Monday, 1 November 2021

A Comment on Executive Privilege

    The other day, the Washington Post ran an op-ed by law professor Saikrishna Prakash, arguing that former President Trump's claim of executive privilege against releasing documents to the January 6 Commission has some merit. Professor Prakash summarizes the reason for executive privilege:
"The policy rationale for executive privilege is that presidents will not receive candid, unvarnished advice from their aides if that advice becomes public as a result of subpoenas, judicial or legislative."
    And indeed, there is some textual support for this in the Supreme Court judgment he cites: 
"Human experience teaches that those who expect public dissemination of their remarks may well temper their candor with a concern for appearances and for their own interests to the detriment of the decision making process."
    But I'll point out that the Court does not elaborate on this principle much, to the extent that even mentioning it should probably be considered obiter dicta. And indeed, the Court goes on to diminish the relevance of that principle in context:
"However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide."
    In other words, yeah, confidentiality is good and all, but it's not enough by itself to override the legitimate interest of the court in deciding whether or not the claim of privilege is legitimate. Courts often do this: acknowledging the existence of a concern or argument without delving into its validity because they consider it irrelevant to the case at hand. (This heads off future objections that the Court failed to consider it. Not as much of an issue at the Supreme Court, from which there is no appeal, but it's still good judicial practice to cover all the bases.)
    And because the issue was only raised cursorily for the purpose of dismissing it, the Court did not go into any kind of depth in analyzing that basis of privilege, which is a shame because I think if they had seriously considered this basis of privilege, they would have phrased the description of it quite differently. The notion of executive privilege here is, after all, closely analogous to attorney-client privilege, and exists for very similar reasons. Importantly, that privilege belongs to the client, and emphatically not to the lawyer. And here's why.

    We want people to seek out legal advice, so that they can conduct themselves in a lawful manner. The example I like to use is of someone considering whether or not to murder their rich uncle so they can inherit his estate. If they consult a competent lawyer, they will be told "No, that's a crime. You can't lawfully do that, and moreover, there is a longstanding common law principle that you cannot inherit from someone you've murdered, so even after you've served your sentence for the crime you will not receive any money for it." And, presumably, having had proper legal advice, they will know that this is not an option. So if the uncle then dies in suspicious circumstances, the fact that the nephew or niece might have received legal advice on this very subject should not be used as evidence against them. 
    The privilege does not exist to protect the lawyer. Yes, of course, it is very important that the lawyer be able to give candid advice and not worry about being embarrassed, but there is something seriously wrong if a lawyer gives advice about which she would be embarrassed if it became public. About the only circumstance I can imagine in which a lawyer should be embarrassed by the advice she gave in private would be if it were bad advice, that is, unethical or incompetent. And she absolutely ought to be afraid of giving such advice, whether or not it is revealed to the public!
    The same principle applies to advisors to the President, though obviously the scope of what constitutes good or bad advice may differ somewhat. But we can see clearly why the privilege belongs to the President and not the advisor through a simple example: suppose an advisor just straight up offers a hefty bribe to the President as an inducement to make some executive order. Should the advisor be able to rely on executive privilege to shield such an offer from scrutiny? Or would the President be within their rights to fire the advisor and refer the matter to the Justice Department for prosecution? I would hope it's pretty obvious that I favour the latter answer. 

    So my reading of the SCOTUS remark on executive privilege is that while there might be legitimate military, diplomatic or other national concerns supporting a claim of executive privilege, the idea that privilege must be protected to save the President's advisors from potential embarrassment has no real legal weight. It is the responsibility of the President to select and earn the trust of advisors who will to give him that candid unvarnished advice, knowing full well that same President has the power to make that advice public.

Sunday, 24 October 2021

Discipline and Dissent

    A common argument made by various movements, particularly those of a conspiratorial bent, is to complain that certified experts in the relevant field aren't allowed to speak the truth for fear of losing their professional credentials or privileges. Ultimately this boils down to a freedom of speech argument, which when you dissect it, is pretty weak. Freedom of speech means you should be free to express any opinion, so the argument that your opinion should be respected because freedom of speech really offers absolutely no support whatsoever for the substance of the opinion itself. You're free to say you think 2+2=37.998 if you want. And the fact that other people call you an idiot for saying so doesn't in any way add weight to your claim. 
    But let's run with that freedom of speech argument, shall we? Because it does sound just vaguely plausible that if a biology professor is denied tenure for teaching creationism or a nurse is fired for refusing to be vaccinated, you could say they're being punished for their beliefs. After all, losing a job or benefit for what may well be a deeply held belief can certainly be framed as a violation of their right to free speech or conscience. Freedom of speech is in fact quite relevant here. It's just that it's not the speech of the biology professor or nurse.

    It's the speech of the certifying body. See, when you're licensed to practice medicine (or law or any other regulated profession), the regulating body that grants you that license or certification is, in effect, vouching for you. They are saying, "This person knows what they're talking about in the subject area, and we stand by their professional judgment." They are endorsing you.
    Now, you don't actually have any right to that endorsement. You have to qualify. You have to earn their confidence and maintain it, and if they ever lose confidence in your competence, they are absolutely entitled to withdraw their endorsement. Indeed, I'd say they're obligated to do so.

    So if a doctor starts spouting conspiracy theories about vaccines, and has their license revoked as a result, they might well feel like they're being punished for their beliefs and their freedom of speech is being violated. But it isn't. They're still completely free to express those opinions. They just don't get to claim the authority of the certifying board is behind them if they do so. 

Friday, 22 October 2021

Making Economics Too Simple

     Reading about the recent Nobel Prize in Economics (and the reaction to it) has got me thinking again about how I was taught introductory physics in high school.  They started with the basics of Newtonian mechanics, Force = Mass times Acceleration, and so on. In order to get these ideas across, you kind of have to simplify a lot. In particular, you need to pretend friction doesn't exist. Now, friction isn't an exception to Newton's laws, but rather just a complex manifestation of it, but it really does make the math much harder to grasp, and so it helps to just ignore it for the sake of explaining the basic concepts of mass and acceleration and momentum and all that.

    Why did the Nobel Prize talk remind me of this? Well, it comes down to the way we were talk introductory microeconomics, with those nice simple supply and demand curves, and how it was presented as practically a Law of Nature that as the price of a commodity goes up, demand goes down. That is such a simple, elegant and straightforward principle that it's really hard to imagine it being otherwise. It's almost as powerful as the idea of objects in motion tending to continue in a straight line. After all, if the price of apples goes up, you're gonna buy fewer apples, either looking for alternatives or just deciding to do without apples for now.

    Half of this year's Nobel Prize went to David Card "for his empirical contributions to labour economics". It had been assumed that, as with raising the price of apples leading to lower demand for apples, raising the minimum wage would reduce demand for labour and thus cause higher unemployment. But Card and his collaborator (the late Alan Krueger) decided to test this by comparing two very similar areas as one raised its minimum wage and the other left its unchanged. Surprisingly to the microeconomics dogmatists, there was no significant change in unemployment, and in some cases, employment went up.

    I'm not going to talk much here about Card's actual work, except to point out that it should have come as no surprise, even to the armchair theorists whose basic assumptions weren't wrong, but like the high schooler first learning physics and ignoring friction, neglected to think through all the ways the assumptions might actually play out in the real world.

    The principle assumption, of course, is that players in the economy are trying to maximize their utility with the scarce resources at their disposal. The simplest and most obvious way this plays out can be seen with the original apples example: if the price of apples goes up, then the utility I get per dollar from apples goes down, while the potential utility of my dollars remains more or less constant (that is, I can still get the same amount of stuff besides apples for those dollars). In other words, I'd rather keep a few dollars that I might otherwise have spent on apples.

    This is correct as far as it goes, but it doesn't go as far as it needs to to understand wages in all cases. Sure, it might apply to the wages you pay to someone to perform personal services for you, such as mowing your lawn or cleaning your house, and you might well consume less of those services as their price goes up. But for most businesses, labour is a factor of production; a business hires someone to produce value which is then sold to the consumer at a profit.

    Let's say I own a facility with enough space and equipment to have ten workers producing widgets. For simplicity's sake, assume each worker can produce 1 widget an hour, which I can sell for $20. And suppose I pay each worker $10 an hour, so I make a profit of $10 on each widget sold. (There are other costs, of course, such as the space and equipment, but we'll ignore those as constants that don't affect the analysis here.) If the wages I must pay to my employees go up to $15, all that means is that I only make $5 profit on each widget. It does not mean I lay off any of my workers, because that would just mean forgoing the $5 they earn me per hour. The only person who's losing out by a rise in wages in this case is me, because I'm making less profit.

    Now, it may be that my profit margin on each unit is already low. Maybe with all my other costs, I'm only making $4 profit per widget. In that case, raising my wages cost per unit by 5$ means I'll actually lose money on each widget I produce, and yes, in that case I'll probably shut down and lay off my workers. Aha! Unemployment goes up then, right?

    Well, no, not necessarily. Remember those supply and demand curves, and that they apply to the whole market, not just an individual producer. Maybe I'll drop out of the market, but that means production drops below demand, which means the price rises. It probably won't rise high enough to bring me back into the market, but one of my more efficient competitors will hire the workers I laid off and scoop up more profits until their increased production brings the price back down again.

    But yeah, maybe some workers will be laid off and not replaced, depending on a whole lot of factors, but once we start looking at a whole lot of factors and whole markets, another factor comes into play: workers (including workers in other industries and sectors) now have more disposable income, and will likely be spending that on buying stuff. So demand rises, and as production increases to meet that demand, workers get hired. 

    I'm not going to claim that this is exactly how it will play out in every case at all times when the minimum wage is raised. (In fact, I'm not actually in favour of minimum wages at all, since I much prefer the idea of a minimum income structured as a citizen dividend.) But the point here is that those who authoritatively intone very basic principles from Economics 101 as arguments for or against some policy are almost always committing the same kind of mistake as someone who tries to ignore friction, turbulence and all those other complications when trying to apply Newton's Laws. Real world economies are much more complex and those very same basic laws of supply and demand can produce results that seem utterly inconsistent with the simplest application of those laws. 

Saturday, 16 October 2021

The Freedom to Swing One's Fist

     There's a common saying that "your freedom to swing your fist ends at my nose".  This is a pretty good way to express the fact that we must have limits on our freedoms, but it seems to me in this age of radically selfish rights-talk, it doesn't quite get through. After all, the radical egoist will say, "Why should I care about your nose? I don't care at all about anyone else's rights; it's MY rights that matter, and I insist upon!"

    So I've been thinking a better way to approach it is to put it this way: You have 100 points to spend on freedoms, and you have two freedoms here to choose from. They are the right to swing your fist, and the right not to be punched in the nose. You can put ALL your points into total freedom to swing your first, but then you have no right not to be punched in the nose, or you can put all your points into the freedom not to be punched in the nose, but you won't be allowed to even make a fist, much less extend your arm without very strict supervision. Or, you can pick some combination of the two, say, 90% fist-freedom and 10% protection-from-punching, or any other mix you prefer.

    See, laws can't really distinguish between you and me with respect to noses and fists. If you want to suggest that the law should protect your interests but not mine, you'll have to provide some kind of reason why I should agree to recognize those laws as valid. And if that reason boils down to "or else", well, we can just dispense with any pretence of law and commence punching each other.

    So any rule we make that respects the ideally symmetrical nature of this bargain is going to have to be a rule that applies equally to everyone's fists and noses. And so whatever mix we settle upon between fist-freedom and nose-protection is going to apply to you; whatever freedom to swing your first you demand will take away from the protection of your nose in equal measure.

    Of course, we may not all agree on where to draw that line. You may feel that your freedom to swing your fist is adequate to protect your nose from my fist, and so you might advocate for a greater emphasis on fist-freedom, while I might prefer stricter limits on fist-swinging in favor of greater universal nose-protections. Most likely, the line will be drawn somewhere between our preferred positions in some kind of imperfect compromise; you will feel your fist-swinging interests are being violated, while I feel my nose is inadequately protected. But people cannot live in proximity to one another without some kind of compromise, and we need to be able to step back and assess the compromises from the other person's point of view before we insist our own sacrifice is too much to ask. 

    Some people think it is a sign of weakness to compromise. But I think it's a bigger sign of weakness to be afraid of appearing weak.

Wednesday, 29 September 2021

Sympathy for the Anti-Vaxxer

    I have an irrational fear of eating mushrooms. I've had it since I was a child. Don't know why, though I sort of suspect it might be from having read somewhere about it being dangerous to pick wild mushrooms because it's easy to pick a deadly poisonous one by mistake, and I thought, "Oh no! How do the mushroom farmers know they have the right ones?" Or it could just be that I tried them once as a child and really didn't like them, and never got over that.

    In any event, that childhood dislike and distrust of mushrooms has become an almost quasi-religious taboo. It isn't just that I don't want to eat mushrooms. It's that I feel if I were to eat one, even accidentally, I'd somehow violate the purity of my essence, or betray a deeply held principle, or something like that. There's no undoing the ingestion of a mushroom. I even find it difficult to bring myself to eat virtual mushroom stew in Minecraft. That's how powerful this purity superstition is.

    What would it take for me to overcome this phobia, and just try a mushroom? I dunno. People keep telling me I might find them delicious, and maybe I would, but that's not enough. I already have a whole lot of other foods I find delicious, and limited time on this planet to enjoy them, so adding yet another to that list doesn't seem like a huge benefit in the big picture. Besides, there are countless other delicious foods I'll never get to try, so what makes trying mushrooms take priority over them, especially when the obstacle to doing so is one that would take such an enormous amount of emotional effort to overcome? Is the reward of another food I might enjoy, even one that might be a new favorite, worth that ordeal?

    No, it would have to be something much more important than just finding a new favorite food. If you told me that I had to eat a plate of fried mushrooms to save my life or someone else's, that might do it, assuming you had a credible explanation for how these mushrooms would save me. But I'd need pretty good evidence, and even then I'd still find it really difficult.

    Fortunately, there aren't a lot of plausible scenarios in which anyone's life depends on my eating mushrooms. I'm not confronted with a difficult moral choice here: I can continue to abstain without fear of anything other than the occasional inconvenience for myself or others.

    And also fortunately, I know my mycophobia is irrational and foolish. I do not try (except in jest) to justify it with pseudoscientific rationales or conspiracy theories about Big Fungus trying to control us. And there isn't a thriving industry devoted to reinforcing and exploiting my phobia for financial and political gain.

    So antivaxxers, I do not envy you. If I had strong, convincing evidence that my eating a mushroom would save someone's life, I would really have a hard time of it. I'd be sorely tempted to clutch after any argument that might give me an excuse to doubt the evidence, to give me an excuse not to violate my mushroom-purity, or at least to delay it until I had proof (and delaying something indefinitely is an effective way to just never do it). 

    But here's the thing: there really is good, strong, convincing evidence that vaccines are an extremely powerful defense against disease, and that they are orders of magnitude safer than not being vaccinated. I know, you will provide link after link after link to articles and YouTube videos purporting to prove otherwise, but those links are just wrong. Every single one I've looked at has deep, fundamental flaws in methodology, employs embarrassing logical fallacies, or even straight up lies. Every single one. But when I point out these things, you just jump to another video or article or whatever that recycles mostly the same lies. It's exhausting. 

    So I do have some sympathy. I know how very difficult it is to try to overcome this purity superstition, and how much pride and honour you may have wrapped up in having kept yourself free of vaccines for so long, and how hard it is to give up that perfect score or end that winning streak. 

    I'm sitting here, struggling with offering to post a video of myself eating a mushroom to show that it can be done, to help give you the courage to overcome your vaccine phobia, but I honestly don't think I can do that. There are too many excuses. You might not believe I'm actually afraid of eating mushrooms. You might dismiss it as just a stunt. You might say to yourself, "Yeah, but vaccines really are dangerous, unlike mushrooms, so it's different." 

    And so I realize that it really isn't about getting you to take the vaccine. I have to respect that it's really really hard for you, as hard or harder than it would be for me to eat a mushroom. I can't ask you to do that. You have the right to bodily autonomy, and the right not to be vaccinated if you so choose. So that's not what I'm asking.

    Here's what I do ask, though, and I can ask this because it's something I can ask of myself. I have accepted that my fear of mushrooms is my problem, and nothing to do with mushrooms themselves. I don't seek pseudoscientific justifications for why I'm smart to avoid mushrooms, and I don't try to raise the alarm to alert other people to the dangers of a food that actually does them no harm and that they enjoy. I ask you to be honest with yourself, and accept that maybe your fear of vaccines might be the same kind of fear I have of mushrooms. Go ahead and do your own research, but do it properly: don't try to find stuff that validates your belief, try to find stuff that show you're wrong. 

    Heck, I'm not even asking you to acknowledge you're wrong. I just want you to acknowledge the possibility that you might be wrong, and consider that if you're wrong, then promoting fear of vaccines just might be doing a whole lot of harm to people. I know it's a scary thought, especially in a pandemic where we're being told that the unvaccinated are suffering illness and death in such great numbers, to think you might bear some responsibility for that. But I'm urging you to have the courage to consider it seriously.

Sunday, 1 August 2021

More Good News about Bad News

    In a recent argument about alternative medicine, someone showed me the link to this article, about how medical errors are the third leading cause of death in the U.S. My opponent in this debate was trying to make the point that we shouldn't trust modern medicine so much, because doctors make so many mistakes. Now, this is an infuriatingly common strategy, screaming and hollering about how often science has been wrong and therefore we shouldn't trust those scientists and so by default we should turn to whoever is screaming and hollering as if mistakes not screamed and hollered about don't exist. 

    But I'm not going to rant about that particular rhetorical ploy now. Instead, I want to talk about why it's actually amazingly good news, if more deaths are attributable to medical errors. Indeed, I would want to argue that the best possible case would be if 100% of deaths were caused by medical errors.

    Consider. If 100% of all deaths were caused by medical errors, that would mean that nobody ever died of anything else. In other words, there would be no circumstance in which a doctor could sadly tell a grieving family, "I'm sorry, we did everything we could, but the injuries were just too severe" or the disease had no cure or whatever. Every potential cause of death could be cured if only no errors had been made. If 100% of all deaths were the result of medical error, that would mean that medical science had advanced to a point where we were in principle immortal, because medicine applied without error could always save us. 

    Statistics are tricky. It's really easy to misinterpret what they mean, especially if you don't look at the full context. A similar argument can be made about rising cancer mortality rates, which is also potentially good news overall, depending on what is happening with average lifespans. Cancer is one of those things that you can, as a rough approximation, associate with old age: the older you get, the more opportunities there are for oncogenic mutations, and the more time there is for tiny proto-tumours to develop into life-threatening ones. (You, yes you, actually have several of these tiny prototumours right now, but they may take longer than your natural lifespan to become dangerous.) So if it's reported that more people are dying of cancer than they used to, that can actually be evidence that we're getting better at preventing earlier deaths from other things. The more people die of old age related illnesses like cancer, the more successful we have been at helping people live longer. It's not that cancer is becoming a bigger threat; it's that all the other threats are getting smaller.

    So obviously, if doctors are becoming more careless and making more mistakes, that's a bad thing, and naturally we want them to make fewer mistakes than they are, no matter how many or how few they're making. But statistically, pointing out that a larger proportion of deaths are due to medical error doesn't mean medicine is untrustworthy. It may actually mean the very opposite.

Saturday, 24 July 2021

A Little Knowledge is a Dangerous Thing, if You Think It's a Lot

     Before I went to law school, I thought I knew a little something about the law. And I had every justification for thinking so. I mean, I'd finished an M.A. in philosophy, and written my thesis on principles of rule enforcement, basically a philosophy of law topic. I'd read H.L.A. Hart on the Concept Of Law, and I had a strong grasp of ethics and epistemology. So I did really have a bit of a head start on understanding what law was all about. How hard could it be?

    And in fact, it wasn't really that hard. I did have a head start, and a pretty good foundation to build on. There wasn't an awful lot in the little something I knew about law before law school that turned out to be flat out wrong. But it was underdeveloped and incomplete to a degree that is kind of amazing to me now. the little something I thought I knew was akin to knowing that force is equal to mass times acceleration and thinking I knew physics. Because it's true that a LOT of physics follows from Newton's three basic laws, but you really have to put in the effort to understand exactly how that explains gyroscopes and hydraulics and the gas laws. 

    So three years of classes and writing papers and exams and arguing in moot court competitions taught me a whole heckuvalot of stuff I didn't realize was out there to learn, such that when it came time to actually practice law I found myself thinking I still didn't really know enough, but the fact is I did know what I needed to know, which was how to find out. I now knew enough of the vocabulary and basic concepts of law and how they related to each other than I knew where to look for the answers, and how to think about questions and try to solve them myself if they hadn't been addressed directly by someone else.

    I'm mentioning this now not to present myself as an expert on law (I'm not practicing, and let my license to do so lapse, back around the time of that cancer adventure), but rather to emphasize how I know I'm most decidedly not an expert in other things. The little something I thought I knew about law before law school wasn't nothing, but it was nowhere near what I knew after earning my LLB and practicing for a few years. And after having actually studied the subject, I would often run into people without law degrees who would confidently lecture me about the little something they knew about law as if it was all there was to know. And then I knew how ridiculous I must have sounded, talking to lawyers about the law back when I only knew a little something about it. 

    And that's the point I want to make here. I also know a little something about science, and a little something about technology, and a little something about medicine, and a little something about history and literature and a whole lot of topics. I may even know more than the average layperson about many of these. I can feel fairly confident about the little something I know, but then I remember how underdeveloped and incomplete my little something about law turned out to be. Now, my son is studying molecular biology at university, and while I'm glad that the little something I know about science is (barely) enough to make his talking to me about these things not be a complete waste of time, it reminds me just how underdeveloped and incomplete my understanding of genetics is. I can ask intelligent questions, and it's good exercise for him to try to make the answers intelligible to me, but I am painfully aware of how much not and never will be an expert I am in this stuff.

    It is important to be aware of this, because it's so easy to feel like you're an expert in a subject just because you know a little something about it. A little something is more than nothing, but it's just enough to know it's more than nothing, and not enough to know it's less than everything. Maybe the most useful thing I gained from law school was not knowing the law, but an appreciation of just how much work goes into understanding other subjects well enough to become a licensed professional. Know enough to ask intelligent questions of the experts and understand the answers, and don't be afraid to challenge things that seem inconsistent with the little something you know, but never forget that it's only a little something.