Wednesday, August 25, 2004

Judicial Activism

Hey again guys. Sorry for the lack of posting -- I've been off packing spheres and thinking about computing cohomology. But I'm back now.

With all the renewed gay marriage talk, I've been thinking again about judicial activism and have arrived at a simple conclusion: I have no earthly idea what it is. From the way it gets talked about and reported, it seems synonymous with "liberal," which is probably what they mean but philosophically useless (and definitely useless for convincing me that it's bad). And while I suspect an intellectually honest conservative would say something more like "enacting a social agenda through judicial decree," that's equally flawed; nobody can disagree that the court should strike down a modern-day Sedition act, and neither can they claim that the loudest complainers about activism wouldn't be only too happy to pack the court to overturn Roe v. Wade, both of which seem like social agendas enacted by courts to me (not to mention that I see no reason that activism should only apply to social policy and not, say, economic policy).

Also, to me, it would have been activist had the court taken a pro-God position in the Pledge case on the merits (rather than dismissing because of standing); near as I can tell, the Constitution and its current interpretation would consider that an establishment of religion, so supporting it would change the law, and that leads me to suspect that most people's idea of judicial activism is probably tied to the political ideas they already have.

So does anybody have a good, value-neutral definition? Is there one that doesn't inherently tie into a theory of legal interpretation? The best metric I've yet heard is along the lines of "number of cases overturned," (by which measure, incidentally, the Rhenquist court is more activist than the Burger court, which was more activist than the Warren court), but that's not a definition. So can anyone tell me what's really going on?

Sunday, August 15, 2004

Slow Week

So I've got some stuff to post. but it looks like I'm about to be AFK for about a week (maybe not, but posts will certainly be more sporadic, if that is indeed imaginable). I'll catch you later.

Thursday, August 12, 2004

Anonymous Comments

I just wanted to preempt this one. I'd like to permit anonymous comments on this blog, but only for the convenience of people who don't have accounts or something comparable. As such, here's a request for any anonymous posters: please sign your (a consistent) name in your posts. I just don't want to mess with trolls, and I think it's not excessive to ask a reasonable person to take responsibility for their words.

Wednesday, August 11, 2004

Policy Thought

So I've been thinking about some variant on these proposals for a while, but hear me out.

I hope my loyal fans (yes, I mean all two of you) recall when FOX News threatened to sue the Simpsons over a segment parodying their rightward bias. I'd be pleased if my loyal fans remembered when the RIAA threatened to sue Ed Felten for publishing his success at their watermark-breaking challenge. I'd be surprised if my loyal fans recall when my friend Tom Lotze was threatened with a copyright lawsuit over his mirroring of the hamster dance, a webpage of animated gifs and 30 seconds of music (the ones on the first link) taken from the Disney animated film Robin Hood (by its creator, not Disney).

Now the Simpsons got very lucky: the corporation suing them happened to be a fellow subsidiary of a larger company, so they just pointed this out and walked away with a stern warning never to do anything like it again. Ed Felten got less lucky: he got to publish his paper, but he actually had to file a lawsuit to get that far (in which, by the way, the respondents claimed they'd never threatened a lawsuit). If either hadn't been lucky, the smart move for each would have been to let themselves be bullied. And while I've admittedly just cherry-picked the first examples I remembered, these cases are far from the only ones where people who were clearly in the right almost backed down because of the threat of legal trouble.

Things are worse because of the internet; what if the FOX News parody segment had been on, or this website? Individuals have tended to let their rights be trampled by big corporations with lawyers who send them threatening letters, and the reason is clear: properly defending a even a frivolous lawsuit by a rich entity is a huge cost in time and money. Even if the case is immediately dismissed, it probably costs thousands of dollars to get that far. This happens because going to court is a prisoner's dilemma-type situation even in the best of cases: if either party decides not to settle, that means huge sunk costs for both, making it often infeasible for a smaller party to be sued by a larger one. That leads us to the situation we have now: corporations with plenty of resources, in-house lawyers, and so on, send letters threatening lawsuits against individuals doing things they don't like even if those things are almost certainly not grounds for a suit, and the individuals back down because they can't afford the cost of fighting.

How do we negate, or at least blunt, this power? I have two thoughts. First is making it easier to seek large damages in court for legal extortion of this kind; if someone threatens a frivolous lawsuit, the threatened individual can seek compensation in court. While some version of this might be the right way to go, it suffers from two obvious problems. First, in order to be substantially deterrent, the amount of damages would need to be set fairly high for even sending a threatening letter (how much money to deter Disney?), which seems way out of proportion. Second, the whole regime seems ripe for abuse by unscrupulous lawyers, which is never a good way to set out on new policy.

My second suggestion, which I had just today, seemed better: since current charitable free legal services aren't stopping the problem, why not have public defenders for civil suits? Simply have the court provide the defendant with an attorney if they need one and cover legal costs. If the cost is excessive, you could restrict the program to cases in which the plaintiff's net worth exceeds that of the defendent by (several?) orders of magnitude or cut off the support after some amount of work had been done. I admit readily that I've yet to estimate the costs on this one (I don't know how much public defenders make), but I wonder if it might not take a large bite out of the problem; when Fox comes knocking on the humorist's door, the humorist has a free lawyer to go into court and say "it's a parody, idiot" and the suit goes away. In fact, it probably never got filed in the first place.

I'm sure there are a few obvious minor holes. But why would this not be a good idea in general?

PS: The last tale is less clear-cut than the others; I intend it to bring home the point that threats of hard-to-defend lawsuits are neither far away nor abstract, but rather can happen to you or people you know.

Monday, August 09, 2004

Left-Wing Dirty Tricks

While I'm at it, I thought I might ask a quick question to my (very few) loyal readers: does anybody know about any Democrat dirty tricksters? It's not so difficult to list off obviously-dirty political techniques (like push polling, flyering neighborhoods with false information to suppress turnout, paying preachers to suppress black turnout, and DoSing the opposition campaign headquarters) that Republicans across the country (the Bushies in particular) have been guilty of in the last ten years, but I can't think of a single example of similar bad acts by Democrats. This may be because I'm reading the wrong things, but I don't think so, and I'd like to suppose that electoral corruption isn't a hallmark of the Republican party. So, what dirty tricks are Democrats guilty of, and who are the people behind them (again, for the Republicans I can name names)?

Media Balance

Many many many words have been said about bias in the media on both sides of the aisle, but having just reread this article about political polarization from the Washington Monthly (which even the knee-jerk conservatives should read; it's mostly a list of facts), I'm again struck by my pet peeve media bias: the need for balance.

Don't get me wrong, I'm not arguing that balance is bad in all cases, I just think that in many cases where journalists are called upon to draw conclusions they tend to either back off or draw a conclusion that treats both left and right in a balanced way even when the facts don't support such a conclusion. Three quick examples are the article above, science coverage in general (though particularly on global warming, and for more of which see Chris Mooney's blog, and coverage of supply-side economic theories. The way it usually goes in (natural or social) science coverage is a he said/she said type article, even when the vast majority of scientists thinking about an issue come down strongly on one side or the other. This mentality even extends to policy questions, where most reporting fails to explain what the results of a particular policy would most likely be, rendering it almost useless to ponder the outcome of policy, since most of the public doesn't have the information or background knowledge to accurately estimate. And admittedly sometimes we don't know, but we do have at least some decent idea more often than not, and reporters often know. The trouble is that balance isn't really a primary virtue we should expect of our press; we should ask, first of all, that stories represent a best-effort attempt to report the truth. Sometimes this means being balanced and sometimes it doesn't, and while I'm all for an honest attempt to be unbiased and evenhanded, I have to think that truth beats balance every time.

How to fix it? I think reporters striving to report the truth (and being willing to take the criticism for it) more than they do now would be going a long way, and I hope that the emergence of better lefty media criticism will help (brave reporters at least) do just this. There are some mechanisms I could propose, but the best first step is just to ask for truth over balance.

Update: Just when I think it's safe to speak my mind, Chris Mooney posts something directly on point; apparently the AP is dissecting stem-cell spin in stories, certainly a truth-seeking step in the right direction.

Wednesday, August 04, 2004

Minority rights and direct democracy

My esteemed friend Neil has posted about direct democracy versus representative democracy on the issue of minority rights. Read his post, then come back. While I mostly disagree with Neil's result on face, it seems to me that the real problem is that his model of a populace oppressing a minority seems in error; to wit, governments don't make oppressive laws on a whim, but because some constituency is actually calling for them. What I mean by this is that we shouldn't model this situation as one minority strongly in favor with a majority mildly against, but as two minorities, each strongly on their own side (in Neil's situation, gays v. christian conservatives) with a majority leaning one way or another. I'm not sure how the numbers balance out in all situations (haven't done the math), but the if we consider the symmetric case, we see that representatives should vote with the majority or their conscience, just as we end up with in the direct democracy situation.

It should be noted that I am in favor of a representative system, for a lot of reasons (some mathematical), just not because they respect minority rights better for any structural reason.

Tuesday, August 03, 2004

Picking Causes

Well, it seems like time to have some nontrivial content here, even if this one's fairly facile...

Environmentalism occasionally crosses my mind, and when it does it usually strikes me how extreme a shame it is that its strongest proponents are motivated by the wrong things, notably natural beauty and endangered species. Now I'm hardly opposed to either, but when policy rubber hits the road it's difficult to argue to politicians that the costs (in terms of money and people) of protecting these things are worth it; just as bad, activists are made to seem lightweight with treehugger images and tales of spotted owls, which is a shame since the important bits of environmentalism are about people.

I believe environmental fights are pivotal. When individuals litter, streets get dirty; when corporations litter, people die. From heavy metals in water supplies to air pollution to bioaccumulation in fish to vicious, antibiotic-resistant bacteria getting free from the giant lagoons of pig feces that surround factory farms, today's environmental issues aren't about trees and birds, but today's environmentalists haven't made that case well enough. It's probably just a feature of the movement: young environmentalists will always get motivation from nature, not cancer, the fundamental texts will always be more like Rachel Carson's Silent Spring than Neal Stephenson's Zodiac, and the money will always come from pictures of cute animals, not sick people. Unfortunately, real policy clout will never come from issues about animals and trees. I'm just hoping that the people who really do these things can start choosing (and sticking to) the right battles soon, and keep it up long enough to turn their image around.

Monday, August 02, 2004


With the seemingly-sudden proliferation of blogs written by friends and classmates, it seemed at last to be time to get in the game. I suppose chances are I'm going to end up just another kinda dumb non-personal-thoughts thing, since I'm not enough of a newshound to be filled with link-y goodness, but I thought I'd enjoy having a place to record some of the things I think that might be not too stupid. Nothing at the moment, really, but there'll be plenty soon I have no doubt.


Bandwagon, bandwagon, here I come...