Price-Gouging

In the wake of Hurricane Sandy, the New York Posts reports that New York attorney general is going after Craigslist listings for "price gougers" who are offering, e.g. $20/gallon gasoline.

Robert Nozick once said that "the socialist society would have to prevent capitalist acts between consenting adults." Well, here you go. I'm trying to understand the A.G.'s theory here: if someone needs, say, 5 gallons of gasoline, they usually have a range of quick, relatively equally-priced options, i.e. gas stations. It only takes a few minutes, and the range of prices for the equivalent grade of gas is only a few percent.

During the shortage conditions that obtains following Sandy, those options were curtailed. You could go to a gas station, but would wait in line for hours to buy gas at the normal, low price. Or you could go to a "price gouger", offering to sell you gas with no wait at a considerable mark-up. This gives the consumer a choice.

If the "gouger" did not exist, only the first option would be available. Of course, the approximate equivalent could be accomplished: the person who needed gas but didn't want to wait in line could hire someone to wait in the gas line. That, presumably, would not be gouging. But waiting in line and then trying to sell the product is. The "gouger", we see, is really a small-time entrepreneur.

There are many economic stories in which there are two sides, and one could easily understand the opposite position. (For example, economic nationalists who want certain barriers to trade may be willing to accept the costs of those barriers - higher prices, lower productivity - in exchange for protecting domestic jobs. One may see that there is a tradeoff, even if one has strong opinions about which side of the trade is the more desirable.) But this is a case in which the existence of the "gouger" is a pure good.

The Law: No Place For Genetics

Just read an interesting article on "defense of marriage" laws, originally written four years but recently updated. Here's the gist:

The biggest problem is that laws like the California initiative will make the courts decide who is male and who is female — and all available decision criteria create unavoidable miscarriages of justice that will, or should, dismay initiative proponents.

That is, it's impossible, says Rick Moen, the author of the article, to give a biological definition of "man" or "woman", and therefore, impossible to define marriage as between a man and a woman. It's a cute idea, and I get why it would come from a site called LinuxMafia because it no doubt appeals to engineers who like precise definitions, but doesn't really work for a variety of reasons.

First of all, legal definitions are not the same as biological ones. I don't see why it's necessarily the case that, as Moen asserts, someone who has been a woman all her life, but is at some point tested and found to have XY chromosomes, must immediately have her marriage annulled and be permitted to marry a woman. The law is not, in fact, biology, and it has some give in it. It seems eminently reasonable that in a case like this, this person would (or could) still be legally considered a man. That may sound absurd, but it certainly doesn't to transsexuals, who may have some external anatomy changed but retain the same chromosomes.

Second, and even more problematic for Moen's argument, if this sort of test were that problematic, we'd already be drowning in "kudzu" (the article's basic metaphor is that marriage laws have unintended side effects like the introduction of kudzu to the American South has had). There are already all sorts of laws, regulations, rulings, etc. that differentiate between sexes and races. Questionable sexual identity is pretty rare. Questionable racial identity is extremely common, because it's almost impossible to test. And yet we have federal regulations mandating, e.g., that a certain percentage of contracts be awarded to businesses run by minorities. How can this possibly work, given that there is no feasible test that could be given that would verify the minority status of a given person?

So while marriage laws may and do have other pros and cons, we don't really need to worry ourselves about Moen's points. There's no kudzu about to overwhelm our legal system.

Poor Strategy

I'm generally sympathetic to the notion that Christian tradition is under attack in America. There are many places where this is evident, not least the spread of "holiday parties" (held a week or two before Christmas), "spring picnics" (held on Easter weekend) and the like. I suspect I will find much to dislike in this vein in the public school system.

But there are good ways to fight this, and not so good ways. One of the latter is "engag[ing]... co-workers in conversations about intelligent design and hand[ing] out DVDs on the idea while at work." (Source. An irrelevant tidbit from the article is that the guy who did this was a team lead at NASA. So what? Engineers can be religious. Many are.)

The gentleman who was proselytizing his co-workers was laid off, and now he's suing.

"It's part of a pattern. There is basically a war on anyone who dissents from Darwin and we've seen that for several years," said John West, associate director of Center for Science and Culture at the Seattle-based Discovery Institute. "This is free speech, freedom of conscience 101."

No, it isn't, and we shouldn't adopt the tactics and speech modes of the Left, even when we're fighting the Left. Free speech is the freedom to publish, to make your speech available, to avoid public censorship. It is not the freedom to say whatever you want at your place of employment. Employers can fire you for annoying other employees, and that's what happened here. (Heck, employers can fire you for nothing at all in most cases. Just as you can quit any time.)

I'm sure there are many other NASA employees who believe in intelligent design. If they are fired merely for believing it, that's a mistake by NASA (and closer to a violation of "freedom of conscience" ideals). But being fired for badgering your co-workers violates no right, and in the wider culture wars this is not a hill worth defending.

Assassinating Awlaki

There is a bit of back-and-forth on the Corner about President Obama's announcement that he is targeting Anwar al-Awlaki, a member of Al Qaeda in the Arabian Peninsula. The complicating factor here is that Awlaki is an American citizen. Thus, as Andy McCarthy puts it:

If an alien enemy combatant, such as Khalid Sheikh Mohammed, mass-murders 3000 Americans and is then captured outside the U.S. in wartime, we need to bring him to the United States and give him a civilian trial with all attendant due process rights. If an alien enemy combatant is sending emails from outside the U.S. to an al Qaeda cell inside the U.S., the commander-in-chief needs a judge's permission (on a showing of probable cause) to intercept those communications. If an American citizen terrorist outside the United States — say, Awlaki in Yemen — is calling or emailing the United States (or anyplace else), the commander-in-chief needs a judge's permission to intercept those communications. If we capture an alien enemy combatant conducting war operations against the U.S. overseas, we should give him Miranda warnings, a judicial right to challenge his detention as a war prisoner, and (quite likely) a civilian trial. But, if the commander-in-chief decides to short-circuit the whole menu of civil rights by killing an American citizen, that's fine — no due process, no interference by a judge, no Miranda, no nothing.

McCarthy thinks that's fine, because in this case he agrees with the President that Awlaki is a "proven threat." But Kevin Williamson demurs:

Odious as Awlaki is, this seems to me to be setting an awful and reckless precedent. Consider how "interstate commerce" has been redefined over time to cover that which is neither interstate nor commerce, for the sake of political expediency. It is easy to imagine "national security" being treated the same way, particularly in an open-ended conflict against a loosely defined enemy. And we aren't assassinating U.S. citizens under the rubric of interstate commerce.

The solution here, it seems to me, is to follow established procedures for stripping Awlaki of citizenship, then proceed in the interests of national security. It used to be common practice to strip traitors of citizenship, but the notion of "treason" seems to lie too close to "nationalism" (that ugly word) to be invoked much these days. Still, if a court can demonstrate that Awlaki has taken up arms against the U.S., he could be stripped of citizenship.

Furthermore, while I agree with Williamson that this sets a dangerous precedent, I don't think his argument would be at all persuasive to the President. He is a "pragmatist", you see, and as such is likely to look at each problem as a separate, distinguished entity, not as a variation on a theme whose general solution has already been established by precedent. A pragmatist wants to have the freedom to pick the "best" solution, unconstrained by precedent.

The problem with this view is that others will view your actions as precedent regardless of whether you do. People want predictability. Ours is also supposed to be a nation of laws and not of men. That is, given a conflict between competing principles, law is supposed to provide an impartial resolution; there is not to be recourse to the partiality of a human. (It is an unreachable goal, of course, if for no other reason than that the law is interpreted by human judges. But the principle remains.) Law and precedent are inextricably related. Obama and the "pragmatists" do not wish to be constrained by the law, or precedent, when they are inconvenient. The Awlaki case is just one small example among many.

On Gay Marriage

On the Leonard Lopate show on NPR today, guest Alan Van Capelle, Executive Director of Empire State Pride Agenda, discussed strategies for bringing "marriage equality" to the entire nation. I'm not particularly opposed to gay marriage as an idea. But I do find that many of the arguments of its supporters, including Van Capelle, range from the weak to the absurd.

One argument is that gays do not have "equal rights" because they are not allowed to marry. That's not true, of course. They are allowed to marry in exactly the same way that anyone else is allowed to marry, i.e. one man is allowed to marry one woman. What they seek is not an "equal right" but a new right. The only way an equality argument could be made is if rights inhered, not to individuals, but to couples. If that were the case, then an entity composed of two men or two women would in fact be denied a right granted to an entity composed of one man and one woman. But, in fact, rights inhere to individuals, so that argument is not sound.

On the other hand, some corporate entities are granted rights similar to those of individuals. But the rights so granted are granted to the entity as an individual; that is, if marriage were a right granted to a corporate entity, then that entity would have a right to "marry" some other entity. This is not what gay marriage supporters seek, obviously. It is quite clear that they seek a new right, not "equality."

An argument that Van Capelle trots out - one that I had not heard before - is that "human rights should not be subject to vote." One can understand, in the wake of California's, Maine's, and other state's rejections by referendum of gay marriage laws, why a supporter would say such a thing. Philosophically, such a statement is as incoherent as is the line between human rights issues and other issues (for example: are income taxes, which are the legalized taking of your property to fund state-directed projects, a human rights issue? if not, why not?). But even ignoring that problem, the statement is simply incorrect in our Constitutional democracy. The Bill of Rights is certainly subject to vote, for example: any item in it could be overturned or modified by Constitutional amendment.

The best argument for gay marriage is that the government really should not be in the business of granting benefits or preferential treatment to persons based on marital status. But that has less to do with gay marriage per se than it does with actual marriage, and its differences with non-marriage. Van Capelle today mentioned that a New York State marriage license grants 1,324 (I think it was) rights and responsibilities. One quick way to bring unmarried gay couples closer to equal status with any other person, couple, or group of people would be to reduce this number, ideally to zero. That's an unlikely outcome politically, though, so gay marriage might be the lesser of two evils.

The problem with all arguments for gay marriage, though, is that they have trouble with this question: What principle would prevent marriage between three or more persons? Or between brother and sister? If it is a human rights issue, which presumably trumps other considerations (and should not even be subject to vote!) then such marriages should be allowed. The objection I generally hear is that these types of marriages are not being called for and would not be required - which is true, at least for now - but if no principle would prevent them, then how would we as a society object if such a right ever is demanded?

Getting back to the realm of everyday politics: the most distasteful part of the pro-gay-marriage movement is its disdain for popular opinion. If a clear majority wants gay marriage, let them approve it in law. That is how democracy works. Ramming it down our throats via the courts is not the way to resolve the question any more than Roe v. Wade resolved the question of abortion rights. Comparing gay marriage as a "human right" to the anti-slavery movement in the 19th century is both disrespectful and inaccurate, and unnecessarily raises the temperature of the debate. Gay marriage advocates should concentrate on convincing voters, not bypassing them.

To Sample or Not To Sample?

For over a decade the idea of using statistical sampling instead of a straight count for the U.S. Census has been hot in some circles. Broadly speaking, Democrats have favored the method, while Republicans have opposed it.

Democrats expect to gain from using sampling, since traditional methods tend to undercount Democratic constituencies: minorities, illegal immigrants, and transients. And for the same reasons, Republicans expect to lose. So their respective support and opposition aren't surprising. Naturally, their public reasoning cannot be so self-centered.

Republicans base their formal opposition in part on the U.S. Constitution, which states: "The actual Enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years." The word "Enumeration" contains an implicit demand that each person be counted. The 14th Amendment includes similar language: "Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State..." (emphasis mine). However, I find this line of argument unpersuasive. While an "enumeration" can mean a "list or catalog", it can also mean a "reckoning or count". While the former definition would exclude sampling, the latter would not. The phrase "whole number of persons" might be more persuasive, except that that phrase is pretty clearly used to void the original text's treatment of slaves: "Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons... three fifths of all other Persons." So the meaning of the Amendment is that every person shall be counted equally, i.e. there will be no more three-fifths rule.

Some Republicans also object that sampling can make the census less accurate. This is a better argument, since if true it is devastating to the whole basis of sampling. Technical Report 537, by Brown, Eaton, Freedman, Klein, Olshen, Wachter, Wells and Ylvisaker of the Department of Statistics, U.C. Berkeley, goes into great detail on the legal issues, techniques, and potential problems with sampling. The possibility that sampling will reduce accuracy is raised: "Will proposed adjustments to the census take out more error than they put in?" Unfortunately, the question is left unanswered: even these professors are unsure whether sampling will satisfy its intended purpose. The paper also points out that one problem sampling is meant to address - undercounting of certain groups - could be solved without sampling: "Census figures could be scaled up to match the demographic analysis totals for subgroups of the national population defined by age, sex and race (Section V). The people in a demographic group who are thought to be missing from the census would be added back, in proportion to the ones who are counted—state by state, block by block."

On the pro-sampling side, one of the most vocal supporters is Dr. Kenneth Prewitt, director of the Census Bureau from 1998-2001. He argues that sampling will be more accurate than a direct count, although Tech Report 537 seems to cast some doubt on this. Another point he makes is that the federal government government already uses statistical data for policy-making all the time. This point, though, is easily refuted. The Census Act as amended in 1976 states:

...except for the determination of the population for purposes of apportionment of Representatives in Congress among the several States, the Secretary shall, if he considers it feasible, authorize the use of the statistical method known as "sampling" in carrying out the provisions of this title. [emphasis mine]

The emphasized portion was the basis of the U.S. Supreme Court's 1998 decision in "U.S. House of Representatives v. U.S. Department of Commerce, et al.," which upheld the principle that sampling should not be used for apportionment.

My own take on the debate is that the Constitution demands that an accurate count be made by any means. I do not believe that a direct count is required. The census is a critical part of our representative democracy, though (which is why it is covered in our minimalist Constitution at all), and it is important that it be simple and transparent. The appearance of bias or political machination would erode civic trust in the most representative of our federal legislative bodies. A direct count that was just slightly less accurate than some other technique (sampling or something else) might still be favored due to its transparency.

The concerns raised in Tech Report 537 lead me to conclude that any improvement in accuracy from sampling would not be sufficiently great or certain enough that we should use it for the census. But future developments could change this balance: direct counts could become far less accurate (for some reason) or indirect counts far more accurate.

Krugman and Stross: Intellectual Property

Krugman brings up the topic of intellectual property: "Even though the Internet is all old hat, we still haven't seen the economics of it play out. One of the big problems is we don't know how do people get compensated for producing information when it can be...." He doesn't get to finish the sentence, but I assume he meant it to go something along the lines of: "...copied easily and cheaply everywhere in the world instantaneously."

Stross has fascinatingly contradictory ideas about this:

As for the intellectual property, I try not to get too worked up about it.... [W]hat we're looking at with copyright today is a smoking hole in the collective landscape....

(Sure, why get worked up about a mere smoking hole in the collective landscape?)

We can't simply wave a magic wand and change the copyright laws to something sensible.... Now the best thing I've been able to come up with is an idea for doing this is a tax on bandwidth.... The tax goes into a pool which is then distributed to content creators on the basis of some kind of sampling or rating mechanism that's sampling the traffic that's going across the network. How to enforce this, let alone deal with it internationally is mind-numbingly don't-go-there... but at least it has the one supreme advantage that if you have such a regime in place, you can legislate that if you've paid your tax, you are then immune from prosecution for copyright violation. [emphasis mine]

This is just trading one intractable problem for another one, though. If you could enforce an international tax on bandwidth, trust the sampling agencies, carry out the disbursement of funds correctly and inexpensively, and so on, then it all sounds great. But frankly, just changing copyright laws sounds simpler, or at least no harder.

Krugman suggests an analogy to financial ratings agencies:

When the ratings agencies originally came into existence they would produce a book of ratings and people would buy the book and that was how they made their revenue. And that has long since been impossible, [because] people tend to disseminate the ratings too easily, so nobody buys the books so they had to find a different revenue stream. And some decades back the source of the revenue stream [changed so] that issuers of assets would pay the ratings agencies to rate their assets.

[N]ow the question is, what do you do? And everybody looks at this and says, "This is a terrible way to do this." But then the question is how are you going to fund the rating agencies? And there is a certain number of people who say, "They should be public." They should be the BBC. But in America of course, well that wouldn't work, it'd be government. So we can't use that.

Typical Krugman: every time a problem seems hard, he thinks we should just fob it off on the government. Here's an alternative: get rid of the ratings agencies. Do we really need them? We already have very effective ratings of financial assets: they're called prices. Ratings agencies might just be fossils left over from a time when information was expensive, trading was thin, and capital flowed sluggishly. All that has changed.