prior probability

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

Posted on April 1, 2017 by F. E. Guerra-Pujol

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.”)

Courtesy of the Living Constitution.

Posted in Bayesian Reasoning, History, Law | Leave a comment

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

Posted on March 31, 2017 by F. E. Guerra-Pujol

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 →

Posted in Bayesian Reasoning, History, Law | 3 Comments

Whose meaning? (reply to Solum, part 2)

Posted on March 30, 2017 by F. E. Guerra-Pujol

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 →

Posted in Bayesian Reasoning, History, Law, Philosophy, Uncategorized | 2 Comments

Larry’s fallacy

Posted on March 29, 2017 by F. E. Guerra-Pujol

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?

Posted on March 28, 2017 by F. E. Guerra-Pujol

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 …

Posted in Current Affairs, Economics, Law, Probability | Leave a comment

Class No. 10 (Facebook, Inc.)

Posted on March 27, 2017 by F. E. Guerra-Pujol

“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?

Posted in Ethics, Law | Leave a comment

Arpanet map (circa 1970)

Posted on March 26, 2017 by F. E. Guerra-Pujol

Hat tip: The Amazing Cliff Pickover

Posted in Uncategorized | 1 Comment

Markets and morality (final post, for now)

Posted on March 25, 2017 by F. E. Guerra-Pujol

Note: This is the last installment of our series of blog posts reviewing Nathan B. Oman’s new book The Dignity of Commerce.

Nate Oman concludes his beautiful book on The Dignity of the Commerce by drawing a fundamental distinction between “pernicious markets” and “well-functioning markets.” This distinction is essential to Oman’s theory of contracts. According to Oman, contracts should only be enforced when they support healthy or well-functioning markets. To this end, Professor Oman identifies three types of pathological markets: (1) markets that produce harm, like the market in slaves in the antebellum south, (2) noncommercial markets, such as markets in human organs, and (3) malum in se markets or inherently bad commercial transactions. Imagine, for example, a judge conducting an auction instead of delivering a well-reasoned verdict in accordance with law. (As an aside, it’s worth noting all three of these markets are illegal under existing law, although the slave trade was once legal.)

Here, however, is where we part ways with Professor Oman. At the end of the day, Oman’s tidy distinction between “well-functioning markets” and “pernicious markets” is unsatisfying and unhelpful. Why? Because once we draw a distinction between moral commercial practices and immoral commercial practices, then Oman’s commercial theory of contracts completely falls apart: the commercial nature of a particular promise becomes totally irrelevant to its legal enforceability. Instead, what ultimately matters is whether the contract is consistent with morality. But this conclusion brings us back to square one: why should the law enforce only “moral” promises and not “immoral” ones (a topic we explore in detail in this paper), especially when morality is almost always in the eye of the beholder? Was Shakespeare’s Shylock, to borrow Oman’s own example, acting morally or immorally when he demanded a pound of Antonio’s flesh as per their agreement?

Moreover, as a matter of logic, we could do without the qualifiers “well-functioning,” “healthy,” etc. to describe markets. Such qualifiers are totally superfluous, since any actual market is, by definition, well-functioning; otherwise, it would not exist. Right? Despite these objections, let us conclude by confessing that we really enjoyed reading Oman’s book. His work forced us to clarify our thinking about the relation between markets and morality.

Posted in Economics, Ethics, Law | Leave a comment

The problem with so-called public meaning originalism

Posted on March 24, 2017 by F. E. Guerra-Pujol

President Trump’s nomination of Judge Gorsuch to the Supreme Court has reignited the longstanding constitutional battle between defenders of the Living Constitution and backers of Originalism. (If this never-ending normative debate were a baseball game, it would be in the 57th inning by now.) The latest scholar to enter this theoretical fray is Jonathan Gienapp, a historian at Stanford. Professor Gienapp recently wrote up this helpful essay explaining the origins and finer points of “public meaning originalism,” an influential theory of constitutional interpretation espoused by many conservative jurists. In brief, this theory of constitutional interpretation purports to discover the “public meaning” of the words of the original Constitution, that is, how the words of the original Constitution would have been understood by a competent speaker of the language when the Constitution was first drafted. In his essay, Professor Gienapp goes on to criticize this theory in his capacity as a professional historian, arguing that public meaning originalism is not about history but rather about linguistics. In the words of Professor Gienapp:

“…originalists have stopped trying to beat historians at their own game—by rewriting the very rules by which that game is played. They seem to have realized that they will never know as much as historians about the Constitution’s origins or historical development, so instead of fighting a losing empirical battle why not stake out different conceptual foundations altogether? That way, most disputes can turn on philosophy of language, interpretive method, and legal doctrine (as they now do) without dwelling on the details of the historical past. And if historians wish to object, they dare not mention the Framers’ thoughts or agendas or the broader political, social, or intellectual contexts of the late eighteenth century; they must, instead, offer a series of methodological and philosophical arguments targeting originalists’ conceptual formulations.”

Prof. Gienapp’s critique of originalism, however, is way too narrow and parochial. After all, history can be just as contested as language, so the work of history does not get us any closer to truth than the study of linguistics does. As such, the problem with public meaning originalism is not that it neglects the methods of historians. Rather, the main problem with originalism as a theory is that there often is no single or obvious public meaning of open-textured words and phrases like “equal protection” or “due process of law.” In reality, the public meaning of such words can still be open to interpretation because there were so many possible readers of the Constitution at the time the words of the founding charter were drafted and ratified. Those same words could have many public meanings, depending on the identity of who was reading them …