prior probability

Following up on my previous post in praise of Juan R. Torruella, the first federal appellate judge from the Island of Puerto Rico who died on Monday, Oct. 26 at the age of 87, I forgot to mention that Judge Torruella was also an Olympian (more details here, via @ZoeTillman), competing in four different Olympic Games with The Puerto Rico Sailing Team (whose logo is pictured below), as well as a prolific scholar–the Puerto Rican version of another hero of mine, Richard Posner. By way of example, here is what pops up when you type “Juan Torruella” into Google Scholar. Rest in Peace …

My beloved and enchanted Island of Puerto Rico, where I taught Roman Law and Constitutional Theory from 1998 to 2009, has lost another larger-than-life legend: Judge Juan Torruella (pictured below), who died at the age of 87 on Monday, October 26. Here is a short bio. Judge Torruella was not only a federal judge–the first Puerto Rican to sit on a federal appeals court–he was also an eloquent and vocal critic of Puerto Rico’s second-class, semi-colonial constitutional status. His book The Supreme Court and Puerto Rico: The Doctrine of Separate and Unequal (Editorial UPR, 1985) is still one of my all-time favorite legal history books of all time. I still remember reading it for the first time while I was in law school (shout out to my friend and law school classmate Carlos Soltero, who first recommended this book to me). It was Torruella’s learned book that brought “The Insular Cases” to my attention–a set of cases decided between 1901 and 1921 enshrining Puerto Rico’s second-class constitutional status and a dreadful judicial wrong that has still not been rectified after over a century.

Update (10/28): I made significant revisions to this part of my “Adam Smith in Love” paper.

Previously, I described three pieces of evidence regarding Adam Smith’s love life: (i) an obscure but intriguing footnote in Dugald Stewart’s 1793 biography of Smith’s life and writings (Exhibit A), (ii) a letter dated July 14, 1784 addressed to Professor Stewart (Exhibit B), and (iii) a brief anecdote by Henry Mackenzie, a prominent Scottish lawyer and writer (Exhibit C). I recently stumbled upon a fourth piece of evidence, a possible “smoking gun” consisting of a long letter dated 18 September 1766. Unlike the first few proofs we have introduced into evidence thus far, this correspondence is not only from Adam Smith’s own lifetime; it is addressed to Adam Smith himself and to his pupil, Henry Scott, the future Third Duke of Buccleuch! (At the time this contemporaneous letter was composed, Adam Smith was the Duke’s private tutor and chaperone, supervising the Duke’s Grand Tour in France from early to 1764 through the fall of 1766.) To the point, in one passage of this intimate letter, which is composed entirely in French, the author refers in jest to Adam Smith’s romantic attachments:

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Here is another extended excerpt from my forthcoming research article “Adam Smith in Love“:

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Why did Adam Smith remain a bachelor his entire life? Did he at least have any love affairs? Here is a catalogue of my three most recent “Adam Smith in Love” blog posts:

1. Love and Liberty
2. Adam Smith “on” Love
3. Adam Smith et l’affaire du Chevalier de la Barre

(Also, here is a complete catalogue of my first set of “Adam Smith in Love” blog posts.)

I am sooo late to this party, but here it goes. On the left: Sydjia and I in July 2011 in Amsterdam. On the right: us in July 2020 in Tarpon Springs, Fla.

Hat tip: @pickover

My next “advanced topics in law” lecture will explore what Harvard Law Professor Charles Fried (pictured below) refers to as “the promise principle.”[1] In brief, the proposition that “promises ought to be kept”[2] is one of the most important normative ideals or value judgements in daily life.[3] The promise principle is so pervasive that it informs such diverse domains as business deals,[4] politics,[5] and personal relationships.[6] But why?

Broadly speaking, there are three major theories of promising. Autonomy-based or “normative power” or “will” theories of promises are premised on the idea that promises are self-imposed obligations. Broadly, speaking, all these variants of the will theory of promises generally focus on the promisor’s subjective intentions when she make a promise. Although no one is required to make a promise, once you do, you are under a self-imposed obligation to keep your word. The main problem with the will theory, however, is that it is self-refuting. If the source of a promissory obligation is the promisor’s sincere intention or will to make a binding promise on herself, then the promisor’s subsequent intention to break her promise should have the effect of producing a self-release from her original promissory obligation. That is, if one can will into existence a binding promise on oneself, then one should be able to undo a promise via one’s will as well.

Since the will theory is self-refuting, some scholars have embraced an alternative “expectations” theory of promissory obligations. In brief, this theory views the making of promises as an “expectation-producing mechanism.” That is, when a person (the promisor) makes a promise, he is making a promise to another person (the promisee), and by making a promise, the promisor is creating an expectation in the promisee that he (the promisor) will not later break his promise. To break a promise, then, is to deceive the promisee.[7] The problem with this theory, however, is that it is open to exploitation and manipulation by the promisee. (Can you see why, or do I have to spell it out for you?)

Yet another theory is the consequentialist view of promissory obligations. Generally speaking, consequentialist or pragmatic theories take a forward-looking or probabilistic view towards promises: when deciding whether to keep or break a promise, what matters are the probable consequences of one’s promise-keeping or promise-breaking behavior.[8] In other words, the goodness or badness of a given promise (e.g. a promise to do X) depends entirely on the consequences resulting from keeping or breaking the promise to do X. Alas, it is the forward-looking nature of consequentialist theories that prove to be their ultimate undoing, for how does one go about figuring out or guessing what these probable promissory consequences will be?[9] At the “micro” level or in the aggregate?[10]

The common law, however, takes a different approach to the promise principle. As I shall explain in my next lecture, only a small subset of promises are legally enforceable–namely, those backed by “bargained-for consideration” …

[1] See Charles Fried, Contract as Promise (Harvard Univ. Press, 1981).

[2] See, e.g., Book 3, Part 2, §5 of David Hume, A Treatise on Human Nature (David Fate Norton & Mary J. Norton, eds.) (Oxford Univ. Press, 2000). See also Allen Habib, Promises, in Edward N. Zalta, ed., The Stanford Encyclopedia of Philosophy (2018).

[2] Cf. Mary Midgley, “The Game Game,” Philosophy, Vol. 49 (1974), p. 235 (“[P]romising is everywhere a kingpin of human culture.”).

[4] See, e.g., Stewart Macaulay, “Non-contractual Relations in Business: A Preliminary Study,” American Sociological Review, Vol. 28 (1963), p. 58 (“Businessmen often prefer to rely on ‘a man’s word’ in a brief letter, a handshake, or ‘common honesty and decency’–even when the transaction involves exposure to serious risks.”).

[5] See, e.g., Ed Kilgore, “2020 Candidates Begin Signing Unity Pledge, with Sanders Taking the Lead,” New York Magazine (Apr. 26, 2019). See also Gregory Krieg, GOP Candidates Back Off Pledge to Support Nominee, CNN (Mar. 30, 2016).

[6] See, e.g., Johanna Peetz & Lara Kammrath, “Only Because I Love You: Why People Make and Why They Break Promises in Romantic Relationships,” Journal of Personality and Social Psychology, Vol. 100 (2011).

[7] See, e.g., Páll S. Ardal, “And that’s a Promise,” Philosophical Quarterly, Vol. 18 (1968), p. 234.

[8] See, e.g., Simon Blackburn, Oxford Dictionary of Philosophy, pp. 74-75 (Oxford Univ. Press, 2d ed., 2005).

[9] There is also the problem of “utility monsters,” i.e. individuals who derive large amounts of utility from their bad acts. See Robert Nozick, Anarchy, State, and Utopia, p. 41 (Basic Books, 1974). That is, consequentialist theories (both micro and macro) are problematic to the extent they are unable to provide an agreed-upon or universal definition of “utility” or offer guidance on how to measure such “utility.”

[10] For reference, the “micro” approach is usually referred to as act utilitarianism. By contrast, the aggregate or “macro” approach is generally referred to as rule utilitarianism or indirect utilitarianism.