prior probability

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That is the title of my latest article, which was just published in Bocconi Legal Papers; see https://blp.egeaonline.it/it/102/papers. Below is an excerpt with the footnotes omitted:

 Ramsey developed his new approach to chance in a paper titled Truth and Probability, which he presented for the first time at a meeting of the Moral Sciences Club in November of 1926. In this remarkable paper, which was eventually published posthumously in 1931, Ramsey sketched out an entirely new and revolutionary way of looking at probability. We can summarize Ramsey’s picture of probability in ten words: “probabilities are beliefs and beliefs, in turn, are metaphorical bets”, or to quote Ramsey’s himself, “Whenever we go to the station we are betting that a train will really run, and if we had not a sufficient degree of belief in this [outcome] we should decline this bet and stay at home”. On this subjective view of probability, one can measure the strength of a person’s beliefs in betting terms, or again in Ramsey’s own words: a “probability of 1/3 is clearly related to the kind of belief [that] would lead to a bet of 2 to 1”. Most importantly, Ramsey also showed how one’s bets – i.e., one’s subjective or personal probabilities – should obey the formal axioms of probability theory.

Capitalism and Freedom by Milton and Rose Friedman (pictured below, top row), first published in 1962 and available here in full –> https://en.wikipedia.org/wiki/Capitalism_and_Freedom

Capitalism and Slavery by Eric Williams (pictured below, bottom row), first published in 1944 and available here in full or here (first 30 pp.) –> https://en.wikipedia.org/wiki/Capitalism_and_Slavery

Bonus link: additional books about “capitalism” –> https://en.wikipedia.org/wiki/Category:Books_about_capitalism

For reference, below are links to my four-part critique of Cass Sunstein’s 2023 essay “Why I am a liberal” as well as links to my four-part review of Philip K. Howard’s 2024 book Everyday Freedom: Designing the Framework for a Flourishing Society:

CRITIQUE OF CASS SUNSTEIN’S FAUX LIBERALISM

1. What is liberalism, and does it matter?
2. Why Cass Sunstein is a faux liberal (part 2)
3. The hypocrisy of Cass Sunstein? (part 3)
4. The ethics of liberalism

REVIEW OF PHILIP K. HOWARD’S EVERYDAY FREEDOM

1. Howard’s tautology, part 1 of 4
2. Howard’s rhetorical rabbit, part 2 of 4
3. What Howard gets right, part 3 of 4
4. What Howard gets wrong, part 4 of 4

FINAL THOUGHTS

Sunstein says he is a “liberal” and against “tribalism”, while Howard says he is for “everyday freedom” and against “red tape”, but in reality — for the reasons I provide in the links above — both are at bottom paternalistic do-gooders who, instead of leaving us alone, want to nudge us in their preferred directions to do x, y, or z (take your pick). Among other things, my critique of Cass Sunstein (especially paragraph #5, quoted below) applies just as much to Howard as it does to Sunstein:

The problem with invoking [‘everyday freedom’] as a value is that all laws, by definition, restrict liberty to a lesser or greater extent, depending on the evil the law is designed to remediate. As a result, the question is not whether [we are] ‘for’ or ‘against’ freedom in the abstract. The real issue instead is, when [are we] prepared to limit the liberty of some actors in order to promote some other important value, such as public health or public safety? Simply invoking a general concept like [‘everyday freedom’] is of no real help when we are called to weigh and make difficult real-world tradeoffs.

Note: Below I conclude my four-part review of Philip K. Howard’s Everyday Freedom: Designing the Framework for a Flourishing Society, available here (Amazon).

Previously, we surveyed Philip K. Howard’s three-part critique of modern law: too many rules, too many procedures, and too many rights. But what is to be done? What steps can we take today — short of a revolution or violent overthrow of the existing federal government — to redress these three problems?

It is here, however, where Mr Howard misses the mark. In summary, he proposes three solutions: greater amounts of trust (Ch. 6), greater levels of institutional authority (Ch. 7), and greater involvement in community life at the local level, such as schools, churches, and charities (Ch. 8). Although these solutions may sound great on paper, they are wishful thinking for the following reasons:

1. Greater amounts of trust. Put aside the most obvious objection to this point: how do we measure “trust”, and how do we know whether the overall level of trust is falling or rising? Another problem with Howard’s “trust” argument is this: he fails to recognize that there is an optimal level of distrust in any human activity, whether it be politics, business, or even love. Yes, trust is a good thing, but if you always trust other people to do the right thing, you will be rolled over sooner or later.
2. Greater levels of institutional authority. What does Howard really mean when he calls for “greater levels of institutional authority”? Simply put, this fancy jargon is just a euphemism for rolling back unions and labor rights: Specifically, Howard wants to make it easier for employers to fire their employees without having to risk any legal consequences. In fairness to Howard, he might be right about this. The problem, however, is that his call for greater levels of institutional authority (i.e. for making it easier to fire workers) is an inconsistent and possibly hypocritical one. After all, why do federal judges have guaranteed lifetime tenure? If job security — i.e. lifetime tenure — is good for judges (and professors, I might add), then why isn’t it also good for the rest of us?
3. Greater involvement in community life. Last but not least, Howard calls for greater “community responsibility and social cohesion” (p. 73). Again, let’s put aside the most obvious objection to this point: how do we measure “community life”, and how do we know whether the overall level of participation in community activities is falling or rising? (Case in point: Howard selectively cites Robert Putnam’s Bowling Alone but fails to cite Professor Putnam’s more recent follow-up book Upswing.) Does going to a rock concert count as a community activity, for example? What about trout fishing or horseback riding with friends?

But the biggest problem by far with these supposed solutions is that it is unclear at best what impact they might have on the overall level of human freedom. They might even end up reducing freedom, for Howard sounds more like a paternalistic boomer than a classical liberal champion of natural liberty, especially in the last four chapters of his book, where he tries to nudge us to go to church more often or coach Little League games. While I agree those are worthy activities, my larger critique of Howard’s brand of paternalism is this: you can’t have it both ways: you can’t say you’re for “everyday freedom” in some cases but not in others, such as the freedom to retreat from civic life or the freedom to focus on other less civic-minded pursuits.

Note: Below I review Chapter 5 (pp. 36-52) of Philip K. Howard’s Everyday Freedom: Designing the Framework for a Flourishing Society, available here (Amazon).

In a previous post, I summed up Philip K. Howard’s three-part critique of modern law, a critique that first appears in Chapter 3 of his beautiful new book Everyday Freedom: too many rules, too many procedures, and too many rights. In Chapter 5, which picks up where Chapter 3 leaves off, Mr Howard elaborates on each one of these points and makes a number of valid points:

1. Too many rules. Howard not only denounces the sheer volume of rules and regulations that are currently on the books — in the domain of federal regulation alone, for example, there are 150 million words of binding legal requirements (p. 39) — he also explains why legislatures and public agencies are motivated to produce so many rules in the first place: the desire for certainty or, in Howard’s own words, “the quest for clear law” (p. 37). Ironically, however, as Howard himself correctly notes, the greater the number of laws, the greater the amount of legal and regulatory uncertainty, since many of these rules are contradictory and since no one can “know” with any degree of certainty what the law is.
2. Too many procedures. Additionally, Howard correctly points out just how time-consuming and expensive it is to get one’s day in court — the culprit here being Byzantine procedural rules — so expensive and so time-consuming that the right to a jury trial — our greatest constitutional right of all, I might add — is all but illusory. Again, Howard’s critique is spot on.
3. Too many rights. Last but not least, Howard bemoans what one legal scholar (Jamal Greene) calls “rightsism“: the proliferation of legal rights and “protected categories” (p. 45) that began in the 1960s and continues unabated. Why is this so-called “rights revolution” such a bad thing? Because, as Howard correctly notes, rights are invoked strategically by litigious plaintiffs attorneys and so-called “public interest” groups in order to “weaponize[] law” (p. 46) in one of two ways: either to extort money payments from business firms or to bypass legislatures to get courts to impose their preferred public policy outcomes.

Although Howard’s three-part critique of modern law is on point, his proposed prescription or medicine for these ills is off the mark. Stay tuned! I will explain why — as well as conclude my review of Everyday Freedom — in my next post …