prior probability

Via our favorite legal blog (the Volokh Conspiracy), our friend and colleague Ilya Somin, a law professor at George Mason University (and a prolific blogger), explains why “enforcing the law doesn’t justify separating migrant children from their parents” in this excellent blog post. We agree with Professor Somin’s analysis, especially his argument based on natural law: laws cannot trump basic human decency. Here is an excerpt:

Even in the case of otherwise just laws, there must be moral limits to the means used to enforce them. The child-separation policy crosses any reasonable line. It inflicts harm grossly disproportionate to any offense. And most of that harm is suffered by children–people themselves innocent of wrongdoing. Even if their parents acted wrongly in trying to enter the United States, the children had little choice in the matter.

Below is just a small sample of free graduate-level and undergraduate-level math courses available for free via MIT Open Courseware. Check out the complete list of MIT math courses here!

Hat tip: @pickover

Shout out to the Russian Ballet of Orlando for their whimsical production of the French fairy tale “Beauty and the Beast.” I attended many of the rehearsals (my daughter had a small role in the production) and noticed that ballet is like most human activities: a mixture of rigid discipline and individual creativity. Below are my beautiful daughter Adys Ann with her instructor (and lead ballerina) Miss Jeanna:

1. Common law. On the one hand, we could apply traditional common law doctrines like fraudulent misrepresentation and breach of contract. The common law approach generally consists of “simple rules,” to borrow Richard Epstein’s term, but for better or worse, the common law can get messy, since these rules are developed piecemeal and “bottom-up,” as judges decide individual controversies on a case-by-case basis. For my part, I develop a common law approach to data fraud in my 2017 paper “Legal Liability for Data Fraud” (available here).

2. Regulation. On the other hand, we could apply a regulatory framework or a rational “top-down” approach to this problem, such as mandatory disclosure rules, flat-out prohibition, or some form of Pigovian taxes. By way of example, our colleague Omri Ben-Shahar (pictured below), a law professor at the University of Chicago, who argues for a regulatory approach, compares harmful “data emissions” to environmental pollution. (Check out his fascinating paper here.) Such an approach has the advantage of promoting uniformity but is always open to the risk of regulatory capture and the law of unintended consequences. In short, since neither the common law or regulatory approach is perfect, the real question is, which approach is “less bad”?

That is the title of my review of Nate Oman’s excellent book “The Dignity of Commerce.” My essay was originally published in The New Rambler; a slightly revised version is now posted on ssrn, the first page of which is included below:

Which precursor to the Stars & Stripes do you like the best?

Happy Flag Day! (source: popchartlabs.com)

We’ve just read Frederick Schauer’s review of Randy Kozel’s excellent book “Settled Versus Right: A Theory of Precedent,” Cambridge University Press, 2017. (Schauer’s paper is provocatively titled “On treating unalike cases alike” and is posted on SSRN here. Hat tip: Larry Solum. As an aside, our own review of Kozel is available via SSRN here.) So, before we conclude our review of Ron Allen and Mike Pardo’s relative plausibility paper, we want to highlight one of our favorite passages from Professor Schauer’s review:

… precedential constraint … is not about treating like cases as alike. On the contrary, precedential constraint is about treating cases that are somewhat alike and somewhat different as being alike for purposes of precedential constraint. It is about treating the similarities as relevant and the differences as irrelevant, and about deciding which similarities matter and which do not. Thus, identifying what is a precedent for what is about attributing or ascribing likeness; and it is not about discovering, locating, or unearthing likeness. Determining precedential similarity … entails the question of what a decision-maker in the instant case deems to be similar, and not about what is actually similar in some deeper ontological sense.

Professor Schauer’s powerful critique of Aristotle’s axiom (see image below) is also worth noting. In fact, Schauer begins his review of Kozel thus: “Perhaps we should blame Aristotle. In his enduring discussion of justice in the Nicomachean Ethics, Aristotle offered the now-ubiquitous maxim that like cases should be treated alike” (footnote omitted). Despite the intuitive appeal of Aristotle’s axiom, Schauer frankly acknowledges “the almost complete emptiness of the ‘treat like cases alike’ maxim.” Why is this celebrated maxim empty, a mere tautology? Because as Schauer correctly notes, “Given that any two items in the world share some but not all of the properties of the respective items, any two items can be deemed alike in some respects and unalike in others, thus making the mere idea of likeness or unlikeness singularly unhelpful.” In short, we need some independent criterion of likeness “to make the maxim anything other than a largely useless tautology.”

So, what criterion (or criteria) should judges use when deciding whether two unalike cases are sufficiently similar to be treated alike? That is the $64 question, and your guess or theory is as good mine!

Credit: Shawn Copeland