Compare X to Y

Let’s start with X. According to Jeff McMahan, here is a detailed description of the daily routine of one great thinker:

There are many anecdotes about the ways in which [X] simplified his life to take as little time as possible away from his work. He ate only twice a day, with almost no variation in what he had at each meal. He ate cold food only, mostly fruits and vegetables without any preparation. Even when he could have had freshly ground coffee with only a minute’s additional preparation, he drank instant coffee, often with water straight from the tap. He sometimes kept a book open on the chest-of-drawers so that he could read while putting on his socks. His speed in reading was phenomenal, in part because his power of concentration was prodigious. Wanting to preserve his mental and physical capacities, he took an hour every evening during his last decade to get vigorous exercise on a stationary bicycle, but never without reading philosophy (or occasionally physics) while furiously pedalling.

Next, let’s consider Y. Via Alex Soojung-Kim Pang, here is a summary of the daily routine of another great thinker:

After his morning walk and breakfast, [Y] was in his study by 8 and worked a steady hour and a half. At 9:30 he would read the morning mail and write letters. At 10:30, he returned to more serious work, sometimes moving to his aviary, greenhouse, or one of several other buildings where he conducted his experiments. By noon, he would declare, “I’ve done a good day’s work,” and set out on a long walk on the Sandwalk …. When he returned after an hour or more, he had lunch and answered more letters. At 3 he would retire for a nap; an hour later he would arise, take another walk around the Sandwalk, then return to his study until 5:30, when he would join his wife, Emma, and their family for dinner.

Now, guess whether X or Y wrote Reasons and Persons and who wrote The Origins of Species.

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Country music awards query

Why don’t award shows reveal the actual vote tallies (not just the winners) when handing out awards? We were bummed, for example, that Luke Bryan did not win the “entertainer of the year” award and that “Dig your roots” didn’t win “album of the year” at this year’s ACM Awards, so we would like to know what the margin of victory/defeat was in these categories.

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Class No. 11 (Is Facebook a monopoly?)

“But with … incredible growth came new problems.” –Ben Mezrich, The Accidental Billionaires, Ch. 22.

In our next class, we will debate whether Facebook is an illegal monopoly. After all, Facebook is the most popular social network in the world by far. (Consider, by way of example, the following startling statistics: the number of active Facebook users surpassed one billion in 2012, and there are now almost two billion active users on Facebook as of June 30, 2016. Active users are those which have logged into Facebook during the last 30 days.) So, given the massive amounts of data Facebook collects from its users, should Facebook be treated as a “monopoly” in the legal sense, or should our antitrust authorities just leave the social media giant alone? What about Mark Zuckerberg’s recent acquisitions of Instagram and the popular instant-messaging service WhatsApp? Do these acquisitions reduce or harm competition in the social media market, and how should this market be defined?

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Image credit: therapfest.com

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Do we really need a supreme court? (In praise of judicial federalism: our final reply to Solum, for now.)

We will conclude our critique of public meaning originalism by posing the following judicial thought-experiment: What if we were to let the Supreme Court whither away? That is, what if the Senate simply stopped confirming any more new nominees to the Court? Eventually, all of the eight remaining justices would die off, leaving us with no functioning High Court. (Considering that the Supreme Court decides less than 80 cases per year, no one would even notice!) In other words, in place of our current command-and-control unitary national judicial system (see image below), we would prefer instead a more decentralized and “federalist” system of judicial power. Currently, federal appeals courts are divided into eleven separate geographical circuits, plus the D.C. circuit. So, given this existing judicial infrastructure, why not get rid of the Supreme Court and let the judges of each circuit interpret the Constitution as they see fit, using whatever theory of interpretation they prefer. Such a decentralized system of interpretation would reduce the stakes of constitutional litigation and might even produce a constitutional market of sorts, with different circuits offering different visions of the Constitution. People and firms could then relocate to their preferred circuits …

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Do we really need a central judicial authority?

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The originalist problem with Brown v. Board (reply to Solum, part 4)

Note: this is the fourth in a series of five blog posts responding to Larry Solum’s defense of public meaning originalism.

At some point, defenders of orginalism (like our friend and colleague Larry Solum) must contend with or explain away Brown v. Board of Education, the most famous “Living Constitution” decision in U.S. Supreme Court history. In Brown, the Court concluded that the doctrine of “separate but equal” has no place in contemporary public education, effectively overruling the leading equal protection case of Plessy v. Ferguson. The problem for an originalist, however, is that he must conclude that Brown v. Board was wrongly decided. (After all, the Fourteenth Amendment was enacted in 1868, when segregation in public places was the norm, so the decision in Plessy v. Ferguson is probably far more consistent with the original public meaning of the equal protection clause than the decision in Brown is.)  For his part, Professor Solum (like most other constitutional originalists) actually argues that public meaning originalism is in no way inconsistent with Brown v. Board; he even argues that any claim to the contrary is a myth (Myth #3). But this claim is pure bullshit, and it’s high time he be called out on it. In our view, the problem with Brown is not that it departs from orginalism. No, the problem with Brown is the decision itself. It was based on shoddy social science, not law. (See, by way of example, Contempt and Pity by Daryl M. Scott.) Although the Court made an important symbolic decision, it lacked any real power to enforce its own judgment. (Or as the headline below notes: “Date to end practice not set.”)

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Courtesy of the Living Constitution.

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Originalism as intellectual dishonesty? (reply to Solum, part 3)

Note: this is the third in a series of blog posts responding to Larry Solum’s defense of public meaning originalism.

As we mentioned in our previous posts, Professor Larry Solum recently wrote up this statement in support of “public meaning originalism” and Judge Neil Gorsuch. (As of today, Solum’s statement has been downloaded over 3100 times.) In his defense of originalism, Professor Solum identifies four popular myths surrounding the theory of originalism. Among these myths and misconceptions is the claim that originalist judges are unable to apply the Constitution to new circumstances (Myth #2). In particular, Solum states (p. 3): Continue reading

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Whose meaning? (reply to Solum, part 2)

Note: this is the second in a series of blog posts responding to Larry Solum’s defense of public meaning originalism.

In his statement in support of Judge Gorsuch, our friend and colleague Larry Solum identifies four myths or misconceptions about originalism. Myth #1 is that originalism requires judges to figure out the secret intent of the framers of the Constitution. According to Solum, however, this is not really what “public meaning originalism” is about. Instead, Solum says that originalism is about the words in the Constitution, not the intent of the framers: “No originalist thinks that we should decide contemporary constitutional cases by asking, ‘What would James Madison do?’ What matters for originalists is what the constitutional text says. When Judge Gorsuch writes an opinion that applies the original public meaning of the constitutional text to a contemporary legal question, he does not need to know anything about the mental states of the Framers regarding that question.” But with all due respect to Professor Solum, the fundamental problem with originalism is that there is often no obvious or single “public meaning” of a given constitutional text, especially when the text in question consists of open-textured terms, i.e. words susceptible to competing interpretations. Continue reading

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Larry’s fallacy

Note: this is the first in a series of five blog posts responding to Larry Solum’s defense of public meaning originalism.

Our friend and colleague Larry Solum, a law professor at Georgetown, recently wrote this statement on behalf of Neil Gorsuch, the judge who President Trump has nominated to the Supreme Court. As of today (3/28), Professor Solum’s statement has been downloaded over 3000 times, but it is so full of errors, strawmen, and logical fallacies that we feel compelled to write up a brief reply. For now, we will point out the three most obvious problems with Solum’s statement in support of public meaning originalism. Continue reading

Posted in Bayesian Reasoning, History, Law, Logical Fallacies, Politics | 6 Comments

How much is Tom Brady’s jersey really worth?

Half a mil or $119.99? That is, should the value of Tom Brady’s stolen Super Bowl LI jersey be its replacement value, i.e. what it would cost his team to buy him a new #12 jersey ($119.99, plus tax, according to the NFL Shop), or should it be it’s fair market value, i.e. the highest amount a buyer would be willing to pay to own Brady’s jersey, which could be tens or even hundreds (ha!) of thousands of dollars? As our colleague Michael McCann, a law professor at the University of New Hampshire, explains in this report, the answer to this question will determine the severity of the punishment for the theft of Tom Brady’s jersey under Texas law, where the jersey was actually stolen. Like most U.S. States, Texas assigns very different penalties for theft, and the penalties range widely depending on the value of the stolen item. In the words of Professor McCann: “a stolen item worth between $500 and $1,499 is punishable by up to one year in jail as a misdemeanor offense. But if the stolen item is worth between $1,500 and $19,999, the thief can be charged with a felony and face up to two years in prison. A stolen item worth between $20,000 and $99,999 is a felony of the third degree under Texas law and is punishable by up to 10 years in prison. The maximum prison sentence increases to 20 years if the stolen item is worth between $100,000 and $199,999. What about a stolen item worth $200,000 or more? In Texas, a thief of such a high-value item has committed a felony in the first degree and faces between 5 years and 99 years—yes, 99 years—in prison.” Notice how the criminal penalties for theft (like income tax rates, see below) are “progressive” in nature, since the more stuff you steal or the more income you make, the more you pay …

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Class No. 10 (Facebook, Inc.)

“It wasn’t about two kids in a dorm room anymore.” –Ben Mezrich, The Accidental Billionaires, Ch. 25.

When an entrepreneur starts a new venture, like Mark Zuckerberg did when he launched “thefacebook” at Harvard in the spring of 2004, he or she must also decide what legal structure their business will take, such as a sole proprietorship, a partnership, a limited liability company, or a corporation. Accordingly, in our next class we will revisit three critical moments in the founding of Facebook: (i) Eduardo Saverin and Mark Zuckerberg’s initial partnership agreement in late 2003/early 2004, (ii) Facebook’s articles of organization when it became a Florida LLC (limited liability company) in April 2004, and (iii) Facebook’s subsequent decision in July/August 2004 to become a Delaware corporation after venture capitalist Peter Thiel agreed to make a $500,000 angel investment in the social network startup in exchange for 10% of the company. In addition to studying the progression of Facebook from a general partnership to a Florida LLC to a Delaware corp, we will also debate the following question: Why did Facebook, with headquarters in Northern California, decide to incorporate in Delaware?

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