"Not Necessarily Coalition, But Coalition if Necessary"

What do you think, faithful readers? Do I have a future as an Ignatieff speechwriter?

First Snapshot of Public Opinion

And it's divided, presumably along partisan lines.

That supports my view that Harper should concentrate on substance, not on how unfair it all is. We will see tonight.

What Should the Governor General Do?

That's easier.

She should give Harper any recess he wants ("proroguation" sp?).

She should not give him a new election ("dissolution". I know how to spell that one.)

What Should Harper Do?

Clearly, the NDP/Liberals are taking a perilous step. It is justified, if at all, by a sense that the Government has not taken the economic crisis seriously. The merits of taxpayer-subsidized political parties or bans on public sector strikes aside, no one thinks these are sensible responses to what ought to be the government's biggest priority. Harper should not have reappointed Flaherty as Finance Minister, but should have chosen someone broadly respected, like Prentice.

Harper's only chance now is to make his case about the appropriate response to the crisis. He needs to wonk out. If he swings public opinion in his direction, a few opposition MPs may get cold feet at the last minute, and he may survive. But even if the government goes down, it would be better to go down over something substantive than over process criticisms about legitimacy.

The heart of the analysis is traditional Keynesianism. We face a massive shock to aggregate demand. Normally, the Bank of Canada could address this shock just by reducing interest rates. That's better than dealing with it through fiscal measures because it doesn't leave a legacy of debt for future generations.

However, right now, governments can borrow unusually cheaply and monetary policy cannot do any more good. So we need to use fiscal policy. If the money is used for investments that pay off at better than the rate at which the government can borrow, then future generations will be better off as well.

The trouble is that emergency injections of public money tend to be spent badly. Here is where the Tories have an advantage. The public will be skeptical that a coalition between Dion's Liberals and the NDP will spend money well.

The agenda set out by the Coalition hardly sets those fears to rest. Do we want the CAW dictating how "strategic investments" in the automotive, manufacturing and forestry sectors are going to be spent? The Coalition program states aid will be "contingent on a plan to transform these industries and return them to profitability and sustainability." That is the most remarkable expression of hope in government planning I have seen in a long time. The League for Social Reconstruction lives.

The Coalition program is fundamentally incoherent, since it blames the federal government's deficit position on "the policy choices of the Conservative government", but also embraces "stimulus" -- which necessarily means increased deficit financing. I agree that bigger deficits are necessary, but it doesn't make sense to simultaneously criticize the Tories for too small and too large a deficit.

Increasing the supply of housing is got to be the craziest proposal for dealing with a popped housing bubble I have ever seen. The Coalition also makes as one of its dozen point a purely ideological insistence on ramming the Canadian Wheat Board and Supply Management down the throats of unwilling farmers.

Note the Preamble reference to "Canadians and Quebeckers". Presumably the plan is to develop a clean energy source from PET rolling in his grave.

Infrastructure investments are a good idea in principle, but there are practical limits to how quickly they can be "accelerated." Government tendering rules, made more complex by the Accountability Act, mean that new infrastructure takes a long time.

*The first priority should be ensuring that the provinces have enough money to maintain their spending programs. Provinces spend better than the federal government does. The last thing we want is pro-cyclic spending cuts by cash-strapped provincial governments. The Tories should propose a short-term boost in transfers to make sure this doesn't happen. If the feds have to borrow the money, that's fine, since they can borrow cheaply.

*The Tories should also propose more generous matching-fund programs for municipal and provincial infrastructure spending. That injects money without going through the sclerotic federal process. The Coalition appears to want federal control over municipal infrastructure.

*We should get money into the hands of the citizens. Make all federal tax credits refundable, and temporarily increase them.

We don't know how long the global downturn will last or how hard Canada will be hit. It makes sense to think through longer-run federal infrastructure programs, like a high-speed rail link between Toronto and Montreal. God forbid, we may have to partially nationalize the financial institutions -- the Tories have set up the legislative authority to do this.

Panicking now may reduce our scope for maneuver later.

Canadian Originalism

Via Larry Solum, I see Adam Dodek has written aneo-originalist defence of Bertha Wilson.

He's perfectly within his rights to do so. Originalism has always been a centralizing-liberal slogan in Canada. Frank Scott is our original originalist, as it were.

"The purpose of constitutionalism, which is to subject politics to higher norms of reason, is enhanced in its comparative form."

Professor Murkens defends comparative constitutionalism in an explicitly Platonic vein.

There are two contestable premises here:

1. Politics ought to be subject to norms of reason.

2. The international community of judges is a better source of reason than democratic politics.

My Last Post on the US Presidential Election

There is much to like about John McCain. I have long thought his foreign policy instincts and advisors are dangerous, and that electing him would amount to endorsing a utopian-interventionist view of the world. At the same time, though his domestic policy positions are basically non-existent, I thought he would be useful curbing a Democratic Congress. My first-favourite result would be Obama as President and a Republican Congress, but since that was impossible, I thought that a McCain Presidency might be the lesser of two evils, at least on days when I convinced myself that budgetary considerations would keep McCain from giving way to his most interventionist impulses.

I understand that everyone on the left thinks McCain is running the most egregiously negative campaign in history. Phooey. While I don't really think the Ayers and Wright associations are that big a deal (they were useful to Obama at the time, but I trust his opportunism). On the other hand, they are perfectly reasonable subjects to give him trouble on. Neither McCain nor Obama are decent candidates for bodhisattva or saint, but by the standards of democratic politics, they are moderately honourable.

But this latest mortgage plan just shows that McCain disdains public policy too much. He proposes to buy mortgages -- not at the price their owners are willing to part with them as in the Paulson panacea, but AT BOOK VALUE! That is downright insane. The only possible excuse is that McCain just made up this policy on the fly during the debate, and has no idea what he is talking about. And that is not much of an excuse.

Obama is academically inclined, risk averse and fundamentally conventional. McCain is not quite so bright and a risk addict. I think the world would be better off with Obama.

Is Socialism the Solution?

The following is my attempt to summarize what I understand from reading economists' commentary on the financial crisis and possible remedies for it. See Delong. And Mankiw has links to most of the public comments by major economists.

Across the spectrum of responsible economists, it seems that there is concern about the solvency of banks (revealed in the increase in the TED spread) and the functioing of credit markets.

And it seems that the way to deal with it is to use the US Government's great ease of borrowing money to improve the equity of the financial institutions. The problem with the Paulson plan is that it seems to do that the wrong way: it creates a fake, subsidised market for mortgage-backed securities which thereby inflates the value of those assets above what they are really worth.

The Swedish response to their financial crisis. First, make sure the balance sheets are telling the full story. Get the bad news. Don't cover it up. Second, inject public money to make the better institutions solvent by buying equity. Merge, close down, do what you must to shrink leverage while keeping confidence in the system. Finally, sell the publicly owned equity at a profit.

The risk is that the American political system won't work as well as the Swedish one, and public ownership will just mean that decisions get politicized. But that's an even bigger problem with Paulson-Dodd: the value of the assets the government is buying up ultimately depends on the willingness to foreclose on somebody. What government is going to do that?

What Does the Financial Crisis Mean for Inflation Targeting?

The big recent argument in monetary policy is between those who think
central banks should just target core inflation -- incluidng Greenspan,
Bernanke and very much the Bank of Canada -- and those who think it
should also worry about asset bubbles -- in other words, take away the
punch bowl just when the party is getting started.

One appeal of inflation targeting is that it seems to address the
problem of legitimacy central banks face. They make decisions with
enormous impacts on the economy, but they are purposively insulated from
democratic accountability. If they can say that they have little
discretion, and simply follow a simple rule of keeping inflation steady,
then they can more easily justify themselves than if they admit that
they have massive discretion. And a mandate to deal with asset bubbles
necessarily involves discretion, since no one can precisely say when
they occur and because the central bank would have to do more than one
thing at a time, necessitating tradeoffs.

The difficulty with the simple rule, though, is that core inflation is
not as big a problem as asset bubbles. So solving a minor problem at the
risk of exacerbating a bigger problem looks like a bad idea.

But what we will be left with is a super-empoweered central bank without
a clear rule to guide it. In other words, what we will be left with is
less democracy and more technocracy.

The Leaders' Debate

Recycling what I posted on Andy's site:

I just heard part of the leaders' debate on the radio driving my daughter back and forth from choir practice (and over her loud complaints about choice of radio station). My impression was that Harper and Layton did best. Next time, the Liberal Party should consider that reasonable facility in English is an important asset in a national leader especially since they seem destined to be shut out of Quebec.

On the substance, I thought Harper dealt pretty well with corporate taxes/income trusts and Afghanistan. However, I thought Layton had a good point that it is outrageous that he is going to the voters without any program at all. I worry about rewarding that kind of behaviour.

One commitment he made struck me as just as foolish as never taxing income trusts. He seemed to say that the federal government would run a surplus no matter what happens with the financial crisis. Herbert Hoover lives. Fortunately, Harper's past record means we can rely on the fact he will break this commitment in a minute when it becomes necessary.

Deep Thought

I never thought Helicopter Ben would need such a big helicopter.

The economics profession is totally in the tank to the financial industry. You should know that, American taxpayer.

Update: In fairness to the profession, here is a letter from economists opposing the bailout.

On this ROC we have built... (Bibilical themes in contemporary English Canadian nationalism)

I'm not sure that the rhetoric of national covenant (based on the original precedent at Sinai) played a huge role in the development of English Canadian identity. Sure, Protestants everywhere talk like that when they are being irritable, and we all know how irritable the original Canadian Protestants could be. But the over-arching original conception was of Britishness expressing itself in a non-British space. It probably owed more to Rome than to Jerusalem.

If we then look at the post-WWII need to reconceive Canadianism (provoked by the termination of the British Empire, the extreme power of the US, and the threat of Quebec nationalism), the key biblical rhetoric comes from the Babylonian captivity, not the establishment of the covenant. Grant laments for an ideal that he insists was impossible from the outset.

Our lamentation, unlike Jeremiah's, is not caused by disaster and ruin, but by uncertainty and loss of purpose. It is more comfortable, and therefore harder to take seriously. But with an ironic inflection, we arrive at a deutero-Isiahian synthesis. Our god, like Israel's in the captivity, can no longer be located in his home. But, as with Israel in the captivity, this homelessness makes our god all the more powerful. Our uncertainty becomes our weapon against the Americans and against the Quebec nationalists: they can never truly be liberals because they have identified themselves with too concrete a substantial liberalism. We can be faithful to liberal modernity because our loyalties are negative (not-American not-Quebec).

Of course, our anxiety does not solve the fact that someone (albeit someone invisible) must continue to negotiate an accommodation with all the substantial nationalisms -- American, Quebecois, aboriginal and new Canadian. Just as a corporation is a placeholder for all the contracts it negotiates with others, so too the ROC ("Rest of Canada").

Upon this ROC, though, someone built something. We will have to explore what at a future time.

Whither Socialism?

In his first term, George Woodrow Bush made the world safe for democracy. As a lame duck (and to bipartisan support, again), Clement W. Attlee has nationalized the commanding heights of the economy.

Big financial firms going bankrupt isn't scary. Somebody can pick up those assets and do better with them -- and greed must be leavened occasionally with fear.

Big financial firms not being allowed go bankrupt -- that should induce fear.

While McCain is still more sensible on economics than Obama, his response of supporting the ban on short selling is troubling.

There's a lot of ruin in a nation, and no nation has more ruin in it than the United States. The financial crisis itself will be no big deal. But the response is disturbing.

Derivatives Exempted from Bankruptcy Laws

Well, that was a bad idea.

Who Should Win the Election?

I am a bit on the fence. (My actual voting behaviour is already determined, since I think my local MP, who is a Liberal, is a mensch and ought to be re-elected.)

Harper is right on Afghanistan. He probably ultimately has good impulses on economics, although I have seen scant evidence of it in the last 3 years. Arguably, the Liberals would grow government more. Certainly, there is a risk of a unionized, one-size-fits-all universal daycare program, which is immeasurably worse than Harper's baby bonus. Harper should also get credit for selling a symetrically decentralized federation to the soft nationalists in Quebec.

On the other hand, Dion's plans are actually broadly economically sound. He wants to shift taxation to negative externalities which is good both for Pigovian reasons and because the long-run elasticity of demand means it will shrink the tax take. Harper's GST cut was unwise.

Finally, the election call itself is such a cynical breach-of-promise that I can't help but hope it backfires.

But while I hope that the Liberals win a plurality, I don't expect it. My prediction is the Conservatives back with an increased plurality, based primarily on gains in Quebec, but no majority. The Liberals will collapse in Quebec, and lose some ground to the NDP in their urban Anglo strongholds.

Was Justice Cromwell Appointed to the SCC or Not?

The process for replacing Justice Michel Bastarache for what is widely regarded as the Court’s “Atlantic” spot, has been contentious. Initially, a Supreme Court Selection Panel made up of two MPs from the government and one from each of the opposition parties was to come up with a shortlist. However, the Opposition objected to the government’s nominees being cabinet ministers and, according to the government, refused to “consider substantive business”. The Prime Minister unilaterally nominated Justice Thomas Cromwell of the Nova Scotia Court of Appeal, subject to questioning before another ad hoc committee after the federal election.

Harper’s actions are a bit constitutionally presumptuous – if the appointment is conditional on Justice Cromwell’s appearance before the ad hoc committee, then it has not been made. But if it has not been made, then Harper can only “announce” that Justice Cromwell will be the one on the assumption he will be Prime Minister after October 14 – an assumption one would think a politician facing the electorate should be cautious about.

As I write, a few days into the 2008 election campaign, it remains to be seen whether any of this will be an election issue. Newfoundland and Labrador’s Justice Minister has angrily announced that Harper treated his province with “disrespect” by not considering a judge from his province – suggesting a punitive motive arising out of Harper’s conflict with Premier Danny Williams. Ideological, as opposed to regionalist, attacks seem less likely, since Justice Cromwell is widely-respected within the liberal legal elite, and was appointed a Court of Appeal judge by Jean Chrétien.

What Should the Governor General Do?

It is now universally acknowledged that Prime Minister Harper will soon ask the Governor General for a dissolution of Parliament. Patrick Monahan argued in the Globe on Saturday that when he does, she has no choice but to give it to him. I think this is wrong. She should accept his resignation, but she should not dissolve Parliament until M. Dion has been offered a chance to form a Ministry and meet Parliament and has either (a) refused the Governor General's invitation or (b) accepted, and then lost the confidence of the House or been denied supply.


The dissolution of Parliament is a Crown prerogative, vested in the Governor General by Letters Patent of George VI in 1947 ((reproduced in R.S.C. 1985, App. II, No. 31). Legally, she can dissolve Parliament or not at her wish. This power was retained by Bill C-16, which created fixed election dates, and indeed it was confirmed that the dissolution of Parliament was 'at the Governor General's discretion."


Of course, responsible government implies the convention that -- in general -- she will only exercise her powers at the "advice" of the Prime Minister. The extensive legal powers of an appointed Governor General are only acceptable in a democracy because she almost never uses them.


However, as the King-Byng and Whitlam-Kerr crises show, and as the Supreme Court of Canada recognized in the Patriation Reference, the general rule that the Governor General must do what the Prime Minister says (whether or not she agrees) is subject to limits. Democratic legitimacy and responsible government are the basis for the rule, but they are also the basis for exceptions. It is only because the Prime Minister presumably enjoys the confidence of the House that the Governor General should listen to her, rather than to someone else.


If Mr. Harper tells Mme. Jean that Parliament is "unworkable", then that amounts to saying that he can't work it. He does not think he enjoys its confidence, at least if he wants to do what he feels he must. She has no business in going behind this statement. If the electorate think he is really motivated by a desire for a tactically-favourable election date, it is up to them to punish him.


However, by saying that he can't work with this Parliament, Harper also ceases to have the legitimacy of responsible government behind his "advice." If there is even a remote possibility that someone else can form a Ministry, then that person should be invited to do so. There are innumerable examples from before the modern party system calcified of Parliaments long outliving Ministries.


Before the fixed date amendments to the Elections Act, it could be argued that whether the failure of a Ministry implied the failure of Parliament was a matter of political judgment. Therefore, it was said, the Governor General should only disregard the Prime Minister's advice when it was clearly abusive (for instance, if it occurred very soon after the election). However, it seems to me that the fixed election date changes that. Parliaments are presumed not to fail until their time expires -- it is only if the Governor General has exhausted potential ministries that she should go to the people.


The Liberals have never had a chance to try to make this Parliament work. They could decide that it isn't in their interest to do so -- and if they did it would be harder for them to slam Harper politically for going sooner than Bill C-16 suggests is normal. Or they could bring forward a budget and legislation based on their green tax proposals and dare the (now) opposition to bring them down. But they should get the chance.

Obama's Speech

Obama's speech was competently written and delivered. No more, no less. It was also doctrinaire Democratic Party liberalism. There was nothing McGovern or Mondale could have disagreed with. It will be interesting to see if America has changed enough that an overtly social-democratic platform can win a national election.

Governor Palin seems like a good choice in theory. Whether she will be up to the rigours of national politics is not something I claim even Internet-rules expertise on. Who knows?

Offer NATO membership to Georgia - (South Ossetia + Abkhazia)

And back it up with nukes.

Choice of Biden Insane

HRC was the obvious choice. It was folly to pick anyone else. But "anyone else" would have been better than Biden.

Veeps may not matter, but terrible judgment matters.

Pelagians for McCain!

Some careful readers may have detected a preference on my part during the primaries. And despite my pretence of careful neutrality as one of Her Majesty's subjects, I must say I was generally pleased with how things worked out in both major parties.

The general election is a bit tougher. I'm more with Obama on foreign policy (excluding trade) and more with McCain on domestic matters. My ideal world would probably have Obama as President and Republican control of Congress -- but that is not going to happen. In light of his age and the opposition's control of Congress, McCain would be a very weak president generally -- which is doubtless a good thing.

But theological issues are primary. And on those issues, McCain shows just what a crazy heretic he is. It is really unfair to Manicheans and Pelagians to compare them to him. Here's Obama's answer to the question of the existence of evil at the Saddleback Forum:

Evil does exist. I mean, I think we see evil all the time. We see evil in Darfur. We see evil, sadly, on the streets of our cities. We see evil in parents who viciously abuse their children. I think it has to be confronted. It has to be confronted squarely, and one of the things that I strongly believe is that, now, we are not going to, as individuals, be able to erase evil from the world. That is God's task, but we can be soldiers in that process, and we can confront it when we see it.

Now, the one thing that I think is very important is for to us have some humility in how we approach the issue of confronting evil, because a lot of evil's been perpetrated based on the claim that we were trying to confront evil.

REV. RICK WARREN, SADDLEBACK CHURCH: In the name of good.

OBAMA: In the name of good, and I think, you know, one thing that's very important is having some humility in recognizing that just because we think that our intentions are good, doesn't always mean that we're going to be doing good. `

Perfectly orthodox, and perfectly sensible. Here is McCain's demonic nationalist answer:

WARREN: How about the issue of evil. I asked this of your rival, in the previous debate. Does evil exist and, if so, should ignore it, negotiate it with it, contain it or defeat it?

MCCAIN: Defeat it. A couple of points. One, if I'm president of the United States, my friends, if I have to follow him to the gates of hell, I will get bin Laden and bring him to justice. I will do that. And I know how to do that. I will get that done. (APPLAUSE). No one, no one should be allowed to take thousands of American -- innocent American lives.

Of course, evil must be defeated. My friends, we are facing the transcended challenge of the 21st century -- radical Islamic extremism.

Not long ago in Baghdad, al Qaeda took two young women who were mentally disabled, and put suicide vests on them, sent them into a marketplace and, by remote control, detonated those suicide vests. If that isn't evil, you have to tell me what is. And we're going to defeat this evil. And the central battleground according to David Petraeus and Osama bin Laden is the battle, is Baghdad, Mosul, Basra and Iraq and we are winning and succeeding and our troops will come home with honor and with victory and not in defeat. And that's what's happening.

And we have -- and we face this threat throughout the world. It's not just in Iraq. It's not just in Afghanistan. Our intelligence people tell us al Qaeda continues to try to establish cells here in the United States of America. My friends, we must face this challenge. We can face this challenge. And we must totally defeat it, and we're in a long struggle. But when I'm around, the young men and women who are serving this nation in uniform, I have no doubt, none.

For McCain, evil is totally external. It can be defeated temporally, and by the nation state. In any well-ordered society, the Holy Office would say so and hand him over to the secular arm. The Applause just shows that many American evangelicals actually worship the state.

Update: The Lutheran Zephyr makes many of the same points, but better. It's spooky.

In memoriam: Literatus on the Murder of Shirley Case and Jackie Kirk

A missive from the literatus:

The thing about atrocities, colleagues, is that they tend to harden observers' political positions; there is an angry I-told-you-so component to each possible interpretation of an event like this.

So I got angry on the news; not just righteously angry at the Enemy and his jackals, but pissed at the Talib excusers, pacifi-fundamentalists, and Quiet Lifers, the whole fellow-travelling fuckin' pack of 'em, our ideological opponents, for whom any international action beyond well-digging, school-building and child-vaccinating is too inappropriate to consider, even while the unabashed Enemy poisons the water, burns the classrooms, and shoots the doctors in the face.

There's been little talk from these misbegotten left-internationalists, I notice, about the moral necessity of a UN role in Iraq since August '03. Which was when, you'll recall, the great guarantors of multi-lateral understanding established their Baghdad mission, whereupon the Enemy immediately murdered them all. (RIP, Sergio de Mello, and RIP your gentle, hopeful, sophisticated way of thinking.)

It is the same Enemy that executed our fellow-citizens in the Rescue Committee convoy, I think we agree, comrades...? (I capitalize the E 'cos I acknowledge that the jihadi is essentially one man -- the arsonist and exterminator of Allah's staff, Mohammed's wingman and butcher, get it --? In all his many manifestations.)

The peculiar response from Stopland on this matter is not to recommend the hunting down of these killers of women, nor the extirpation of the permanent threat they pose to Afghanis, women, Shia Moslems, Pakistanis, homosexuals, Israel, Western idealists, etc., etc... naw, near as I can tell, the massacre's political meaning, over in Leftland, is this:

It's the West's fault. Ottawa and CIDA and the Forces should guarantee the safety of every Canadian, esp. aid workers, who steps into the 'Stan, voluntarily or not, and should be held civilly liable, ie vulnerable to lawsuits, if any civilian Canuck should get killed by the Enemy, or by accident. I ain't kidding.

I cannot see that as a reasonable response to the machine-gunning of our Sisters of Mercy, frankly. I suppose a better person than me might try to find forgiveness, somewhere in the nobility of the human spirit, for the understandable frustration of the marginalised post-colonial subject who bashed in the IRC car's window with the butt of a cheap machine gun and blew away a nice lady named Shirley who was culturally sensitive and wanted to help the poor. Probably he shot her to death mostly for being female.

Well, he was Taliban; they say they'll do such things, they do them, and if they live, then they do it again. What is the point of forgiveness and dialogue, under such circumstances? The massacre proves, underlines, demonstrates, clarifies and establishes beyond a doubt that the Enemy must be destroyed wherever he is found. Doesn't it?

I could argue with some of the Manichean phrasing. But I don't feel like it.

Update: There seems to be some confusion on the subject in the comment box, so I should clarify that I am not the literatus. He is an old character in these parts, and one I usually argue with. My brief description is "a right-wing bastard sickened unto death with the leftist pieties usual among Canadian writer types".

But while intending no endorsement, I do share an impatience with people who can muster a lot of indignation about "overbroad generalizations" and stereotyping that they can't seem to summon for murdering do-gooding unarmed middle-age women.

Free Speech Then and Now

The Supreme Court of Canada overriding a jury verdict of seditious libel against Jehovah's Witnesses saying rude things about the Roman Catholic Church back in 1950:

There is no modern authority which holds that the mere effect of tending to create discontent or disaffection among His Majesy's subjects or ill-will or hostility between groups of them, but not tending to issue in illegal conduct, con­stitutes the crime, and this for obvious reasons. Freedom in thought and speech and disagreement in ideas and beliefs, on every conceivable subject, are of the essence of our life. The clash of critical discussion on political, social and religious subjects has too deeply become the stuff of daily experience to suggest that mere ill-will as a product of controversy can strike down the latter with illegality.

The Supreme Court in 1990:

In applying the Oakes approach to legislation restricting hate propaganda, a meaningful consideration of the principles central to a free and democratic society requires reference to the international community's acceptance of the need to protect minority groups from the intolerance and psychological pain caused by such expression.

A decline of style and substance. What will 2010 bring?

Why are Muslims Becoming More Liberal?

The Pew Global Attitudes Project has tracked a consistent decline among Muslims in support for Al Qaeda, and an increase in support for liberal democracy since 2001. Different countries vary a lot, and there are still millions of people who think Bin Laden is great. And you don't need a lot of people to form a terrorist threat (although the bigger the base the easier that is). Moreover, there is a lot of belief that 9/11 was a fake, that Muslim economic woes are the fault of imperialism and so on. But everywhere, things seem to be going in the right direction.

I don't think left or right would have expected this. Certainly one of my main reasons for opposing the Iraq war was that it would make these numbers worse. And Muslims didn't like the invasion and occupation of Iraq any more than I thought they would. The neoconservative hope that grateful Iraqis would make everyone else think the US was wonderful did not -- to put it mildly -- unfold as expected.But even though "George" and "Tony" are never going to be fashionable names for Muslim boys, things have not gotten worse since 2003. The direction of these results also casts doubt on the view that illiberalism is inherent in Islam, a view that seems more common now on the right than it did back when W. was popular.

So why is this happening? Is Fukuyama right after all?

Double Standards Department

Ethiopundit makes the excellent point that what Mugabe had done over the last few months is materially identical to what Meles Zenawi and the EPRDF did in Ethiopia in 2005. Bob Geldof made a bit of a stink at the time, but that was about it. And of course, the communist EPRDF quickly became a key ally in the War on Terror.

McCain is right about Viagara and Birth Control (Even if He Doesn't Know Why)

The lefty blogosphere has been trying to give McCain a tough time about voting against mandating that health plans that include Viagara must include birth control as well. One can't expect them to understand economics, but even if you don't, surely both products are equally valuable to both parties in a heterosexual couple? I suspect some age bias.

Here is what I said at Ta-Nehisi Coates' (very good) blog:

I sort of doubt that birth control vs. Viagara is a man vs. woman issue. It's more of a generational issue. Heterosexual women with older partners benefit from Viagara as much as heterosexual men with younger partners benefit from birth control.

The legitimate argument for McCain's stance is the following. We want birth control (and Viagara)to be as cheap as possible. Mandating that birth control be part of a health insurance plan doesn't (necessarily) make it cheaper. You now have to add the costs of administering the insurance claims to the manufacturer's costs and profit.

Liberals tend to think, "Ah, but if it is insured, the employer pays for it instead of the employee." That's actually wrong. Benefits are just part of your overall compensation. If the costs of drug plans go up, then (all other things being equal), your take-home pay is going to be less. So you pay, one way or the other.

I suppose birth control could be part of a publicly-funded universal drug benefit. It isn't in Canada or anywhere else that I'm aware of, so I don't think this is reasonable.

But what about Viagara? Why should it be insured? I would object to a mandate there too, but it's at least possible that there is an overall gain to insuring it. Erectile dysfunction is a risk that only happens to some people (although it is pretty common at a certain age). So maybe employees as a group are better off spreading this risk across the group, even if it means higher unit costs.

Anyway, neither Viagara nor birth control should be mandated, since that just means paying more for sex.

How McCain could still win

I realize it's chicken to hedge your bets so soon, but maybe Maliki has given McCain a way out. The Iraqi government is asking for a date certain for withdrawal of US and allied forces. McCain said a year or so ago that if that happened, of course the US would leave.

So now McCain can leave while declaring victory. Iraq has uninspiring elected politicians instead of psychopathic fascist ones. The price in resources and lives is difficult to justify, but, being human, Americans will be inclined to do so -- as long as they know they are getting out.

As I've argued before, "victory" and "defeat" are category errors in Iraq, so McCain would have the benefit of having a position that is logically equivalent to Obama's while being psychologically superior.

McCain Calls Social Security a "Disgrace"

It's over. We can all obsess about something else.

Is Knowledge a Type of Belief?

When I was an undergraduate in philosophy, everyone knew that knowledge was a kind of belief. The only issue was what kind of belief (was it "justified, true belief" or something else. "S knows that p" entails "S believes that p", although not the other way around.

The interesting blog Experimental Philosophy has a result that suggests many people intuit otherwise. Apparently, people given a scenario about a corporate chairman causing damage to the environment are more likely to agree that the chairman "knew" harming the environment was wrong than that the chairman "believed" harming the environment was wrong.

Is this just a bias, like when we are told that Sandra is a strong feminist and are asked to evaluate which is more likely, "Sandra is a Christian" or "Sandra is a liberal Christian". People will say the latter is more likely, contrary to fundamental axioms of probability.

Or do people have a different conception of knowledge?

Come on baby, get in the road

I agree with Yglesias that the recent Republican attacks on Obama for being a "flip flopper" and moving to the right will likely count as one of the biggest own-goals in the history of American politics. The centre (or "center") is where it's at. McCain could have won this thing on one strategy alone: he's in the middle (not like those other R's) and Obama is a crazy radical with nice speeches.

If Obama is a normal politician who will pander however he needs to, then the median American voter will be relieved. It's time to give the Dems a try. It might be interesting to have a black guy who writes books. McCain's old. But that same median voter has (reasonably enough) some lurking suspicions about this dude. McCain and the Republicans telling you he is just an opportunistic office-seeker like all the others will just reassure those suspicions.

And could we end the "Rove proved that you don't need the centre" crap. First, that is not really how either 2000 or 2004 worked. Second, to the extent that Rove tried a mobilize-the-base strategy, how did that work out for the GOP? One voter switching in the middle is worth two on the edges deciding not to vote or vote for a third party, and there are more voters in the middle.

Is Quasi-Contract Really Dead?

Another book I have recently finished is the second edition of Peter Birks' Unjust Enrichment, which he completed just before he died. Professor Birks made a late conversion to what is now the Canadian approach to non-consent non-wrong based private causes of action -- namely, that we should treat every transaction in which D benefits and P loses as presumptively reversible to the lesser of the benefit or loss. Contract, gift and statutory transfer are all just exceptions to the borader rule. That is a departure from how the common law traditionally dealt with the same issues by presuming gains/losses fall where they lay, but using defined categories of "monies mistakenly paid and recieved", practical compulsion and so on to provide for exceptional reversal. Birks is also "Canadian" in separating out gain-based remedies that do not require any corresponding loss from the law of unjust enrichment.

In one respect, Birks is triumphalist about the success of civilian-style unjust enrichment. He says no one will ever again write a book entitled "Quasi-Contract" because liability for benefits provided under mistake, compulsion, necessity and so on has been completely liberated from implied contract theories.

I wonder. It seems to me that there are a number of reasons non-consent non-wrong based liability will always be closely tied to contract:

*We are always going to let defendants get out if the matter was something the parties could have contracted about. If I mow your lawn before I negotiate a price, you are never going to have to pay unless there was some good reason we couldn't agree to an express contract.

*Unless the benefit the defendant received was cash, we are always going to have to value it somehow, and the only way to do that is to think what would have been agreed to. That inevitably brings the implied or hypothetical contract back in.

*Contract law itself will always have to deal with implied or hypothetical bargains, as well as express ones. Think about any real contractual dispute. If the parties expressly agreed who was going to take on the risk or cost at issue, then you wouldn't expect litigation, other than merely for enforcement. If there is serious litigation, that is because the parties intentions are in doubt, and the judge/arbitrator is always going to be reasoning abut what they "would have" done if they had turned their mind to the eventuality. So inside every express contract is a million implied or hypothetical contracts. And the law of what we do when there is no contract at all should develop alongside what we do when there is a contract but it doesn't deal with the subject matter of litigation.

So Birks' triumphalism is premature. Implied/hypothetical contracts are as hard to banish from practical litigation as from political theory.

Self-Demonization

I don't want to give the impression that Zizek is an idiot. This is pretty sharp, for example:

The politically correct version enacts a weird reversal of racist hatred of Otherness -- it stages a kind of mockingly Hegelian negation/sublation of openly racist dismissal and hatred of the Other, of the perception of the Other as the Enemy which poses a threat to our way of life. In the PC vision, the Other's violence against us, deplorable and cruel as it may be, is always a reaction against the "original sin" of our (white man's imperialist, colonialist, cetc.) rejection and oppression of Otherness. We, white men, are responsible and guilty, the Other just reacts as a victim; we are to be condemned, the Other is to be understood; ours is a domain of morals (moral condemnation), whilst that of others involves sociology (social explanation). It is, of course, easy to discern how, beneath the mask of extreme self-humiliation and self-blame, such a stance of true ethical masochism repeats racism in its very form: although negative, the proverbial "white man's burden" is still here -- we, white men, are the subjects of History, whilst others ultimately react to our (mis)deeds. In other words, it is as if the true message of PC moralistic self-blame is: if we can no longer be the model of democracy and civilization for the rest of the world, we can at least be the model of Evil.

Where is the Workers' Country? Samurai Japan?

I have confirming evidence that the only coherent anti-capitalist stand in our Fukuyamist/Grantian age is conservative or reactionary.

I just finished reading the latest from Slavoj Zizek, the too-cool-for-school intellectual leader of academic communism. Zizek's proclaimed goal is to somehow "repeat" Lenin, while acknowledging reality. He rehabilitates Robspierre, Stalin and Mao through the use of the apologist paradox perfected by Chesterton.

Zizek's too smart not to see that it is capitalism that is the genuinely revolutionary force in the world, and that the genuinely mass-based hostility to it arises precisely from this fact. But he doesn't want to do anything as uncool as oppose, say, genetic manipulation of the human germ line. So he retreats into an overtly reactionary fantasy (not that there is anything wrong with that):

In the early seventeenth century, after the establishment of the shogun regime, Japan made a unique collective decision to isolate itself from foreign culture and to pursue its own path of a contained life of balanced reproduction, focused on cultural refinement, avoiding any tendencies towards wild expansion. Was the ensuing period which lasted till the middle of the nineteenth century really just an isolationist dream from which Japan was cruelly awakened by Commodore Perry on the American warship? What is the dream is that we can go on indefinitely in our expansionism? What if we all need to repeat, mutatis mutandis, the Japanese decision, and collectively decide to intervene in our pseudo-natural development, to change its direction?

In other words, the historic task of the left is to stand athwart history, yelling Stop.

Happy Independence Day, America

In the spirit of harmony and friendship, I won't revisit the merits of the whole stamp duty dispute. Suffice it to say that as a descendent of United Empire Loyalists, I agree with Matthew Yglesias.

Canadian fact: According to highest legal authority, there is no single day on which we became independent. (Anyone saying April 17, 1982 should be summarily shot.) Instead, we were in a quantum state of sovereign indeterminancy for 12 years. According to the Court in 1967:

There can be no doubt now that Canada has become a sovereign state. Its sovereignty was acquired in the period between its separate signature of the Treaty of Versailles in 1919 and the Statute of Westminster, 1931, 22 Geo. V., c. 4

Canada Day Thought

Shorter Canadian political elite: Canada is among the most successful societies in the world. It is therefore morally imperative for it to abandon everything that made it that way.

Supply-Side vs. Demand-Side Theories of Liberal Exegesis

"Anti-realist" gives a quantitative version of his charge against Islam:

That said, of course there are still things in the text that a decent Christian will have trouble rationalizing. My claim is just that he'll have lot less trouble than a decent Muslim.

I think "decent" is a bit of a distraction here. I would interpret "decency" to refer to ordinary interpersonal morality, rather than ideology. Plenty of decent people believed and believe in the legitimacy of religious coercion. Some of them were saints. However, decent people can be a political or military threat. What we really want is an ideological transformation such that as many Muslims consider liberalism (broadly understood) as consistent with their ancestral faith as Jews or Christians do now.

If we substitute "liberal" for "decent", then we have a supply-side theory of illiberal religious exegesis. There are four kinds of exegesis of the texts: liberal Christian, illiberal Christian, liberal Muslim and illiberal Muslim, all of which exist, but with a negative correlation between liberalism and Islam. Anti-realist's theory is that this is because it is costlier to produce liberal Muslim exegesis (in cognitive dissonance or some other currency) than to accomplish the same trick for Christianity or Buddhism.

The alternative view would be that the greater relative salience of liberalism in Christianity is demand-, rather than supply- driven. On this view, cognitive dissonance is not a great obstacle to the religious beliefs of most people. For non-religious reasons, Christians want more liberal religious beliefs than Muslims do. If the forces making Christendom more liberal act in the Muslim world, they will (and have) increased the demand for liberal exegesis of the Qu'ran.

What's the deal about Islam?

"Anti-realist" and Marnie Tunay are having an argument about Islam in this comment thread. (As so often happens, the argument is tangentially related to the original subject of the post, which I think was about young offenders.) I wanted to weigh in, and hopefully a new thread will emerge.

Sciency types make fun of academic philosophy, often with reason. But sometimes it really does seem like conceptual work has to be done before we know what we are disagreeing about. So it is here. No one can really dispute that Islam-as-historical-phenomenon involves some unjustifiable violence and sexist oppression. On the other hand, the same can be said of Christianity and Buddhism. Scientific materialists have to explain away Stalin and Mao. Since the decision in WIC Radio v. Simpson, I can even point out that New-Agey Nietzschean post-Christians have some explaining to do.

And, at least in the context of Christianity, I can cite text. In addition to Augustine and Aquinas on religious coercion, there is the OT. Joshua made Mohammed look like a wimp. Opening randomly, I see Josuha 8:24-29:

When Israel had finished killing all the men of Ai in the fields and in the desert where they had chased them, and when every one of them had been put to the sword, all the Israelites returned to Ai and killed those who were in it. Twelve thousand men and women fell that day—all the people of Ai. For Joshua did not draw back the hand that held out his javelin until he had destroyed all who lived in Ai. But Israel did carry off for themselves the livestock and plunder of this city, as the LORD had instructed Joshua.

So Joshua burned Ai and made it a permanent heap of ruins, a desolate place to this day.

So what claim is "anti-realist" making about Islam?

As for Marnie, she claims that the law requires that the person who asserts a claim prove it. That is true -- at trial. But lawyers also have processes for striking pleadings or for giving summary judgment, where the person disputing the claim has to show that it is without merit. Ms. Donohue did not have to prove that her ginger beer had a snail in it, but only that it wasn't crazy to sue if it did. And it seems to me that if you are going to say that certain claims should be subject to legal sanction, you face as big a hurdle.

It also strikes me that one concept that seems completely inconsistent with the Qu'ran is invoking a secular norm of religious equality to prevent examination of the truth claims of religious practices. The idolators the Prophet railed against did not mind the worship of Allah -- they just thought Al-lat and the Sun and Moon should be respected as well. Certainly, no one should be permitted to offend their worshippers. It is easy to imagine the Meccan Human Rights Tribunal levying a stiff fine for aggressive monotheism.

Argumentum ad Hitleum not actionable: blogosphere saved

According to the Supremes it is OK for BC talk radio deity Rafe Mair to compare local anti-gay activist Kari Simpson to Hitler and the KKK. The trial judge thought there was an implication that Simpson approved of violence against gays and lesbians, which she doesn't -- however let Mair off on the basis of the "fair comment" defence. The Court of Appeal disagreed, thinking such allegations are beyond the pale, but the Supremes tell us that we might as well get used to unregulated twenty-first century discourse, because they're not going to do anything about us. Godwin's Law is not the law in Canada.

I tend to agree with the concurring justices that when a loudmouth compares another loudmouth to Hitler there really is no defamatory implication that the compared loudmouth wants genocide. But maybe I spend too much time on blogs.

Presumably, if there is an analogy between defamation against individuals and "hate speech" provisions about identifiable groups, then comparing Islam to fascism would be OK. Unfortunately, there is -- as yet -- no doctrine of fair comment in the tribunal jurisprudence.

Religion of Peace?

In the comments, "anti-realist" argues it is false that Osama bin Laden's actions are contrary to Muslim principles.

I respond:

The trouble with your point is that it is TOO realist about "Islam" as an entity. When someone says, "Bin Laden has nothing to do with real Islam", they are not making an empirical assertion. They are engaging in a speech act. They are saying, "Muslims ought not to engage in violence against innocents, and those aspects of the Islamic tradition that assert this should be emphasized in comparison to those which do not."

Saying this speech act is false is like saying "give peace a chance" is false (or "unite against the oppressors of our people" is false). It is a category mistake.

The real objection to Bush is that "Bin Laden is not a true Muslim" is a speech act only available for an insider.

As Uncle Karl would say, "The non-Arabic-speaking bloggers have interpreted Islam in various ways. The point, however, is to change it."

Posner Slams Black

Posner's Opinion in the case of US v. Black, Conrad is here.

B.C.E.

It appears that the forces of good (and shareholder value) prevailed in B.C.E. It's not up on the University of Montreal Website yet.

O.B.G. Limited Again

A while back, Andy suggested I should comment on the House of Lords' decision in OBG Limited. I did read it, but then got off on a tangent about inducing-breach-of-contract, which is as tangential to the main decision as products-liability law is to the plot of Strange Brew.

The classic common law is a very market-oriented thing. And so, in general, it does not protect against competitive injury. And If A failed to perform her contract with you, it encouraged you to sue A, not somebody else who may have caused the dealbreaking. However, there are murky exceptions in the form of the "economic torts," most of which were used to deal with the nascent British Trade Union movement, although the odd shady opera promoter was manhandled as well.

Lord Hoffman does a bang-up job of going through the cases and extracting the principle that P can sue D if D intended to harm D and did so using illegal means. Although that tedious British analytic philosophy comes in handy as his lordship sets out what "intention" means here, with much less fuss than our courts are prone to.

Lord Hoffman and Lord Nicholls of Birkenhead get into a bit of a set-to over the scope of illegal means. Lord Nicholls wants to include any violation of statute, while Lord Hoffman is only interested in common law wrongs against third parties. So if I decide to improve my share of the widget market by scaring your customers with guns, or blowing up your suppliers' widget factory, Lord Hoffman would let you sue me. But if I just violate the EU Widget Manufacturing and Distribution Directive, I won't face worse than the penalty the public law has in store for me.

The Pithlord agrees with Lord Hoffman here. If something that was legal at common law is made illegal by the will of the politicians, then it is to the will of the politicians we should look for the consequences. If they didn't think to put in a civil right of action, then there is no reason for one. In Saskatchewan Wheat Pool, our highest court (rightly, in my view) rejected the idea that breach of statute was inherently actionable. However, Sask. Wheat Pool also says that compliance/non-compliance with a regulatory standard can be presumptively persuasive evidence of whether the defendant acted "reasonably". So too, it may be that some modern statutes (at least those that have clear victims) can help give content to what is trespass, battery or assault. With that caveat, though, I'm on Lord Hoffman's side.

On the other major disagreement, on whether conversion can apply to choses in action, I have to prefer Lord Nicholls. OBG Ltd. was mistakenly put into receivership: the defendant took over all its property and all its contractual rights. The question was whether OBG could sue for damages. If someone takes your property (even innocently, but without your consent), then you can sue. What about "taking" your rights under contracts? It seems to me that these are essentially the same: they are my stuff. Only real law nerds even know whether bank deposits, for example, are contractual rights/choses in action or personal property. As Lord Nicholls points out, if intangible rights are represented in a document, and the document is appropriated, then there can be a suit in conversion. On this point, the majority of the Law Lords seem to just engage in reactionary fear of any change at all, rather than reasoned response.

Donoghue v. Stevenson: What was in Lord Atkin's water?

Donoghue v. Stevenson is maybe the most famous common law case ever (even though it wasn't under the common law, arising as it did out of Scotland, and wasn't really a case, being decided on the pleadings). It inspired the sub-plot in Strange Brew, in which Bob and Doug attempt to get a case of beer by pretending they found a mouse in their stubbie (this leads them to get a job at Elsinore Brewery, leading in turn to their defeat of a plot by Max von Sydow to take over the world through psychoactive substances in beer. Psychoactive substances in fried chicken was the plot in Undercover Brother.)

Miss Donoghue alleged that she found a snail in a bottle of ginger beer manufactured by the defendant. The House of Lords overruled a 19th century precedent holding that manufacturer liability for latent defects causing personal injury could only be brought in contract -- thereby screwing over ultimate consumers who rarely had direct contracts with manufacturers. The Pithlord does not dispute the justice of this result.

However, I have never been fond of Lord Atkin's attempt to generalize. He shows a marvelous sense of Biblical rhetoric, but demonstrates serious conceptual confusion of the kind one would expect from an American judge.

Rolling the tape [1932] A.C. 562 at p. 580:

At present I content myself with pointing out that in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. The liability for negligence, whether you style it such or treat it as in other systems as a species of "culpa," is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

In this short passage, Lord Atkin distinguishes and then confuses both acts and omissions and moral and legal duties. He uses the term "injury," which sounds like harm-regardless-of-right, but brings to a lawyer's mind the phrase "damnum sine injuria ," which emphasizes that some interests are necessarily not legally protected. He presents the remarkable (and false) claim that there must be a general formula for liability in negligence as something he will at present content himself with. It is also wrong that the legal duty is always more limited than the moral one, since it is sometimes more extensive. As an attempt to make a general formula for negligence law, Lord Atkin's dictum is even worse than Anns.

So why does the passage resonate as much as it seems to? I think it is because of the interesting reversal of Christian theology. There is an overt reference to the tale of the Good Samaritan, and an implicit one to the contrast between law and grace in Romans. The relationship with Jesus's parable is interesting. Atkin invokes the universalism of Luke 10 in favour of an expansion of tort liability, while recognizing that as a coercive force, the law is always on the side of Pilate.

Photograph of snail from macrophile.

Update: The confusion between moral and legal duties arises in the definition of neighbours as "persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation..." "Ought" here either means a moral "ought" or a legal "ought". But if it is a moral "ought", then he has just confused moral and legal duties again. And if it is a legal "ought", the definition is circular.

The same sentence has him go back and forward between "affected by my act" with no mention of omission and "the acts or omissions which are called into question." It is surely correct that omissions can sometimes give rise to liability. It is surely wrong that they give rise to liability whenever acts would.

Whither Red Toryism, or Does Reaction Have a Future?

Russell Arben Fox has done what the Pithlord has not, and read the Bouchard-Taylor report. Keeping up a somewhat Canadian theme, he has interesting reflections on Red Toryism in light of all the "whither the right" talk going on in the Great Republic right now.

One thought I had (and it is hardly original) is that we do live in George Grant's world as well as Francis Fukuyama's in the following sense: the only meaningful opposition to capitalism is conservative or reactionary. It is easy enough to oppose capitalism on the ground that as a result of its subversive and out-of-control dynamics, everything solid melts into air. It is absurd to oppose it on the grounds that it fetters the development of the forces of production.

We can be conservatives -- upholding some existing institution (possibly even biological humanity) against the trinity of individualism-science-markets. We can be reactionaries, deciding it is all too late anyway. Or we can be libertarians and decide the future's so bright we have to wear shades.

At the same time, it does not seem that any viable political coalition can be based on being consistently conservative or consistently libertarian. The trade union and lifelong marriage both seem doomed, but no one is really going to defend or oppose them both (except for intellectual circles as politically irrelevant as the reactionaries who refuse political engagement on principle).

Things Look Grim for Lord Black

If Posner hammers his lordship on the appeal, it will be pretty difficult to claim he was done in by anti-capitalist extremism.

Supremes Reverse Onus, Claim Societal Consensus

The Pithlord is two weeks behind in reacting to R. v. D.B.. When seventeen, D.B. got in a fight with another adolescent male, and left him for dead. He was charged with manslaughter. Five of the Red Nine struck down the presumption that young offenders will face certain serious violent offences in adult court. The rule now is that the Crown carries the burden of persuading a judge that adult court is the appropriate place.

My excuse, if any, is that the argument seems predestined to follow a very familiar series of steps. Populist critics will point out that the electorate views the current structure as too lenient on young offenders. The Court Party will respond by saying that the rule of law and individual rights are too important to be left to the hoi polloi. We seem to have an unresolvable dispute between government by experts and government by public opinion. All too familiar for any country that has judicial review of legislation. The tendency is just to move along, like you would when you see some hip hop kid in a mall simulatenously answering his cellphone and yelling at his girlfriend.

Except if you read the majority judgment, you come upon a paradox. The Court itself claims to be acting on the basis of a "societal consensus" -- in other words, public opinion. We are told that it is the social belief that youth and inexperience is a mitigating factor in criminal culpability that justifies what the Court is doing. The Charter itself is silent on the matter.

It is probably true that the weakest form of the principle of youth-as-mitigating-factor would get a large amount of support. The difficulty with this move is that the recognition of youth as a sometimes-mitigating factor is compatible not only with the system of presumptive offences, but even with abolishing the separate youth system altogether. A person could coherently think that youth is mitigating for minor crimes, but not for major violent ones. And since manslaughter has no minimum sentence, even a judge in adult criminal court would be entitled to take into account D.B.'s tender years and raging hormones.

What we (including Supreme Court of Canada justices) disagree about is not the principle, but the weight that should be given to that principle. On that question, the empirical evidence is that the people think too much weight is given to that principle, relative to the competing considerations of retribution, deterrence and so on.

More generally, the fact that there is a consensus that X (pateint autonomy, youth-as-mitigation) is an important consideration is never evidence that there is a consensus that X is the only consideration. And the courts themselves never treat X as the only consideration: they always end up "balancing" it against something else. But if they are "balancing" and the politicians are "balancing", why are the unstable political coalitions of nine lawyers in Ottawa entitled to greater respect than the unstable political coalitions of ... elected politicians?

That's not just a rhetorical question. In some cases, there is an answer -- democratic political processes may be inferior to oligarchic forensic processes on certain important questions.

The trouble is that the judiciary tends to intervene precisely where it is their own work that is being reviewed. The public is unhappy with criminal sentencing, particularly of juveniles, because it is done badly and erratically.

The Census Results

Let's imagine two countries with equal populations of 100,000: Richistan and Pooritania. They have the same income distribution, except that at each point on the distribution, individuals in Richistan have twice the income of people in Pooritania. The 1000th richest person in Richistan makes twice as much as the 1000th richest person in Pooritania and the 90,000th richest person in Richistan makes twice as much as her counterpart in Pooritania.

Let us suppose that over the next 20 years, 20,000 people, randomly distributed across the income distribution, move from Pooritania to Richistan. As a result of their move, their incomes go up by 50%.
Everyone else in Pooritania and Richistan just gets an increase of 5%.

What would the statistical result be? Median wages in Richistan would stagnate, and the incomes of the lowest quintile would go down. Much like the census results. But everyone would be materially better off.

Some in Richistan might still object that it has become more unequal (or, equivalently, more diverse). These objections are not necessarily unreasonable -- there are costs as well as benefits of greater diversity. But the objections are to the presence, rather than the existence, of poor people.

Lots of Interesting News

But no time to write much about them.

*The Bouchard-Taylor report is released. (You can get an abridged English version here.)From the Globe account, it seems they have taken a firm cosmotarian stance, reminiscent of Taylor's old antagonist, Pierre Elliott Trudeau. They are about to find out how Lord Durham would have felt if he had cared about French Canadian opinion.

*The always-dangerous concept of fiduciary obligations by corporate officers to bondholders has, as Malcolm X or the Reverend Wright would put it if they were corporate law nerds, come home to roost. The Quebec Court of Appeal stopped the takeover of BCE by the Ontario Teahcers Pension Plan, a $35 billion transaction. BCE is trying to get to the Supremes before June 30, which would be virtually unprecedented. (The only example I can think of where the red nine tried to move that fast was the misguided decision to give leave in the Tremblay-Daigle dispute over whether a biological father can prevent an abortion.)

*In Khadr, the Supreme Court of Canada ruled that agents of the Canadian government operating in foreign parts are only exempt from the requirements of the Charter where they are acting in accordance with Canada's international law obligations. The SCC relied on Rasul and Hamdan to conclude that Guantanomo Bay was operated contrary to the Geneva Conventions at the relevant time. (Of course, the Bush administration was loud and proud in saying that the Geneva Conventions didn't apply.) This fits with my thinking that the SCOTUS's decision would inveitably embolden the judiciaries in other Western countries to help shut down the Bushian war on terror.

Update: I wonder if someone better informed about African-American culture than myself could explain what is so threatening about chickens.

Why Cap-and-Trade Schemes Ought to be Giveaways to Business

Megan McArdle thinks that, morally, we should allocate rights to pollute under a cap-and-trade system by auction, rather than by giving the rights proportionately to those who are already emitting. However, she thinks giving the rights to incumbents makes sense politically.

I disagree about the moral case. "Prior in claim is prior in right" is a precept every legal system uses. By hypothesis, the incumbents had every right to emit prior to the cap-and-trade being put in place, and they made investment decisions in reliance. Allocating a valuable cap-and-trade permit is just providing compensation for an expropriation for public benefit, in just the same way that making private land with an endangered species into a park calls for a cash payment for the value of the land.

Also, from a social-democratic perspective, an auction would probably have the features of a regressive tax. There is no clear distributional impact of giving incumbents tradeable rights to emit.

The one downside is that if you allocated rights to emit to incumbents, and everyone knew that's what you were going to do, then you would create an incentive to increase emissions now. So you should use some past year before the cap-and-trade scheme was seriously contemplated.

Update: That commie Greg Mankiw disagrees.

Repugnance: Wise or Dumber Than a Bag of Hammers?

Nothing's more uncool than outrage at insensitive (or "insensitive") comments, so I'm going to try to get to a bigger point about Reagan's statement about digestive diseases. One of the more admirable liberal/progressive impulses is suspcion of disgust as a basis for moral sentiments. Martha Nussbaum recently wrote a book on the subject, although it clearly goes back at least to Mill and probably to the New Testament's solicitude for lepers, prostitutes and agents of the Roman imperial fisc. Here at least is a meta-ethcial idea that has had real impact: we shouldn't confuse moral reactions with aesthetic ones, and we should realize that those who disgust us are just as human as healthy kinfolk. The idea is meta-ethical because it cuts directly against the moral intuitions natural selection in fact endowed us with. In fact, the liberal/progressive tells us we should try to undo our instictive repugnance when it conflicts with a more rational understanding of morality.

Leon Kass is famous for articulating a conservative opposition to this progressive meta-ethical program. Repugnance, he tells us, is wiser than we are. And surely there is at least something to that. Just because we can't give reasons not to do something is not itself a reason to do it, or to make it socially acceptable.

But how do Kassians react to something like digestive disease? Nothing is as ingrained in human nature as that emissions of the digestive tract are simultaenously funny and disgusting. Every parent knows that. You have to train people to take a utilitarian or sceintific view of such things -- fortunately, such training is usually possible. Part of the symbolic role of heads of state is to tell people that they should, in fact, ignore repugnance.

How do Kassites distinguish these cases.

Update: Steven Pinker on Leon Kass and human dignity here. Pinker isn't entirely reliable about people he disagrees with. His key point -- that restrictions on consensual losses of dignity have to be justified by clear empirical proof of tangible harm -- is underargued, while he spends a lot of time making it sound like having Catholic buddies is a bad thing.

Let's Be Liberal-Progressives and Laugh at People's Diseases

I have always had a fondness for ex-pat Scott Lemieux, who has been very kind to the Pith and Substance enterprise. And I like his co-blogger, Rob Farley, although I do not share his fascination with battleships. I found their subsequent co-bloggers, "d" and Bean, to be predictible and boring American liberals, but figured mediocrity needs representation too.

Still, I am a bit amazed that anyone over the age of five would find digestive diseases funny. One of my family members has suffered terribly from colitis, and I have known someone who died from Crohn's. A big part of what makes these diseases terribly is the social humiliation. And the juvenile attitude of people like "d" reduce their ability to get the kind of scientific funding other diseases attract -- although the truth is that there are few ways of dying prettily.

Adventures in Speech Act Theory

Hillary Clinton said:

I have a much broader base to build a winning coalition on," she said in an interview with USA TODAY. As evidence, Clinton cited an Associated Press article "that found how Sen. Obama's support among working, hard-working Americans, white Americans, is weakening again, and how whites in both states who had not completed college were supporting me."

"There's a pattern emerging here," she said.

Leaving aside the probably-unintended implication that non-whites are not "hard working", what is the objection here? After all, what Ms. Clinton cites is a fact. She won the white vote in both states.

Similarly, it was a fact that the secession of Quebec was defeated in 1995 by the ethnic vote. But M. Parizeau was widely criticized for getting drunk and angrily pointing this out.

I'm never quite sure how sincere these questions are, but they do provide for a good illustration of how unimportant the truth sometimes is. (Another example of the unimportance of the truth, dear to the heart of the Clintons, is the deliberately misleading statement under oath. But there will be time enough to return to that.)

All utterances include the pragmatic implicature that they are relevant. For politicians, this means that you have to add to everything they say, "And that's a reason you should vote for me." So when Ms. Clinton cites the fact that she won the white vote, she claims not only that she won the white vote, but also that that constitutes a good reason that the audience of her remark should vote for her.

In this case, the audience is Democratic superdelegates. She is therefore saying that they should not pay attention to the vote totals, but to the white votes.

It will be said in defence that she is not saying that the superdelegates should do that because white votes are in principle worth more than black ones, but because the white vote is needed in the general election, while the black vote can be taken for granted. That claim might be false if the superdelegates take her advice. But further, the claim is objectionable because there is no difference between saying someone should not vote for a black candidate because other people won't then there is for any other reason. Acting negatively towards someone because of their skin colour just is the objectionable conduct, and the reasons for that conduct are irrelevant. George Wallace is just as much a segregationist because he was motivated by political ambition as he would have been if he were otherwise motivated.

Clinton is advocating an explicitly discriminatory course of action on the Democratic Party. She is in effect calling for the repeal of the Voting Rights Act and the Fifteenth Amendment. Since the former is the proudest achievement of her party in the twentieth century, she is deserving of criticism.

Shameless VP Thread

OK, there are few things less important than who snotty Canadians think the Presidential candidates should choose as their running mates, but a man has to think of his Google Ad revenues.

What groups are up for grabs? Middle aged women in industrial states, particularly if Catholic, and middle-income Hispanics. But you can't forget party unity.

My picks:

Obama has to go with Hillary Rodham Clinton, unless she's taken.

For McCain, I'd say Condolezza Rice, although it would be way better if she were Hispanic. Or at least married and Catholic.

Crystal Ball -- 2012

Mike Huckabee sucks up to some Catholic theocon intellectuals, puts together an appealingly Christian Democratic policy platform, and wins the Republican nomination. If the economy's bad, he wins the White House too.

Some Good Advice

I'd say the chances of the Obama campaign taking advice from Steve Sailer are low, but you never know what might happen to a meme when it's out there.

Sailer's dead right. The person Obama most needs to distance himself from is his younger self. What Obama needs is a "I used to be a radical... but then I had kids" speech. If he does that, he wins the election in November. If he doesn't, it's Presiden McCain.

Actually, I imagine such a speech would be quite good.

What Would Have Happened if Bear Stearns Had Been Allowed to Fail?

The justification for public intervention to save Bear Stearns was that failure to do so would have wrecked the derivative market. Bear's counterparties would have had no one to fulfill their contracts. Everyone would have to monitor credit risk. Cats and dogs would start living together. Etc.

No one supported the bailout more than the Economist. But their latest leader points out that the problem does not exist for futures or less exotic securities, because these are traded on exchanges, and the exchange is the counterparty. It monitors the credit worthiness of those who get to trade on it. If derivatives were traded the same way, then the problem wouldn't exist. The Economist claims there are problems with this, since some derivative contracts are too specialized to provide for a liquid market.

But if Bear had gone down, then the participants would just have to balance the pain of monitoring the creditworthiness of their over-the-counter counterparties vs. the loss of specialization of participating on an exchange. Bear's failure would be a signal that credit risk was a bigger deal than everyone had thought. But that was just the right signal.

The Fed's intervention exposes the US taxpayer to big losses, increases moral hazard and will inevitably mean a lot of costly regulation. Sometimes it's just time for a bear to die.

Thats What I'm On About, Innit?

From a letter in today's Globe

If we are to conquer racism, we must attack it - no matter which side of the racial divide. I have no doubt there are white voters who will not support a black candidate. That is racism. I also have no doubt there are balck voters who are attracted to Barack Obama's candidacy simply because he is black. That, too, is racism.

So racism is voting for people you have a cultural affinity with and against those you don't. In other words, it is another name for democracy.

There are actually few black voters who would always pick the black candidate against the white, and few whites who would always take the white against the black. If we had the immensely-entertaining-if-alarming prospect of an Alan Keyes vs. Dennis Kucinich race, I have no doubt that Mr. Keyes' support would be paler than Mr. Kucinich's.

However, let's not kid ourselves. Identity isn't the most important thing in politics. It's the only thing. Always has been, always will be, at least until the Son of Man returns in glory. Pronouncing those on the other side of whatever divides have become salient "racists" is psychologically satisfying, but ultimately stupid.

Absence of Evidence Is Too Evidence of Absence (Usually)

To its credit, the wonkosphere has been atizzy about the fact that the three Presidential candidates have all endorsed the scientifically untenable view that vaccination causes autism, or at least the idea that there is a genuine controversy. (Canada has had its own moral panic in regard to BPA and our politicians have reacted with similar intergrity and respect for science. Long story, short: babies will be protected from a non-existent health problem by giving them breakable glass bottles.)

Inevitably, some smartass shows up in the comments box and points out that none of the empirical studies prove the lack of a link. Rather, they just don't demonstrate a link. And then the smartass inevitably says, "Absence of evidence isn't evidence of absence." (These are always the same dudes who tell you that "causation isn't evidence of correlation" and that Karl Popper is relevant to some matter at hand.)

B is evidence of A if p(A|B)>p(A). In other words, if your belief that something is the case is rationally stronger once the fact is in than it had been before, you have evidence.

Bayes theorem tells us that p(A|B) = p(B|A)p(A)/p(B) where all quantities are greater than 0 and less than or equal to 1.

Let X be that there is a causal relationship between autism and vaccination. Let Y be that there is evidence of such a link after a number of methodologically sound studies.

There is evidence of absence if p(~X|~Y)>p(~X)

p(~X|~Y)>p(~X) iff. p(~X|~Y)/p(~X)>1

By Bayes' theorem, p(~X|~Y)/p(~X)=p(~Y|~X)/p(~Y)
Therefore, there is evidence of absence if p(~Y|~X)/p(~Y)>1 or, equivalently, if p(~Y|~X)>p(~Y)

The absence of a causal relationship between autism and vaccination is never going to make it more likely that there will be evidence of such a relationship. So the only plausible case where p(~X|~Y) will not be greater than p(~X) is if p(~Y|~X)=p(~Y).

In English, the absence of evidence is evidence of absence of a link or an entity when it is more likely that there will be no evidence if the link or entity doesn't exist than if it does. In better English, if we expect that something will have observable effects if it exists, and it doesn't have observable effects, it probably doesn't exist. The stronger our prior belief that something would, if it existed, have observable effects, the more absence of evidence is evidence of absence.

We will expect very, very, very small causal links out there in the world not to have empirical effects in ordinary studies. If exposure to the polio vaccine raises your baby's autism risk by one billionth, we'd never know. However, very, very, very small causal links between exposure to a chemical and bad health outcomes just aren't worth worrying about. To be more precise, no matter how risk averse you may be, very small risks are not worth any cost, certainly not the cost of risking a polio epidemic. As the hypothesized risk gets larger, the evidence of absence from the existing studies gets stronger, so that we could in fact state a level of risk we are highly certain (19 times out of twenty) is the upper bound of the actual risk.

You could say the same thing about God. If your conception of God makes (if God exists, there would be evidence) reasonably likely and there is no evidence, then that counts against your conception of God.

Late Thoughts on "Bittergate"

Unless you are going to just accept the democracy as it wonderfully is, you need a concept of false consciousness.

If we are animals whose cognitive powers arise from natural selection, we must be subject to radical false consciousness.

The Leninist error is not the doctrine of false consciousness, but the belief that the Leninist is free from false consciousness.

The only way anyone could be free from false consciousness is if something that transcends history somehow made itself immanent in history, and set up the conditions for freeing us from false consciousness.

Because we cannot really be sure that there was something that transcends history that made itself immanent in history, we cling to politics.

However, if we are halfway reflective, we must know that our side in any political controversy is as steeped in false consciousness as the other side.

Pennsylvania Crystal Ball

Lasting a little longer than the World Wars, and not quite so long as the rivalry between the Papacy and the Holy Roman Empire, the Pennsylvania primary will be over tonight.

I'd say Clinton by 9 points.

Confound Their Politicks

Ross Douthat defends the practice of asking politicians about their relationship to their flag pins, rather than their health care plans, thusly:

Or cast your mind further back, to 1992, and consider something as seemingly insubstantial as the controversy over Bill Clinton's draft-dodging - or something less substantial still, like the mini-controversy over Hillary (Rodham) Clinton's now-she-uses-it, now-she-doesn't approach to keeping, or not keeping, her maiden name. I think you can make a pretty strong case that Clinton's peculiarly Boomerish relationship to the military brass - the mix of suspicion, condescension and ignorance on both sides - had a more decisive impact on American foreign policy in the 1990s than, say, what Clinton-the-candidate said about China policy in the run-up to the '92 vote. And while there's a sense, obviously, in which nothing could be further from the actual work of governing than the question of whether the First Lady of the United States has her husband's last name, in hindsight I think that the mix of echt-feminist principle and political opportunism that Hillary displayed in her changing choice of last and middle names probably told us as much about her approach to politics than most of the speeches she gave in the course of the campaign against George H.W. Bush.

Douthat admits that it is pretty hard to reliably make these inferences, though, so I'm not sure what it proves. Still, it is hard to deny that people talk a lot about the "personality" of their politicians, although I doubt it has a big impact on voting behaviour.

Of course "personality" =! personality. I have known a few politicians, and have known a lot more people who know politicians. And one consistent result is that their personalities, as perceived by those who know them, bear no resemblence to their popular personas. Those the public think of as aloof aren't. Those the public think of as smart aren't. Those the public think of as nice aren't. I wouldn't go so far as to say there is a negative correlation between public persona and actual personality, but there is definitely a zero correlation.

On the other hand, there is actually a pretty strong correlation between election platform and what is implemented in office -- the reason we remember it otherwise is because the exception is more prominent mentally than the rule.

Ross's post just shows the benefit of constitutional monarchy. I don't doubt the existence of a hunger for a relationship with the persona of public figures, whether positive or negative. It just should be supplied by hereditary monarchs and their families, not by politicians who should be considered unglamorous professionals, like dentists. The increasingly-presidential style of Canadian politics shows how much we have lost as the Liberals have undermined the monarchy, but the recent US election does at least provide a warning of how much further there is to go.

Fixation Thesis in Anglo-Canadian Law

Larry Solum's "fixation thesis" was always considered obvious in Anglo-Canadian law. From Maxwell's Interpretation of Statutes:

It is obvious that the language of a statute must be understood in the sense in which it was understood when it was passed, and those who lived at or near the time when it was passed may reasonably be supposed to be better acquainted than their descendents with the cicumstances to which it had relation, as well as with the sense then attached to legislative expressions.

The fixation thesis was the source of the maxim contemporanea expositio est fortissima in lege. The contemporaneous exposition need not be legally binding. If Lord Coke thought a statute meant X, then that was evidence it meant X, even when legislative history could not be admitted for interpreting recent statutes.

The phrase "circumstances to which it had relation" might seem to indicate an "expected application" theory of meaning. However, the English courts only applied the contemporanea expositio principle to very old statutes (more than a century) for which it could reasonably be assumed that linguistic change in the semantics of words had taken place: Campbell College, Belfast v. Commissioner of Valuation for Northern Ireland, [1964] 1 W.L.R. 912 (H.L.) at p. 941. So the expected application of long ago was only relevant to the semantic/intensional meaning that could be inferred from it.

Interestingly, at a time when stare decisis was still considered absolute, it did not apply to mistaken statutory interpretations on constitutional grounds.

Subsidizing Babies Works

According to research from Israel.

Is There a Future for Originalism in Canada?

Larry Solum has posted a lengthy paper defending "semantic originalism" as the way to interpret (but not construct!) a written constitution.

The upshot is that originalism is right, but doesn't matter nearly as much as everyone used to think.

As Solum tells it, semantic originalism involves four claims:

1. The fixation thesis. The semantic meaning of the constitution (what is says, not what it does) is fixed at the moment it is adopted. Linguistic change since 1867 does not change what the BNA Act means.

Importantly, this does not imply that change other than in the meanings of words since 1867 will make no difference in how constitutional cases will be decided.

2. The clause meaning thesis. What matters is not what the authors of the constitutional text intended, but what a competent reader at the time would understand. Competent readers might be the general public, politicians, lawyers or possibly different groups for different clauses.

3. The contribution thesis. The meaning of the Constitution has some effect on the law of the constitution. Not necessarily a big one, though.

4. The fidelity thesis. We ought to respect the law, including constitutional law, unless there is a good reason not to.

Let's take the facts of Edwards v. Canada, [1930] A.C. 124 (P.C.) to see how this plays out. The British North America Act, written in 1867, permitted the Governor General to name "qualified persons" to the Senate. In 1867, women, including peeresses in their own right, were under a legal disability from voting in Parliament.

The Privy Council decided that women could be Senators. It could have done so by referring to the meaning of "person" in 1930, by referring to a secret intention of John A. MacDonald to have women as senators, by deciding that the constitutional law had changed in the interim or by deciding that excluding women from the Senate was too unjust a law to obey. If you attended U. of T. law school, you would be forgiven to think that that is what they did, although of course, they didn't.

The Constitution makers in 1867 presumably thought this disability would continue. However, as the Privy Council decided, the term "person", if unqualified, included women. Even if it was taken more narrowly to include only individuals with legal capacity, by 1930, married women had such capacity and therefore had become "persons," although they would not have been sixty years earlier. The Privy Council was aware that if the BNA Act had used the phrase "qualified men", then it would clearly be saying that women could not be Senators, regardless of whether that was a just result.

Solum distinguishes between "constituional interpretation" (which derives the meaning of the text) and "constitutional construction" (which is what judges do when the meaning runs out. Most cases are decided at the construction stage.

Solum says that "constitutional construction" involves vagueness and pragmatics (meaning of utterance, rather than utterance-type). Here I would tend to disagree. Pragmatics about the constitutional utterance itself go to interpretation. We know that the "United States" means the United States of America because of whose constitution it is, just as we know that "I did it" refers to the Pithlord because of who said those words.

Where vagueness goes is more of a matter of choice, but vaguness definitely does not exhaust the post-interpretive issues of constitutional litigation. The issue in constitutional construction is not usually what side of a vague line a statute is on, but whether certain social/moral facts are true. Whether lethal injection is "cruel and unusual" turns on the social fact of whether there is a less painful method to kill people and the moral fact of whether killing people that way is cruel. Whether the Ocean Dumping Control Act interferes with property and civil rights within the province depends on whether ocean dumping is a trans-border externality that requires a regulatory scheme to address. Whether the pre-1988 abortion law is contrary to the principles of fundamental justice depends on whether the tribunals it set up were unbiased and reasonably speedy.

Solum's form of originalism may not matter very much north of the border. In the Candian case, since our most controversial constitutional provisions are just over 25 years old, there has not been any linguistic change for the fixation thesis to operate on. Almost none of the Charter decisions turn on the semantic meanings of the words.

The exception may be those provisions where the words arguably had a "term of art" meaning in 1982. The critical example was "principles of fundamental justice," which had acquired among lawyers a purely procedural meaning as a result of previous Supreme Court decisions. Unfortunately, in 1985 when this provision was considered, we did not have a sophisticated originalism up here, and the Canadian courts would have been naturally resistant to Reaganite terminology.