prior probability

Bye bye, February! In honor of the shortest month of the year, below is a brief listing of my most succinct scholarly works:

1. Kant on Evidence: A Hypothetical Reply to Kerr, a three-paragraph comment letter published in the summer 2019 issue of my favorite law review, The Green Bag.
2. Research Fraud as Tort, a comment letter published in the Sept. 25, 2015 issue of the journal Science (also three paragraphs).
3. Public Trust Doctrine: Too Broad, a comment letter published in the Oct. 2, 2009 issue of Science (only two paragraphs!).

My all-time shortest contribution, however, is this one-paragraph comment letter that was published in the July 5, 2013 issue of journal Science. PS: Here is a non-gated version (see letter #4).

Although I hate to be “that guy” — and I am rooting for the Ukrainians to repel their Russian invaders — few people “north of the border” like to be reminded of the Mexican-American War (1846-1848), which was an illegal and unjustified war of aggression initiated by the USA, but the Southwest region of North America, including all of Texas and California, once belonged to Mexico (hat tip: u/Homesanto).

Putin is not the only world leader who has ordered an unjustified “special military operation” in violation of international law. The late Bush Senior ordered an old school military invasion of Panama in December 1989 in order to depose General Manuel Noriega, while his war criminal son, Little Bush (Bushito), began a costly and unjustified war in Iraq in March of 2003 under false pretenses.

(Point of order: I don’t mean to defend Putin with this post. The invasion of Ukraine is an illegal and unjustified war of aggression by any measure, much like the 2003 invasion of Iraq or the Mexican-American War of 1848. My purpose here is to condemn the USA, especially the knavish and ignoble patriarchs of the Bush family.)

Did you know the tallest standing wooden structure in Europe is the Gliwice Radio Tower (118 metres or 387 feet) and that this historic radio tower was the scene of the Gleiwitz incident on 31 August 1939? You can read about this famous “false flag” operation here, via Wikipedia, or better yet, you can watch the 1961 East German film Der Fall Gleiwitz (see below) or the 1979 Polish made-for-TV movie Operacja Himmler, both of which tell the story of the dramatic events leading up to this incident and to Germany’s invasion of Poland on 1 September 1939.

Check out this beautiful essay by Jake Rossen, which is titled “The Enduring Mystery of the Oreo Cookie Design” (hat tip: @pickover).

Hello, fellow Earthlings! I now want to conclude my multi-part series on the problem of misinformation (see here, here, here, and here) by posing a simple rhetorical question: What’s so bad about misinformation and conspiracy theories and the like? After all, misinformation is an age-old problem; conspiracy theories have always existed, even in colonial times (see here, for example).

In fact, the irony of this entire series on the problem of misinformation is that, as my colleague and friend Matthew Yglesias has recently explained (see here), people are probably better informed now about most matters than in any other time in history. So even if Pozen, Benkler, Kapczynsky, and others are correct to believe that the Internet has made it easier for people to spread baseless conspiracy theories and other forms of fake news, at the same time the Internet has also made it easier to discover the relevant facts about any particular controversy. At worst, both of these information effects just cancel each other out.

More importantly, as I never get tired of repeating, the optimal level of misinformation in a free society is not zero. If some people want to believe that Big Pharma created the pandemic to boost profits or that Donald Trump is a Russian agent or that UFOs are real (oops!), they should not only be free to hold these beliefs; they should also be free to spread their beliefs and persuade others they are right, no matter how zany or wrong their beliefs are. At a minimum, living in a free society means that we must tolerate some level of stupidity and ignorance from our fellow citizens and neighbors. To conclude, misinformation is the price we pay for living in a free society, a sign that we are living in a vibrant and healthy democracy, not a sick or decaying one.

Is the marketplace of ideas broken? My colleagues David Pozen (Columbia), Yochai Benkler (Harvard), and Amy Kapczynsky (Yale) all seem to think so. I already dispatched Pozen and Benkler’s proposed cures — Pozen wants more big tech censorship (see here), while Benkler (here) wants more “social democracy” (like Trudeau’s Canada, I presume?) — and I also presented Professor Kapczynsky’s more nuanced package of remedial proposals in my previous post. In her ideal world, or if she were “Queen of the Internet” for a day, she would (1) require Big Tech firms to publicly disclose their algorithms, or what she calls “data publicity”, (2) she would break up Big Tech firms into smaller companies (“regulate their size”), and (3) she would even prohibit Big Tech firm from making money from their “data gathering” activities.

[Note: Kapczynsky also favors the creation of “public data trusts” and wants to “figure out new ways to support public media and intermediaries” — i.e. she wants the government to run its own social media platform. (You can read her entire essay for yourself here.) But this last proposal is so preposterous on its face that I won’t even bother refuting it here, except to ask a simple rhetorical question: Why does Kapczynsky trust the government with user data more than she trusts Big Tech?]

What about Professor Kapczynsky’s other Internet proposals, “data publicity” and anti-trust regulation? Read on:

1. Data publicity. The most glaring problem with Kapczynsky’s call for “data publicity” is that, with all due respect, she has not really thought through the likely real-world adverse consequences of this proposal. “Data publicity” may sound great on paper, but what effect would this policy (making data algorithms public information) have in practice? Alas, I suspect that data publicity would most likely give incumbent Internet platforms like Facebook, Google, and Amazon (the very firms that Kapczynsky deplores) a major advantage over future competitors by making it more difficult for new startups to enter the Internet platform market! After all, if new ventures were required to make their data algorithms public, then those algorithms could then be used by incumbent firms to fend off new entrants.
2. Size and data regulation. Kapczynsky further claims that the size and business practices of Big Tech firms like Google and Facebook must be regulated because those firms are too big, control massive amounts of sensitive user data, and have too much influence over the Internet advertising market. Sigh. Aside from committing the Nirvana Fallacy (see here, for example), Kapczynsky’s call for anti-trust regulation has two fatal flaws. One is that regulations are usually counter-productive. They increase the costs of doing business and thus end up stifling competition by making it more difficult for new entrants to enter the market. The other problem is that Google and Facebook are not really monopolies, for as I explained last fall in this post, if this were true, we would expect to see fewer online ads overall, which would be a good thing for most of us end users! (Why would we expect to see less ads if Google and Facebook were real monopolies? Because demand curves slope downwards: when monopolists sell ad space at higher than competitive prices, ad agencies buy fewer ads.)

To conclude, Kapczynsky calls out at least three Big Tech firms by name in her essay (see here): Facebook, Google, and Amazon. But how can three business firms, no matter how big or powerful, constitute a “monopoly”? This alleged monopoly is either a three-headed monster or non-existent, or as my colleague and friend Mark Lemley has observed, “it’s a bit awkward to point to multiple ‘monopolists’ in a single market”! (See Lemley, “The Contradictions of Platform Regulation”, Journal of Free Speech Law (2021), pp. 313-314, emphasis and exclamation point added). Perhaps the marketplace of ideas is not broken at all. Perhaps the supposed problem of misinformation is being overblown. I will consider those possibilities and conclude this series in my next post …