A paradox

You know those little floaters on the surface of your eyes? They drift into view, catch your attention, then when you try to focus directly on one it disappears from view. They’re only really there if you don’t look straight at them.

Goodhart’s Law tells us that “When a measure becomes a target, it ceases to be a good measure.” The same basic logic applies to two of my favorite things: the Internet and college.

The Internet is still a magical thing, but we’ve killed some of the magic by trying to take the Internet seriously. The Internet ceases to provide output worth taking seriously when people actually take the Internet seriously. When you only keep it in your periphery, it’s actually worth taking seriously

Ditto for college. The basic problem with the current system is that we’re all taking it too seriously. That leads to all sorts of specific bad behavior. But it all comes from this root problem. College is only worth taking seriously if we don’t. When college is back in the ivory tower, separated from the “real” world, it’s a place where people can be creative and make non-obvious connections. But once we recognize “hey, that’s a pretty neat thing, let’s make it a one-size-fits-all solution to all of our problems” we kill the goose that lays the golden eggs.

My advice for getting the most out of the Internet: don’t take it too seriously. It was only ever meant to be a place for weirdos to do weird stuff.

My advice for getting the most out of college: don’t take it too seriously. It was only ever meant to be a place for weirdos to do the sort of stuff that the rest of the world doesn’t have time for.

How I understand left and right today

One of the things that I discussed in my Ph.D. dissertation some five or six years ago was the concept of left and right in politics. In the context of my dissertation, the discussion had to do with the fact that 19th century Brazil had primarily two political parties, the Liberal and the Conservative. I was trying to find ways to make sense of these two parties. My advisor said that the Liberals were the left, and the Conservatives the right. I came to the opposite conclusion, but mainly because we were using different criteria to define what is left and what is right.

At least in my experience, people call left something that is closer or more sympathetic to socialism. Right is something that is opposite or aggressive towards socialism. This explains why most people believe that nazism and fascism are far-right movements: they are perceived as archenemies of socialists. Liberals (in the American sense) are also considered left-wing, although true liberals would not go so far as to embrace full socialism. Conservatives and Libertarians are in the right because they are more opposite to socialism. The left is also identified with revolution, for wanting to radically change things, while the right is perceived to be conservative (with a small c) or even reactionary.

Even when I was in high school, learning these things for the first time, I found them to be somewhat confusing. Really, what is the difference between Hitler and Stalin? How can it be that one is on the far-right and the other on the far-left if I perceive them to be so similar? In my 15 or 16 years old mind, a possible explanation was that left and right are not in a straight line, but in something that resembles a horseshoe, with the extremes very close to each other. I thought about that sitting in my high school History class before I read it anywhere, and it served me well for many years. All I had to do, I thought, was avoid the extremes, for they end up being equally totalitarian. For many years I thought of myself as a social democrat, in favor of a substantial welfare state and some level of economic intervention by the state, but only when market forces were unable to do their job right.

Since I truly started learning about classic liberal, conservatives and libertarians, my horseshoe theory started to make less sense. I think that the traditional way to think about left and right already makes less sense because we have to bend the line like this for it to work somehow. But also, I think that this model has a problem because we use socialism as a reference: we classify things and people as left or right depending on how they relate to people and things like Marx, Stalin, Lenin, and the USSR! Intuitively I think that there is something wrong with that. And that’s when I started to think that we should classify things as left and right according to how they relate to individuals.

Today I think of left and right according to how much freedom we are willing to give to individuals. In my mind, far-right means maximum freedom. Far-left means minimum. That’s it. Of course: Rousseau will say that people are not really free until they are free according to his definition of freedom. In a Rousseauian state you might believe that you are in chains, but you’re actually free and your process of reeducation is still ongoing. Granted, Christians think something in similar lines: you’re not truly free until you serve God. However, I think that this is mistaking freedom and flourishing. You can have whatever understanding of what human flourishing (or happiness) really means, but the point is that if you want people to be free, you can’t force it on them.

And so, that is it: when I think about left, I think about forcing on people your concept of human flourishing. When I think about right, I think about letting people free to figure this out by themselves. I don’t think it’s a perfect system. After all, am I not forcing upon people the concept that they have to find their flourishing ideal by themselves? But I avoid thinking about that. Of course, this model might make some conversations harder, because I’m thinking about Hitler and nazism as far-left movements, while a lot of people (maybe the majority) learned to think about them as far-right. But on a personal level, it has helped me to think about politics. On my part, I believe that a society where people are in general free to choose (Milton Friedman) is a better society. Generally.

 

What I learned in my bachelor’s degree

I took my bachelor’s degree in History between 2001 and 2005. All the people I asked told me that the course I took was the best in the country. I suppose they were right, but today I understand that they were predominantly talking about the graduate program at the same school. A department with a good master’s and doctoral degree does not necessarily translate into a good undergraduate degree, in the same way that good researchers and writers are not necessarily good teachers. Most of my professors were very bad teachers. I hope to be saying this without bitterness or arrogance, just realizing that although they were good academics, they were mostly not good at imparting knowledge.

Perhaps one of my professors’ difficulties in transmitting knowledge was precisely the constant questioning about the validity of transmitting knowledge. Brazilian pedagogy is strongly influenced by a form of social-constructivism created by educator Paulo Freire. Freire strongly insisted that teachers could not be transmitters of knowledge, but that students created knowledge on their own, and that teachers were, if at all, facilitators of this process. At least that’s what I understood or is what I remember from my pedagogy classes. Paulo Freire’s pedagogy is admittedly a translation of Marxism into the teaching field: students are the oppressed class, teachers are oppressors. Freire wanted pedagogy to reflect a classless society. The result, in my view, was that teachers were terrified of being seen as “the owners of the truth”.

My bachelor’s degree had the bold goal of training teachers and researchers at the same time. In my view, this created a difficulty: students needed to learn to cook and be food critics at the same time. It was not an easy task for people of 18, 20 years of age. Most classes ended up being quite weak. Another problem is that my post-Marxist professors wanted us to have a critical attitude: we needed to be critical of everything that was understood as “traditional”. This ended up creating distrust in the students’ minds: if everything is to be criticized, what should I believe? Of course, contradictorily what professors said should not be criticized, especially the proposition that everything should be criticized. In general, the program tended to generate people of 18, 20 years boisterous or confused. Or both.

Another experience of my bachelor’s degree was the encounter with party politics. In my high school, I had little contact with highly politicized people or student unions. The same cannot be said of my undergraduate studies! I met many people who were already involved to some degree with political parties, always on the left. Some people say that Christians are the main reason churches are empty. I can say something similar about my undergraduate colleagues. It is largely thanks to them that I became conservative. The hypocrisy, the aggressiveness, the arrogance of many of them made me suspect that there was something very wrong with the left. It took a few years, but eventually, I discovered classic liberal or libertarian authors and found my intellectual home.

But there were positive things about my undergraduate studies as well. Undergraduate was my first great opportunity to leave home a little more. I met some people with whom I am still friends today. And I had some good classes too. Some professors were more conservative, and largely ignored the department’s directives. Their classes were more traditional, more expository, more dedicated to informing us about things that happened in history, without much questioning. I remember a quote from my professor of Contemporary History I (roughly equivalent to 19th century): “when writing your paper, don’t say “I think … ”. You don’t think anything. When you are in the master’s or doctorate, you will think something. Today, simply write “the so-and-so author says …”. Be able to understand what the authors are talking about. That is enough for you today ”. There were also professors who were able to introduce a more critical perspective but in a less radical way.

Perhaps my biggest disappointment with undergraduate is that I almost didn’t get to teach History. The education system in Brazil is essentially socialist. The government assumes that everyone has the right to free, good quality education. And you know: when the government says you have a right to something, you’re not gonna get it, it will be expensive and of poor quality. The life of a teacher in Brazil is quite harsh. I have several friends in the teaching profession, and I am very sorry for them. Maybe I should have listened to my mom and study engineering.

But I don’t want to end it bitterly! I studied History because I really wanted to be a teacher. I still think that being a teacher is a beautiful vocation. Unfortunately, in Brazil, this vocation ends up being spoiled by the undue state intervention. I also studied History simply because I liked History, and I still do. If I had the mind I have today, possibly I would have studied something else. But I didn’t, and I am grateful for the way my life happened.

What I learned in the Master’s

In my master’s degree, I studied international relations. As far as I can judge, the program was very good. Excellent even. It was a very good two years, in which I was challenged like never before. The master’s degree was very difficult for me. I was very curious about international affairs, but I knew almost nothing about international relations theory. The professors assumed that students were at least familiar with the content. I was not. So, I went through the experience of learning to cook and learning to be a culinary critic at the same time. I had to chase a lot. But it was good. The master’s taught me like no previous experience to study on my own.

Looking back, I understand that the program was strongly influenced by a light form of postmodernism. That was very difficult for me. There was a strong rejection of more traditional theories of international relations, such as realism and liberalism. It was all very new to me, but I knew that being a classic realist was not an option well regarded by the professors. I ended up finding a kind of lifeboat in constructivism. I didn’t want to be ashamed of being a realist, but my intuition told me that there was something wrong with postmodernism. It was only after the master’s degree, teaching the theory of international relations and studying several other things, that I understood that postmodernism is really crazy, something deeply twisted.

Constructivism is largely weird also. The most sensible thing I read in international relations was John Mearsheimer’s offensive realism. Stephen Walt is an author who also made sense to me in my post-master’s life. In short, I admire my master’s program for its academic excellence, but I find the theories espoused by several of the professors completely flawed.

It was very difficult for me to write my dissertation. I did not have a clear theoretical basis, just the instinct that I did not want to follow a postmodern line and the certainty that a more traditional theory would not be well accepted. I wrote the dissertation without having a very solid theoretical basis. But my research, modesty aside, was still very well done. I researched the arrival of the first Protestant missionaries to Brazil in the 19th century.

It was a topic of personal interest. I was a recently converted Protestant, and I wanted to know more about my history. As they say in Brazil, I joined hunger with the desire to eat. My question, which I was not able to ask so clearly at the time, was whether the presence of missionaries in Brazil, the majority coming from the USA, had affected Brazil-United States relations in any way. Even today, I find it very difficult to analyze causality in such cases, as someone would do in the hard sciences, but I believe that with the information I gathered I can defend that yes, American Protestant missionaries affected Brazil-US relations in many ways. Brazil and the USA were predominantly disinterested in each other in the early 19th century.

In the late 19th and early 20th centuries, this situation changed dramatically, especially on the part of Brazil. The USA started to play a central role in Brazilian foreign policy. It does not seem to me to be the case that the missionaries caused this change, but I believe that their presence in Brazil cooperated, along with other factors, to make this happen. Would Brazil change its foreign policy at the end of the 19th century in one way or another? This is a type of question that, honestly, I’m not interested in answering. But I believe it is clear that the missionaries helped the two countries to become a little more aware of each other.

I faced some opposition from colleagues for choosing this topic. One of the things I heard was that, being a Protestant, I would not have the necessary distance to do a good research. I also heard that missionaries would be little more than tourists, and that they would, therefore, have no chance of affecting relations between the two countries. These were harsh criticisms, which still make me sad when I remember them. I see in these criticisms a certain prejudice against evangelicals that is still present in Brazil, inside and outside academia. Ironically, I did not find the same thing on the part of the professors. On the contrary! Every one of them was always very supportive of my research, and in fact, they found the topic interesting and pertinent.

I would very much like to be able to return to the topic of my research with the head I have today, but I don’t have time for that. To some extent, I would also like to go back to those classes knowing the things I know today. But I also believe that I would not have that much patience. I have a better notion of what I consider epistemologically valid or not. I suppose the master’s degree would be more difficult to take today. Anyway, the master’s degree gave me my first job as a professor: I started teaching international relations when I hadn’t even defended the dissertation, and I did it for eight years. It was a very good eight years. Although I am away from this area, I still like what I learned, and I feel benefited by the time I studied and taught international relations.

What I learned at the doctorate

The 19th century Brazilian political system was dominated by two parties: Conservatives and Liberals. Although these parties were formally established only in the late 1830s or early 1840s, part of my thesis involves understanding that these parties existed, albeit in an embryonic form, since independence in 1822.

What I noticed is that since independence, conservatives have had a more realistic view of international relations. For them, securing the territory (and the government’s dominance over it) was crucial. Liberals had a more, well, liberal view of international relations. Although they did not deny the traditional formulation of the state (territory, population, government, recognition by other nations), they were more optimistic about the possibility of cooperation with other countries.

The view of conservatives and liberals about international relations matched their ideas about domestic politics very well: conservatives advocated a more centralized and stronger government, with greater control over the territory. One of their great fears was the possibility of Brazil’s fragmentation into several small countries, as happened with Spanish America. Their defense of the monarchy was linked to this: a monarch with greater powers would guarantee the maintenance of the territory. Liberals advocated a more decentralized government, with greater freedom for individuals, and also greater freedom for provinces, which would not be controlled so directly by the central government. The fear of fragmentation of the territory was lesser, and some liberals understood that if individual provinces decided to leave the union, well, that was their right.

These views on international and domestic politics also matched the way liberals and conservatives viewed the United States. Early in the country’s history, conservatives tended to see the United States as a young, unimportant republic. The proclamation of the Monroe Doctrine changed this attitude a little, but it remained a fact that conservatives preferred to direct Brazilian foreign policy towards Europe. Liberals, for their part, saw an example to be followed in the USA, with their conscious departure from the European way of doing politics, especially their federalism. Throughout the 19th century, as the United States grew in power, these attitudes changed, but not by betraying the basic understanding that the two parties had about international relations: conservatives feared possible US imperialism, especially in relation to the Amazon. Liberals were less jealous about the national territory, and in any case, they did not see the United States as a threat.

The great irony I found in my thesis is that in the late 19th and early 20th centuries, liberal and conservative ideas about the United States converged. The monarchy was overthrown and the republic proclaimed in Brazil in 1889. The liberal and conservative parties were formally extinct. Part of my thesis involves saying, however, that despite this formal extinction, liberal and conservative attitudes continued to exist in both domestic and international politics. In domestic politics, Republicans represented, at least in part, a radicalization of liberal ideas. Foreign policy was initially marked by this radicalization, but that soon changed. After a very troubled 1890s, the Baron of Rio Branco took the reins of Brazilian foreign policy in 1902.
Rio Branco was a frankly conservative individual. Early in life he chose not to get involved in domestic politics, partly because he did not want to be in the shadow of his father, Viscount of Rio Branco. He followed the diplomatic career. However, as I have already explained, the views of conservatives in domestic politics found a clear counterpart in foreign policy, marked above all by the defense of the territory. And this was the foreign policy of the Baron of Rio Branco.

The thing is that Rio Branco chose a liberal, Joaquim Nabuco, to be Brazil’s ambassador to Washington. Both Rio Branco and Nabuco understood that Brazilian foreign policy should focus on the USA, but for different reasons. On the international stage of the 1900s, Rio Branco believed that an alliance with the USA, albeit informal, was the best way to guarantee Brazil’s security against European imperialism. Nabuco did not ignore this aspect of international relations, but he also believed in a higher ideal: that the approach to the USA could represent a counterpoint to the bellicose European international relations, leading to the progress of civilization. So the irony was this: both Rio Branco, the conservative, and Nabuco, the liberal, wanted to get closer to the USA, but for very different reasons.

Studying to write my thesis was a very pleasant process. I liked the characters I met, I liked the stories and I liked the theme I chose. During the doctorate I was intellectually more mature, and I managed to have a high degree of independence in the way I conducted my research. In other words, I did not allow myself to be led by theoretical perspectives with which I did not agree. And I also think that what I learned has real practical implications. I am glad that it was not my responsibility to decide on Brazilian foreign policy in the 19th century, but I understand that conservatives were often being fearful. I know that they were often being hypocrites. Of course, hindsight is always beneficial, but I believe that liberals were generally right.

There is a catch to this story: Brazil was the last country in the West to abolish slavery, in 1888. Until then, an unimaginable number of slaves crossed the Atlantic to work mainly on coffee and sugar cane fields. This is a dimension of the history of Brazil to which I regrettably gave little importance at the time I was writing. Today I see things differently: the country of slavery yesterday, not for nothing, is the country of socialism today. And I think it’s important to think about how such a strong dependence on slavery probably affected the way domestic and international politics were made.

 

BHL is dead, long live BHL?

The Bleeding Heart Libertarians blog has ended due, I think, as Henry Farrell intuits to creative differences between the founders. Jason Brennan, who was recently making by far the most contributions to the blog, has joined a new blog set up by Jessica Flanigan, 200-proof liberals. [Corrected to reflect who set up what]

I liked the orientation of BHL but I never liked the label. My way into libertarianism was noticing the state insisted on locking people up for taking or selling drugs and putting gay men in docks to justify their private sexual interests. I did not think you should trust such a violent entity with something important like poverty aveliation. There was nothing heartless about my state skepticism. The label ‘BHL’ on some readings suggests there was.

When I realised things were a little more complicated and counter-intuitive when it came to political authority, my ideology shifted to classical liberalism. I now believe that welfare provision can (and should) be disentangled from the more coercive aspects of the state. This is a case of my theorising getting a head, rather than a heart. Libertarians do not need lack for heart. If everyone naturally respected each other’s rights and were generous with those less fortunate than themselves, you would have as much as an ideal society as any liberal egalitarian could offer. Reality means that what purist libertarians have to offer is often not going to work than various statist alternatives.

One of the divisions within BHL was whether it was worth engaging sympathetically with John Rawls’ theory of justice. Both Brennan and Jess Flanigan have written pointed criticisms of Rawls’ framework. They argue that Rawlsian distinctions between basic liberties (to be constitutionally enshrined) and other liberties that are inessential for liberal political life fail. Flanigan argues that all liberties could be essential depending on the specific life plans that people may have, so the distinction between basic and non-basic fails. Brennan argues that Rawls’ own ‘moral powers’ tests for what makes a liberty basic are so rigorous that highly non-liberal regimes could pass them, at least in principle.

I disagree. Engagement with Rawls’ framework among classical liberals still has intellectual pay-offs in terms of discovering what a free and fair society looks like. A Rawlsian case for liberal democracy and capitalism follows from some logical extrapolations of Rawls’ principles alongside some updated empirical evidence. The case can be made according to Rawls’ notion of public reason.

It has proven a little difficult so far to get contemporary Rawlsians to take this reconciliation between right and left liberalisms seriously. When Tomasi wrote in Free Market Fairness about libertarians and liberals being stuck in two opposing camps, he was not exaggerating! But I do not think that is a flaw in Rawls’ framework that was developed thanks to sustained engagement with economic theory. Most contemporary Rawlsians are more engaged in the philosophy of Rawls rather than the political economy that motivates some of his claims about regime types. But Rawls was pretty interdisciplinary and the addition of refined economic theory is compatible with his logic and framework.

Legal silences

In law, there are different silences.

When lawmakers set out to establish legal standards, they inevitably don’t address every contingency. There are spaces for flexibility, for breadth of application, for unforeseen developments, for the careful discretion required for sound law enforcement. There are always gaps.

Yet the gaps raise serious questions. Foremost among these is the problem of delegated lawmaking power. The United States Constitution vests the legislative power in a bicameral congress. Exclusively. Yet gaps, though inevitable and sometimes desirable, can result in leaks of this exclusive authority to non-legislative actors–police, prosecutors, juries, regulators, etc.

Take a classic example, when the National Industrial Recovery Act of 1933 gave the President authority to make”codes of fair competition” for slaughterhouses and other industries. That was more than a gap–that was a gulf. It’s one of only two laws that the U.S. Supreme Court has ever invalidated as an unconstitutional delegation of lawmaking authority to a non-legislative actor.

But at what point does a crack become a crevasse? During Justice Neil Gorsuch’s confirmation hearing, Senator Al Franken mocked the notion that any line should be drawn at all: “When Congress passes laws that require agencies to implement them, … those agencies turn to experts to develop those policies …. And I think that is a good thing. We want experts doing the work. What we Senators do not want to be doing is deciding … what the distance in the slats are in a baby’s crib.”

As with most statements made by politicians in confirmation hearings (or most anywhere else), Franken tilts at a straw man. But his example helps to highlight different types of legislative silence. On one hand, Franken is of course correct–a legislature needn’t and probably shouldn’t become entangled in minutiae.

But Franken fails to see that there are different kinds of silence. On the one hand, permissible gaps to be filled in by agencies and law enforcers involve conditional lawmaking where a certain legal requirement hinges on delegated fact-finding responsibilities. I’m a bit skeptical that we want Congress legislating safety standards for baby cribs, but let’s run with Franken’s example anyway. Congress might pass a law that requires crib manufacturers to ensure that crib slats do not pose a serious safety risk to occupants. It can leave an agency to determine the exact distance between crib slats requisite for child safety because the agency is making a factual determination (again, I’m not sure we need or want regulators doing this but bear with me). We’ll call this crib-slat silence.

Crib-slat silence is not an unlawful delegation of lawmaking authority. It simply commits to federal agencies the fact-finding responsibilities already inherent in the executive branch’s duty to “take care that the laws be faithfully executed.”

Crib-slat silence is different in kind from an unlawful delegation of lawmaking power. An agency is doing something quite different when it sets a safety standard for crib slats than when it establishes “codes of fair competition.” It isn’t simply a difference in the size of the silence; it’s a silence of a different kind altogether. Take, for instance, how President Roosevelt put together “codes of fair competition” under the broad power given him by the National Industrial Recovery Act. He let New York poultry butchers do it for him. Anyone with a basic understanding of public choice theory can appreciate how a business allowed to write the law that governs its competitors might go about this task.

To no one’s surprise, the codes of fair competition made life harder for minority business owners, in particular kosher butchers. Specifically, the code prohibited butchers from letting customers select the specific chicken they wanted–a part of at least some kosher practices in New York at the that time. The Schechters brothers, who ran a kosher butcher shop, were criminally indicted for letting a customer select an “unfit” chicken, among other things. The Supreme Court held this to be an unlawful delegation of lawmaking authority because the National Industrial Recovery Act didn’t just make application of a particular law contingent on executive fact-finding–it delegated the policy choices inherent in the legislative power. This type of silence we’ll call Schechter silence.

Schechter silence and crib-slat silence aren’t just different in terms of the relative size of the gap. Take, for instance, an example of a smaller instance of Schechter silence, where the silence is not quite so huge as “codes of fair competition,” but still has the essential quality of letting the agency make policy choices rather than find facts. The Environmental Protection Agency and the Army Corps of Engineers share regulatory responsibility over the Clean Water Act. The Army Corps has statutory authority to issue permits for polluting protected water bodies, and the EPA has statutory authority to veto those permits, even after they’ve been issued, if the EPA decides that the permitted activity will have an “unacceptable adverse effect” on the environment. The statute hasn’t delegated the authority to create a regulatory code from whole cloth, but it has delegated authority to make normative judgment calls, not just executive fact-finding. Determining whether a certain adverse effect is “unacceptable” is unavoidably subjective and calls for much more than establishing the existence of certain objective facts. “Unacceptable” involves the weighing of various competing interests–economic, environmental, etc.–and making a judgment, not based on facts, but on agency policy preferences. Note also, that the EPA can decline to veto the permit even if it does find an adverse effect to be unacceptable. Hence, while the EPA’s veto authority isn’t especially sweeping in its effect, it still is an exercise of legislative power.

On the other hand, crib-slat silence can authorize executive acts of great national significance, like tariff rates. In 1928, an importer challenged the president’s statutory authority to set tariffs as a delegation of legislative power. But the statute at issue required the president to set such rates based on a variety of factual determinations–not on what the president considered appropriate in his own judgment.

There’s yet a third silence. Rather than interstitial gaps in statutory language, this thrid silence is the vacuum where Congress has chosen not to speak at all. Sometimes, courts and agencies have mistaken this silence for crib-slat silence. That mistake can be a serious problem for the structure of sound government.

One example is the Department of Labor’s regulation of “tip pooling.” The Fair Labor Standards Act establishes federal minimum wage law. The law allows businesses to set their wages below the default minimum if the businesses use a “tip credit”–the deficit between the wage and the legal minimum is filled in with the employee’s tip money.  If a business elects to use the tip credit, that business is prohibited from divvying up tip money among staff–you earn it, you keep it.

But the statute says nothing about prohibitions on tip-pooling for businesses that don’t take a tip credit. The Department of Labor didn’t like tip pooling, so it decided that the statute’s silence about tip pooling for non-tip-credit businesses was a delegation to the agency to do as it pleased. The Department of Labor promulgated a rule that extended the tip-pooling rule to all businesses, whether or not they took a tip credit. Incredibly, a federal court of appeals for the Ninth Circuit said this rule was just fine.

The silence extending outward from the edges of a statute are bookends, not blank pages.  Hence, I’ll call this third silence bookend silence. The idea that an agency can simply promulgate rules to fill up this endless silence destroys our system of separated powers. After all, the clear implication of allowing the Department of Labor to fill in that silence is that the executive branch of government has a boundless and inherent law-making authority that can only be circumscribed if Congress expressly tells the executive branch “no.” This is essentially a reversal of the first two articles of the Constitution, vesting the Executive with lawmaking authority and Congress with what amounts to no more than a glorified veto. Yet this is precisely what the largest appellate court in the country allows.

There’s no doubt, of course, that the Executive does have some inherent authority to act without legislative imprimatur, in areas like foreign affairs. But those are expressly granted powers, or they’re necessarily implied. For instance, the duty to take care that the laws are faithfully executed necessarily implies the ability to hire staff, promulgate regulations for managing staff , law enforcement practices, etc. This is all quite different than filling in bookend silence, a free-floating power to extend statutory prohibitions beyond the express scope laid out by Congress, simply on the basis that Congress hadn’t said “here and no farther.”

In law as in life, silence can be a virtue. But federal agencies can turn it into a vice. That depends on the kind of silence we’re talking about. Conflation of crib-slat silence and Schechter silence or bookend silence has resulted in a flaccid judicial response to delegations of lawmaking authority. It would help if courts acknowledged distinctions between the types of silence statutes exhibit.

Liability Rules!

“The union representing Buffalo police officers told its rank and file
members Friday that the union would no longer pay for legal fees to
defend police officers related to the protests…”

From Buffalo News.

This could be excellent news (at least in Buffalo). The threat of lawsuits means police will either be on their best behavior or won’t show up to work.

Hayek, International Organization and Covid-19

Just to inform all NOL-readers out there, if you like the subject, please register and join the IEA webinar I’ll give next wednesday, 13.00 hours, London time.

Institute of Economic Affairs > Events
Time:
10/06/2020
13:00 – 14:00

Although it was never the subject of a book, Friedrich Hayek wrote a lot about international relations during his long career and had rather firm views on international order and how it could be achieved. In this webinar, these Hayekian views are presented in the context of the current COVID-crisis. What was Hayek’s opinion about the existence and the role of international governmental organizations, such as the World Health Organization?

Dr. Edwin van de Haar (www.edwinvandehaar.com) is an independent scholar who specializes in the liberal tradition in international political theory. He has been a (visiting) lecturer at Brown University, Leiden University and Ateneo de Manila University. Van de Haar is the author of Classical Liberalism and International Relations Theory. Hume, Smith, Mises and Hayek (2009), Beloved Yet Unknown. The Political Philosophy of Liberalism (2011, in Dutch) and Degrees of Freedom. Liberal Political Philosophy and Ideology (2015). Among others, he contributed to The Oxford Handbook of Adam Smith (2013) and a forthcoming book on The Liberal International Theory Tradition in Europe, while his articles on liberal ideas and liberal thinkers appeared among others in Review of International Studies, International Relations, International Politics, Independent Review and Economic Affairs.

Van de Haar got his PhD in International Politcial Theory from Maastricht Universit in 2008, and holds master degrees in international relations (London School of Economics and Political Science) and in political science (Leiden University).

Please visit: https://iea.org.uk/events/hayek-international-organization-and-covid-19/

Broken incentives in medical research

Last week, I sat down with Scott Johnson of the Device Alliance to discuss how medical research is communicated only through archaic and disorganized methods, and how the root of this is the “economy” of Impact Factor, citations, and tenure-seeking as opposed to an exercise in scientific communication.

We also discussed a vision of the future of medical publishing, where the basic method of communicating knowledge was no longer uploading a PDF but contributing structured data to a living, growing database.

You can listen here: https://www.devicealliance.org/medtech_radio_podcast/

As background, I recommend the recent work by Patrick Collison and Tyler Cowen on broken incentives in medical research funding (as opposed to publishing), as I think their research on funding shows that a great slow-down in medical innovation has resulted from systematic errors in organizing knowledge gathering. Mark Zuckerberg actually interviewed them about it here: https://conversationswithtyler.com/episodes/mark-zuckerberg-interviews-patrick-collison-and-tyler-cowen/.

Launching our COVID-19 visualization

I know everyone is buried in COVID-19 news, updates, and theories. To me, that makes it difficult to cut through the opinions and see the evidence that should actually guide physicians, policymakers, and the public.

To me, the most important thing is the ability to find the answer to my research question easily and to know that this answer is reasonably complete and evidence-driven. That means getting organized access to the scientific literature. Many sources (including a National Library of Medicine database) present thousands of articles, but the organization is the piece that is missing.

That is why I launched StudyViz, a new product that enables physicians to build an updatable visualization of all studies related to a topic of interest. Then, my physician collaborators built just such a visual for COVID-19 research, presenting a sunburst diagram that users can select to identify their research question of interest.

Studyviz sunburst

For instance, if you are interested in the impact of COVID-19 on pregnant patients, just go to “Subpopulations” and find “Pregnancy” (or neonates, if that is your concern). We nested the tags so that you can “drill down” on your question, and so that related concepts are close to each other. Then, to view the studies themselves, just click on them to see an abstract with the key info (patients, interventions, and outcomes) highlighted:

Abstract

This is based on a complex concept hierarchy built by our collaborators and that is constantly evolving as the literature does:

Hierarchy

Even beyond that, we opened up our software to let any researchers who are interested build similar visuals on any disease state, as COVID-19 is not the only disease for which organizing and accessing the scientific literature is important!

We are seeking medical coinvestigators–any physician interested in working with us, simply email contact@nested-knowledge.com or contact us on our website!

Elinor Ostrom debunked

I recently picked up “Governing the Commons” by Elinor Ostrom from the library. The main message from the first chapter to me was that individuals can overcome the dilemma of overusing common pool resources through institutionalized individual cooperation. Ironically, the condition of the relatively new book (which is from a public library btw) tells me otherwise. These are not my notes by the way.

IMG_5220 (1)

That’s it. That’s the blogpost. 😉

Paid Sick Leave and Schelling Focal Points

Paid sick leave is something I want more people to have. Of course it’s a good thing. Sick leave is valuable, but it’s not free so we have to ask it it’s worth it.

Right around the 11:30 mark is a tragic and hilarious line: “Dildos are not essential items. Books for kids, yes, but dildos? … No!” Good for John Oliver noting that deciding what is essential isn’t straight forward–apparently frivolous things might keep people inside and so serve the public health.

This is a classic Austrian point: prices (are supposed to) communicate information about how urgently people want a product. We run into trouble trying to prevent prices from reflecting the underlying economic crappiness of a crisis. Price gouging should be allowed for toilet paper and especially for grocery/Amazon workers. And the price of grocery workers should be passed on to consumers.

What we’ve got now requires each of us to not only ask “am I willing to pay this price?” but also engage in a moral calculus that is hard. I have to ask (as a person striving to be moral) if it’s really worth ordering X, Y, and Z from Amazon. But as a person who has to strive to be moral, it’s entirely too easy to fall for bad rationalizations.

So how do we help these essential-yet-replaceable* workers? Paid sick leave sure sounds good. And given the externalities involved in a pandemic, there’s a strong argument for mandating it.

But it’s worth remembering (particularly as a long run policy) that if we push on one part of a compensation bundle, something’s going to give. If we require employers to provide a company car (or simply encourage company cars through preferential tax laws), we shouldn’t be surprised to see monetary compensation fall. The same logic applies to paid sick leave.

But I’m my own devil’s advocate, so let me make a counter argument. I rarely use my sick days. I think I’ve taken 2 or 3 in the last 6 years. (I’m absolutely reevaluating that position now!) There’s this idea floating around in the back of my head that tells me to just tough it out and keep working. This isn’t because I carefully weighed pros and cons, it’s just received “wisdom” picked up by osmosis from the broader culture.

American culture values work over value. There’s no shortage of bullshit work because we’re in a work-too-hard equilibrium. This is not to say that hard work doesn’t have benefits. I’m happy when ambitious entrepreneurs work “too” hard to provide greater value. But there are a lot of cases where we create work for its own sake (especially in the higher ed racket, but apparently we’re not alone).

Essentially, we’re all playing a coordination game where we choose between “[appear to] work to make things better” and “stay home instead of passing your illness to other people.” Given American work culture, the Schelling focal point is <work, work>.

On the compensation end of things employers have to decide between offering more sick leave or some other compensation (like money). In this end, there is some benefit to zigging where other employers zag. If I’m running the only business to offer paid paternity leave, I get my pick of the best family-oriented workers while my competitors have to outbid each other to get the best of the other workers. But any mid-level HR manager is more likely to play the risk-averse strategy of following “best practices.”

So we’re in an equilibrium that underrates sick leave. We want to be in an equilibrium where it’s just good business sense to offer sick leave during a global pandemic. But coming from our current equilibrium, offering sick leave is a costly decision to privately provide a public good; it’s unlikely to happen unless the culture already promotes it.

I think we can get that equilibrium. I think we’re already moving towards it (ask yourself: would the board of the East India Company be more likely to offer sick leave than Amazon?). But we’re not there yet.

Paid sick leave should be good business sense right now**. But it depends on a culture where such behavior is widespread. I’m not convinced we could flip a switch and get that culture over night. Given that, I’m at least somewhat okay with contradicting my libertarian priors and calling for emergency mandates for paid sick leave. 2020 America isn’t likely to coordinate on the “right” short-term solution and coercion is probably the most efficient*** way to deal with this common pool problem. But outside of a public health emergency we shouldn’t allow top down mandates about the mix of compensation offered in markets (certainly not with the sort of people we elect to be on top).


(A couple rhetorical points: First, John Oliver isn’t speaking the language of those on the right. They won’t even be convinced that the issues he’s talking about are important. I think that’s a shame. Second, this is a tough time to try to argue against paid sick leave. In 2020 America, mandatory paid sick leave is probably required because we’re at the wrong Schelling point. Again, I don’t think conservatives or right-libertarians will find Oliver’s motivations convincing, but I believe that they could be persuaded. But that’s another blog post.)

(Two important counterpoints to the above: first, price increases hurt the poor. The way to solve that is to give charity money to the poor, not to try to make markets communicate information about relative scarcity and act as charity–that’s half-assing twice and it’s bound to be more inefficient than the charity would be costly. Second many people categorized as “essential” aren’t in a position to demand higher wages*. I don’t have an easy solution to this issue. Let’s talk about it in the comments.)

*Which is to say, workers who are in the same position as water in the diamond-water paradox.
**Not to say it would be cheap or easy.
***There you go. Now my friends on the left can accuse me of being a bloodless economist for opposing paid sick leave in general, and my friends on the right can accuse me of being a bloodless economist for supporting

The World Health Organization Revisited; Individual Rights

Two things today (4/17/20). First, there is a vast misunderstanding of the World Health Organization around the US. (WHO) It’s been promoted unwittingly by the President’s own seeming ignorance.

WHO operates on two different gears. In times of crisis, like now, it’s usually found wanting. That’s because the top of its hierarchy takes over at such times and the top is composed of political appointees. Their appointment is the object of backroom negotiations between various Third World tyrants, China, and others, included the US, who are usually distracted. The current head is an Ethiopian communist. How did that happen?

Most of the time, the work of WHO is performed by professionals with no strong or visible political inclinations. With them, WHO managed to practically eliminate the scourge of small-pox, to reduce greatly the reach and danger of malaria. WHO has also been the main force behind campaigns of vaccination, including in areas where strong resistance exists. (No, I don’t mean loopy Santa Cruz, where I live; I was thinking more of Pakistan.) The pennies WHO costs me personally each year are undoubtedly one of the best investments I have ever made, its recent missteps notwithstanding.

I think, and I hope, that the president’s suspension of the major American contributions to WHO is only a pleasantly devious way to get the head of its head.

Second topic. For what it’s worth, here are the two things that triggered me to make the C-virus second fiddle in the concert in my mind. First was, the prohibition on surfing in Santa Cruz. Now, I am a water man but I never surfed and my surfing days would be quite behind me anyway. That prohibition demonstrated the sheer irrationality presiding over such decisions. And the panic among officials. Alternatively, as several FB friends have pointed out, the prohibition might have been a hypocritical way to keep “outsiders” out of Santa Cruz. That would have been a gross abuse of power: Punish me for the evil others might do which the authorities probably don’t have the right to repress anyway. (Go ahead, speak it aloud.)

The other thing that turned my head around was the growing impression that governments at the state and local levels were demonstrating a royal contempt for civil rights. The prohibition of surfing in my town was a first signal. (See above.) Then I began to realize that denials of civil rights were happening all over this great country. This very morning, Rush Limbaugh played a recording of the governor of New Jersey declaring that questions about civil rights were “above his pay grade,” a governor of a large state. (And his political affiliation is…?)

What worked most into the deep recesses of my lazy mind were the mention of several prohibitions of religious gatherings in different parts of the country. Yes, they sounded reasonable, sort of, in health terms. And, yes I am an atheist (even though I actually am in a foxhole). But look, the First Amendment does not say, ” …except when there is a risk of sickness.” And, if you disagree you should openly ask for a suspension of the Constitution and let those who ask for and implement it eventually pay the political price.

There can be no unspoken exceptions to the constitutional democratic order. Can there be?

Last Time You Heard of “Flattening the Curve”?

We were told that many or most Americans workers had to be idled to “flatten the curve” of contaminations. This means simply that it was desirable to avoid having a sudden upsurge of people infected so that hospitals would not be overwhelmed. Officials – including the president and the Gov of California, Nancy’s nephew – never gave us any other reason for confinement.

Notably, limiting the total, final number of contaminations was not the reason. Instead, and since no vaccine is in our short sights – herd immunity will save us. But the slower the rate of contamination, the later we will enjoy herd immunity. Thus, a policy of confinement may cause more deaths that it avoids. I am not saying it’s the case; I don’t know. It’s just plausible based on the info I am given, including by my government(s).

Well, I am reasonably sure that to-date, C-virus patients have not overwhelmed American hospitals except in New York City. How do I know? The end-of-time loving, Trump-hating media would make sure I would know it if any American hospital were in a catastrophic situation caused by an unexpected influx of patients. That main danger seems past. It does not mean that individuals should not take common sense precautions, including social distancing. I know I do (but I am old).

In the meantime, the American economy is undergoing an unprecedented disaster; I mean, unprecedented in my lifetime. No mystery: When people don’t work, wealth is not being generated. The solution to this problem is as obvious as it seems: More people have to go back to work. In this connection, I think it’s time to discuss something that should also be obvious: Working at close quarters leads to contamination, and thus, for some categories of the population, to death. Economic contraction leads to sectorial poverty which also kills people. Panic also kills people: surgeries and other medical interventions are being re-scheduled all over the country. No doubt, patients are dying as a result, indirect victims of the pandemics. (And many doctors are complaining of loss of income.)

Who should go back to work? A is always the case, this issue must be resolved as close as possible to those most directly concerned. In this case, it’s the employees themselves and their employers. This principle does not necessarily lead to the wisest decisions; it makes bad decisions less consequential than would be the case for decisions taken by government at the federal level. It makes rolling back bad decisions more likely.

During all this confinement period, my fellow-citizens’ general submissiveness horrified me. (I had two postings on this.) It seems that submission is over. There is a mass automobile protest going on in Lansing, Michigan as I write. It’s directed at the governor of that state, an extreme example of schoolmarmism gone mad. (“Why do I have to do it?” “Because I say so!”)

By the way, if you fear the rise of America fascism, don’t look for guns, look for ballpoints.