prior probability

The worst offenders were FDR (pictured above), who signed over 3,700 Executive Orders or EOs (see link below), including the infamous Japanese internment order; Woodrow Wilson (1,803 EOs); and Calvin Coolidge (1,203 EOs). By way of comparison, Donald Trump has signed 40 EOs thus far into his second term (see here).

My colleague and friend Brian Frye has just posted @IpseDixitPod #807, which features Sarah Fackrell (Chicago-Kent) discussing her new law review article “The Counterfeit Sham“. Among other things, Professor Fackrell explains why design patent infringement is different from counterfeiting.

Below is the first map that I ever posted to this blog, an “Internet population map” first published on 13 October 2013 (see here). In summary, this map uses data from 2008 to illustrate the raw number of Internet users in each country as well as the percentage of the population in each country with Internet access. I wonder what this map would look like today?

This catchy song was recorded by Winny, a Nigerian singer-songwriter, and features Thutmose, a Nigerian-American hip-hop artist based in Brooklyn.

I have been meaning to blog about this iconic cartoon by Peter Steiner after the original drawing was sold at an art auction in October 2023 to an anonymous bidder (see here), but somehow I never got around to it! In any case, according to this report by Julia Binswanger in Smithsonian Magazine, Steiner’s single-panel comic of two dogs sitting in front of a desktop computer not only fetched (pun intended) $175,000 at the auction; it is also the most reprinted New Yorker cartoon of all time.

It’s official! My paper “Gödel’s Loophole: A Prequel” was just published as one of five “Selected Pieces from the 2024 ClassCrits Symposium” in the Southwestern Journal of International Law (Vol. 30, no. 2, pp. 613-631); see here.

Traditionally, the law addressed [the problem of harmful effects] by asking such questions as … who caused the harm [and] who acted reasonably. Coase, however, emphasized the reciprocal nature of the problem ….” [Stewart Schwab, “Coase Defends Coase: Why Lawyers Listen and Economists Do Not”, Michigan Law Review, Vol. 87 (1989), p. 1173]

As I mentioned in my previous two posts, Ronald Coase’s “cattle trespass parable” and his resulting conception of reciprocal harms have deep and troubling implications for moral philosophy and politics, for unlike Coase most (if not all) moral and political philosophers conceive of harm as flowing in just one direction, or in the eloquent words of Coase himself: “The question is commonly thought of as one in which A inflicts harm on B and what has to be decided is: how should we restrain A?” [See R. H. Coase, “The Problem of Social Cost”, Journal of Law & Economics, Vol. 3 (1960), at p. 2.]

Consider, for example, John Stuart Mill’s formulation of the harm principle in his influential 1859 essay “On Liberty”: “The only purpose for which power [i.e., law] can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” [J. S. Mill, On Liberty (Kitchener, ed. 2001) (1859), at p. 13. For an overview of Mill’s harm principle, see David Brink, “Mill’s Moral and Political Philosophy”, Stanford Encyclopedia of Philosophy, § 3.1 (2022).] The logic of Mill’s harm principle can be restated as follows: “Your personal liberty to swing your fist ends just where my nose begins.” [As an aside, the source of this popular refrain has been traced back to an oration delivered in 1882 by John B. Finch, who was the Chairman of the Prohibition National Committee in the 1880s. SeeGarson O’Toole, “Your Liberty to Swing Your Fist Ends Just Where My Nose Begins”, Quote Investigator (2011), https://perma.cc/6S9G-UPJ8 (https://quoteinvestigator.com/2011/10/15/liberty-fist-nose/).]

Moreover, Mill’s harm principle can, in turn, be traced to Adam Smith, who defines “justice” as restraint from harming others in his 1759 treatise The Theory of Moral Sentiments: “Mere justice is, upon most occasions, but a negative virtue, and only hinders us from harming our neighbor.” [For a survey of Smith’s conception of justice, see James R. Otteson, “Adam Smith on Justice, Social Justice, and Ultimate Justice”, Social Philosophy & Policy, Vol. 34 (2017).] But if Coase’s conception of harms is correct–if harms are indeed a reciprocal problem–then Smith’s conception of justice and Mill’s formulation of the harm principle are both incoherent, or (again) in the words of Coase: “We are dealing with a problem of a reciprocal nature. To avoid the harm to B would inflict harm on A.” [Coase 1960, p. 2.]

Is it possible to separate Coase’s economic analysis of reciprocal harms from morality and politics? Although the primary concerns of Coase’s original “cattle trespass parable” are the definition and allocation of property rights [cf. Elodie Bertrand, “The Three Roles of the ‘Coase Theorem’ in Coase’s Works”, European Journal of the History of Economic Thought, Vol. 17 (2010), at p. 979: “Coase … clearly distinguishes the ethical problem of responsibility [i.e., moral blame] from the economic one”], at the same time property rights also have an inescapable moral dimension. [See, e.g. Lawrence C. Becker, “The Moral Basis of Property Rights”, Nomos, Vol. 22 (1980).] As a result, Coase’s picture of reciprocal harms does indeed have radical implications not only for economics and law but also for ethics and politics.

What are these implications? As my mentor Guido Calabresi taught me many years ago, instead of trying to assign blame or adjudicate who the wrongdoer of any given harm is, moral and political philosophers (and law professors like me!) should turn to economics and try to figure out who the “cheaper cost avoider” is.

I mentioned in my previous post that harms might be a “reciprocal” problem, a simple but counter-intuitive idea with revolutionary implications that can be traced back to the work of the late great Anglo-American economist Ronald Coase, and I also referred to Coase’s original “cattle trespass” exemplar or paradigm case to illustrate this reciprocal conception of harms. In fact, much of my scholarly work has been devoted to Coase’s reciprocal harm idea; by way of illustration, below are some links (in reverse chronological order) to my previous work on this topic:

1. The reciprocal nature of noise disputes: “Noise versus quiet” (2024).
2. The reciprocal nature of Amerigo Bonasera’s plea for justice in the original Godfather movie: “Coase and the Corleones” (2022).
3. The reciprocal nature of accidents at the Tour de France: “Ronald Coase and the Tour de France” (2021).
4. Nozick on reciprocal risks: “Nozick on reciprocal risks” (2021).
5. The reciprocal nature of pandemic risks: “Lockdowns as takings” (2020).
6. The reciprocal nature of copyright disputes: “Of Coase and copyrights: the law and economics of literary fan art” (2019).
7. The reciprocal nature of disputes over reclining airline seats: “The airplane seat dilemma” (2014).
8. The reciprocal nature of economic externalities: “Modelling the Coase Theorem” (2012).
9. The reciprocal nature of “the battle of the replicants” in the original Blade Runner movie: “Clones and the Coase Theorem” (2011).
10. The reciprocal nature of many domestic disputes: “Domestic violence, strategic behavior, and ideological rent-seeking” (2006).

In my next post, I will explore what effects Coase’s reciprocal conception of harms might have on our moral intuitions about right and wrong.