prior probability

That is the topic of this new paper by Alex Edmans, a finance professor and the managing editor of the prestigious Review of Finance, the official publication of the European Finance Association. In a nutshell, Professor Edmans explains why he had to reject “nearly 1,000 manuscripts” for publication during his tenure at the journal. Below are just a few of his reasons for rejecting so many papers for publication:

1. The results in the rejected paper are “insufficiently novel” (i.e. the paper is old hat);
2. The results are insignificant or “insufficiently important” (i.e. trivial results);
3. The results are insufficiently generalizable (i.e. the results have little relevance to the real world);
4. The paper considers only one side of the trade-off (i.e. the author commits the Nirvana Fallacy);
5. The paper lacks clear hypotheses (i.e. the claims in the paper are too vague or wishy-washy to be tested).

While I agree with items #4 and #5, which are common problems in my field (law), what Professor Edmans fails to mention is that the questions of novelty, significance, and generalizability are highly subjective and contested ones. (See here, for example.) Nor does he even begin to address the elephant in the ivory-tower room: why do we still need gatekeepers like Edmans; or more generally, why do we need obsolete print journals in the Internet Age? Why not follow the legal scholarship model instead in which almost everything gets published (there are over 1,500 law journals out there) and let the scholarly community as a whole decide what is worthy? (I guess these secondary questions would be the subject of another paper!)

Toward the end of my previous Posner post, which highlighted Oliver Wendell Holmes’s three-paragraph dissent in Lochner v. New York, I shouted out Sex and Reason (1992), perhaps Richard A. Posner’s most controversial work. In short, I was so impressed with Law and Literature that I decided to give some of Posner’s other scholarly tomes a try, including The Problems of Jurisprudence (1990), Overcoming Law (1995), and The Problematics of Moral and Legal Theory (1997). But my favorite Posner book by far was the aforementioned tome on sex, an intellectual tour de force in which Posner surveys the history of sexuality and sexual mores in Western civilization, explores the economics of erotic art and pornography, reviews the legal regulation of sex, and develops a general theory of sexuality. In short, I was won over by the breadth and depth of Posner’s foray into human sexuality–a descriptive diamond in the normative rough of feminist legal scholarship.

But what struck me the most about Sex and Reason was Judge Posner’s morally-neutral or “morally indifferent” analysis of sexuality and sex regulation. (See especially pp. 181-182 of Posner’s sex book.) For Posner, sex should be treated as the moral equivalent of eating: a morally-neutral act. Consider, for example, my decision to add a leaf or two of spinach to my ham-and-egg sandwich sandwich for breakfast. It might be morally wrong of me to consume meat, and bread-baking and the planting, harvesting, and distribution of wheat and other crops might generate negative environmental consequences, but the actual act of me eating a ham-and-egg sandwich for breakfast carries no moral significance whatsoever, like the act of combing my hair or brushing my teeth, or in the words of Posner: “Few people in modern society consider eating (as long as it is not cannibalistic) an activity charged with moral significance, but everyone recognizes that it is an activity to be conducted with due regard … of health, expense, time, and seemliness.”

Although I disagree with Posner about the moral-neutral status of eating, the possibility of a morally-neutral analysis of sex struck such a deep chord with me that it inspired me to research and write my first major paper: “Domestic Violence, Strategic Behavior, and Ideological Rent-Seeking” (2006). (By this time, I had published only two minor works: one on the history of Puerto Rico citizenship (see here), which was based on research I had done when I was a student at Yale; the other (here) describing a special conference on Bush v. Gore that my law school had hosted in February of 2001.) The seeds of my 2006 paper were planted during a panel on Caribbean legal trends that took place at the Caribe Hilton in San Juan, Puerto Rico in the summer of 2004. At this academic panel, a feminist law professor (the late María Dolores Fernós) denounced the increase in domestic violence incidents on the Island and urged the Puerto Rico Government to take more aggressive actions to reduce such violence. This plea for help resonated with me, for there was indeed a significant increase in domestic violence cases as measured in the amount of persons, mostly women, requesting protection orders.

But this steady and inexorable increase in domestic violence cases on the Island of Puerto Rico posed an important empirical puzzle, a puzzle that my moralistic feminist colleagues somehow overlooked. To the point, the Commonwealth of Puerto Rico had adopted a comprehensive domestic violence law in 1989, so why were domestic abuse cases still on the rise in 2004? Although one would have expected an initial increase in the number of domestic violence complaints when that new law began to take effect, at some point one would also expect the number of such complaints to peak and then level off as potential aggressors begin to internalize the costs of aggression, which I soon discovered was precisely what occurred in the mainland United States, where the overall rate of domestic violence incidents had declined since peaking in 1996. So, why was there no substantial decline or leveling off in Puerto Rico?

I decided tackle this puzzle by extending Posner’s morally-neutral approach to the arena of marital and domestic conflict. Among other things, I conjectured that the increase in domestic violence in Puerto Rico was most likely due to strategic behavior on the part of complainants, and I further conjectured that the passage of domestic violence legislation was the result of “ideological rent-seeking”–a form of rent-seeking behavior that occurs when an organized group or faction uses the political process to extract intangible ideological rents, i.e. the satisfaction of knowing that one’s moral views are reflected in public legislation. In 2005 or so, I submitted my resulting paper (see here) to the Journal of Empirical Legal Studies, a new journal at the time, but my work was rejected for not being empirical enough; in fact, I wasn’t even allowed to present my paper at the annual meeting of the Society for Empirical Legal Studies–no doubt for political and ideological reasons.

Despite this early-career setback, Posner’s morally-neutral approach would recharge my intellectual batteries and radically change the trajectory of my legal scholarship. To the point, I decided to steal Posner’s morally-neutral approach and extend it to other areas of the law, including dispute resolution (see my 2012 paper “The Turing Test and the Legal Process” in which I propose a fast and simple probabilistic method for resolving disputes), litigation (see my 2011 paper “Chance and Litigation” in which I model judicial outcomes as a random coin toss), and Puerto Rico’s colonial status (see my 2008 paper “Is a Post-Colonial Puerto Rico Possible?” in which I model the Puerto Rico status politics as a truel or three-person duel).

My next major contact with Richard Posner would occur in the fall of 2005, when his polemical essay on the 2004 Supreme Court Term was published in the august pages of the Harvard Law Review. Posner’s 71-page survey article “A Political Court” launches a devastating attack against judicial supremacy, a critique that still resonates with me to this day. Posner’s work, however, doesn’t just call out the Supreme Court for its “tendency to behave ‘legislatively'”; it also shows how the High Court has for all practical purposes become a lawless body. I will further describe Posner’s scathing indictment of the justices’ reckless and god-like behavior in my next Posner post.

According to this report, a Republican State Senator by the name of Jason Brodeur (pictured below next to the swastica symbol), who represents Lake Mary in Central Florida, has drafted a draconian bill (see here) that would require bloggers who write about the Governor or other members of the Florida executive and legislative branches to register with the Florida Office of Legislative Services or the Commission on Ethics. (The bill was filed with the Florida Legislature on 28 February and referred to the several legislative committees on 6 March.) Alas, Brodeur’s neo-fascist proposal constitutes nothing less than an arbitrary and capricious abridgement of speech, but what is even crazier than this inane bill is that (as of the morning of 7 March) Governor DeSantis has yet to reject this illiberal measure! PSA: In place of the heavy hand of censorship, why not subsidize a “truth market” instead?

Update (9 March): Just a few hours after I put this blog post up, Governor DeSantis distanced himself from Brodeur’s blogger bill. Is it just a coincidence, or is my blog starting to have an impact on politics?

I wish every profession were organized like Major League Baseball: spring training (February and March), the regular season (April to September), the playoffs (October), and the off-season or winter break (November to January). In any case, I will take a break from blogging today to see a ball game in Dunedin, Florida (Grapefruit League rules!) and catch up on some reading, but I will revisit my work on “Truth Markets” and resume my “Taking Posner Seriously” series on Monday or Tuesday …

With this post I shall bring my chapter-by-chapter review of Rule of Law by Tom Bingham to a close. In the epilogue to his book, Judge Bingham concludes by describing “The Allegory of Good Government” (pictured in part above), a series of three fresco murals painted by the Italian artist Ambrogio Lorenzetti in the fourteenth century:

In the Hall of the Nine in the Palazzo Pubblico in Siena is Ambrogio Lorenzetti’s depiction of the Allegory of Good Government. Justice, as always, is personified as a woman, gesturing towards the scales of justice, held by the personification of Wisdom. At her feet is Virtue, also a woman. A judge sits in the centre, surrounded by figures including Peace. The Allegory is flanked by two other paintings, illustrating the Effects of Good Government and the Effects of Bad Government. In the first, well-to-do merchants ply their trade, the populace dance in the streets and in the countryside well-tended fields yield a plentiful harvest. The second (badly damaged) is a scene of violence, disease and decay.

With this visual description of this vivid allegory, Judge Bingham then asks the $64 question: “What makes the difference between Good and Bad Government?” Or more to the point, what explains the difference between a stable, peaceful, and prosperous polity and an unstable, crime-ridden, and impoverished one? Or more specifically, what variable best explains the difference between Australia and El Salvador, between Haiti and Japan?

The last chapter of Tom Bingham’s book Rule of Law (Chapter 12) explores a fascinating constitutional anomaly, at least in Britain where the Parliament is the ultimate sovereign. On the one hand, the rule of law at a minimum means that the government itself must obey its own laws. (Or in the eloquent words of Mr S. Jayakumar, Deputy Prime Minister of Singapore, who is quoted in the book’s epilogue, “there should be clear limits to the power of the state.”) But at the same time, the doctrine of parliamentary sovereignty, the cornerstone of Britain’s unwritten constitution, means that it is Parliament, not the courts, that has the ultimate authority to decide what counts as “law”, or in the words of Judge Bingham himself:

“The courts [in Britain] have no inherent powers to invalidate, strike down, supersede or disregard the provisions of an unambiguous statute duly enacted by the Queen in Parliament, and, indeed, an extremely limited power to enquire whether a statute has been duly enacted.”

As a result, this state of affairs produces a peculiar paradox: how can there be “rule of law” in Britain if the Parliament can enact any legislation it chooses and no court of law has any power to review, let alone annul or modify, such enactment?

For his part, Judge Bingham has saved the best for last, for his long and rambling response to this paradox is ultimately on point. In short, for Bingham parliamentary sovereignty is the lesser of two evils. Why? Because the alternative to parliamentary sovereignty is the god-awful U.S. system of judicial supremacy, where a small and unaccountable committee of lawyers deliberating in secret (i.e. five of nine judges of the Supreme “Court” of the United States) get to have the last word. To paraphrase the immortal words of Juvenal (pictured below), the problem with the U.S. system of judicial supremacy can be summed in four words: who judges the judges?

I am lumping together my review of Chapters 9, 10, and 11 of Rule of Law by Tom Bingham because all three chapters deal with one aspect or another of today’s post-9/11 world, a world in which the rule of law is now all but dead–death by a thousand cuts, like the Taylor Swift song. Chapter 9 (“A Fair Trial”), for example, highlights the existence of so-called “hybrid procedures”–i.e. legal actions that are neither civil nor criminal in nature, such as parole board decisions or preventive detentions of “enemy combatants”, while Chapter 10 (“The Rule of Law in the International Order”) and Chapter 11 (“Terrorism and the Rule of Law”) focus on the illegal invasion of Iraq in 2003 and the misnamed “war on terror” in response to 9/11.

Combined, these chapters–especially chapters 10 and 11, the best part of the entire book–explain how the USA’s–and to a lesser extent, the UK’s–response to 9/11 contravened our most cherished rule of law values. Among other things, Bingham presents a stinging critique of mass surveillance, extraordinary renditions, torture, and all the other emergency measures used to fight the Bush-Obama-Trump “war on terror”. (Point of order: Although it was President Bush Jr. who ordered these extra-legal measures; Presidents Obama and Trump inherited them and kept them in place. Also, the fact that Bingham’s book was published several years before Edward Snowden revealed the United States Government’s indiscriminate and illegal mass surveillance of its population makes Bingham’s case all the more compelling.)

For my part, instead of rehashing Bingham’s legalistic arguments against the invasion of Iraq and the ill-defined war on terror, I will conclude with the following observation. Recently, the U.S. Government accused Russia of committing war crimes in the Ukraine (see here, for example). But this accusation begs the question, If Vladimir Putin is a war criminal (which he is), then what about George W. Bush?

Since 20 January (see here), I have reviewed in fits and starts the first half of Rule of Law by Tom Bingham (Chs. 1 to 7). This weekend, I will try to bring this project to a close by reviewing the rest of the book, starting with Chapter 8, which is on dispute resolution. In brief, Bingham begins this chapter thus: “Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes [that] the parties themselves are unable to resolve.” Without prohibitive cost or inordinate delay, he says? Very funny! [Insert your favorite “LOL emoji” here.]

To his credit, after a quick detour through mediation and arbitration (i.e. dispute resolution methods that are used to avoid or opt-out of the formal court system), Judge Bingham quickly concedes that civil litigation is an extremely expensive and time-consuming process. Alas, what Bingham doesn’t do, however, is point out the positive correlation or direct link between both phenoms: the growing use of such alternate methods of dispute resolution as mediation and arbitration on the one hand and the drawn-out and costly nature of civil litigation on the other.

Worse yet, Bingham’s shallow analysis of civil litigation is radically incomplete, marred by an important omission: the fact that civil litigation is not only a costly and time-consuming affair; it can also be a super-risky one. That is, cost and delay are not the whole civil-litigation story. The other key problem with going to court is the variable of uncertainty. Simply put, whenever a case goes all the way to trial, it is next to impossible to predict with any degree of certainty what the outcome of that case will be. As a result, even when the parties have all the time and money in the world to fight their battles in court, they may not want to take their chances with a judge or jury.

(If you want a more accurate picture of the civil litigation process, check out this textbook chapter I wrote in 2014, which explores the interplay between cost and uncertainty, or my 5 April 2014 blog post on “Litigation and the game of poker” or my 10 June 2020 blog post “Settle or go to trial?“, both of which survey the strategic aspects of litigation more generally.)

Back to Bingham though. Maybe Bingham is totally wrong about the relationship between civil litigation and rule of law. Maybe the rule of law does not require a court system that can resolve disputes quickly and cheaply as along as private courts (arbitration) or informal procedures (mediation) can do the job.