are basically three ways to answer this question: totally pro-life, totally pro-choice, or something in the middle. Or, to put it another way, you either need to say that a law prohibiting abortion from the moment of conception would be constitutional, that no law imposing anything more than good-faith time-place-and-manner-style regulations on medically-supervised abortion up to the minute, or perhaps second, before birth would be constitutional, or you need to find some convincing way to draw a line somewhere between the two. Obviously I don't adhere to the first position. I'm not at all sure, however, that I adhere to the second one, either. That requires me to draw some lines, and below the fold I will attempt to do so. First I'll sketch the outlines of what I think might be the most restrictive possible legitimate abortion law, and then I'll attempt to defend both why I think such a law might be constitutional and why I think violating any requirement I place upon the law would render it invalid.

Why Abortion Has To Be Federalized

My constitutional law small-group class has spent the past couple of days discussing abortion and Roe v. Wade, and there are basically two battles here. There's the battle on the merits, namely, if we have to decide how to balance the various quite compelling interests at stake here, how should we go about doing so? But there's also the institutional-role battle: is this something the federal courts should be handling? Since the constitutional text is ambiguous on many of the key points of the on-the-merits debate, shouldn't states be left to form their own democratic judgments? There's a problem with this, however. This is not really a case where the existence of important federal-constitutional rights is in question. Rather, the ambiguity concerns whether there are countervailing interests at stake sufficient to justify what look on inspection like violations of those rights. The pro-life case, in other words, is not about denying the importance of a woman's control over her own body (well, unless the pro-life movement lets its id speak a little too openly), it's about asserting the overriding importance of protecting the life of the unborn child.

If you wish to deny the existence of unenumerated rights altogether this claim ceases to be true, but the Supreme Court has never once done so. Once you admit that these rights, which are properly viewed as Ninth Amendment rights but which in practice go by all sorts of doctrinal disguises, exist, I doubt there are very many in American society today who would accept the consequences of denying a right to bodily integrity generally beyond the abortion context. So it's clear that, at least under the underlying principles of modern individual-rights jurisprudence, anti-abortion laws must interact, somehow, with constitutional rights, and the question is the nature of that interaction, and how far a state may legitimately go toward restricting these rights in this context. Obviously the Supreme Court must set a nationally uniform minimum protection level. Conceivably it could also set a nationally uniform maximum, too, depending on how strong it finds the countervailing interests in certain contexts. In the gap between maximal and minimal protection, or simply between minimal and complete protection if no maximum is set, states are given full license to conduct their federalist experiments in democracy.

But once those national rights are implicated, it simply becomes infeasible to allow an individual state to adopt, say, the proposed Mississippi personhood amendment. Someone needs to say whether the valid state interests that could be argued to exist in preventing the abortion of a given pregnancy, or in a given pregnancy scenario, are sufficient to negate the protective force of those rights, and plainly that someone cannot be the states. This is not an area where the Constitution can be seen as silent, as leaving things simply in the hands of state legislatures; it is, rather, an area where important values under the federal Constitution are in conflict, and if the Fourteenth Amendment says anything* it is that the solution to such a conflict must be a federal one. The alternative is for the Court to allow states to restrict abortion, and with it the rights of pregnant woman and their doctors, in ways which the Court believes, in its own considered legal opinion, are not sufficiently justified by any legitimate state interests. Or, alternately, for the Court to allow states to permit abortion, in violation of the fetus' right to live, without sufficient justification, if its conclusion on the merits was that certain kinds of abortion had to be criminalized, perhaps on Equal Protection grounds. Either way the Court would be allowing states to violate important constitutional requirements, simply because the answer how best to balance the various interests at play in the abortion debate is not immediately obvious from the constitutional text. I can't imagine any reason to favor that approach, other than substantive disagreement with the Court's on-the-merits judgment and a resultant desire to minimize that judgment's reach.

In my next post I will address what I think the correct minimum protection would be, i.e. what I think is the most restrictive abortion statute that could possibly survive constitutional challenge under what I would consider proper jurisprudence.


*Well okay, technically if the Fourteenth Amendment says anything it's that the government mayn't discriminate against black people as such. But in terms of the broader political theory of the Constitution, its basic effect is to nationalize individual rights.

World Series Win Probability Added

Among the quirkier new-age baseball statistics is Win Probability Added. This statistic uses the assumption that all players are equally skilled, along with some knowledge about the overall run environment in which a given game is being played, to generate each team's expected chances of winning a game based on the relative score, the inning, the number of outs, and which bases are occupied. So, for instance, at the beginning of the game each team's Win Expectancy is 50%, but if the away team puts up 15 runs in the top of the first their Win Expectancy shoots to about 99.9%. Any given play, therefore, will alter one or all of the score, the inning, the outs, or the bases, and therefore the Win Expectancy, and you can give the play a Win Probability Added score based on the change in Win Expectancy. Attributing that change can be tricky in cases of, say, stolen bases or errors or whatever, but as a general rule you attribute WPA to pitchers and hitters. And the idea is that WPA tells the story of a game, though it's well-known that it's not a great way to evaluate players overall. But the story of a baseball season isn't just isolated games as part of an anthology. They are, rather, episodes, which add up to tell an overarching narrative, at the end of which someone wins the World Series. From a purely competitive standpoint, that's the goal, not just to win games but to win it all in very early November. Adding to your team's odds of winning a game is nice, but you really want to boost its chances of winning the World Series.

Law & Economics and Political Theory

First of all, a caveat: I'm not talking about all law & economics. Not necessarily. The central concept of economics is optimization under constraint, and in principle those techniques can be used under any value scheme that tells you what to optimize (although it does get tricky when you have non-quantifiable values). You can do a law & econ-style analysis, therefore, under any value scheme. But I am talking about most of the field of law & economics, as I have encountered it so far. Not just the Richard Posner-style law & econ, the problems with which are obvious, but also with kinder, gentler, Guido Calabresi-style law & econ. Okay, caveat over; actual piece after the break.

About Those Robots Coming For Our Jobs

Kevin Drum has a piece today intelligently arguing that a lot of people underestimate the potential for "smart" machines to displace human labor in the next couple of decades, in particular by making flawed historical analogies to previous technological changes that had nothing to do with artificial intelligence. At the very least he's quite persuasive that one can't lump the possible forthcoming AI/"smart machine" revolution in with previous industrial revolutions. But that's not really what I want to talk about. I want to talk, rather briefly, about the following passage from the beginning of his piece. Here's how he describes Tyler Cowen's "average is over" thesis, with which he says he broadly agrees:

A small number of very smart people will do really well, while the broad middle class will end up with bleak, low-paying jobs—assuming they're lucky enough to have any jobs at all.

That, as a consequence of smart robots doing the work we're all accustomed to doing now. My problem here isn't really with the positive claim that robots will displace most/all human work. It's that, in such a world, we should view as "lucky" those who manage to still have a job. Why? "A job," in its current form, means spending countless hours of your life toiling away not for your own enjoyment but because someone out there values the stuff, tangible or otherwise, that you'll produce through your labors, and is therefore willing to give you money for it. And another way of saying "money" is "a social agreement to give you stuff and/or do stuff for you." The way the economy works circa 2013, as it has worked for multiple centuries now, is that everyone pretty much realizes that a ton of stuff needs to get done for all of us to enjoy prosperity, so we agree, through the social convention of money, to do stuff for other people who have demonstrated that they've done something to contribute to this prosperity. Or that they will do something to contribute in the future, and have gotten credit to reflect that expectation. Or that they have parents who contribute something.

Well, that's the unalloyed capitalist vision: I do stuff for you on the implicit premise of your handing me currency that at some point in the past or future you have done or will do something for someone else. Recently most societies around the world have started tinkering with that, suggesting that certain basic needs should maybe be given to people just because they need them, not because they've done anything for anyone. So we get social welfare policies, which capitalists hate because they undermine the basic "you only get something by doing something for someone else" incentive. But here's the thing: why do we need that incentive? Because there's a ton of stuff that needs to get done, i.e. that people need to do, and for various reasons persuasively detailed by political economists that stuff gets done a lot more efficiently if we don't all just do everything for ourselves, but rather each pick something of social value to specialize in and get paid for, and then buy what we need from the fruits of others' labors.

But what if we didn't need all that human labor to produce all the stuff we need? What if the extreme "smart machine" hypothesis comes true, and robots are able to do most of the work people currently do. And not just manufacturing, but much of what we currently consider services. That's the "smart" part, the idea that machines will be able to do complex intellectual tasks without human assistance. Well, in that scenario (assuming we fend off any possible robot rebellion), the thing where prosperity requires an amount of human labor such that basically everyone needs to spend a huge chunk of their life performing labor would stop being true, at least significantly. And if that happens, the basic logic for capitalist economics will be dead. We won't need to condition people's ability to get the stuff they want on whether they've done something to produce the stuff that other people want. The idea that people "deserve" only to consume as much as they can produce is a moral byproduct of capitalist economic logic, which states that it is efficient to let people consume only as much as they can produce because it maximizes production. If that stops being true we should sever the link. Depending on exactly how true it gets, that could mean a pretty goddamn robust basic income law, where everyone is just given an amount of money that will buy, say, a comfortable middle-class lifestyle. Or it could mean abolishing money and living in a socialist, Star Trek-style utopia, economically speaking at least.

Now, there would still be issues in that brave new world. The robot revolution is unlikely to change anything about the scarcity of the surface area of the earth or of usable energy, so conventional economic analysis will have some part to play in telling us how to structure things once they've eliminated scarcity in many other areas. But one thing seems clear. If robots take all our jobs, and are actually doing them as well or better than we were, we should all get to stop having the underlying premise of our lives be that we spend a third of them or more doing work just because someone else wants us to do it. That wouldn't mean no one would ever have a job, that we'd all just do things that would currently be described as "leisure." But in a sense even when we did something that would now look like a job, it would be leisure, because we'd be doing it for its own intrinsic value to us. Oh, and because we weren't being forced to do it on pain of starvation and homelessness by the social economic arrangement. And that. So if the robots come for our jobs, we should respond by just being okay not having jobs anymore, and then figuring out what to do with all our new free time. That could, potentially, be pretty awesome.

Also, see Matt Yglesias' blog for the occasional highly insightful consideration of what the economics of the technological future might look like. He tends to do a better job of acknowledging that changing technological conditions don't have to result in a path-of-least-resistance distortion of the current system, but might enable a totally different system altogether.

Don't Take Anything From Republicans

So, the Republicans just spent a couple of weeks frenetically devoted to their strategy of forcing Obama and the Democrats to give them everything they've ever wanted through hostage-taking. It didn't go so well. They were never actually prepared to kill their hostage, Obama knew it, and when they could no longer maintain their willingness to do the deed without actually pulling the trigger, they caved. Completely and utterly. They got nothing. Well, they got something, extra "income verification" for the Affordable Care Act subsidies, but it turns out this just says that HHS needs to issue a couple of reports assuring people that there isn't much fraud going on. So, nothing. Republicans lose. It was a lot of fun, and it crushed the Republicans in the polls, though not far enough that they can't recover. In any event, we're back to more or less normal politics at this point, which means budget negotiations between the House Republicans and Obama.

And the Republican stance on how these negotiations should go is the same as it's ever been: Obama should just give them stuff in exchange for nothing. Not in exchange for not blowing up the economy, or for not shutting down the government; no, for now they've given up those bits of "leverage." Just for nothing. If Democrats want to get rid of the sequester, at least partially, they should replace it with... more spending cuts! Like, more in the sense of more new cuts than the sequester cuts being replaced. This, well, isn't going to work. They couldn't get concessions for nothing from Obama back when they had hostages. If this is their offer, it's really not hard for Obama to just say, um, no. And on we go, with our government so divided that nothing ever gets done except when there's a manufactured crisis. Or, as Matt Yglesias suggests, the Republicans could give the Democrats something, something other than tax increases on rich people, to sweeten the deal. Nah, that won't happen.

But is there anything that Democrats should take, if Republicans were to offer it? Specifically if Republicans offered it as part of a deal the other side of which was entitlement cuts. And entitlement cuts, mind you, suck. They're long-term, and they're deeply regressive distributionally. The basic Republican long-term agenda is that they want to keep rich people from having to pay taxes, and in order to do that they need to slash safety net spending. But that's wildly unpopular (oh, did I mention it's wildly unpopular?), and it would play right into people's entirely-accurate stereotypes of Republicans as heartless pro-rich-people bastards, so they can't do it unless they get Democratic support to cover themselves with. That's their core political goal. We should be extremely hesitant to give it to them. The thing on the other side would have to be extremely important, and it would have to be something we won't really be able to get any other way. Is there anything like that?

My Problem with Land Taxes

From time to time, as for instance earlier today, Matt Yglesias likes to write about the many supposed virtues of land taxes. The idea is that property taxes as implemented in this country are proportional to the value of the developed human-built structures on the land, not solely to the intrinsic value of the land itself. And that has an unfortunate incentive effect: it's a tax on development. Now, lots of taxes have unfortunate incentive effects. Income taxes discourage earning income, in theory. Capital gains taxes discourage investment. Estate taxes discourage leaving enormous estates to your heirs. The idea is that when you tax some asset or activity, you set up an incentive for there to be less of that asset or activity, which is generally a bad thing. Discouraging people from doing things they would otherwise do of their own accord is bad, all else being equal. Of course, all else isn't equal, and we need money, and by now we need a lot of money, to fund the government. So we've got to tax something, which means we've got to discourage something. Except there's one thing we can't create any more of, and that's land. Not the stuff above the land, not the stuff we put on land, but the land itself. The surface area of planet earth. We have a certain amount of it, and we're never going to get any more or any less. So taxing land has no distortionary incentive effect. It can't induce people in the aggregate to have less land, because, well, land sales are zero-sum.

But I have a problem, and it relates to a point about land taxes that Yglesias mentions in his post. Land taxes encourage, pretty strongly, intense development of land. If you're going to be paying the same penalty for owning a certain square foot of the earth no matter what you do with it, you need to make sure that you get as much money out of it as possible. And that means, as a general rule, destroying whatever of the natural world existed on the land. Nature is incredibly valuable; in my AP Environmental Sciences class I recall seeing a figure that the ecosystem produces as much economic value each year as humans, i.e. as world GDP, and presumably that's the high point of the human/natural GDP ratio. But it isn't very profitable. The vast majority of the benefits of the natural world, there's simply no way for the guy who owns a given plot of land to capture. Processing carbon dioxide into oxygen, for instance. Now, plenty of natural benefits can be harvested by land owners, but plenty can't, giving land owners faced with land taxes a particularly strong incentive to destroy the environment of the land they own. Which is, of course, a recipe for global disaster.

Now in principle, this is something that a tax policy could well account for while also getting the efficiency gains of land taxes. Economics isn't hostile to the idea that environmental concerns have both merit and economic value, at least not in principle. Land owners always have an incentive to convert the global-scale environmental benefits being created by their land into private benefits they can more easily monetize, even if the conversion is a huge net loss for society as a whole. Land taxes make this incentive a problem of actual rather than simply opportunity costs, and given human psychology that means it throws this unfortunate incentive into sharper relief. But, viewed properly, this kind of over-development is not efficient for society as a whole, and economics has a well-developed solution for what to do in these cases: tax them! Specifically, tax any negative "externalities" of individual private action. So, in this case, you'd want a tax on environmental degradation as such. Say, a fine whenever you cut down a tree, or for every square foot of earth you cover in pavement rather than dirt and plants. In principle a comprehensive tax on environmental degradation would eliminate the private motive to gain immediate personal profit at a global long-term expense by destroying any vestiges of nature within private possession. And if we had that kind of tax in place, land taxes wouldn't really be problematic. Developing your land to eke every last drop of money out of it and damn the environmental consequences would stop being a viable strategy to deal with the costs of paying the land tax.

Now, one wrinkle in this analysis is that the places on planet earth that are subject to the most intense development are immensely important for the broad task of allowing seven-plus billion humans to life on this earth without doing too much damage to it. I speak, of course, of cities, which are on the one hand massive acts of environmental degradation and on the other hand are well-known to have much, much lower per capita environmental costs than suburban living. So the appropriate regulatory tax regime might be different in a big city, and it might make more sense to encourage the "go for the biggest possible development" strategy. I'm not sold that there aren't any other concerns not captured by the short-term profit motive that deserve some consideration in urban life, but I could well believe that there's no real point trying to preserve the local environment, not when development would so efficiently preserve the environment of other localities. But in general, my basic point stands: I get the economic logic behind a land tax, but unless implemented alongside a systemic effort to internalize the problems of ecological degradation I would much fear their actual consequences.

Observations on the Law

These are just a couple of more or less random observations I've had about the broad workings of the legal system since I arrived at law school. The first concerns my new-found appreciation for the "cases and controversies" rule, and the second is my reaction to an aspect of law that I had literally never heard of before coming to law school, the Restatements.

The Importance of Abstract State Intent

Here's one of my meta-theories of constitutional law: a wide variety of tricky constitutional problems can be simplified by modeling the government as an abstract corporate person, and drawing inferences about its state of mind from its actions. Or, to put it another way, forget about trying to divine the "legislative intent" of specific flesh-and-blood legislators. Just think about what might have motivated a reasonable government to adopt this measure. I'm most accustomed to thinking of this in the Equal Protection context, where my idea is that the state mayn't ever hold the belief that any of its citizens are inferior, and in the context of the religion clauses, where my idea is that the state mayn't ever adhere to a "comprehensive doctrine," e.g. a religion or a specifically atheist worldview, as opposed to a secular lack of any theological beliefs at all, positive or negative.

Republican Denial of Tactical Reality, An Example

I recently wrote a post arguing that the shutdown is simply the clearest yet manifestation of what we liberal types have known for a long time, namely that Republicans are unfit to govern, and that their unfitness is largely due to the takeover of their entire mentalities by the "reality-based community" thing, including the strategic parts of those mentalities. Well here's a nice Dave Weigel post about how Republicans simply do not believe that the shutdown is hurting them politically. Which it is. You cannot look at the bulk of the polling data and claim otherwise. Hell, there aren't very many individual polls you can look at and claim otherwise. And this is a big problem: if Republicans really believed that they're doing damage to their party, and maybe that it's long-term damage that won't be easily undone, they'd have an incentive to back the hell off before it gets any worse. But they don't believe that, so there's no incentive. A blind man driving toward a cliff doesn't know to stop, and if he won't even listen to his sighted passenger that there's a goddamn cliff half a mile in front of them, well... you're in trouble.

And Now For Something That Isn't The Constitutional Crisis

In my latest effort to avoid having to actually do my goddamn Procedure reading, I read this article about the problem with Malcolm Gladwell. It's very interesting stuff and I think I basically agree with its broad point, though I don't have any independence expertise with which to judge it. I do have one thought to add, though: Gladwell apparently claims that many dyslexic people become very successful (incontrovertibly true) and that, in fact, these people may become successful because of their dyslexia. The obvious rejoinder to the former claim is that it omits any discussion of, you know, proportionality: are "successful" people, whatever that means, more or less dyslexic than people in general? If, say, 3% of the population and 1% of "successful" people are dyslexic, then yes, dyslexia is not a total bar to "success," but it seems to be making it a lot harder. (No comment offered on whether this is because dyslexic people genuinely lack the capacity to be "successful" or because society unjustly places additional burdens in their way should they attempt to "succeed.") But that's not my point, because I think there's an even stronger response to be made to the second part of the claim.

Of course any dyslexic people who become successful will have become successful because of their dyslexia. Or, slightly more precisely, of course the path any successful dyslexic took to achieve their success will have been influenced by their disorder. If I put a roadblock up on your way to some destination, and you are thereby forced to take an alternate route but nonetheless reach your destination, then you took a successful path and I forced you to take it. Or, to use a perhaps more accurate metaphor, if you're wandering around in the fog and the dark with no idea of where you're trying to go, and I put a big ol' wall in front of you, maybe even a wall of infinite length that forecloses an entire portion of the world to you, and your further wanderings deposit you somewhere that's a very good place to be, it is entirely true that you reached that good destination because I obstructed you. So if there are extremely successful people who are dyslexic, then with every single one of them you will be able to tell a story of how their dyslexia shaped their lives in a way that led them to their successes. Tautologically. And because it's a tautology, it's uninteresting except as a matter of biography, in which context it could well be fascinating, or, perhaps, in the therapeutic context, i.e. in trying to help a further individual dyslexic person work on having a "successful" life despite their troubles. The societally interesting questions then become, okay, how does dyslexia affect the odds of becoming "successful," if you want to, and sure, is there some social value in having some people be successful in the different way that successful dyslexic people are successful?

Those are interesting questions and I might have more to say about this topic, but it's 1:06 a.m. and I have 30 pages of reading for a class that starts in all of seven hours, fourteen minutes, so I should stop writing and go do that. Yeah...

Wait, What? John Boehner Edition

So I saw the headlines with Speaker of the House John Boehner (R-OH) saying that not threatening to blow up the government's finances by failing to raise the debt limit would be "surrender." But I didn't appreciate the context. Apparently the point is that Obama suggested that, if Republicans really wanted to negotiate about stuff, they should fund the government long enough and extend the debt limit far enough to cover the negotiation period. Boehner said that this would be "unconditional surrender" for the Republicans, and that our government doesn't work like that. (I.e., with unconditional surrender by one side the precondition to have negotiations.) Never mind that, you know, if there were no statutory debt ceiling and even if the appropriations process were such that government shutdowns didn't happen, the House Republicans control a crucial veto point of the U.S. government and would therefore have plenty in their arsenal going forward. Nuclear disarmament is not the same thing as unconditional surrender if you maintain your fleet of fighter jets and big ol' conventional bombs, after all.

No, what flabergasts me about this quote is that what Obama is proposing would be completely pointless from the good-guy point of view, which is to say, it wouldn't actually involve disarming the Republicans at all. It's like the broader point about how you can't, you can't, you can't negotiate over the debt limit because if you do you cement a pattern of brinksmanship over it that will inevitably end in financial armageddon, only in fast-motion. The threat would go from "we'll blow up the world tomorrow!" to "we'll blow up the world next week!" Great. That's real unconditional surrender, guys. You're not surrendering anything. You're surrendering one week of world-non-blown-up, and presumably if you win the battle then in the end it won't matter exactly how many weeks it took before you did so. I might be missing something here, although honestly between myself and John Boehner I trust the analytical abilities of the former a whole hell of a lot more, but if I'm not missing anything, John Boehner is saying that holstering his nuclear gun, in the full knowledge that, unless his adversary does what he wants, he'll be able to take it out again in an hour or whatever, constitutes unconditional surrender. Holstering might even be the wrong analogy because it suggests that the other guys could overpower him or something; it's like lowering the gun to where it's pointing at the other guy's feet instead of his chest. And the other guy doesn't have a gun. Surrender! Surrender, I say!

Seriously, you can't make this shit up.

Nope, Sorry, That's Not What That Is

Here's a headline from Huffington Post. I choose them not because I think they're worse than any other more-or-less conventional media types, but because I read them a lot. Anyway the headline is "Paul Ryan Proposes Solution to Debt Ceiling 'Stalemate'." Curious whether that was actually true, I clicked on it and read the first, I dunno, sentence or so of the article. It's not true. His proposed 'solution' is "for the president to come to the table." That's not a solution. It's not a solution in part because the Republicans have spent literally the entire past calendar year refusing, as a matter of principle more than of strategy, to hold budget negotiations with the Democrats. It's not a solution in part because it so reeks of the highwayman in Lincoln's great anecdote, who tells the person he's robbing at gunpoint, "stand and deliver, or I shall kill you, and then you will be a murderer." But it's mostly not a solution because it doesn't acknowledge the fundamental long-term game theory of this situation. If Obama comes to the table and negotiates, and the negotiations are successful, on their own terms at least, he has all but ensured that the debt limit breach will eventually occur, whatever exactly it will entail. Once debt limit hostage-brinksmanship becomes the normal way that divided governments do their budget negotiations, it becomes a matter of statistical certainty that eventually one of those showdowns will lead to the fuse running out and the bomb going off. Negotiating is not a way to end the problem. There could've been things Paul Ryan could have said, without making us suspicious about supernatural possession or something, that would have been proposed solutions to the problem. I'm thinking of some kind of budget deal that included a provision repealing the existence of the statutory debt limit, i.e. giving Treasury unlimited borrowing authority as needed to full the budget deficit. Making a deal under those circumstances would genuinely be better than hitting the limit now, because though it would be capitulation to threat it would be capitulation in exchange for melting down the weapon, thereby ensuring no analogous future threats.

But let's consider it proven that what Paul Ryan is "proposing" here is not a solution to the crisis. Not even a potential solution. This makes the Huffington Post headline wrong. Factually, objectively wrong. A correct headline would've been something like "Paul Ryan Proposes Something He Claims Would Solve the Debt Ceiling Stalemate." Okay, that's overly wordy, but someone more experienced writing news headlines than I could probably improve it. The point is that the only sense in which "the President should come to the table" is a solution is the sense in which Paul Ryan claims it to be one. That it is entirely his assertion that this would work is integral to conveying what he was saying. Or to put it another way, if the headline as written were true it would be huge news. What actually happened is the epitome of non-news. That's not even a matter of, like, subjective ideological/partisan interpretation, it's just true, and the Huffington Post is acknowledging it to be true by placing this story way below their monster mega-story at the top about the debt ceiling. "Paul Ryan Reiterates Silly GOP Talking Point" is barely worth telling anyone. "Paul Ryan Proposes Solution to Debt Ceiling Stalemate" could be the story that heralds the end of the constitutional crisis of 2013, as well as signal the bizarre transformation of the most problematic member of the House of Representatives. That the headline as written also implies a certain level of reasonableness on Ryan's part is also a problem, no doubt, but if Ryan were actually being as reasonable as the headline suggests that wouldn't be problematic. But he isn't, and it's just plain factually true that he isn't, and it's irresponsible to write headlines that say, not just imply or suggest but say otherwise

We Told You So

If you ask people whether the Iraq War was a mistake, most of them will say that it was. Like, two-thirds or more of them will say that. If you ask in 2013, at least. But if you asked people in 2003 whether they supported the war while it was starting up, most of them said they did. Only a few radical liberal types opposed it. You'd think that the fact that most people now agree with the substantive position they were advancing ten years ago would have had some sort of vindicating effect. Nope. As Paul Krugman likes to say, "it remains true ... that for the most part you’re not considered serious about national security unless you were wrong about Iraq." Apparently having been right is not a sufficient defense to the charge of having been a liberal dissident from a mainstream center-right consensus.

Well, it looks like the liberal dissidents might get proven right again. As Krugman himself notes, not surprisingly, the supposedly neutral political establishment has long just sort of assumed that Republicans were highly competent at governing, that they were the party of hard-nosed pragmatists to the Democrats' well-meaning but ineffectual idealists. But now the Republicans have shut down the government. In what they practically admit is a temper tantrum. Competence! No, what we're seeing this week is a party that is fundamentally unfit to be even a small part of the business of governance. And this is not even one tiny bit of a surprise to those of us who've been paying attention the last decade-plus. By which I mean, of course, liberal dissidents. We've been saying that the Republicans were unfit to govern since, well, since forever, but especially since the events of the Bush Administration.

The key, I think, lies in two realizations. First, that Republicans honestly don't care about doing government well. They may even be ideologically hostile to it. After all, according to Saint Ronald, the nine most terrifying words in the English language are "I'm from the government and I'm here to help." Government is never the solution, just the problem when it tries to be the solution. So why bother trying? Or more to the point, governing competently provides strong empirical evidence rebutting the central claim of Republican ideology, namely that there's no such thing as competent government. Much better to bungle things, or even better, not to deliberately bungle things but to put people in positions of power who are woefully unsuited for them, with bungling the inevitable result, and then talk about how the government always bungles everything!

That's the substantive reason why Republicans are unfit to govern; the other is tactical. Among the virtues of democratic politics is supposed to be that it provides incentives to the greedy, unprincipled politician nevertheless to do the right thing, because doing the right thing keeps you in power. It's sort of like the way capitalism claims to harness private self-interest to create common good, and about as successful, namely, somewhat in general but with gaping exceptions. But that requires, well, rational self-interest on the part of our greedy, unprincipled politicians. Republicans, however, have bought their own hype, specifically the "reality-based community" hype. Here's that passage again, from the original Ron Suskind article:

The aide said that guys like me were ''in what we call the reality-based community,'' which he defined as people who ''believe that solutions emerge from your judicious study of discernible reality.'' I nodded and murmured something about enlightenment principles and empiricism. He cut me off. ''That's not the way the world really works anymore,'' he continued. ''We're an empire now, and when we act, we create our own reality. And while you're studying that reality -- judiciously, as you will -- we'll act again, creating other new realities, which you can study too, and that's how things will sort out. We're history's actors . . . and you, all of you, will be left to just study what we do.''

I don't really have cause to analyze this quote afresh. For my purposes the point is that this kind of thinking has crept from the substantive areas of Republican thinking, and in particular the foreign policy substantive areas, to the strategic and tactical areas. The far-right flank of the Congressional Republican Party, in making its demands of leadership as to how they conduct themselves in dealing with the rest of the government, does not draw on, you know, reality. There's not even an attempt to understand what actions will lead to what consequences. It's government by slogan, except it's not just government by slogan, it's maneuvering by slogan. And the thing about detaching yourself from reality is that you don't actually escape it, and sooner or later reality comes back to bite you in the ass. Hard.

For the "are Republicans fit to govern?" purpose, though, the crucial thing is that you won't see it coming. If you truly escape the reality-based community, you lose the ability to know when you're about to make a huge mistake. Hell, you sort of commit in advance to not knowing when you're about to make a huge mistake. That would be listening to the evidence, after all, which is apparently a sign of weakness. So you make huge mistakes, which is to say, you don't avoid the kinds of behavior that will be even a predictable disaster. The combination of these two features is that Republicans have no inherent interest in governing well and lack even the capacity to understand their supposed incentives to do so anyway. That's a dangerous combination, and it all adds up to being deeply and fundamentally unfit to govern. And people like me have known about this since, well, since the reality-based community thing, and since Hurricane Katrina at least. And we've been saying it. Finally, finally the Republicans have misbehaved badly enough that some mainstream types are noticing their fundamental unsoundness, perhaps on the same scale as what happened during Katrina.

So on behalf of we liberal dissidents, who have seen through the Republican Party all these years and whose positions reality has almost inexorably born out over time, and who never ever get credit for having been right, and who are never ever considered to maybe, just maybe, be right the next time too, I just want to say, we told you so.

The Carlos Beltran Solution

Carlos Beltran is a beast. Specifically he's a beast if you put him on a team that's playing in the post-season. He's been a great player over his whole career, mind you, putting up a .283/.359/.496 batting line while playing a great center field (until recently) and adding excellent base running. But in the playoffs... well, today he was 2 for 3 with a walk, a home run, and (all) three runs driven in, and before that game he had a career .353/.456/.774 batting line in October baseball. That includes his insane 2004 with the Astros, when he hit .400, got on base over half the time, and slugged greater than 1. It includes his 2006 with the Mets, when he had a .500 on-base percentage in their NLCS win over the Dodgers and when he hit .296 with a .387 OBP and cranked three home runs. He also struck out five times, one of which... yeah, anyway. It includes last year with the Cardinals, when he had another .400/.500/.900 NLDS (and that's AVG/OBP/SLG, not OBP/SLG/OPS, heh) and then hit another home run and slugged .600 in the NLCS. It includes a mammoth home run he hit in Game 1 of the series against the Pirates this year, which tied him with Babe freakin' Ruth for career post-season home runs (though they don't hold the record, not by a long shot), and tomorrow it will include his great game from earlier today. Carlos Beltran is insane in the post-season.

He's also a free agent. A free agent outfielder, that is, who would provide a lot of what the Mets could use in 2014, namely a seriously threatening hitter. Sure his range has diminished beyond recognition as his knees have deteriorated with age, but he's still fearsome and, well, you see what he does if you can sneak into the post-season. Besides, he's a former Met, he's a beloved former Met, and bringing him back, perhaps to finish his career, would make it a shoe-in that he'll go into the Hall of Fame as a Met. (And I think this month is cementing his place in the Hall.) Interestingly both he and the team seem to be open to it. It's tough to know what Beltran is thinking, whether he's specifically interested in returning to the team that used two months of his services to snag a top prospect in an absurdly justified trade or whether he's just going to listen to all offers. But analyzing the Mets' thinking is perhaps easier. His offense is clearly in great shape, and would fill one of the holes in the Mets' lineup. His defense may not be that much of a concern with this guy patrolling center field. But there's reason to think that he just may not be able to play the outfield every day any more. Are you signing him to be a part-time player? Might he be better served going to an American League team where he could split time between the outfield and being the DH?

Well, it seems to me that a star outfielder who can't quite play every day would be a peculiarly good for for the Mets in 2014 and the immediate future. I can't speak to whether it would be best for Beltran, but the Mets are currently blessed with an uncommonly large number of outfielders under their control who seem like they could be valuable pieces but who are almost certainly not everyday players, at least not on a good team. I'm thinking of Eric Young, Jr., who just lead the National League in stolen bases but has a career .325 on-base percentage and .338 slugging percentage having spent most of his career playing his home games at Coors Field, and of Matt den Dekker, a defensive whiz perhaps on par with Lagares but whose difficulties not striking out may prevent him from hitting at the Major League level. Setting aside the question of left field for the moment, suppose the Mets signed Beltran to be their starting right fielder, but discovered that two or three games out of seven he needed not to be that. Perhaps he would need to sit on the bench, or to play first base, but not to play the outfield for a full nine innings. Well, stick den Dekker in center field and Lagares in right field. Or maybe the other way around. Maybe Matt would also be used to replace Carlos's defense with something resembling what he was once capable of. It could be a neat synergy between an aging star's need to be a part-time player and a young player's need not to be anything more than a part-time player. If the Mets wanted to be genuinely aggressive in acquiring players they could also sign Shin-Soo Choo to play left field, giving them a top of the order featuring Choo, Beltran, and Wright. Or maybe EYJ is actually good enough to be a leadoff hitter, if given the chance. Whatever they do with the other spot in their outfield, though, I think Carlos Beltran would be a uniquely good fit for the Opening Day right field spot in 2014.

The Shutdown, Presidentialism, and the Constitutional Crisis This Time

There have been three great political and constitutional transformations in our nation's history. The first covered the period from 1776 to 1789, during which the country declared and then won its independence and eventually settled on a particular form of government, a federal constitution. The next covered the period from, let's say, 1857 (though the starting-point is kind of arbitrary since it had been building for a long time; 1861 would be perhaps a more conventional answer) through 1870. This was, obviously, the slavery crisis, during which the country fought a whole bloody war to answer the question of whether it would keep having slavery. The third was the Great Depression, with the true constitutional crisis period lasting roughly from 1929 through 1937, though the economic difficulties lasted a while longer. The first two were separated by approximately seventy years; the latter two were separated by approximately sixty or seventy years. Projecting forward seventy years from the last one gets you... a few years ago. Or, to put it another way, if you buy this rough extrapolation (which you probably shouldn't, it's incredibly crude), we're about due for a constitutional crisis. Maybe overdue.

Notice anything that could be called a constitutional crisis?

If so, you're not the only one. The federal government is currently shut down. In a couple of weeks it will, unless something happens to change this, hit the statutory debt limit, after which it will not be allowed to sell government bonds to raise revenue to cover the gap between tax revenues and spending obligations. No one knows what happens if that happens. Maybe worldwide financial chaos and depression. Maybe President Obama just ignores the debt limit, which might avert the former and would definitely trigger a full-blown constitutional crisis in its place. One way or another, it won't be pretty. All of this is, of course, happening because the party which controls one of two Houses of Congress, and does not control the White House, has decided that it will refuse to participate in averting these catastrophes until and unless the President basically enacts the entire policy platform of the man he just convincingly beat to secure his re-election. Or maybe even until he enacts something even more ideologically extreme than that, i.e. more extreme than this party's own primary process could endorse. This is, uh, a constitutional crisis. Right on schedule.

It's been building for a while, although fairly few of us have seen it coming particularly long in advance. Some, however, say it could've been foreseen a very long time in advance. Say, two-hundred years or more. As Matt Yglesias details in this post, eminent political scientist Juan Linz spent his life crafting a persuasive argument that presidential democracies are inherently unstable. Essentially this is because, in a parliamentary system, there is only one Government. That is to say, the party with the majority in Parliament just plain governs, with all the powers and responsibilities that entails. If they screw it up, they lose the next election, and the other party (or maybe a new one) gets a chance at the whole "governing" thing. In a presidential system, on the other hand, there are two independent political powers within the government, each with a claim to democratic legitimacy: the President and the legislature. What happens if they don't get along? What happens if they really, really don't get along, such that they cannot between the two of them govern? Linz says there's just no way to resolve that dispute consistent with the principles of democracy, so something else, typically the whims of the military, has to choose a winner. Steve Calabresi, my former professor and perhaps the foremost champion of presidential government, makes a number of good points about the weaknesses of Linz's case, for instance that most of the examples he cites are Latin American countries without a strong judiciary that can act as a potential dispute-settler between the political branches. Still, the current crisis in Washington looks an awful lot like a Linz-style collapse of presidential government, right?