The Volokh Conspiracy - Latest Comments

Re: Judging People by their Unpopular Views

Matthew Slyfield — Wed, 22 May 2013 15:23:51 -0000

I would think that Bryan Caplan's theory would be applicable to politics as well. If the even split isn't stable why has the US remained roughly even between Democrats and Republicans for decades?

Re: Judging People by their Unpopular Views

Guy — Wed, 22 May 2013 15:22:55 -0000

No, this discussion assumes we have some way of identifying virtue independent of who adheres to the position, and we want to identify virtuous people. He's saying whether an unpopular view held by a person is virtuous or not is more evidence than whether a popular view held by that person is virtuous. Whether a view is virtuous is not assumed to have any particular relationship with its popularity. The model does assume that there are more conformists than anti-conformists. Actually, these simple examples ignore the effects anti-conformists might have by assuming they don't exist.

Re: Political Profiling and Racial Profiling

Michelle Dulak Thomson — Wed, 22 May 2013 15:20:39 -0000

Slightly OT, but related: Why is NY's stop-and-frisk policy being challenged merely as "racial profiling" when it is even more obviously "gender profiling" and "age profiling"? Are sex discrimination and age discrimination just OK now? Or OK, provided they discriminate in the correct direction? Or OK, if there's some empirical basis for them? Or OK, because race is just different?

Re: Judging People by their Unpopular Views

philadelphialawyer — Wed, 22 May 2013 15:18:36 -0000

If the idea is that we are only going to identify virtue by looking at unpopular views, well then, the more numerous your unpopular views, the greater chance you have of being seen as virtuous.

The author says:

"On the plausible assumption that most real-world people are basically conformists, you can’t accurately assess virtue by studying people’s views in isolation. You have to look at their unpopular views."

In theory, I guess you could say that the virtue of a person who has only popular views can't be "accurately assessed," but, in practice, that means you have no way of labeling them as virtuous. On the other hand, a person with lots and lots of unpopular views gives you lots and lots of opportunities for declaring them to be virtuous. Even though, technically, speaking, that doesn't mean you will find any of them to be virtuous, it still means, in practice, it is more likely that you will. The one hundred per cent conformist can never be said to be virtuous (because he has no unpopular views to "look at"), the fellow with 100 per cent unpopular views always has at least a chance of having some of his views seen as virtuous (because all of his views are unpopular, and are thus are at least eligible for virtue demonstration).

You say:

"Assuming Mr. Contrarian and Mr. Sheep are morally neutral, both will be 'wrong' about half the time. Thus, Mr. Contrarian would, statistically, take unpopular but misguided positions about half the time (assuming the majority is right half the time and wrong half the time), while Mr. Sheep would take unpopular but morally virtuous positions about half the time (with the same assumption). If the majority is right most of the time, then Mr. Contrarian will take unpopular 'wrong' positions more often than he takes unpopular 'right' positions."

But I think that gets a lot of it wrong. Sure, Mr. Contrarian and Mr Sheep might both be right half the time and wrong half the time. As might the crowd generally. But, contrary to what you say, Mr Sheep NEVER takes "unpopular but morally virtuous positions," because, as Mr. Sheep, he never takes unpopular positions in the first place. He goes along with the majority all of the time, and thus, as I said before, never presents a case to have his virtue assessed. There is no case of his disagreeing with the crowd to "look at." Even if he is right half the time, he will get no credit for it. Because when he is right, the crowd is with him. Mr Contrarian, on the other hand, might be morally right only half the time, as you suggest, but, when he is right, he is given full credit for it. Because the crowd is always against him, we "look at" those instances.

Where you go wrong, I think, is that you act as if Mr Sheep and Mr Contrarian both agree with the crowd the same amount of the time, but, if that were the case, why the labels? Even if Mr S and Mr C are not as extreme as I present them, still, Mr C, by definition, has more opportunities to be seen as right. Because he is against the crowd more than Mr S.

Contrarians "game" the system by creating more opportunities to be seen as virtuous not only than Mr Sheep, but Mr Average too. And that is true regardless of whether the majority is right more or less than half of the time. Because, to reiterate, when the majority is right, you get no credit for agreeing with it. Credit only comes from unpopular but correct views. And Ilya Somin, by giving us numerous examples of his own disagreements with the crowd, gives us plenty of opportunities to see him as virtuous too. And thus is patting himself on the back. See, he says, I disagree with the crowd a lot, take a look at all the examples, find one or more you agree with, and see how virtuous I am!

At best, if the majority is always right, and nobody gets any credit at all (the conformists because they are always with the crowd, the contrarians because they are always wrong), then we have a wash. But even one instance of the majority being wrong means that being a contrarian gives you a much better chance of "Winning."

In practice, we see this in counter majority opionaters all the time. Go out there with a view. In our society, that usually means some kind of extreme view, conservative or libertarian (but it could be extreme left too, I suppose), and at least some folks will pronounce you a moral genius. Sure, some folks may call you a monster too. But while nobody calls the guy who always agrees with the conventional wisdom a monster, nobody calls him a genius either. Again, think about essayists. If you could pull it off, an essay justifying, say, racism, would get you a lot more claims of moral genius than does the guy who writes yet another statement of racism's evil.

Re: Judging People by their Unpopular Views

Guy — Wed, 22 May 2013 15:16:41 -0000

Technically, if the coin is modeled with non-zero thickness, there is a very small basin of stability, but small enough it can be ignored for most practical purposes.

Re: Political Profiling and Racial Profiling

Bubbleset — Wed, 22 May 2013 15:15:40 -0000

There's no cognizable right to blow people up, but there is a right to walk down the street or drive a car without being stopped and searched by police without probable cause. In fact I'd say that's a more important right than being able to set up a tax exempt quasi-political organization.

Re: Judging People by their Unpopular Views

Guy — Wed, 22 May 2013 15:15:03 -0000

That's an unstable equilibrium, we're talking about attractors, not repulsors.

Re: IRS Attorney to Take the Fifth

ArielAriel — Wed, 22 May 2013 15:13:25 -0000

If there are no criminal violations (which is what I posited in the last sentence), can there be a tendency to incriminate?

Re: Political Profiling and Racial Profiling

Bob_from_Ohio — Wed, 22 May 2013 15:12:49 -0000

Never hear of this guy, its Slate after all, but I glanced through his prior columns.

Manjoo is quite the civil libertarian:

"Cities under the threat of terrorist attack should install networks of
cameras to monitor everything that happens at vulnerable urban
installations."

Telescreens for all!

He is a gun grabber too.

Re: Leakers, Recipients, and Conspirators

Andrew Selbst — Wed, 22 May 2013 15:10:55 -0000

If the rationale for punishing leaks is essentially one of an employment contract, as you say, why isn't the government employment and First Amendment line of cases relevant here? If it's not about the employment, and is a matter of public interest, why isn't it protected under Garcetti?

More to the subject of this actual post, why treat solicitation to break a contract as illegal - if my friend convinces me to break a contract, is he in breach? I don't know that the "agree not to leak" justification carries the weight you want it to here. Even if it justifies the initial laws prohibiting leaks, it's importing a rationale from private, civil, law into a public law context, so the next level crimes of solicitation etc, really seem like a stretch. This line of thought also provides a distinction between asking a government source to break in somewhere - that's solicitation to do something that can be criminalized without a private law justification. Without that justification, leaking would be protected by the first amendment.

Re: IRS Attorney to Take the Fifth

Guy — Wed, 22 May 2013 15:02:59 -0000

The first half of your post was so promising, then your second half messes it all up. It doesn't matter if the lawyer thinks there was no crime in light of the totality of all available evidence. If there is even a tendency to incriminate with respect to any single piece of the evidence, then that testimony is covered by the privilege.

Re: Statutory Rape of 15-Year-Old by 18-Year-Old

stewstew03 — Wed, 22 May 2013 14:59:59 -0000

Perhaps my thinking is too narrow, who knows. Maybe there would be a petition to free an 18-year old man who sodomized a 14-year old boy...

Re: Judging People by their Unpopular Views

Michael Lorton — Wed, 22 May 2013 14:59:38 -0000

Greed, for lack of a better word, is good. Greed is right, greed works. Greed clarifies, cuts through, and captures the essence of the evolutionary spirit. Greed in all of its forms, greed for life, for money, for love, for knowledge, has marked the upward surge of mankind.

Re: Russian Bill Criminalizing Insults to Religious Feeling Passes Second Reading in Parliament

Steve — Wed, 22 May 2013 14:59:34 -0000

In addition to religious services, the law also protects funerals, burials, and memorial services, none of which are necessarily religious. What these events have in common is that society generally regards them as solemn, private affairs, even if they are conducted within hailing distance of the public right of way. It's hard to see promotion of religion as the prime motivation here. Atheists have funerals too.

Re: IRS Attorney to Take the Fifth

ArielAriel — Wed, 22 May 2013 14:59:30 -0000

I understand what you're saying in your example. In the case of Ms. Lerner, her lawyer has to believe that this case is closer to the suicide you describe than to the umbrella manufacturer. I was wrong in my last post that you must think a crime occurred, but you can't just take the 5th willy-nilly in the absence of any possibility of criminal prosecution - that's the point I'm trying to get to, and I wrote too quickly. If her lawyer honestly believes, as some posters here do, that there was no criminal violation in the political targeting (and there are no other crimes that might come out in her testimony), on what basis can she take the 5th?

Re: Judging People by their Unpopular Views

Theperkyone — Wed, 22 May 2013 14:57:29 -0000

"The unpopularity of a moral stance is not enough to gain virtue"

Exactly. But the reverse is equally true. That merely because something is popular doesn't make it right. Which then means, by definition, there must be some other ground for determining whether something is right or wrong. In my post I identified those other grounds "most people at most times," "religious authorities," and "science."

You have identified no ground for your position other than a vain ipse dixit.

Re: Obama Adviser Realizes that the Size of Government Matters After All

tim117 — Wed, 22 May 2013 14:56:56 -0000

It's interesting non-sequitor (but I'm being polite). Ilya claims government is too large of an organization for a single man to control and I pointed out there are quite a few organizations in this country which fit that bill.

Oh, and to the baseless nature of your argument: if you have never heard of strike breakers or Pinkertons, I would suggest you might want to read a history book

Re: Judging People by their Unpopular Views

Bob_from_Ohio — Wed, 22 May 2013 14:56:11 -0000

"they don't exactly occupty [sic] the same precise moral plane either"

Yes, they do. The distinctions are meaningless.

Re: Judging People by their Unpopular Views

Michael Lorton — Wed, 22 May 2013 14:55:30 -0000

That is not an equilibrium state. For a system to be in equilibrium, it has to react to minor perturbations by returning to the original state.

A coin is in equilibrium when it is face up or tail up. If it's balanced on its edge, even a tiny nudge will cause it to collapse into face-up or tail-up position.

Re: Obama Adviser Realizes that the Size of Government Matters After All

Leo Marvin — Wed, 22 May 2013 14:54:16 -0000

I'd like to see them buy the whole kit and caboodle for the naming rights.

Re: A Dog Bites Meat Story: Dogs Sniff Out Meat More Effectively than Drugs

Steve — Wed, 22 May 2013 14:54:10 -0000

Unless you are a dog whose name is an acronym, in which case they will assuredly sniff you out.

Re: IRS Attorney to Take the Fifth

David M. Nieporent — Wed, 22 May 2013 14:53:18 -0000

If you don't, you're very likely to lose the lawsuit, since you can't put on your case. And the strong likelihood of losing outweighs the remote possibility of prosecution for some crime, most of the time.

Re: Judging People by their Unpopular Views

Steve — Wed, 22 May 2013 14:51:18 -0000

I assume there are white nationalists who like macaroni and cheese. I do, too, but that really isn't what I'm getting at. A white nationalist position on immigration, on the other hand, pretty much cuts to the heart of it.

Re: Political Profiling and Racial Profiling

Lee Moore — Wed, 22 May 2013 14:50:49 -0000

I don't follow Prof Somin's reasoning. If you set a target to make sure that 50% of those you search are redheads, but only 10% of the population is redheaded, then clearly you're profiling redheads. But if the redheads you search turn out to be carrying illegal stuff much more often than the non redheads, then your profiling is justified. (Of course you could just be making a lucky guess, but if your profiling of redheads is based on the statistical results of previous searches then it's not just a lucky guess, it's learning from experience.)

If the police racially profile, are they just making guesses, or are they relying on experience - that the racial groups they profile turn out to be statistically more worthy of attention than the racial groups they don't profile ?

And when (or if) the IRS politically profile, are they making guesses, or are they relying on experience that the political groups they profile turn out to be statistically more worthy of attention than the political groups they don't profile ?

Since the Tea Party groups were new in 2010, it seems hard to argue that the IRS had any statistical reason to believe they were more likely to be abusing 501(c)4 than any other applicant. But with racial profiling by the police or other organs of the state, there are all sorts of statistics they could rely on. Whether the actual statistics justify any profiling they do depends on numbers, which they have and I don't. But it's certainly possible that they have information justifying profiling. But it seems to be impossible that the IRS could have had comparable statistical justification in early 2010 for paying special attention to Tea Party groups. If they'd waited until 2015 and had built up an impressive array of statistics demonstrating a disproportionate tendency for Tea party and anti-government applications to be abusive that would be different. But they didn't.

Statistically unjustifiable profiling in one case does not destroy the case for statistically justifiable profiling in other cases. I thought the Volokh Conspiracy was one of those slightly unusual places where you find lawyers who understand math ?

Re: A Dog Bites Meat Story: Dogs Sniff Out Meat More Effectively than Drugs

TwelveInchPianist — Wed, 22 May 2013 14:50:23 -0000

" government policy – and even Supreme Court decisions - are often based on the assumption that they are far more accurate than the evidence shows."

Great line from Popehat: On the internet, nobody knows you're a dog. At the supreme court, nobody cares.