Inclusive Moral Positivism

In my previous post, I described morality as a system that offers incentives to agents in the form of shame, guilt, pride, and self-righteousness. I argued that moral rules rise and fall insofar as they advance particular purposes. The purposes must be external to morality, insofar as we accept my premise/definition that morality is a social system that induces particular behavior. What it is to be morality is to be a code of behavior which induces these emotions.

However, what are those purposes?

It seems that, positively speaking, the purpose must be satisfaction. That is, rules will exist insofar as they can get sufficient support. If agents within a moral system are “dissatisfied,” then they will agitate against it.

Recall, morality works by changing our dispositions to feelings. We act based on our feelings and our internalized expectations of feelings. Thus, moral systems can induce certain actions by changing the feelings that we feel (and our expectations of them). Some peoples’ actions are greatly constrained by their moral feelings, and they have strong reasons to try to change the moral rules. So, they will agitate to change them – they will be induced to do so by the expectations of unpleasant feelings under the moral system. Their agitations might come in many forms: public moral argument, bohemianism, protest, etc. I call these people “dissatisfied.”

But what is satisfaction? Satisfaction is not only raw self-interest, nor is it mere happiness. I might be choose not to agitate against a rule because thinking about the consequences of its absence induces me to pity. This inclination to pity might induce me to take actions that leave me deeply unhappy, but I don’t object to it. In a real sense, I am satisfied.

So:

  • Morality is a system that induces behavior through the inculcation of moral feeling
  • What causes moral systems to survive is that they leave agents satisfied
  • satisfaction is that agents have no feelings that cause them to agitate against a rule.

So far, so good.

But for this view to make sense, then we must see a difference between moral feelings, and other feelings. Otherwise, it would seem that morality can bootstrap itself: if morality induces feelings, then how could moral feelings and satisfaction be separated?

The answer is that there are some feelings that are produced by morality, and others that are not. I have suggested that pity is not a moral emotion, because it is only indirectly connected to violations of the moral code. It is triggered by perceptions of suffering, though morality might affect the triggering of pity on the margins.

What makes certain feelings “moral feelings” is that they are triggered by normative events: the obesiance and violation of rules. Thus, shame, guilt, pride, anger, and self-righteousness are characteristically moral feelings.

[To be fair, not exactly correct. For example, it is not immoral to fail to use proper grammar, or to get bad grades, even though these induce shame (and, in public, might induce embarrassment). Generally, wwhat induces shame is failing. Perhaps shame is nothing more than what we call sadness when it is induced by our own failures. Thus, using improper grammar ironically does not induce shame. But while failing always induces shame, failing isn’t always a moral failing. It might be a mere failure to win a game. What makes shame a moral feeling is when the community would feel proud of increasing your volume of shame. Sometimes the commnity is a group of adolescents, producing the brutal morality of the schoolyard. Other times, the community is a professional assocation. What is key is that the community enforces violations through the accentuation of the violator’s inclination to feel ashamed of themselves (the Scarlet Letter is about this). {some would not even call this shame “moral feeling” and would reserve the term “morality” for systems built on guilt, while shame and pride is a matter for “propriety.”]

Other emotions are also somewhat influenced by the moral code, though more independent. Consider anger and disgust. I tend to be disgusted by misbehavior, but also by foul scents and the things that remind me of them. I often feel angry when someone does something that would make me feel guilty. However, sometimes I feel angry at someone who obstructs me, even though I am under no apprehension that his obstruction is a wrong.

Shame and guilt are not the only ways to support a morality. We can imagine a social code which solely enforces itself through creating feelings of anger. But shame and guilt naturally lend themselves to social manipulation because they are particularly responsive to the social code. Shame is defined by failure, and a community’s standard of behavior is a game. If a community can get everyone to play the game, they can define what it is to win or fail, and thus manipulate feelings of shame and pride in community-members. Guilt is pain at the effects of one’s actions on entities other than oneself, rather than their normative role in a game. Since a social code defines what counts as an effect (a “blasphemy,” an “insult,” a “right,” the social code can use guilt to induce behaviors.

So, we can distinguish “moral feelings” (feelings caused by events internal to the moral code) with “satisfaction” (feelings not directly dependent on the moral code: pity, joy, fear, etc.)

Therefore, the existence of a rule that does not satisfy sufficient agents is an unstable equiliibrium, since rules can change. Each agent has some influence over moral feeling, depending on their intelligence, charisma, and moral authority.

Intelligence provides a command of the facts and arguments, and thus allows agents to change the beliefs and thoughts of others. This in turn changes (1) the dispositions in their audience toward moral feelings, or (2) the behavior of their audience, who then influence the moral feelings of others.

Charisma adds force to such arguments (and other influencing-techniques).

Moral authority grants the actions of some people more influence over the moral feelings of others than influence that would flow from the same action, were it carried out by someone else. This is the principle behind sermons.

Rules of moral authority show us that a system of morality involves not only dispositions to certain feelings (primary rules of morality), but also ways to change or direct such dispositions to certain feelings (secondary rules of morality). Rules of moral authority are thus one type of secondary rule. Some of these secondary rules are extremely legalistic, like the moral authority placed on the pope, or the deference that many show to the utilitarian calculus.

I hope you are seeing that morality is very much like what the philosopher H.L.A. Hart would have called a legal system; more than he would have admitted.

Now let me very suddenly change tack.

Legal positivism is the doctrine that what is the law is entirely determined by social facts.

Inclusive Legal Positivism is the slightly alternative view that (1) some social facts are rules about what laws are to be recognized as valid, and (2) some of these rules could be that the validity of some legal statements turns on morality. Thus it is conceptually possible, though not necessary, that legal facts turn on moral facts.

Mightn’t one be an inclusive moral positivist?

So just as a legal positivist (who sees law as a social structure enforced by sanctions) may see law as inclusive of morality when the social facts call for it, a moral positivist (one who sees morality as a social structure enforced by moral feelings) might see morality as inclusive of universally valid moral principles, the good itself, when the social facts call for it.

That is, it might be that there are, in addition to socially constructed moralities, universal rules of morality. For example, the Utilitarian calculus might bind what a person really ought to do, or the categorical imperative. At least, there might be a culture whose socially constructed morality presupposes such universal rules to exist.

That is, there might be a society which only finds moral rules legitimate insofar as they further abstract, universal morality. Thus, the society follows a principle that it is not to act to induce feelings of guilt and shame unless they believe the rules serve universal principles (perhaps they cannot even feel guilt and shame unless they believe the rules serve universal principles).

Perhaps a social structure of morality can only work (that is, can only trigger feelings of shame and guilt) if it is so.

Against Reason

Compatibilism is the position in philosophy that we may have free will while simultaneously living in a deterministic universe. Many have strong intuitions in favor of it.

Here’s a close analogue to compatibilism that perhaps explains those intuitions:

Analogue: What it is for a behavior to be “freely chosen” is to be subject to incentives. Some of these incentives are pride, shame, self-righteousness, and guilt. Thus, a society’s system of morality can encourage certain behaviors (the behaviors we call freely chosen) while it is unable to affect other behaviors (the behaviors we do not say are freely chosen).

For example, we say that my writing of this argument is freely chosen, because if someone pointed a gun at my head and told me not to, I would stop. In contrast, if a gunman told me to stop my heartbeat, there would be nothing I could do.

Here is a related claim to Analogue. It follows from Analogue if we assume a few plausible social facts:

The emotions of pride, shame, self-righteousness, and guilt are socially valuable, as they are necessary features of a social-system that achieves good outcomes through providing “moral incentives” to agents within it.

For example, I do not masturbate in public, even in cities to which I will never return. Similarly, I tip even in restaurants whose food is not worth coming back to. In the past I have gone to a grocery store, started shopping, realized I needed a cart, left the grocery store carrying food I had not paid for, gotten a cart from deep into the parking lot, and re-entered the store in order to purchase the food.

Often, moral rules are quite sophisticated. If I borrow my room-mate’s book without asking and take it to a coffee shop while they’re at work, I will feel no shame or guilt. However, if someone at the coffee shop spills coffee on the book, I will feel shame and guilt until I can replace it, even if the spilling was not my fault. This very cleverly encourages me to be responsible with my room-mate’s things. Generally, feelings of guilt and shame arise in complex normative structures whereby agents can accrue liabilities, take on duties, trade obligations, etc.

Some moral feelings serve, not to prevent selfish behavior, but to steel the self against temptation and support long-term projects. Some moral feelings serve, not to prevent selfish behavior, but to steel the self against temptation and support long-term projects. For example, one feels ashamed when admitting to be unemployed. We are also fatphobic. A student feels ashamed in class when they must admit they didn’t do the reading. Moral systems that fight temptation, rather than selfishness, tend to use shame. For example, one feels ashamed when admitting to be unemployed. We are also fatphobic. A student feels ashamed in class when they must admit they didn’t do the reading.

Some moral feelings are not socially valuable, and we can understand the reasons why. Consider sexual morality. Historically, shame and guilt supported adolescents in delaying sex until they had found a socially appropriate mate. The rise of the birth-control pill suddenly negated the need for this shame, but morality required time to adjust. Thus, attitudes toward sex have changed only gradually over the last fifty years. Today, in more progressive circles, adolescents might only feel ashamed for having unprotected sex. Imagine having to admit to your mother that you had gotten pregnant and needed her to drive you to an abortion. Consider whether you would feel better or worse if you used proper protection.

Though morality is a flawed system of social regulation, it would be quite radical to claim that moral feelings are on net an evil. One reason it seems plausible (the terms “morality” and “moralism” sometimes leave a bad taste in the mouth) is that morality tends to be invoked as-such when the reasons for our moral feelings have evaporated. When someone steals, we can explain why theivery is wrong: it forces stores to adopt theft-prevention measures that raise prices and make shopping worse for everyone. So, we needn’t invoke morality directly. In contrast, when a woman has protected sex before marriage, the only objection is that her action is per se immoral; many reasons for our sanction against it were erased by the birth-control pill.

Nevertheless, not all invocations of morality as-such are unjustified. Sometimes, the reason we must invoke morality as-such is that the practical reason for an ethical rule is too difficult to explain. Hence, we often invoke morality as-such when dealing with children. We might tell a child not to steal because “that’s wrong!” Some rules are so complex that even adults have trouble with them. Hence, many papers in economics, philosophy, and legal theory are explanations why a legal or normative system is a good thing. Here is an example. Here is another. It’s good for such rules to induce feelings of guilt and shame even if agents feeling those feelings cannot explain them.

Sometimes, we invoke morality as-such because we do not want to admit the reasons behind a moral rule. For example, it is considered rude to tell a story about someone being comically fat when one’s audience includes a fat person. This rule is enforced, not by explaining its value, but through an escalating series of indirect signals. First, one silently signals that they are unamused by the story, even if they do find it funny. If that fails, one might say “stop; you’re being an asshole.” Pressed further, one might even say “its rude to tell such stories.” This is a lie. It’s only impolite to do in front of fat people (or, it is much more impolite. If one would only object if a fat person were present, invoking a universal rule is dishonest). Only as a final alternative would one say “it is impolite to tell this story because X is fat, and telling this story reminds X that their fatness is derisible to others, which makes them sad.” Because explaining the justification behind the rule is harmful, we invoke morality as-such (or use bad-faith ad hominen arguments) instead of explaining our true justifications. In situations where the explanation does no harm, we can explain the purpose of the rule more explicitly.

In contrast, some social rules are enforced always and everywhere with invocations of morality (or bad faith arguments), because explaining the reason behind the rule is always and everywhere a harmful act. The rule against telling comic stories about fat people can be explained whenever fat people aren’t around, because fat people’s feelings are the only thing harmed by the explanation. In contrast, the justifications for some rules can never be admitted publicly, no matter how well these justifications are understood by all. I will not list any such rules here. That would be harmful! Think of me like an airline pilot leading you through severe turbulence. I might know it’s severe. You might know it’s severe. But I’m not going to say anything. I’m going to tell you there’s nothing to worry about, despite the bumps. My assurances might soothe you, and there’s nothing you could do about the danger anyway.

Sometimes mass deceptions are a good thing.

Furthermore, sometimes we can do better than a mass-deception. Sometimes we can explain the justification behind a rule in a way that can only be understood by those not harmed by it. For example, a mother of a young child might lay down a rule (“do not climb on chairs to get into the cabinet”) and explain the rule’s purpose to the father by spelling out important words, so the child does not learn the secret information that makes the rule necessary (say, “the cookies are in the cabinet”).

Nevertheless, we should not dismiss the dangers of rules that cannot be publicly justified. Sometimes, we obfuscate a rule’s justification because it is unfair or unsavory. Terms like “traitor” and “disgusting” are often useful for sustaining such rules. Consider racism in the Antebellum South. In that society, Whites who opposed racism faced virulent ad-hominem invective as “race-traitors,” and justifications for racial heirarchy were often heavy on emotion and light on detail. Of course, the true value of racist moral feeling was to preserve a heirarchy with Whites slaveowners at the top. Since White slaveowners had attained social authority, they were even able to induce moral feelings on many slaves, who then actively supported the system.

Many Marxists believe the same same mechanics uphold bourgeois morality, sometimes called the Protestant work-ethic (an ethical system which notably rose to prominence at a time when burghers were socially subordinate to aristocrats).

Thus, we can always learn about a rule from asking cui bono, but we must ask such questions with intellectual humility. Our knowledge of economics and philsophy is limited. So, we might make mistakes when determining the facts. Worse, we might cause a rule to fail, if the unspoken value of the rule only lasts so long as its purpose is kept sotto voce. There is a very funny movie about this.

Though we can observe morality in action, and we can understand the ways that it works, we cannot so easily explain how it arises.

Guilt, shame, pride, and self-rightenousness are deeply ingrained biological phenomena, like humor, joy, sadness, music, stress, loneliness, and wrath (righteous anger, by the way, is just the sort of moral feeling that requires a complex game-theoretic explanation to justify).

Just how shame and guilt arise in light of social structures is a difficult question. Certainly, moral feelings are influenced by beliefs. They are also influenced by social sanctions and denouncements. But more than that is hard to say.

Furthermore, the dangerous thing about morality is that it might wither away the better you understand it.

Consider all of the above. I hope I have given a good explanation of many moral phenomena, and why feelings of guilt and shame are often worthwhile. But I doubt that I instilled moral character into you. There is an obverse to Hume’s famous is/ought disctintion. Just as no factual propositions cannot imply a moral obligation, moral reasoning alone cannot induce a psychological state.

Perhaps, seeing “free will” as no more than responsiveness to moral incentives causes those moral incentives to decay. Perhaps we must believe morality to be something other than it is in order for morality to work.

Perhaps this is the sublimated insight of conservatism.

Dark Enlightenment Comes for the American Civic Religion, and it Might be a Huge Headache for HR.

SFFA was not a weird decision. The court held that you couldn’t legally use race preferences in choosing students. This was unsurprising, since race preference were already illegal in almost any other domain.

Apparently a lot of people did not know that latter fact:

It is illegal to have explicit race preferences in hiring! Even if your preferences are antiracist!

SFFA just makes this more salient, since this wasn’t being enforced. However, if SFFA is applied consistently across the economy, then it might make it a civil rights violation to every hire anyone anywhere.

In short, firms may face a Catch-22, like so:

  1. Any hiring process that isn’t heavily, heavily vetted is illegal if it results in statistically fewer minorities than whites getting hired.
  2. But basically any valid hiring procedure for identifying successful candidates will result in an illegally low number of (non-Asian) minority hires.
  3. So firms have historically had diversity preferences (i.e. racial discrimination in hiring).
  4. But these diversity preferences are maybe now really illegal, not just de jure illegal.
  5. So either firms’ processes will be illegally discriminatory or their outcomes will.

So all hiring is now illegal.

Let me explain how we got into this situation.

The reason people did not know that race preferences in hiring are illegal is probably that the court hadn’t been been enforcing that law. They would only enforce discrimination law to protect whites if the discrimination was particularly blatant and explicit. Bound-not-protected situation. Plausibly a virtuous one, given inequality and all that, but not actually legal. [Read between the lines of this article. Everything that SFFA declared illegal was already illegal in the corporate world, and yet corporate lawyers at top firms are all worrying about a new threat of suits. Why? Because the laws weren’t being enforced, and everyone was breaking them!]

At universities (including my parents’), departments are often told that they can get an extra tenure-track line if the first one is a minority candidate. That is illegal!

SFFA was, I believe, the first time that SCOTUS shut down an anti-white race preference that was hidden, rather than explicit.

How were Harvard and UNC’s policies hidden?

Officially, Harvard and UNC didn’t give a mechanical boost (or penalty) to any student for their race. Each student’s racial experience would be considered in the context of their overall application, and individualized consideration of race may or may not occur for each applicant (that was what the Grutter court allowed).

The facts, of course, were different.

At UNC, a certain level of objective credentials would literally guarantee admission to a black applicant (acceptance rate significantly above 99%). Among male students, that level was the same that would give an Asian student a 25% chance of admission, per Peter Arcidiacono, the expert witness for SFFA. Now, you can argue with Arcidiacono on a lot of points, but if certain objective factors let him perfectly predict that a black applicant will be admitted, then it is mathematically impossible that black students aren’t getting a mechanical boost. Every single black student with those objective measures got in , so no student was failing to get the boost. UNC was not doing the holistic admissions that it said it was; it was breaking the law. Secret quotas and soft quotas in college admissions go back a long time.

[to be fair, the exact same thing UNC was doing was happening in Grutter: the case that provided Supreme Imprimatur to “holistic” consideration of race. In Grutter, U-Mich had statistically obvious quotas which median justice O’Connor willfully ignored. Kennedy excoriated her for this in the comments. I might be on O’Connor’s side. Median justice don’t always have the privilege of following the law.]

My point is that for a long time, you were allowed to have race preferences as long as they were subtle, and they were only anti-white (or maybe anti-Asian). The court had an amusing euphamism for this, which is that race preferences could only be a “plus factor,” rather than a “minus factor.” Now, this is obvious nonsense. In a zero sum game, a plus factor for you is a minus factor for me. But in the 90s the meaning was clear, because white people were so default you might not think of them as having a race at all. So, saying that race could only be a “plus factor” was a hidden way of saying “you can only discriminate against white people,” which the court couldn’t legally admit they were doing. The court was playing dumb to protect affirmative action. This was all part of the giant elite conspiracy to protect it.

SFFA ends that conspiracy.

So now we can see how radical SFFA could be. If SFFA applies to companies, then companies can’t have racial discrimination, just like universities.

That will be very hard for them, because it’s also illegal for them to hire too few minorities, under the “Disparate Impact” standard. That is, a test that minorities pass at less than ~80% of the white rate is presumptively illegal. But pretty much any concrete procedure that successfully predicts job performance ends up selecting against minority applicants. So, good hiring practice was historically just to clean things up with a little racial discrimination at the end. If you can’t take that last step, then all good hiring procedures are illegal. ¯\_(ツ)_/¯.

Now, you can claim that your “discriminatory” procedure is nevertheless legal by showing it’s a “business necessity.”

But your claim will probably fail:

Many employers utilize tests to screen workers as to their employability, their suitability for transfer or promotion, or their eligibility for special training, such as apprenticeship programs. When such tests, which are usually general aptitude tests, are shown to be discriminatory on the basis of race or national origin, the courts, with few exceptions, have held that such discrimination was not justified by business necessity.

American Jurisprudence Proof of Facts 2d | July 2023 Update, James O. Pearson, Jr.

[You might not believe me that good hiring practices select against minority candidates. Fine. Whatever. But in that case, why did so many companies choose legally dicey race preferences instead of using these effective, non-discriminatory practices that you are so sure exist?]

So, businesses have long used unofficial race preferences, and that let them avoid being sued under disparate impact. But, if SFFA is followed, you can’t use those unofficial means, unless you can make your hiring process sufficiently opaque that no one can point out where the racial-boost is.

That means that the only quasi-legal option is to be as obscure and opaque as you possibly can. Have race hiring preferences, but never say that out loud. While this isn’t technically legal, you can probably get away with it. This is easy to do if you use soft hiring criteria, but much harder if you use objective measures. Oh by the way, unrelated point, lots of colleges have recently stopped considering the SAT.

It would be terrible if all firms really did have to abandon objective hiring criteria.

What would be better is is SFFA weren’t applied outside the university context.

I’m worried that SCOTUS might not read SFFA narrowly, because I think several on the court have an accelerationist attitude toward disparate impact, and some on the court are grievously committed to actually following the law (Gorsuch, especially). You can see how enforcing SFFA consistently would put a lot of pressure on the disparate impact standard, and might make it crumble entirely.

Even if you support an end to disparate impact, I don’t think a long labor-market nightmare is the right way to achieve it.

Wow, California Governance Really is Awful

New Noahpinion guest-piece by a twitter guy I like.

The claim is that California has terrible educational results and this is because the education is bad. The really damning graphic is this one:


The graph certainly makes California look bad, and the score isn’t an outlier. California in the past decade has consistently been in the bottom ten or fifteen scoring states on NAEP mathematics measures for 4th graders and 8th graders. NAEP is a nationwide test that gets a representative sample of public school students, so these results are meaningful.

At first, I assumed that the bad result was just demographics. New Mexico and Nevada are the most hispanic states, AL, D.C., LA, and MS are the blackest. The highest scoring states on the test in the above graphic are Massachusetts, Minnesota, New Hampshire, Indiana, and Wyoming. These aren’t all states you would associate with great minds and educations. They’re just very white. D.C. is the most striking example of this phenomenon. It tends to have among the lowest average scores of any state, but D.C.’s white students consistently have by far the highest scores out of any state’s white students. It’s not even close.

California’s pretty diverse; maybe that’s all there is to it.

Nope.

Turns out, California really does have terrible schooling, especially for poor students.

Let’s look at 8th grade math from 2019, the most recent year with a test. California has the tenth lowest average score:

  1. Alabama
  2. New Mexico
  3. Louisiana
  4. West Virginia
  5. Mississippi
  6. Nevada
  7. Alaska
  8. Arkansas
  9. Hawaii
  10. California

But things get more striking when you break it down by demographics. Among white students, California is 13th from the top.

0. (District of Columbia)

  1.   New Jersey 
  2. Massachusetts 
  3. Minnesota 
  4. Maryland 
  5. Connecticut 
  6. Wisconsin 
  7. Colorado 
  8. North Carolina 
  9. Pennsylvania 
  10. Arizona 
  11. South Dakota 
  12. Virginia 
  13. California 
  14. Nebraska 
  15. Ohio 
  16. Texas 

However, among black and Hispanic students, D.C. is 6th and 5th from the bottom, respectively:

Among black students, these are the lowest states:

  1. Arkansas 
  2. Iowa 
  3. Alabama 
  4. Wisconsin 
  5. Nebraska 
  6. California 
  7. Oklahoma 
  8. Michigan 
  9. Nevada 
  10. Alaska 

Most of these states are either states with almost no black population at all, such that I’m not sure the numbers are meaningful (Iowa, Alaska, Nebraska), states with big rust belt downtowns that have famously collapsed (Michigan, Wisconsin), or the rural South (Arkansas, Oklahoma, Alabama). It makes sense that they would have relatively downscale black populations; So California is really an outlier. It is the only state in the bottom ten with a meaningful black population that is better educated than the national black population:

(Arguably, Nebraska has a meaningful black population. But… Eh. They only have like 1,000 black 4th graders in the entire state. I wouldn’t read too much into that number)

California does an even worse job educating Hispanic students. The states with the worst Hispanic outcomes are:

  1. Rhode Island 
  2. Pennsylvania 
  3. Oregon 
  4. Maryland 
  5. California 
  6. Alabama 
  7. Connecticut 
  8. Utah 
  9. New York 
  10. New Mexico 

Even within the Hispanic population, a lot of the state-by-state variation is actually just racial demographics again. New York, Pennsylvania, New York, Connecticut, and Rhode Island have the blackest Hispanic populations of any state. Other states with poor math scores for Hispanic students are states where the Hispanic population is less educated than average, except for New Mexico and Maryland:

California’s Hispanic population is moderately less educated than the national average (38th out of all states) but not so low it could explain California’s dysmal Hispanic student math scores, especially since California’s Hispanic population is very non-black.

So, it looks like California’s schools really are terrible. As described in the article, richer students in California (who are generally White or Asian) commonly use out-of-school tutoring services. Part of this is just that they don’t spend much money on the schools. In part, that’s because of California’s insane property tax politics, but they could get around that if they actually wanted good governance. Furthermore, CA has much worse testing outcomes than you would predict from per pupil spending and racial demographics alone.

This is part of a pretty general pattern with California. They have this politics that they call “progressive” with a ton of policies that are disasters for the poor but sound egalitarian: CEQA destroying the environment by stopping them from building green energy sources; public transit that they tout as cheap or free but is useless and overrun with crime; drug decriminalization leading to thousands of overdose deaths; Chesa Boudin.

There is a particularly Californian governance style that is just such a disaster.

Cursed state.

There is a Giant Elite Conspiracy to Force New Yorker Liberalism on the Public. This is Maybe Fine.

[Edit: yet another very important economist, Daron Acemoglu, chimes in to say he doesn’t believe the Card data:]

One thing that surprises me when talking to people who are slightly to the left of me, is that they often think that the “elite” or the “academy” is biased in favor of the right: imperialism, capitalism, etc.

In reality, the academy is a giant conspiracy to impose the values of New Yorker liberalism.

Chris Rufo published this somewhat telling video from Erwin Chemerinsky (perhaps the most important law professor in America).

The video wasn’t taken up by the mainstream media, only right-wing outlets. But it’s pretty shocking to hear America’s most prominent lawyers saying he would commit perjury.

It’s not just Chemerinsky who would lie. The District Court judge in the recent SFFA v. Harvard case also lied to cover Harvard’s back.

Afer the trial, judge (Burroughs, j.) elected to seal all the “sidebars” conducted between herself and the lawyers for the two parties.

The sidebars were only revealed after the Supreme Court requested the entire records of the trial, including the sealed records.

This is not a normal thing for a trial judge to do. The judge’s reasons for sealing the sidebars were curious. She said “There are a lot of things in those sidebars that were really just meant to be out of the hearing of the jury, not meant to be out of the hearing of the entire world for all time.” The trial had no jury at all.

The sidebars were actually sealed because of a piece of damning evidence against Harvard. It was eventually revealed. Thomas Hibino was the federal official charged with ensuring Harvard was not racially discriminating against Asians. He had sent to his friend, Harvard’s dean of admissions, the following satire of a Harvard admissions officer’s recommendation:

The joke memo had been written on Harvard admissions-office stationery, during the earlier investigation. It was purportedly from an associate director of admissions and parodied the admissions officer downplaying an Asian American applicant’s achievements. The memo denigrated “José,” who was “the sole support of his family of 14 since his father, a Filipino farm worker, got run over by a tractor,” saying, “It can’t be that difficult on his part-time job as a senior cancer researcher.” It continued, “While he was California’s Class AAA Player of the Year,” with an offer from the Rams, “we just don’t need a 132 pound defensive lineman,” apparently referring to a slight Asian male physique. “I have to discount the Nobel Peace Prize he received. . . . After all, they gave one to Martin Luther King, too. No doubt just another example of giving preference to minorities.” The memo dismissed the fictional applicant as “just another AA CJer.” That was Harvard admissions shorthand for an Asian American applicant who intends to study biology and become a doctor, according to the trial transcript.

Jennie Suk Gersen, New Yorker.

There are two things worth noting about this event. First, Hibino himself was not doing his job. Not only did Hibino suspect that Harvard was illegally discriminating against Asians, he was confident that they were, and he thought it was funny. His job was to stop Harvard from doing this. Second, Burroughs attempted to hide that fact from the public.

Every influential person involved in the case was lying to protect affirmative action: Harvard’s admissions officers, the officers charged to investigate Harvard, the judge required to adjudicate it. Given what Chemerinsky said, this isn’t that surprising.

And the conspiracy to protect affirmative action wasn’t just limited to lawyers; a lot of very important economists worked to protect it, too.

David Card, Harvard’s expert witness in SFFA, is one of the most important labor economists of the last 40 years. And the brief he wrote in support of Harvard was pretty obviously bogus.

The crux is this: Harvard assigns “personal ratings” to students. Students with good academics, extracurriculars, alumni interviews, and teacher recommendations tend to get good personal ratings as well, for fairly obvious reasons. Asian applicants tend to have good academics, extracurriculars, alumni interviews, and teacher recommendations, but their personal ratings are quite low.

When you compare Asian students to White students with similar “objective” metrics, the gap in the personal ratings is quite stark.

Card just accepted the personal ratings as presumptively unbiased, and carried on from there, in order to protect affirmative action.

People who have observed this are mostly pretty blasé about it.

Other economists talking online have been pretty pessimistic about the quality of Card’s analysis.

Now, Card was getting paid to write the brief, but a lot of extremely important economists signed on to support it. As amici, they write for free: Guido Imbens, Bob Solow, Janet Yellen, George Akerlof, Jesse Rothstein, Hillary Hoynes, and more all joined. No one signed on as amici for Card’s opponent except for one rando who’s obsessed with the mismatch hypothesis. He is probably wrong.

The contrast between what economists say in private and in court should be fairly striking, but it makes more sense when you remember the Chemerinsky quote above.

Like Chemerinsky, everyone important was willing to commit perjury or perform biased analysis in order to protect Affirmative Action from the facts.

Now, you might think this is all very bad. Conspiracies to deceive the public certainly do leave an acrid aftertaste. But they are maybe fine. Secret discourse is how the country actually runs. As long as the secret discourse is in service of good ideals rather than than bad ones, there’s nothing obviously wrong with a conspiracy. The proof is in the pudding: the US and Europe are nice places to live, so presumably the conspiracies that dominate society are largely benign.

This is not a pattern unique to the United States. France similarly has a technocratic elite that imposes its values on the public. Their elite is often right, but the Enarques are not as subtle or clever as America’s academy, and this often pisses off the populace. With Affirmative Action, the technocracy strayed a little too far from public opinion, and was chastened for it. But overall the elite is pretty sensible.

The point of all of my discussion is just so that you, dear reader, may be better informed. You should, in all things, everywhere in your life, assume that the evidence for New Yorker liberalism is not as strong as it appears to be. Because there are vast conspiracies to hide from you any facts which shine poorly on it.

Of course, there is also run-of-the-mill bias. If there is an argument, and expressing that argument would introduce awkwardness among Harvard faculty, then we should expect that the evidence for that argument is better than you would expect from the expert consensus, because one good reason not to publish a study advancing that argument is that it would be socially awkward.

But there are also literal conspiracies.

Let’s Very Quickly Get Clear on Something

I want something to be very clear about Harvard v. SFFA.

Harvard’s claim was this:

“Asians just have terrible personalities. It’s not visible from their academics, choice of curricula, or extra-curriculars, which are great. Nor is it visible to their teachers, guidance counselors, or alumni-interviewers. The only people who can see Asian applicants’ terrible personalities are our trained admissions professionals, who are given detailed instructions on how to account for race in admissions decisions, none of which we have written down. Yes, students who have great extra-curriculars and good grades tend to have better personalities than other students. So, it’s sad that Asians, with their great grades and extracurriculars, nevertheless have terrible ones. Poor things! Also, we happened to have a fixed number of Asian students over the 15 years before the lawsuit. Then the number of Asians quickly rose after we got sued. This is a coincidence”

SFFA’s claim was that the personality ratings were inflected with racial bias.

Look at the data yourself.

(the reason that that “academic decile” doesn’t always match academic ranking is that some classes and schools are more rigorous than others; which is not identified by “academic decile” That was agreed by all parties in the case.)

Caltech, notably, does not use race in admissions.

Dans mon Jardin, S’il Vous Plait!

[Edit: lol an Economist writer clearly read this blog post as well and just published an article about it: https://twitter.com/RichardHanania/status/1684770461597716480%5D

This may be one of the funnier things I have ever read:

France is rich because it gets the big things basically right. Housing supply there is freer: the overall geographic extent of Paris’s metropolitan area roughly tripled between 1945 and today, whereas London’s has grown only a few percent. Infrastructure is better: 29 French cities have trams, versus 11 here (likely one reason its second-tier cities are much more productive than Britain’s). It has nearly 12,000km of motorways versus around 4,000km here – and French motorways tend to be smoother and better kept (and three quarters are tolled, making congestion much less of a problem). Childcare is cheaper: about half the price per month, in part because they require half the staff. Energy is more abundant, as shown above. Because it gets those big four things right, it can afford to get a lot of other things wrong.

Sam Bowman

This is basically all correct. France gets these four big things right, and they are the key factors that make France a rich country. What’s amusing is that they are all basically forms of YIMBYism.

It is true that France has very cheap energy, abundant housing, good transit, and cheap childcare. Is this because of political genius? No. It’s just that building things is legal, and so is taking care of children.

France has excellent transit (despite subtly hostile geography). And the reason is basically that the state builds a ton, keeps costs low (though not as much as in the past), and plows through local opposition.

ANd they have cheap energy. Why? Nuclear. It’s all about nuclear. And France has much cheaper nuclear construction than the U.S. because they do not regulate it to death. Nuclear is far, far safer than most other forms of energy, because it’s so tightly regulated that it can’t be cost competitive. That means we end up using dirtier, more dangerous, and more expensive forms of energy production. So the ideal is to regulate it with a moderate approach that leaves it as safe as possible while still being cheaper than fossil fuels, and literally only France does this.

And, France builds a lot of homes, so housing is far cheaper in Paris than in London or New York. And the reason is because, unlike the Anglosphere, France makes it legal for cities to grow.

It’s also true that they have cheap childcare, for the simple reason that, again, they do not regulate it to death. Despite what nice American lefties will tell you, you don’t actually need massive public investment to make childcare affordable. The French treasury spends about as much on early childhood care as other EU countries, but the cost to parents is extremely low. Why? They lower costs by having fewer staff per child and demanding fewer credentials. These are the key principles of the French model, but they’re increasingly illegal in the U.S. Here, childcare reforms lean into increased staff counts and more credentialism, costs be damned. D.C. has the somewhat absurd requirement that childcare workers all have a college degree. In this respect, France’s success isn’t exactly YIMBYism. A liberalization of markets in physical services is not exactly the same as liberalization of construction. But it’s clearly a similar vein: both are neoliberalism in the best sense – they don’t foster monopolies, hollow out regulatory agencies, or legalize speculation. Instead, they liberalize the real, tangible economy, and allow individuals and make free choices on matters a normal consumer can understand (childcare, housing, etc.)

So that is what keeps France going. The reason France can be a country where you work about 30 hour weeks until you retire in your late teens is simply YIMBYism.

Je ne pensait pas que La Belle France est la pays avec plus Yimbyisme. Quelle Surprise!

If Jesse Singal is Right about Gender-Care, then the Courts will Handle it Pretty Well.

Traditionally, the best respected gender care for youth was provided under the “Dutch Protocol.” The Dutch protocol uses a diagnostic model, whereby a clinician’s job is to decide what care is appropriate. The protocol requires heavy psychological testing and psychotherapy, then perhaps puberty blockers, hormones, or surgeries, depending on what the clinician considers appropriate.

For a long time pretty much everyone in this space was comfortable with the Dutch protocol.

But in the last few years, four things have rocked that consensus:

  1. The population of children seeking gender-care changed. Numbers have exploded, many more are female-to-male transitioners, and many more have (possibly unrelated) medical disorders.
  2. Several northern European countries pulled back on what care they provide. They’ve shifted to using more psychotherapy, rather than hormones and puberty blockers, than under the Dutch Protocol. Why? For one thing, medical authorities in these countries cite the change in the treatment-seeking population (which might leave old research outdated) and new data showing that the effects of hormones and puberty blockers are less reversible than previously thought. Perhaps more important, a British attempt to replicate the study that justified the Dutch protocol failed.
  3. US Republicans proposed bills severely restricting gender-treatment for minors or banning it altogether. Generally, these laws are far more restrictive than restrictions in Europe. At the state level, several have passed.
  4. In contrast, gender-care organizations and physicians have become much less restrictive in their recommendations for treatment – new WPATH Standards of Care depart from the Dutch protocol with faster application of hormones and blockers. Broadly, WPATH has moved to an informed consent model, where clinicians inform patients of treatments’ expected consequences, rather than determine what treatments are appropriate.

To me it is unclear whether the Americans or the Europeans have the better of the argument. I see two biases that should counter-act.

  • The general small-c conservatism of the medical profession, codified in the “do no harm” principle.
  • The tendency in medicine to obfuscate about trans issues in support of progressive agendas.

These are both pretty well documented biases of medicine.

That means doctors might be under-treating: when they don’t have much evidence either way on whether a procedure is good, they default to doing nothing (especially in Europe), even though a priori there’s little reason to think that abstaining from treatment is better. There’s the classic joke that doctors would need an RCT to say that parachutes prevent injuries when jumping out of planes.

But they might be over-treating: they tend to see the evidence for gender-related care as much stronger than it really is. Honestly, the standards for publishing in this field really do seem to be out of step with the rest of medicine, and there is a broad tendency to overstate conclusions.

So I personally have no strong opinion on who is right.

Well, the Republicans are wacky. But anyone else might be right.

Jesse Singal thinks the Americans are wrong and that this is a big problem. Obviously, the Republicans agree with him on that point, and go far beyond agreeing with him on other points.

The only thing I will add to the conversation is that this is something that the medical malpractice bar is well-suited to resolve. Any possible negligence has an identified actor, identifiable actions, and concentrated harms that make natural plaintiff parties (de-transitioners).

So, this is debate doesn’t need to happen in public.

Basically, a bunch of de-transitioners are going to sue the doctors who administered their transitions. As long as these claims reach juries, a bunch of these suits will succeed (juries are random). So, doctors will get punishing lawsuits (and punishing insurance premia) if Singal is right and they’re prescribing blockers/hormones/surgeries too aggressively. They will change their behavior accordingly. These suits are already happening, and people think it might change doctors’ behavior.

It’s not that courts will do a good job sorting out which doctors were too aggressive. It’s just that overly aggressive treatment will create a lot of de-transitioners, who are the people with grounds to sue. So, more aggressive care means more suits. Regardless of how smart the courts are, overeager practices won’t be commercially feasible in the long term

So the important question is whether plaintiffs can reach juries in medical malpractice suits.

That means, the key question is whether plaintiffs can argue that physiciams failed to meet the standard of ordinary care. The standard for medical malpractice is the same as the standard for ordinary negligence, and applies when defendants were using specialized knowledge or acting in a medical capacity.

Usually, that means plaintiffs must show clinicians didn’t meet “standards of care.” That means that doctors are fine if they exercise the usual judgment for a normal doctor with their qualifications. If plaintiffs can substantiate a claim that that a clinician didn’t follow the standard of care and this caused them harm, then they can get in front of a jury (and win some random percentage of the time).

But doesn’t that leave doctors immune to suit if they follow the WPATH standards of care? Not necessarily. Standards of care only provide immunity to defendants when they represent medical consensus. WPATH standards might be too contentious to meet that bar. However, defendants do have some protection when their behavior has majority support, or that of a respectable minority.

So an important question for plaintiffs is how courts treat the WPATH standards of care.

Courts have differed. Some consider it to largely reflect medical consensus. Others treat it as essentially just advocacy. As WPATH standards depart from older standards and from the European consensus, it’s probably become harder to use them defensively in court.

So it seems that plaintiffs should be able to state a claim, especially when doctors depart from the Dutch Protocol. Depends on the judge.

In general this is all very murky, and that means more claims will go to juries. It’s hard to establish “ordinary care” standards in gender care, because we don’t even know what the clinics are doing. Clinics are incredibly cagey about revealing their practices. That’s understandable given Republican pressures, but it means claims are less likely to be shut down by a judge – they don’t have the grounds to keep things from juries.

The upshot is that the debate over appropriate care for gender dysphoric minors need not happen in the court of public opinion. It will be resolved in the actual courts. The only reason to listen to Singal and the Europeans is if you’re concerned that the courts will move too slowly and and there’ll be collateral damage in the meantime. Eh.

Journalists are Surprisingly Careless About Defamation.

Sarah Jane Comrie is a random woman who was recently caught in the vortex of a scandal.

She is white, and recently found herself in a dispute with some black teens over who had the right to use a citi-bike that either she or the teens had paid for.

A video of this incident went viral, and was covered by a number of news organizations.

It appears that the teens were in fact attempting to steal the bike from her. Her attorney has produced two citi-bike receipts from the time the video was recorded. The first was (allegedly) the bike in the video, which she then re-attached to its post to resolve the dispute with the teens. The second was another bike that she rented to actually get home.

It’s possible the receipts are fake. But it’s pretty unlikely. It’s not clear how her attorney could fake receipts on the app, and if he did that will become clear in court and he’ll lose his license.

The news outlets covered this story a little differently than I would have.

Yahoo entertainment described the situation thus: “Citi Bike Karen” placed on leave after screaming for help while trying to steal in viral clip

In another article from Yahoo news:

A Karen is getting blasted online after faking her tears while trying to steal a Black man’s rental city bike in New York City.

Tomas Kassahun

In Bicycling Magazine: “Pregnant NYC Karen” on Video Trying To Steal a Black Man’s Citi Bike

The video was also pretty heavily covered by black media outlets.

Welp.

This is a pretty easy defamation case. Sarah Jane Comrie is not a public figure. So, to make a claim for defamation under New York Law, all she has to show is:

  1. The accusations against her were false
  2. The outlets accusing her of racism/theft/Karening were negligent (i.e. they did not exercise ordinary care).
  3. The accusations caused damage to her.

She got suspended from her job and got quite a number of death threats, so it’s not super hard to show damage.

Showing negligence is also pretty easy. There’s literally no evidence in the video that she’s at fault, so it was kind of wild to throw those accusations around. Plus, journalists are really not supposed to report that unconvicted people committed crimes. That’s why you see the word “allegedly” in stories even when it’s pretty clear someone was guilty.

And, I think it will become pretty clear in time that the accusations against her were false.

A jury is going to be pretty sympathetic to Comrie here, I think. This woman was (allegedly) the victim of a group crime, she’s pregnant, she was clearly distressed, etc. and then a lot of journalists called her a racist thief and thousands of strangers told her to kill herself. Not good for Yahoo’s bottom line!

There is a Pattern of Journalists and Public Figures being Shocklingly Cavalier About Defaming the Subjects of Viral Videos.

Here is AOC describing Daniel Penny’s killing of Jordan Neely:

This is also plausibly defamation! It’s not as strong a defamation case as Sarah Comrie’s, but it’s not an unwinnable case.

Generally, journalists were actually pretty careful about Daniel Penny. Even outlets quite unsympathetic to him were careful to avoid the word “murder.”

Journalists were less careful in the case of Nicholas Sandmann, the skeezy looking kid at the center of the Covington Catholic controversy some years ago, where some schoolkids, wearing maga-hats, appeared to be bothering an older Native American man named Phillips. And then it turned out they weren’t actually doing that.

He and the other students filed a lot of suits. They successfully settled against some journalists who had been careless. They lost against journalists who’d carefully described Phillips’ report as just one side of the story.

But it’s surprising that anyone at all was so careless. All of these teams have good lawyers.

I am not sure why journalists (and AOC) are so careless about defaming private persons.

But if I had to guess, I imagine the problem is the Sullivan standard.

If you’re a public figure, if you want to sue for defamation, you need to show that the defaming person wasn’t just negligent, but acted with actual malice. That’s pretty hard.

But random people thrust into the public eye by a viral video aren’t public figures.

Heavy news coverage of alleged misconduct by random strangers is really a new thing under the sun.

So journalists might just need some time to develop procedures and mores that can prevent them from getting sued – this is riskier territory than typical news coverage, and so it’ll be a while before they can keep their ids in check.

Slowly they’re getting the hang of it. You can see that in the more cautious coverage of Penny than of Sandmann.

The ones who fail will not survive.

A Legal Analysis of the Jordan Neeley Case

The Jordan Neely case is complicated enough that it could be on a criminal law issue spotter.

You should not be surprised if Daniel Penny is acquitted. But he might also be convicted of 2nd degree manslaughter or criminally negligent homicide.

Any of these is a plausible verdict. But Penny is probably going to get off.

The issue is this:

  • A Jury will almost certainly find that Penny had a right to act in defense of others to exercise force.
  • He had that right as long as he had a reasonable belief that it was necessary in response to imminent use of unlawful force, and it looks like Neely was threatening people.
  • However, he likely didn’t have the right to exercise deadly force. Under New York law, you can only use deadly force when you have reason to believe that the other person is about to use deadly force.
  • A jury is unlikely to think Penny reasonably expected deadly force – the relevant time for that wouldn’t be when Penny initiated the chokehold, but later, when he didn’t ease off the hold. At that time, Neely was pacified.
  • So the question is whether the force Penny applied was, in the appropriate sense, deadly.
  • Did Penny use deadly force? in some sense yes, since Neely died. But that was over the course of 15 minutes as they were restraining him. So it seems any deadly force wasn’t intentional. So, the application of deadly force was either reckless, criminally negligent, or not a crime.

Under New York law 2nd degree manslaughter is the reckless application of deadly force (basically the same in most states).

Reckless has a very specific meaning in the law. It means that you were aware of a substantial and unjustified risk ands still took that risk.

Now, it’s clear that Penny was aware of some risk, since a bystander told him to ease up a little on the chokehold, so he “wouldn’t pick up a murder charge.” Also, you know… People die in chokeholds.

Was he aware of a substantial and unjustified risk? Unclear. That is the important issue for this charge.

Under the statute, “substantial and unjustified” [basically] means that taking the risk is “a gross deviation from the standard of care a reasonable person would exercise”

So the question for a manslaughter charge is: was Penny aware of sufficient risks that would make his actions a gross deviation from how careful a reasonable person who knew of those risks would be?

Or, alternatively, was he aware of less risky options he had that would make his actions a gross deviation from what a reasonable person who knew of those options would do?

The charge for criminally negligent homicide is subtly different. For him to be guilty of criminally negligent homicide, he wouldn’t need to be aware of significant risks or alternative options. As long as a reasonable person would have been aware of those risks or those options, he would be guilty.

I doubt he will get a criminally negligent homicide conviction. I just think it would be hard for a lawyer to argue that an ex-marine trained in martial arts was unaware of risks or tactics that a normal dude would be aware of.

More likely he either gets manslaughter or gets off.

The big question is: Did Penny grossly deviate from the standard of care a reasonable person would exercise?

I think it would be hard for a DA to argue that he did.

It’s notable that the bystander who told Penny to be careful about getting a murder charge didn’t tell Penny to get off of Neely. He just told Penny to ease up [and there was more context around defacation]. And, other bystanders didn’t tell Penny anything, or actively approved of what he was doing. That suggests that several (presumably reasonable) people thought that Penny’s behavior was either appropriate or nearly appropriate. In that context, a DA is going to have a hard time arguing that Penny’s behavior was a gross deviation from reasonability.

If you’re the DA you have a few options, but they’ll all bad:

  • You could argue that the bystanders were all grossly unreasonable. Hard argument.
  • You could argue that Penny should have known better because he was a marine trained in combat. Also a hard argument: “… the prosecution would have you convict this man, not despite his service, but because of it!“
  • Or, you could argue that Penny understood the force he was applying better than the bystanders did. This one’s possible, though I feel like jurors are going to see the video, feel like they know what’s going on, and thus conclude that the bystanders knew what was going on as well.

What is going to give the DA a particularly hard time is that Penny was working with another guy to restrain Neely, and when the other guy told Penny to get off, Penny got off. So Penny could very easily argue that he thought the other guy was managing things, or that he figured other people would tell him if Neely was in danger. I think a jury would take those arguments pretty seriously unless Penny really makes himself seem like a jerk at trial.

Beyond that, I think the DA’s biggest problem is that Neely habitually threatened or punch people on subways, while Penny is a veteran and a college kid who was plausibly trying to do good. Is a jury of New Yorker subway riders going to unanimously send that kid to jail?

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