Does Stare Decisis Make Sense?--lehman

Kingspawn writes:

do you think stare decisis makes any sense whatsoever as a constitutional principle? i think it's either redundant or superfluous. basically idiotic. care to offer a defense?

Not only do I think stare decisis is idiotic, but I'm not clear as to whether it's even possible to coherently formulate the doctrine.

First, let's distinguish between horizontal stare decisis and vertical stare decisis (I have borrowed the terminology from the Wikipedia article). Horizontal stare decisis refers to the principle that lower courts have to treat the rulings of higher courts as authoritative. So, for example, if an appeals court were ruling on the constitutionality of a speech regulation, it could not substitute its interpretation of the First Amendment for the Supreme Court's. This seems to me uncontroversial.

What is bizarre to me (and Kingspawn) is the idea that past interpretations of Constitutional provisions can somehow bind future decisions by the same court. At first blush, this is a bizarre concept. If the Constitution says that a law is unconstitutional, why should it matter if a past Supreme Court thought otherwise?

Here are some O'Connor quotes from a controversial application of stare decisis; Planned Parenthood v. Casey:

(1) Application of the doctrine of stare decisis confirms that Roe's essential holding should be reaffirmed. In reexamining that holding, the Court's judgment is informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling the holding with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling.

(2) The Roe rule's limitation on state power could not be repudiated without serious inequity to people who, for two decades of economic and social developments, have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives. The Constitution serves human values, and while the effect of reliance on Roe cannot be exactly measured, neither can the certain costs of overruling Roe for people who have ordered their thinking and living around that case be dismissed.

(3) Only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure and an unjustified repudiation of the principle on which the Court staked its authority in the first instance. Moreover, the country's loss of confidence in the Judiciary would be underscored by condemnation for the Court's failure to keep faith with those who support the decision at a cost to themselves. A decision to overrule Roe's essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court's legitimacy and to the Nation's commitment to the rule of law.

O'Conner offers a fairly typical justification of the application of stare decisis: People have structured their lives around and otherwise rely on Roe, and overruling it would be costly for them. Furthermore, overruling prior decisions causes the Supreme Court's legitimacy to suffer, and in the present case makes it appear as though the SC has caved to political pressure.

While it is certainly true that overruling prior decisions is costly, it is not generally the Supreme Court's job to evaluate the public policy consequences of its Constitutional rulings. For example, suppose the Supreme Court declined to enforce the "cruel and unusual" punishments provision of the 8th Amendment by arguing that, though cruel and unusual punishments are costly to the accused, these costs are outweighed by the benefits such punishments confer on society in the form of deterrence. Obviously we would not tolerate this. The SC should not be able to ignore the Constitution just because it thinks enforcing it is a bad idea. However, functionally speaking, whenever the SC declines to overrule a precedent on stare decisis grounds, it does just this. In other words, the SC weighs the benefits to society of following the Constitution against the reliance costs concomitant with overruling itself. Is there any reason to suppose that "reliance costs" are any different from any other sort of cost that enforcing the constitution might impose upon society? If not, why should we be willing to let reliance costs, and not other social costs, influence Supreme Court decisions?

The same goes for whatever cost the SC imposes upon society in the form of its decreased legitimacy. The point here is even more salient because while it's arguable whether society's reliance on legalized abortion makes it bad public policy to make it illegal, I don't think it's plausible to say that the SC's legitimacy is in any danger of decline. The suggestion that adhering to stare decisis helps the Supreme Court avoid the charge of politicization is pretty laughable.

The court is in no position to uncover the relevant facts necessary to balance reliance costs and legitimacy costs against the benefits of overturning precedent. The decision whether to exercise stare decisis is bound to be heavily influenced by the philosophical inclinations of the justice making it, and even if it weren't, the inquiry is at bottom an attempt to analyze the proposed law on its merits--a pursuit more appropriate for a legislature than a court.

One Bad Reason to be a Vegetarian--Lehman

I can think of three reasons to be a vegetarian:

1. Health.
2. Stance on the moral status of meat producing animals.
3. Thermodynamic efficiency.

This post is about how reason 3 isn’t a very good reason.

First, what do I mean by “thermodynamic efficiency”? Basically the idea is that it takes a lot more energy to produce complex organisms that it does to produce simple ones because energy as lost as you go up the food chain. So, e.g., it might take 1000 units of energy in the form of grain to produce 100 units of energy in the form of cow flesh. The argument is that if you are a vegetarian, and thus consumed energy in the form of simpler organisms like grain, you are being more efficient because you don’t waste energy converting it into a more palatable form.

This much is true—it is more efficient to be a vegetarian. However, even if one wishes to act unselfishly with society’s best interests in mind, the efficiency gain of vegetarianism alone does not compel a lifestyle change.

The reason for this is that when we attempt to maximize efficiency, we have to consider all costs and benefits. So while wasting X energy to convert food to animal flesh is bad, it also generally comes with a concomitant gain, Y, in tastiness. So the question you must ask yourself is “Is the harm to society in the form of wasted energy greater than the harm to me in the form of lost taste.” If the answer is yes, you should consume grain instead of cow, and if the answer is no, you should consume cow instead of grain.

How does one answer this question? Fortunately for us, the answer is built into the price system. Grain is more energy efficient and for this exact reason it is cheaper to purchase per unit of energy. Likewise, cow flesh is less energy efficient and more expensive. The energy loss to society is entirely reflected in the difference in the price per unit of energy of meat and non-meat. Why is this? If it weren’t, producers would have no incentive to convert grain into cow flesh because unless they were paid more per unit of energy, they would lose money relative to just selling the grain. Thanks to the price system, the only question we have to ask ourselves when determining whether we should eat meat is “Is this steak worth $X to me?” If it is, that means that the deliciousness outweighs the wastefulness. If it isn’t that means that your preference for meat isn’t strong enough to outweigh its wastefulness and that you should consume grain instead.

Now, this is not to say the other two reasons aren’t sufficient to compel a lifestyle change. In particular, I would say that morality almost certainly compels us to be vegetarians in the sense that it’s impossible to square the intuition that it is immoral to light a cat on fire for no reason with the intuition that it is okay to raise animals in torturous conditions for the sole reason that we enjoy the taste of their flesh. Unfortunately (or fortunately for egoists like myself) our society has brainwashed us to see a non-existent difference between cat torturers and meat eaters just as it has brainwashed us to see a non-existent difference between negligent drunk drivers and people who choose to go to the movies rather than save 1000s of starving Africans lives.

Some thoughts about "Occam's razor"

People often invoke "Occam's razor" ("OR") to justify a particular claim or conclusion. Roughly, OR is something like "All things being equal, the simplest explanation tends to be the best one." People often use OR without realizing it to explain mundane events like one's driveway being wet. What makes rain a better explanation than a cult dousing your driveway at midnight with buckets? Well, it's simpler.

This sort of reasoning works pretty well, but where people get into trouble, I think, is when they (implicitly or explicitly) invoke OR to defend more abstract philosophical theses. So, for example, someone might say "evolution is a better explanation for our existence than God is because of OR". To see whether OR is applicable in cases like these, I think we need an account of some terms the definitions of which OR takes for granted--namely "simplest" and "explanation".

The best way to analyze OR is with the language of conditional probability. This will require some notation: From now on we will say "P(A|B)" when we mean "the probability event A happened given that we know event B happened".

What is the probabilistic definition of "simpler"? Say we observe the event "my driveway is wet". We can ask about the following probabilities P(it rained|my driveway is wet), P(a cult doused my driveway|my driveway is wet). I believe that when we say "it rained" is a better explanation for my driveway being wet than "a cult doused it" what we REALLY mean is P(it rained|my driveway is wet) > P(a cult doused my driveway|my driveway is wet). While my driveway COULD be wet because a cult doused it, 9 times out of 10, it will be wet because it rained. Therefore, "it rained" is a better explanation.

What is the probabilistic definition of "explanation"? I would say it's something like this: A explains B iff P(B|A) = 1 (and, trivially, A does not equal B). For example, "it rained" qualifies as an explanation of "my driveway is wet" if and only if it having rained guarantees that my driveway will be wet.

So then what OR tells us to do is, given an event A, list all the events that would guarantee that A would happen. Then find the event MOST likely to have occurred given what we know about A. This event is the best explanation of A because it is the event most likely to have brought A about.

So far so good. But now that we're being rigorous, how do we calculate P(A|B)? Well, the easiest way is to use something called Bayes' theorem, which states P(A|B) = (P(B|A) * P(A))/P(B). But if we're trying to analyze how good A is at explaining event B, we know P(B|A) = 1 from our definition of "explanation". Thus, Bayes' theorem reduces to P(A|B) = P(A)/P(B). So for example, in the driveway case, here is how we would analyze whether "rain" or "cults" is a better explanation:

P(rain|driveway wet) = P(rain)/P(driveway wet)
P(cult doused|driveway wet) = P(cult doused)/P(driveway wet)

so, P(rain|driveway wet) > P(rain|cult doused) iff P(rain)/P(driveway wet) > P(cult doused)/P(driveway wet). But this is true just in the case in which P(rain) > P(cult)! So what happens more often--rain? Or renegade dousing cults? If the answer is rain, then rain is the better explanation of how your driveway got wet.

The problem then is what happens when you try to apply this method of reasoning to the god case:

1) Evolution is a better explanation of humans than God is iff P(evolution|humans) > P(god|humans)
2) This is true just in the case that P(evolution) > P(god)
3) But this requires knowing what P(god) is!

So in complicated cases like this one, OR is useless. It purports to determine the best explanation for the existence of humans, but in doing so it begs a question that’s even more difficult to answer.

THE "WAR ON DRUGS"

I have some very long posts coming up but for now this is just a short link to this wonderful post by Gary Becker about the stupidity of the "War on Drugs". Who profits from this War? Law Enforcement agencies, third-world dictators, and a handful of kingpins. Who is harmed by this War? The American taxpayer (through prison costs for non-violent drug offenders, military action in drug-producing countries, use of police time and resources), and more importantly poor minorities and their communities. The "war" will never be won, it is just a waste of billions of dollars and ruins the lives of millions of mostly black and Latino non-violent offenders while not making a dent in the drug trade and inflating prices. Eric Schlosser, of Fast Food Nation fame has a good section on this in his book Reefer Madness.

The Republicans are of course worse on this issue, but sadly the Dems are not that great either. If you are interested in any sort of activism of this type, check out NORML's website. And to read the daily abuses conducted in the name of the "War on Drugs", check out this site. Any change on this issue will require courageous politicians, so it could be a long ways off but it is worth fighting for.

THE REPUBLICAN VIRUS (Part I of VI)

I will detour from the Neo-Con Delusion for a brief period here to talk about the Republican Party, in a 6 part series. The next five parts are devoted to the GOP's general radicalism, its stances on social issues, its attitude toward government regulation, its treatment of government programs, and its stances on foreign policy.

Some people say that Democrats are the Mommy party, and Republicans are the Daddy party. The idea of Republicans as Daddy is interesting, but it's not quite specific enough. The Republicans are actually the Daddy who won't let you do anything fun, gives you no allowance, saves nothing for your college fund, steals from your piggy bank, and then for good measure beats you, sodomizes you and gives you AIDS.

The Republican Party is a virus infecting America, and the only cure for it is blog posts. So here goes...

RE: THE POST BELOW ABOUT NEO-CON HACKERY

This article from the Nation beautifully details how the Democrats have their own "Strategic Class" of "Experts" who are similarly ignorant and arrogantly belligerent. I want to note that while the end of the last post suggested relying on diplomats, generals and analysts as Experts, I am really making a distinction here because the Neo-Cons and the Democratic Strategic Class are both characterized largely by their lack of experience in any setting except the Washington DC cocktail party set. The generals, diplomats, and analysts, by contrast, are less political and ideological and have far more practical experience.

NEOCON DELUSION, CONT'D

Before I get to some of the specifics of the situation in the Middle East, I want to tackle another broader issue. Let's leave aside for the moment the Neo-Cons' inability to distinguish between American national security and Israeli national security (and a narrow, militaristic vision of Israeli security at that).

The main point I would make here about the Neo-Cons, and here I am talking about people who were and are in the Bush Administration, especially in the Office of the Vice President/Defense Department/ and NSA- Paul Wolfowitz, Elliot Abrams, Richard Perle, John Bolton, Scooter Libby, John Hannah, Liz Cheney, David Addington, etc - is that THESE PEOPLE ARE NOT EXPERTS IN ANYTHING.

The politically appointed Neo-Cons do not have any kind of serious grasp of the internal dynamics of Middle Eastern countries- Iran, Iraq, the Palestinian Authority. None of them speak the languages spoken in the Middle East. None of them have seriously studied the history of the region. None of them have spent significant time in these countries. Because of this lack of actual knowledge, the Neo-Cons rely heavily on expatriates like Ahmed Chalabi from Iraq and a whole bunch of Iranian expats in the U.S. The problem is that these people are wholly disconnected from the Middle Eastern street and simultaneously hate the Middle Eastern regimes and love America to a far greater degree than the average Iraqi or Iranian or Syrian. Incidentally, this is the same problem we have with relying on Cuban expats from Florida- Foreign Affairs has a great article about how Neo-Con-ish thinking over the last 50 years has led to a bungling of the US's Cuba policy.

What the Neo-Cons of course end up with is a cartoonish vision of the Middle East (and the world in fact- see North Korea, Latin America) filled with the Good Guys and the Bad Guys, and the Bad Guys are so evil you can never talk to them, while the Good Guys are good no matter what they do. And the Neo-Cons' solution to every problem is always MORE WAR! The word Diplomacy is not in these peoples' vocabularies.

And what about War? The Neo-Cons have ZERO EXPERTISE ABOUT WAR! None of them have ever served in combat. None of them have ever commanded troops or dealt with an insurgency before. They have no idea what they're talking about when it comes to the military, but they puff their chests out as if they are tough guys who know how to take care of business.

The sad thing is that the U.S. Government is filled with actual experts on Middle East in the State Department and the CIA, but President Bush chooses to listen to these Neo-Con charlatan hacks. Similarly, on military matters, OUR OWN MILITARY EXPERTS virtually all tell him not to do the "surge," but he does it anyway because his Neo-Con advisers tell him to. A sane foreign policy would take under advisement the expert advice of seasoned diplomats, generals, and intelligence analysts. Of course, a willfully ignorant attitude is not at all surprising coming from a president with a "faith-based" view of science and economic policy.