prior probability

See here. Could someone please inform the sorry-ass editors at Sports Illustrated (or their AI bots) that Coach Prime’s last-place team was only able to muster a single solitary victory against their conference opponents this season? Either we are being trolled by the lamestream media again or the AI systems at this once venerable publication have run amok!

For better or worse (it’s still too early to tell), OpenAI launched ChatGPT to the public on this day (30 November) in 2022.

I just posted to SSRN a revised and corrected version of my paper “Outer Space Auctions?“, which will be published in the next issue of The Annals of Air and Space Law. Among other things, my new work explains why low Earth orbit is becoming a tragedy of the commons — but don’t just take my word for it, see also here, here, here, or here. In addition, my paper proposes an alternative method (launch and orbit auctions) for allocating the legal right to specific orbits in outer space and concludes with an homage to the late English economist Ronald Coase (pictured below).

I revisited two of my (still unpublished!) pandemic-inspired papers, “Lockdowns as Takings” and “The Chegg Conspiracy“, in my previous posts. Another pair of pandemic-era works of mine, however, did get published: one in The St Louis University Law Journal (“Teaching Tiger King“, 2021); the other in The University of St Thomas Journal of Law & Public Policy (“The Leibniz Conspiracy“, 2022). In brief, my 2021 “Tiger King” paper (available here), which I co-authored with my graduate and undergraduate teaching assistants, describes how we redesigned our business law survey course from scratch when our home institution moved all instruction online in response to the coronavirus pandemic, while my 2022 “Leibniz Conspiracy” paper (here) was initially inspired by the lamestream media and Big Tech’s Orwelian efforts to bury or belittle the Wuhan lab-leak theory.

I already revisited the first of my pandemic-era papers, “Lockdowns as Takings“, in my previous post. In all, the Wuhan virus inspired four of my scholarly papers, including my proposed criminal indictment “The Chegg Conspiracy“, which I wrote up during the summer of 2021 after I discovered that many of my students were using Chegg and other similar websites to cheat on their online exams in my courses. At the time I posted that paper to SSRN, Chegg stock was worth over $100 a share; today, it is just $10 per share. Thanks ChatGPT!

Remember the ill-advised “stay-at-home” orders during the pandemic? In all, 43 State governors issued emergency (i.e. illegal) orders directing residents to stay at home and non-essential businesses to close in response to the coronavirus pandemic (see here, for example). But as I explained as early as April of 2020 to anyone who would listen (here), those State and local lockdown policies were not only unreasonable restrictions of liberty; worse yet, they also constituted unconstitutional “takings” of property rights: one’s right to labor. Now, over five years later, Joe Nocera and Bethany McLean’s new book about the pandemic, aptly titled “The Big Fail“, contains the following scathing critique of those same lockdown policies:

… lockdowns would be China’s default strategy whenever a cluster of people were infected in a Chinese city. ***

Here’s the odd thing, though: lockdowns also became the default strategy for most of the rest of the world. Even though they had never been used before to fight a pandemic, even though their effectiveness had never been studied, and even though they were criticized as authoritarian overreach—despite all that, the entire world, with a few notable exceptions, was soon locking down its citizens with varying degrees of severity.

In the United States, lockdowns became equated with “following the science.” It was anything but. Yes, there were computer models suggesting lockdowns would be effective, but there were never any actual scientific studies supporting the strategy. It was a giant experiment, one that would bring devastating social and economic consequences.

Nocera and Bethany McLean, The Big Fail, pp. 32-33

File under: “Lockdowns as Takings“. Hat tip: Alex Tabarrok.

My previous three posts have been highly critical of Harvard law professor Cass Sunstein’s holier-than-thou new essay “Why I am a liberal”. Here, however, I want to focus on one point where both Sunstein and I agree: the fact that liberalism (however defined) is compatible with whatever theory of ethics you prefer. See, for example, Sunstein’s Claim #14:

14. Some liberals follow Immanuel Kant, who argued that people should be treated with respect and as ends, not as mere means to the ends of others. Emphasizing individual dignity, those who follow Kant are liberals because they are Kantians. Some liberals are utilitarians, seeking to maximize social welfare; they are liberals because they are utilitarians. Some liberals, known as “contractarians,” find it useful to emphasize the idea of a “social contract” between free and equal persons; they are liberals because they are contractarians. Many people believe that their religious tradition compels, or is compatible with, liberalism.

In other words, the ethical or moral foundations of liberalism are ephemeral! But this observation poses a new and even more vexing question: is the ethical-neutrality of liberalism a feature or a bug? Either way, all I can say is that your well-reasoned answer or guess is as good as mine!

As I explained in my previous post, Harvard law professor Cass Sunstein’s critique of “tribalism” in his new essay “Why I am a liberal” shows us why public intellectuals like Sunstein are faux liberals, not true ones like Adam Smith or John Stuart Mill. Speaking of John Stuart, here I will explore Sunstein’s discussion of Mill, which I quote in full below to get us started:

4. Rejecting despotism, liberals prize the idea of personal agency. For that reason, they see John Stuart Mill’s great work “The Subjection of Women” as helping to define the essence of liberalism. Like Lincoln, Mill insists on a link between a commitment to liberty and a particular conception of equality, which can be seen as a kind of anticaste principle: If some people are subjected to the will of others, we have a violation of liberal ideals. Many liberals have invoked an anticaste principle to combat entrenched forms of inequality on the basis of race, sex, and disability. Liberals are committed to individual dignity

Ha! I love it when a tenured law professor like Cass Sunstein — a card-carrying member of the most feudal and caste-like system in North America, i.e. academia — complains about inequality and castes! Or to quote an anonymous colleague of mine, it’s worth noting how invocations of Mill’s anticaste principle are “never addressed self-referentially by high-income individuals [like Sunstein] with relative job security in legal academia, with respect to the relation of their own relative positions in society with those they employ in ‘lesser’ roles, e.g. VAPs, Fellows, Adjuncts, Lecturers, [legal writing] instructors, Clinical Instructors, Professors of Practice, and so on.” In short, I call bullshit.

Worse yet, Sunstein’s purported defense of liberalism makes no mention of what has to be the greatest classical liberal manifesto of all time: John Stuart Mill’s extended essay “On liberty”. Despite this curious omission, there appears — on the surface, at least — to be a powerful common thread running through Mill’s “On liberty” (1859) and Sunstein’s “Why I am a liberal” (2023): both works purport to defend freedom of thought and expression. Of the 34 claims in Sunstein’s essay, for example, arguments in favor of free speech and against censorship appear in no less than seven of those claims: Claims #6, 10, 11, 23, 24, 26, and 28.

Again, I have to call bullshit. The reason why Professor Sunstein fails to mention Mill’s “On liberty” even once in his new essay is because he (Sunstein) actually rejects Mill’s original defense of free speech. Specifically, in his book “Democracy and the Problem of Free Speech” (Simon & Schuster, 1995), the cover of which is pictured below, Sunstein shows us his true colors, for he not only criticizes Mill’s “absolutist” position on free speech; he also argues that “nonpolitical speech” should be less fully protected when it conflicts with other interests and rights such as that of privacy! So, don’t be fooled by Sunstein’s faux liberalism or his pro-free speech rhetoric. Sunstein is no John Stuart Mill; he is not committed to freedom of speech when push comes to shove.

Postscript: I will conclude my review of Cass Sunstein’s “Why I am a liberal” in my next post.

I introduced Harvard law professor Cass Sunstein’s new essay “Why I am a liberal” in my previous post (see here), where I subjected the first of Sunstein’s 34 claims to critical scrutiny. To recap, I not only showed how the six ideal liberal meta-values set forth in Claim #1 (freedom, democracy, pluralism, etc.) are too broad and open-ended to be of any practical use; I also showed how these values are often in conflict with each other. Here, I will put Professor Sunstein’s second claim under my microscope. As it happens, this second claim is where Sunstein defines what he means by “liberalism” and is thus the linchpin of his entire essay.

For Sunstein, liberalism “consists of a set of commitments in political theory and political philosophy, with concrete implications for politics and law”, and most of the remainder of his essay in defense of liberalism is devoted to spelling out what these commitments and implications are. According to Prof Sunstein, liberals are for “personal agency” (Claim #4), “individual dignity” (ditto), “the rule of law” (Claim #6), freedom of speech (Claim #10), the right to vote (Claim #11), freedom of conscience (ditto), freedom of religion (Claim #12), free markets (Claim #15), and the right to property (Claim #16), and at the same time, they are against tribalism (Claim #5), public and private violence (Claim #7), and censorship (Claim #11).

By my count, then, liberals like Sunstein are “for” nine specific freedoms or rights (above and beyond the six open-ended values set forth in Claim #1), and they are against “three” other things. Having now identified what liberals are supposed to be “for” and “against”, let’s take a closer look at Sunstein’s “anti-” column, starting with his critique of tribalism (Claim #5), which I quote in full below:

5. Though liberals are able to take their own side in a quarrel, they do not like tribalism. They tend to think that tribalism is an obstacle to mutual respect and even to productive interactions. They are uncomfortable with discussions that start “I am an X and you are a Y,” and proceed accordingly. Skeptical of “identity politics,” liberals insist that each of us has many different identities, and that it is usually best to focus on the merits of issues, not on one or another “identity.”

Cass Sunstein, Why I am a [faux] liberal (Nov. 20, 2023)

Professor Sunstein’s critique of tribalism may sound reasonable, but in reality it disguises a deep anti-liberal undercurrent, for the existence of tribes — or “factions”, to use the classical term — is an unavoidable by-product of living in a free society, or in the immortal words of a true liberal, the great James Madison:

By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community. *** There are … two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests.

It could never be more truly said than of the first remedy, that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.

James Madison, Federalist #10 (Nov. 22, 1787)

In other words, tribes and factions are not something to be eradicated or decried; they are to be celebrated, for factions are a sign that you are living in a free society. As a result, one’s view towards tribes and factions can serve as a liberal litmus test of sorts. If you are a faux liberal, like Sunstein, you will deplore tribes and the diversity of tribal opinions, but if you are a true liberal, you will not only tolerate tribes and factions; you will allow them to flourish!

As it happens, Federalist #10 was first published in a newspaper (The Daily Advertiser) on 22 November 1786, almost 236 years to the day that Professor Sunstein’s essay “Why I am a liberal” was published in the New York Times (20 November 2023), but truth be told, you will learn much more about the subtle paradoxes of pluralism and self-government from reading Madison than from Sunstein. (For his part, Sunstein himself should know better, since “pluralism” is one of his six liberal meta-values, although as I have showed in this blog post, pluralism does no actual work in his essay.)

Postscript: Again, I hate to be “that guy”, but my next post will expose a huge blind spot in Sunstein’s discussion of John Stuart Mill and expose the utter hypocrisy of Sunstein’s defense of “anti-caste principles”.

A few days ago, polymath Tyler Cowen brought to my attention “an excellent and benchmark piece” (Cowen’s words, not mine) titled “Why I am a liberal” by Harvard law professor Cass Sunstein. I hate to be “that guy” but Professor Sunstein’s holier-than-thou op-ed is full of glittering generalities as well as a plethora of logical fallacies to boot–including strawmen, slippery slopes, and non sequiturs–beginning with Sunstein’s first claim, which I quote in full below to give the reader a small taste of the wishy-washy nature of what we are dealing with here:

1. Liberals believe in six things: freedom, human rights, pluralism, security, the rule of law, and democracy. They believe not only in democracy, understood to require accountability to the people, but also in deliberative democracy, an approach that combines a commitment to reason-giving in the public sphere with the commitment to accountability

Put aside the fact that no country in the world deploys “deliberative democracy” to any meaningful degree. (Alas, Sunstein’s ideal form of democracy is not only overrated; it died with ancient Athens millenia ago.) In brief, there are two big problems with Sunstein’s Claim #1. The first is what legal philosophers call the level of generality problem. Simply put, concepts like “freedom” and “human rights” and “rule of law” can mean different things to different people, so whose definition is the right one? Consider the law and ethics of abortion, by way of example. Whose freedom or human rights are more worthy of protection, the rights of unborn children or the rights of women with unwanted pregnancies?

In any case, however such open-ended concepts like democracy and human rights and the like are defined, the other fatal flaw with Sunstein’s Claim #1 is that his six values (“freedom, human rights, pluralism, security, the rule of law, and democracy”) are often in direct conflict with each other! Whether it be the inescapable collision between security and liberty during never-ending national emergencies (remember Edward Snowden?) or the eternal tension between the rule of law (stability, binding precedent, etc.) and democracy (topsy-turvy politics, majority rule, etc.), how do we balance or choose among these competing values when they collide? Which value should prevail, and by how much?

Take freedom, for example, the first of Professor Sunstein’s six “liberal” values. The problem with invoking freedom as a value is that all laws, by definition, restrict liberty to a lesser or greater extent, depending on the evil the law is designed to remediate. As a result, the question is not whether Sunstein is “for” or “against” freedom in the abstract. The real issue instead is, when is he prepared to limit the liberty of some actors in order to promote some other important value, such as public health or public safety? Simply invoking a general concept like “liberalism” is of no real help when we are called to weigh and make difficult real-world tradeoffs.

In all, Professor Sunstein rattles off no less than 34 claims in his obnoxious op-ed. (By comparison, the Declaration of Independence, the greatest paean to true classical liberal values, contains only 27 colonial grievances against the King of England.) For my part, I will subject Sunstein’s remaining 33 claims to critical scrutiny in my next few posts.