Friday, 18 April 2008

Richard A. Posner on the Social Cost of Lawyers

Several studies have found that the more lawyers a nation has, other things being equal, the lower its rate of economic growth. Good news for England? Not really. Among their many other weaknesses, the studies ignore the contributions that lawyers make to non-market output—and non-market output is a form of ‘economic’ output as economists use the term, so it should not be ignored even by economists. The authors assume that the major activity of lawyers is the unproductive redistribution of wealth. But consider: the regulation of pollution is a lawyer-intensive activity the principal outputs of which—clean air and clear water—are not included in conventional measures of economic output. Deterring police brutality is another non-market good that lawyers play a significant role in producing. Likewise the deterrence of invasions of personal privacy. Furthermore, the provision of legal remedies is equivalent to giving the population potentially valuable options to invoke those remedies should the need arise. The options are separate from their exercise. People who never in their lives bring a lawsuit may nevertheless derive value from knowing that, should their legal rights ever be invaded, they will be able to find a lawyer and get into court without too much delay and with a fair chance of winning, just as people derive utility from having fire insurance who never have a fire. Granted, the threat of legal liability, a kind of negative option, or tax, is also greater, the easier it is to bring a lawsuit; and who knows how the two option values net out? All I claim is that the proposition that increasing the number of lawyers reduces a nation’s economic growth, like the parallel proposition no longer fashionable among economists that advertising is socially wasteful because it is redistributive, has not been proved.

(Richard A. Posner, Law and Legal Theory in England and America [Oxford: Clarendon Press, 1996], 92-3 [footnotes omitted])


David Brooks nails it. Prediction: John McCain defeats Barack Obama in a landslide, even though polls showed a close race. (It’s called the Bradley Effect.) There will be riots in several major cities and college towns, with much property damage and many arrests.


This has to be the funniest headline I’ve ever seen. Who knew that Justice John Paul Stevens was both judge and executioner?

Bush-Hatin’ Paul

Paul Krugman¹ perpetuates the myth that it’s in the interest of working-class Americans to vote Democrat.


¹“Op-Ed columnist Paul Krugman has the disturbing habit of shaping, slicing and selectively citing numbers in a fashion that pleases his acolytes but leaves him open to substantive assaults” (Daniel Okrent, “13 Things I Meant to Write About but Never Did,” The New York Times, 22 May 2005).


Another progressive grows up. Key paragraphs:

As a child of the ’60s, I accepted as an article of faith that government is corrupt, that business is exploitative, and that people are generally good at heart.

These cherished precepts had, over the years, become ingrained as increasingly impracticable prejudices. Why do I say impracticable? Because although I still held these beliefs, I no longer applied them in my life. How do I know? My wife informed me. We were riding along and listening to NPR. I felt my facial muscles tightening, and the words beginning to form in my mind: Shut the fuck up. “?” she prompted. And her terse, elegant summation, as always, awakened me to a deeper truth: I had been listening to NPR and reading various organs of national opinion for years, wonder and rage contending for pride of place. Further: I found I had been—rather charmingly, I thought—referring to myself for years as “a brain-dead liberal,” and to NPR as “National Palestinian Radio.”

This is, to me, the synthesis of this worldview with which I now found myself disenchanted: that everything is always wrong.

But in my life, a brief review revealed, everything was not always wrong, and neither was nor is always wrong in the community in which I live, or in my country. Further, it was not always wrong in previous communities in which I lived, and among the various and mobile classes of which I was at various times a part.

And, I wondered, how could I have spent decades thinking that I thought everything was always wrong at the same time that I thought I thought that people were basically good at heart? Which was it? I began to question what I actually thought and found that I do not think that people are basically good at heart; indeed, that view of human nature has both prompted and informed my writing for the last 40 years. I think that people, in circumstances of stress, can behave like swine, and that this, indeed, is not only a fit subject, but the only subject, of drama.

I’d observed that lust, greed, envy, sloth, and their pals are giving the world a good run for its money, but that nonetheless, people in general seem to get from day to day; and that we in the United States get from day to day under rather wonderful and privileged circumstances—that we are not and never have been the villains that some of the world and some of our citizens make us out to be, but that we are a confection of normal (greedy, lustful, duplicitous, corrupt, inspired—in short, human) individuals living under a spectacularly effective compact called the Constitution, and lucky to get it.

I wrote about my conversion here. (Actually, it wasn’t so much a conversion as a journey.)


Here is Peggy Noonan’s latest column. Here is Peg Kaplan’s latest post.

From Today’s New York Times

To the Editor:

After watching the first 45 minutes of the Philadelphia debate between Hillary Rodham Clinton and Barack Obama, I was disgusted—not with the candidates’ responses, but with the questions from Charles Gibson and George Stephanopoulos of ABC News.

For 45 minutes, every question was a perfect illustration of what has been characterized as “gotcha journalism.” It was all about campaign misstatements and attempts to catch one candidate or the other in some very indirect association with someone who said or did something bad—in one case, from 40 years ago.

This disgraceful display comes at a time when American citizens are deeply worried about the state of the economy, obtaining health care, the war in Iraq and the staggering costs of it, the environment and so on. Instead, we got 45 minutes of that nonsense.

The attempt to characterize Mr. Obama as out of touch with regular folks is ridiculous. But the conduct by those TV news guys sure makes them look as if they are out of touch. It certainly is dysfunctional for our democracy.

I teach a college course on the news media and American politics. I’ll use this debate as an example of what is wrong with American journalism—at precisely the time we need good journalism the most.

Dean Alger
St. Paul, April 17, 2008

Note from KBJ: I teach Ethics, Philosophy of Law, and Social and Political Philosophy. The debate, which I watched attentively, was a wonderful investigation of the character of the candidates. I was impressed by the high quality of the questions. Politics is about character, not positions. Character is manifested in one’s associations, one’s choices, and one’s actions, not merely in the positions one adopts or in the promises one makes.


My adopted Texas Rangers are in Boston for a four-game series against the Red Sox. The first game begins in 98 minutes. From the point of view of the Red Sox, winning only two of the four games would be unacceptable. That means that if the Rangers win two games, they will have done well for themselves.

Addendum: If a given team won half its 81 road games and two-thirds of its 81 home games, it would finish 95-67 (.586).

A Year Ago


Are Animals Sentient?

Here is a passage from John Rodman’s classic essay “The Dolphin Papers,” The North American Review 259 (spring 1974): 13-26, at 24:

St. Augustine [354-430] had long ago decided that beasts were incapable of suffering pain, because otherwise God would be unjust. (Assume that beasts share neither in original sin nor in eternal life; then for them to suffer pain seems to contradict the principle that “God being just, no being suffers undeservedly”; therefore, animals must not be thought to suffer pain.)

As I interpret the argument, it goes like this:

1. If (a) animals are sentient (i.e., capable of suffering), (b) animals are innocent (i.e., not afflicted by original sin), and (c) animals lack immortal souls, then there is undeserved suffering.

2. If there is undeserved suffering, then God is unjust.


3. If (a) animals are sentient, (b) animals are innocent, and (c) animals lack immortal souls, then God is unjust (from 1 and 2, hypothetical syllogism).

4. God is not unjust.


5. It is not the case that [(a) animals are sentient, (b) animals are innocent, and (c) animals lack immortal souls] (from 3 and 4, modus tollens).


6. Either (a) animals are not sentient, (b) animals are not innocent, or (c) animals have immortal souls (from 5, DeMorgan’s theorem).

7. Animals are innocent.

8. Animals lack immortal souls.


9. Animals are not sentient (from 6, 7, and 8, disjunctive syllogism).

The argument is valid, so everybody must either reject 1, reject 2, reject 4, reject 7, reject 8, or accept 9. Augustine accepts 9. I reject 4, which falsely presupposes that God exists. How do you respond?

Addendum: I read Rodman’s essay for the first time on 18 January 1981, when I was 23 years old and in my second year of law school. It has influenced me more than almost anything else I have read. If you’d like a PDF version of it, let me know.

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From the Mailbag


I’ve made three attempts now to post a comment about soccer, and all three times it has not worked. I am suspicious you have done something with your site to prevent soccer posting! :-) In any event, I’m sending the comment via this note.

Why I love soccer.

First, the tension. Think of it as a boxing match with each team parrying the other, probing, looking for weakness, for openings, for a crack in the defense. There are long stretches of time where seemingly nothing is happening, but this builds anticipation. Soccer is a team game, no one player can make all the difference in the way that a dominant pitcher in baseball and a hot hockey goalie is able to dictate the outcome of the game. Thus, testing the opponent, looking for the opening [is] a key and fascinating part of the game.

Then there is the individual athleticism and skill. It is said that soccer is a perverse human game because it makes illegal the use of a part of the body that is uniquely human: the hands. But what is sport if not a challenge? It is relatively easy to catch and throw a ball with the hands and arms—controlling, manipulating, and imposing your will on the ball with everything but your hands and arms, now, that is truly a challenge. Athleticism is rewarded. To the strong, the skilled, and the swift go the spoils; which is as it should be.

I love the flow of the game. Like American Football, the movement often is end to end, but there is also side to side movement, and sometimes the best direction to move is backwards. Similar to basketball and hockey, good players, and good teams, move well without the ball, meaning they are constantly attempting to find a better position, either to receive the ball or to draw a defender away from the play.

Scoring is rare, though not so much as it once was, and so is revered. Scoring is often sudden, with a short build up and lightning like strike that makes observers leap from their chairs, arms in the air, screaming. Nearly every goal is the equivalent of a baseball home run in terms of how it captures the moment, surprises, and delivers emotional release.

Lastly, I will share with you my memory of one of the finest goals I have ever witnessed. The Netherlands were playing Argentina in a 1998 World Cup match. The game had been a back and forth affair with few scoring chances. The Dutch had the better of possession but had been unable to take a significant lead. With the score tied 1-1 in the second half, Frank DeBoer launched a 60 yard pass from the left side of his own half of the field in the direction of Dennis Bergkamp who was streaking down the ride side of the field. Bergkamp, in full stride, takes the ball out of the air with one foot and lays it at his feet. As he is aggressively approached by a defender, he touches the ball through the defender’s legs toward the goal. He then hits the ball first time to the far side of the goal, beating the advancing goal keeper. The entire play, from the pass to scoring the goal, takes six seconds.

That is why I love soccer.


Note from KBJ: Beautifully expressed, Steve. It almost makes me want to take in a game. Is this the goal to which you refer? This version has some close-ups.