Why Colonel Sartoris?

Allow me to explain the puzzling title. Colonel Sartoris is William Faulkner's greatest character. He exemplifies those values that his society cherishes, namely tradition, patriarchy, courtliness, and courage. Though modernity's slow march tries to strip him of these things, Sartoris continues to live as he always has, knowing that "the past is never dead. It's not even past." He seeks order in the honorable folkways and mores of his forbears. Let us not forget his example.

Thursday, September 16, 2010

Turn out the Lights: the (Tea) Party's Over

The title takes its name from Willie Nelson's song “(Turn out the Lights) The Party’s Over,” one of his early hits, and an appropriate song to use to identify with the Tea Party movement. It is a country song, by a uniquely American artist who struck out on his own after being "rejected by the establishment completely" (to quote the title track from his 1976 hit album), so the artist fits the Tea Party's motif of bootstrap individualism flying in the face of the elites. But that song talks about "the same old day again," and the Tea Party movement would seek change--not a return to the run-of-the-mill politics we half-heartedly practice today. And thus while the Tea Party might not endorse the song, it actually captures what I believe will happen in due time to the movement (such as it is).

As I write this, the Tea Party has upset a few key races. The Tea Party has has derailed Mike Castle's bid for Senate in Delaware. It has scuttled Rick Lazio's bid for governor in New York. Mike Castle, while not a giant on Capitol Hill, still counts as a reliably winning candidate and securely entrenched incumbent, and the New York governor's race is nothing to shake a stick at. The New York Times editorial page has lambasted the Tea Party for propounding a “toxic message,” and has consistently denigrated it. Parenthetically, I take serious issue with the Times' coverage of the movement. It represents the epitome of the northeastern, elitist view of the rest of the country. The New York Times has told us that 18% of Americans identify themselves as Tea Party members, yet they are no fans of the movement. They effectively dismiss one-fifth of America as angry zealots, ignorant of the proper view of government or issues. And one of its columnists has even compared them to Timothy McVeigh. Speaking about Rand Paul, the Republican nominee in the Kentucky governor's race, the paper has characterized his views ". . . and those of other Tea Party candidates [as] unintentional reminders of the importance of enlightened government."

But while I hardly share the Times' elitism and mockery of such a large swath of the American body politic, I do share one important value: a premium on enlightened government. The Tea Party does not pursue unenlightened goals. But it does not have any intellectual heft or backing. And I contend that because of its lack of intellectual leadership and an elite to focus and refine its message and philosophy, the movement will wither.

This notion pretty clearly runs counter to the Tea Party’s message. This lack of intellectual elites and grassroots-ism, a Tea Partier might contend, is precisely what makes this movement special and what drives it And I would respond that yes, the movement's anti-elitist, don't-tread-on-me vibe certainly drives it, but it does not make it special. Case in point - William Jennings Bryan's Populists, the Progressives (TR's Bull-Moose Party), or the Greenback Party. All these parties thrived on anti-establishment, grassroots support. All carried an anti-elite message. But all of these parties fizzled. Not a single one dramatically changed Congress’ composition. Of those listed, the Greenbacks sent 13 Representatives to the 46th Congress (1879-1881); the Populist Party sent 21 Representatives to the 55th Congress (1897-1899); and the Progressive Party sent 10 Representatives to the 63rd Congress (1913-1915). But all these parties died; not a single one of them is with us now.

But leaving aside the contention on Tea Party leadership and philosophy, suppose that the Tea Party does meet with electoral success. Suppose that the Tea Party (whether we identify it as a party, a wing of the Republican Party, or a “philosophy” or a caucus) captures a surprising number of seats this election cycle, and that it builds on this success in future election cycles. Take the Federalist Party -- by 1815, we had a National Bank, we were an emerging commercial and manufacturing power, and the vision of Hamilton had taken firm hold. But (and this is a sweeping, but accurate generalization) it had done so really since ratification in 1790. Tremendously important questions remained (state sovereignty, slavery, to name two HUGE ones . . . ), but the Federalists had triumphed on the very blueprint of the nation. And after their success in, literally, the greatest philosophical and political question in our nation's history, what happened o them? They dwindled to a remnant and eventually coalesced with other anti-Jacksonian nay-sayers into mere supports of the Whig Party, itself now a defunct footnote appending the history of American politics. I could very easily see the Tea Party following their direction.

But, a Tea Partier might further contend, electoral success does not necessarily capture the overall “success” of a party. A party, as any high school civics teacher could tell you, seeks to implement its legislative platform by electing its candidates to political office (It is distinct from an interest group, which advocates for particular legislation, but which does not focus on vaulting its members into elected office, but instead on changing public opinion). But a college political science or government/politics professor would tell you that a party's “success,” judged, in the long run by academics, often is based on other factors. While a party may not capture many seats in an election, it still colors America's political canvas. Often, third parties serve as a vehicle, a harbinger or capsule, of public sentiment. They are frequently issue-focused (Free Soil, National Women's Party, Anti-Masonic, Free Silver, etc.), and they frequently vocally inject a perspective or a new voice into a race or campaign. As a third-party candidate brings issues into a presidential race, a third party may energize a new base, inject new issues into a debate, or even sweep an incumbent party from office.

Hence, we come back to issues. We come back to a party’s philosophy. The Tea Party is, as I have said, influencing key races (at least at the gubernatorial/state level). But, to be honest, the Tea Partiers will probably not enough seats close enough to spit at a congressional majority. But suppose the Tea Party's contribution, instead of (or to humor the Tea Party faithful, "in addition to") flexing its muscles in the ballot box, is tapping into and bearing the standard for a potent strain of American political thought (dare I say philosophy?). Suppose that, instead of becoming a powerful third party that eventually becomes one of the two major parties of a two-party system, it leaves its stamp on a party’s platform (i.e. – the way that the Republicans absorbed the Whigs). That's certainly a vision: the movement does not meet with electoral success, but it leaves its philosophical imprint on our political discourse by re-hewing planks in the platforms of our two major parties.

This naturally raises the question what the Tea Party's platform or philosophy is. What are their planks, what are the issues they may inject into this election cycle? I don't know. A lot of commentators have tried to answer that. But, at this point, I think their big issue is anger. I think they're angry about Obama. And they're angry about the bailout of GM and big investment banks (ahem . . . Goldman . . .). They're angry about a health plan they consider disgusting in its waste and expanse. To be honest, I am checking quite a few mental boxes myself. But “anger,” even if attached to valid issues, is not visionary or activist: it is merely reactionary. And parties do not survive based on mere reactionism. Liberals often (and unfairly) brand conservatives as reactionaries -- kneejerk naysayers nixing any novel initiatives. But the Republicans DO at least have a vision. They have a platform. And they've been around for 150 years. And they

Prior to, say, 1950, conservatism did not have much intellectual backing in America. Our tradition was liberalism – initially that of the Enlightenment, and then that of the New Deal. “Conservatives” smacked of elitism and privilege. That changed with William F. Buckley. The 1950 graduate of Yale gave intellectual legs to a faltering, nascent movement when he founded National Review. The Republican Party, the party of “NO” to FDR's New Deal, had begun to gain political ground in post-War American first with Ike as president, and then during, for right of for wrong, the Red Scare under McCarthy. Republicans grew more popular, and they began to contest ground with Democrats again. But with Buckley’s backing, the movement enlarged and entrenched itself. Because Buckley, along with his intellectual predecessor Whitaker Chambers, had lent the movement intellectual credibility. The Neoconservatives replicated this phenomenon for Bush in 2000 and 2004 (much to Burkean convservatives’ chagrin). Buckley was able to attract like-minded intellectuals to conservatism’s cause, and they were able to trumpet its virtues and thus burnish and popularize its message. One of conservatism’s early stars, Barry Goldwater, wrote a book—The Conscience of a Conservative—that is still widely regarded in intellectual circles. If not an intellectual himself, Goldwater at least thoroughly understood the intellectual, philosophical underpinnings of his own politics. He learned from an elite, and, in time, became part of that elite.

Let us think for a minute—can we imagine Sarah Palin writing a book that is still read in fifty years? Sarah Palin is an accomplished woman, but Going Rogue, in my mind, does not quite have the staying power that God and Man at Yale has. Perhaps such a comparison is unfair. But parties gain staying power through development of ideas. And the Tea Party, because it downplays that notion in favor of mere angry reactionism, will have about as much staying power as Going Rogue.

Turn out the lights – the Party’s over.

Sunday, August 1, 2010

Order in the Court

So I have taken a hiatus from the blog. As I write this, I feel somewhat like Ignatius Reilly in invoking his "Dear Reader" at the start of his self-serving journal entries. Toole's character, however, interacts with no one in a "normal" way. In spite of my admittedly sub-par social skills, I like to think that I can turn it on when I want to. We'll see.

Anyway, I came across this article a while ago. In it, some Charles Blow (never heard of him before; if you determine I should have and, thus, I'm an intellectual reprobate, quit reading), suggested that the Supreme Court requires more diversity. This suggestion naturally raises the question as to whether diversity is normatively good for the Court. As an addled 2L, I would suggest it is.

First, anytime you have opposition, it sharpens the debate. Thus, while I revel in every Scalia dissent I read, I revel more in a Scalia concurrence, where he spells out the reasons the Court should adopt his reasoning in the case and lays out the points of contention he has with the majority (and dissenting) opinion. Scalia plays almost a "rogue" on the Court: he does not settle. He holsters his originalist guns, and he sticks to them. AND, when a member of the Court challenges him, Scalia frequently writes an opinion detailing his opponent's contentions and their fallacies. And so while one may argue that Scalia misinterprets the Constitution, one cannot argue that Scalia does not at least dig in and give his most artful defense on his point.

And so I think a diversity of opinion on the Court is good. Truly reasonable, wise jurists should (at least theoretically) yield to a more persuasive argument. And therein lies the problem. Any student of constitutional law should cuss the Warren court for making their lives so unbearable: they stretched the text of the Constitution to its absolute limit, and created constitutional doctrine tethered flimsily, if at all, to to precedent. That said -- the Warren court did yield to a persuasive argument. Brown v. Board, for one, guaranteed equal protection. But the Court should have overruled the Slaughterhouse Cases right then and there instead of relying on social science. Because Earl Warren wanted a unanimous opinion, he had to water it down, and, though he reached the correct conclusion, he relied on little precedent and poor legal reasoning. Outstanding, correct result. I wish he would have said, though, "We have had it wrong."

My good friend Madison Perry posted this article on Volokh's blog recently to mock the same effort, and, while I laughed, I could not help but ask this question: "How, as a country, could we get the diversity on the Court that we need?" At the outset, I must maintain this point: the Court needs a diversity of opinion. And I think it needs it for the reasons I elicited above.

Now, we come to a vote on Elena Kagan. I am a dyed-in-the-wool conservative. I think President (not "Mister," as NPR, to my considerable annoyance, insists on titling every president they ever mention) Obama has chosen an incredibly perceptive thinker who has a proven track record of insisting on freedom of thought in academia (read "she pushed for a faculty that wasn't decidedly liberal"). It annoys me that she denied military recruiters access to Harvard's career services office. In my mind, that is like denying the DOJ access to students because you disagree with a statute under which it might prosecute. It is just silly to disallow a person from interviewing because they say "Hey -- we don't discuss sexuality at work." The policy, at its core, may actually wiser than those of most work-places. The fact that Kagan thinks that unwise mitigates her judgment in my mind.

That said, Supreme Court justices have policy disagreements. That is a fact. Kagan will vote with the liberal bloc of the Court -- that's no surprise. But I think, at the end of the day, that she will bolster whatever center the Court still may occupy.

Tuesday, April 13, 2010

Pulling My Hair Out

Law school in mid-April does not leave me much time to post anything. I've had quite a few ideas for a new post, but they will have to wait until this weekend.

Wednesday, March 31, 2010

Supreme Court Trading Cards

Now, I claim to be a law school nerd, through and through. But even I think this has a failed, doomed market. Check it out: it's a John Roberts trading card. I understand that it's tongue-in-cheek, but who, honestly, has this much time on their hands?

Aside from the Constitution . . .

Yesterday I set forth a series of educated guesses about what would happen to the two health care law suits. They are educated only to the tune of a law school career about 60% over, so take them with somewhere between a grain and the shaker of salt.

Today, however, I would ask whether the health care reform that passed is a good idea or not. I think that most have seen Atul Gawande's article in The New Yorker back in June of '09, which profiled the South Texas town of McAllen, which has the second-highest per-capita expenditures on health care in the country. That article really got me thinking about the entire system, which is hard to do. I have not been to the hospital in a long, long time. I have not bought a prescription drug since -- I can't even remember. Gawande's article did a good job giving me an introduction to the problem. But information out there is hard to find; there is no "health care systems for dummies" book that I have found.

Unbelievably, it is exceedingly hard to find a well-reasoned, thorough critique of the bill. The New York Times, naturally, gives policy a conclusory pat-on-the-back or kick-in-the-rump, with about as much thought-provocation as an episode of Family Guy. Redstate.com, of course, does the same thing -- just with a different conclusion and almost no coherence (although I must confess I enjoy that site for other reasons). But I finally did find a very thoughtful critique of the bill. The Becker-Posner blog has a tremendous post today on the merits of the new bill. Of course, both of the contributors have conservative leanings economically and legally. But while one may disagree with whatever their philosophical presuppositions might be, their conclusions come only after deliberation and reason.

Becker contends that really good, cost-cutting reform would seek to scale back the tax deductions that employers enjoy for providing plans, which would have the putative effect of forcing consumers to pay a higher deductible for medical care. Becker compares Americans' out-of-pocket expenses (12%) with Swiss citizens' out-of-pocket expenses (30%). Switzerland, he continues, spends a much lower percentage of their GDP on health care.

I would make two observations of this argument: (1) Raising the cost of procedures would surely deter a substantially greater portion of the population from undergoing that procedure; and (2) raising the cost of a good/service does not lower the cost of that good/service. In my mind, productive legislation would seek to spend less on health care. I supposed that, in the aggregate, a lower percentage of GDP would mean less per-capita spending on health care. I do not know, though, that it would make a particular health product any cheaper. Put another way -- is the goal of health care reform to keep the same level of service (roughly the same number of tests performed, same number of checkups, roughly the same prescription drugs, the same general sphere of coverage, etc.) and to make it cheaper? Or, is it simply to spend a smaller percentage of GDP on health care? Becker does not really answer that.

The Gawande article I mentioned above contends that over-prescription (of tests, drugs, specialists, etc.) has driven up costs. That makes sense: if the medical culture subscribes to needless over-testing, then it will of course incur costs. And because co-payments are so low, someone else foots about 85% of the bill. But who foots that bill? Obviously, those who pay the premiums -- peoples' employers, i.e. - corporate America. It would seem that premiums would go up year by year in response to a rampant exercise of the plan's options by its subscribers. And in America, corporations would eventually buck the increased cost of the health care they must provide. So what steps into stop that market equilibrium? Are we at the market equilibrium right now? Or are health care costs expected to rise?

This analysis, of course, raises the question why this bill was enacted, why this reform was pushed now. I can think of two reasons why Obama and the Democrats made this a priority. First, they thought that, for the services Americans were receiving, they should be paying less (in other words, health services was being inefficiently delivered). Second, too many people in this country did not have health insurance, and this was an unacceptable state of affairs from a policy/philosophy standpoint. Both of these reasons make sense as a causa actionis.

And the has definitely addressed the second reason: it has vastly expanded coverage. But in regard to the first reason, what has the bill done? As far as I can see, it has set up state health insurance exchanges. This idea, by the way, was put forward by the Heritage Foundation three years ago in several articles. This will enable consumers to see what other plans offer, and it should lead to a more efficient market. But if the market is at equilibrium now (no idea if it is), then consumers will not likely see much change in the value of the dollar that they spend on health care. Why? Think about the range of health care plans we have now. They range from covering little to covering everything and the kitchen sink (these are the infamous "Cadillac plans," upon which many heap plenty of blame for today's health care "crisis"). With disclosure, the market will find a happy median -- somewhere between the awful plans and the extravagant plans. Employers will converge on that. But if we are at market equilibrium, then plans will converge in terms of cost and coverage somewhere halfway between a mediocre plan and a cadillac plan. Qualitatively, I do not know how big a gap exists between two such plans -- but I would wager that the market will converge on the "average" health plan now. So is that what disclosure will ultimately do? Provide everyone with the average?

Now, perhaps in doing so, the market in the long term will force plans to raise deductibles and offer abridged coverage (not necessarily in a miserly way, just fewer options than a cadillac plan). Disclosure and information sharing worked the same way when the internet started selling goods and services: prices were cheaper online, but brick and mortar stores and the internet started to converge around the same market price for the same good. Thus, the exchanges may very well see modest reductions in price, but not an immediate cost-cutting that many Americans may well expect to see. It certainly will not warrant the fanfare of the twenty-two pens needed to sign the legislation. But it very well may help in the long run. Just don't expect too much.

Posner's critique, on the other hand, provides an outstanding analysis of the legislation. First, he contends that it will at least provide us data on how to run a health care system and what the cause of the problem is (not what its attendant circumstances are; much of the analysis and data I've seen merely give a post hoc, propter hoc type of analysis). Second, Posner contends that the bill will be expensive and that it will not save money. Judge Posner towers above the masses (in which I include myself) intellectually, but this prediction does not seem to come from Sinai, so to speak. There will be an increased demand for services, but no corresponding increase in funding? Oh -- looks like a financial shortfall. You do not have to be an economist at . . . well, the University of Chicago . . . to predict that.

So what will the bill do? If it subjects the nation to poor policy outcomes, it will sharpen our policy-making ability in the future. If it produces mediocre, modest results, it will have the same effect. Remember -- Americans like incremental policy change. We will have to wait to see whether the bill provides such an approach, but I think it does. Does it expand entitlements? Yes, of course it does -- but it does not engender a new way of thinking the way that the New Deal did. Now, business are expecting their costs to rise. While I hate to let corporate America dictate policy, they churn the economic engine, and their collective prospectus bears on us all. So, unfortunately, we must wait. But the plan is not catastrophic. The New Deal did not bankrupt us (though it more or less invented deficit spending), and this exceedingly more modest effort will not do the nation in, either -- at least in the short run.

Monday, March 29, 2010

The Legal Challenge to Health Care

The New York Times editorial page featured a great piece today on the lawsuits filed last Tuesday to challenge the constitutionality of the recent health care reforms. I have never been one to cotton to the views espoused on this page. Simply put, the views of this page frequently conflict with mine. They are liberal; I am conservative. Yet I like to think that I disagree with them based on more than reaction (liberals' oft-applied label to conservative critiques of their policy; a lot of ink may be spilled on this subject, but that will be saved for a later post).

And my reaction, this time, to the editorial page is this: the New York Times is best at reporting news, and worse when commenting on that news, but worst when analyzing legal claims.

First, I wrote off the editorial page's jurisprudential views when it recently came close to endorsing an argument based on the privileges and immunities clause of the Fourteenth Amendment. That clause, famously (if tragically) gutted in 1873 by the Slaughterhouse Cases carried NO weight in the oral arguments in McDonald v. Chicago. Justice Scalia, perhaps the closest proponent on the Court of adherence to original meaning (his recent writings would characterize his position as adherence to "meaning," not "intent," as the Times would characterize it), might as well have laughed in advocate Alan Gura's face (on whose side may very well rule) when he observed, "Well, I mean, what you argue is the darling of the professoriate, for sure, but it's also contrary to 140 years of our jurisprudence." The Times did not outright endorse such a view, but it did seem to import some enthusiasm to Gura's argument. Such hopefulness betrays, I think, a shallow understanding of constitutional law.

So, aside from my nigh diametrical opposition to the positions that the Times advocates, I take serious issue with their theories of advocacy. Thus, when I see them submit a constitutional argument to their own critique, I give very little deference to their conclusions. But I would seek to discuss the merits of their claims.

1) Virginia's claim to nullify will fail. A lengthy piece of a lengthy article I submitted to the N.C. Law Review detailed the thorough discreditation that the oudated, hoary doctrine of nullification has received. Despite the Virginia and Kentucky Resolutions, almost no Founders would endorse nullification, or "interposition," as John C. Calhoun termed it.

2) The challenge to the exchanges will fail. The bill is deftly drafted so as not to require the states to implement Federal law (a commandment firmly laid down by Printz v. United States). The federal government will step into to provide the framework for the exchanges if the state governments fail to do so (and thus forgo Federal dollars). Conceivably, the requirement that exchanges host all policies sold in the state may very well be a violation of the Commerce Clause, but it is not.

3) The Commerce Clause challenge will fail. First, the Supreme Court has declared the sale of insurance "commerce." Furthermore, the bill is drafted to ensure that no Federal regulations impinge on the states' ability to regulate insurance. The McCarran-Ferguson Act later provided that insurance regulation remains within the purview of the states, but that still does not repudiate the 1944 decision in Southeastern Underwriters, in which the Supreme Court declared insurance a form of interstate commerce.

4) The individual mandate claim may very well prevail. Now, as a second-year law student my knowledge of the constitution is hardly exhaustive, but I cannot think of any Supreme Court opinion, or any significant doctrine of the Court, that sanctions a mandate to buy something. Indeed, the prevailing view of the guarantees of the Bill of Rights would hold that the Constitution guarantees only "negative" rights. In other words -- you are not guaranteed a right to speak (i.e. -- you may not be physically, financially able to do so), but you are guaranteed that the government may not restrain that right (at least unreasonably; this is a gross oversimplification of constitutional rights across the board, but it is generally the theory). Thus, under current doctrine -- indeed under the very paradigm of American jurisprudence -- the mandate to buy something certainly looks anomalous.

And here, beyond any other paragraph, is where I take issue with the Times. They gloss that "penalties for not buying insurance have been structured as a tax." Oh -- game over, I guess. That's actually selling the Times short; it maintains that while that's not a perfect defense, it is pretty close. That is hogwash. Any meaningful analysis of constitutional jurisprudence would immediately see the problem that this legislation proposes. First, there is no way to avoid this "tax." I either pay or I do not. It is not as if I refrain from buying tobacco, and thus protest the tobacco tax. Certainly, we have income taxes. But those are levied against property. AND -- this is the real kicker -- they are payable to THE GOVERNMENT. Here, yes, there is a tax, but the alternative is paying a private company for health insurance. Thus the mandate is "pay the private individual, or pay us."

At the very least, this makes for an interesting, but completely open question in constitutional law. The Times would pass it off only as "arguable." I cannot tell you why, but I would suspect that they so support the legislation (as I do, in some parts) that they would rather not examine the constitutional arguments against the legislation too closely. I find such a position a travesty in the nation's greatest paper. Likewise, I would posit that the Times cannot honestly opine that the Attorneys General are doing their constituents a disservice by filing this lawsuit. They honestly believe that the state budgets will be so encumbered by Medicaid expansion that they have no choice but to enjoin its enactment. Likewise, why should they not be zealous guardians of the choices and individual liberty, in the context of a mandate, that the citizens of their states enjoy? I find it odd that the Times does not at least entertain that rationale.

I make no projections as to whether the claims (found here) will be dismissed, will prevail, or will be ridiculed. I do know that at least the mandate question presents a very lively, open, and undecided constitutional argument. And I also know that the Times should not dismiss the legal arguments out of hand simply because it so loves the legislation.

Friday, March 26, 2010

David Brooks and the "End" of Economics

David Brooks wrote a compelling piece today in the New York Times. Normally, I love everything that Brooks writes, but I had some hesitation really embracing his conclusion in this article. His column today contends that economics, as a "science," will die when economists start to factor in human nature into their analyses. I do not think it will do so, and I think Brooks (much as it pains me to say) may be wrong on this. Let me try to explain why.

I will begin by saying that David Brooks makes the most sense of any commentator/social scientist/talking head out there today -- period. He submits all his inquiries to his own thoughtful, thorough critique, and he writes persuasively and forcefully (as well as humorously). So I kind of surprise myself saying that I am disagreeing with him.

The subject of Brooks' article, economics, confounds me. I grow increasing irritated with economics as a discipline. In my own career as a law student, for example, I find myself confronted economic analysis of the law, and I cannot stand it. Society should not pursue a course of legal action based simply on the idea that the outcome is "efficient." It should pursue the moral outcome. In my mind, the law and economics movement misses this. Judge Posner is much smarter than I am, so I am sure he can rejoin this argument, but that is my critique. Secondly, in my job as an Articles Editor on the NC Law Review, I find many of the articles that I am reading crammed with regression analyses, data sets, and other mathematical chicanery that I have trouble understanding. The problem is not that these data exist; the problem is that the authors seek to base their argument oftentimes on empirical analysis and not moral analysis. When authors use as much empirical data and economic analysis as they do, I get the sense that they don't think arguments based on morality, common sense, or history quite cut it. So I began Brooks' article squarely in his camp.

People are not rational actors. Brooks notes this, and this has long been the Achilles heel of economics. In my mind, Marxism suffers from the same crippling logical flaw. Neither Marxism nor economics take into account human nature. Simply put: you cannot make behavioral predictions about a society when you so grossly misunderstand its people. Brooks notes that the discipline is moving in a "more humanist direction." Economists, presumably, are starting to respond to this age-old criticism that their theories suffer from the supposition that humans make choices rationally.

Brooks concludes that economics will still serve a function, so he does not completely throw out the baby with the bathwater. But I quibble with his complaint that the models did not see the financial crisis coming. Not every model is perfect, and not every discipline can predict things. In a broad sense, one may say that economists did predict this: this is a massive, massive market correction. People will adjust their behavior accordingly, as will markets. But Brooks obviously criticizes the failure to predict this specific crisis. First, I do not pretend to know enough about economic scholarship to know whether any forecasts were out there predicting a global financial meltdown. Secondly, plenty of people saw the risks associated with the behavior of lenders that was going on. And perhaps this fuels his criticism: when a discipline is supposedly the best-equipped to spot a problem fails to do so, but outsiders do, obviously, that discipline has failed.

But I think that Brooks should simply stick to criticizing economics as a discipline. It is simply unfair to an academic discipline to say that it failed to predict a certain outcome. Derivatives, credit default swaps, and many of the other financial instruments that contributed to the economic meltdown were all so new and intertwined in so many unforseen ways that the very real possibility exists that academia had simply not kept up with finance. (Obviously, neither had law. See this article on Brooksley Born, the former head of the Commodities Futures Trading Commission, and how she had more or less predicted this catastrophe.) It's an amazingly complex system. But I don't argue that a particular field of study should predict easy things and forgive economics because particular situation on these facts was simply just too hard to make. I argue that you cannot fault any discipline for failing to predict one specific event.

Academic disciplines are imperfect. Science is for sure imperfect. Any field of learning that relies on trial and error process to obtain information must, by definition, rely on assumptions that further study will later disprove. By testing hypotheses, you arrive at a clearer, more complete picture of whatever you are studying. Economics does the same thing. The financial crisis should simply continue to inform economics as an academic discipline: it should function as yet another set of data. Because we cannot predict the weather well a week out does not mean that we should scrap the discipline of meteorology. So I take issue with Brooks' fault of economics because it did not predict the financial crisis.

Yet Brooks does raise an interesting point. If a government agent like Brooksley Born (an extremely smart lawyer, but not an economist) can predict the economic crisis, why did economists not? No one really has an answer. I would wager that several people grew uneasy at the growth of the derivatives market and saw the lack of regulation as a serious problem. But with Brooks' thesis, that economics is a faulty discipline because it starts with a prima facie untenable premise, I completely agree. People are not rational all the time (indeed, many would argue that I am rarely rational). And it explains many things. Just not all. Science, indeed, cannot explain all. I would point to the apochryphal story of the evolution of the Harvard seal. Originally, one book of the three books was closed to show that man cannot know all. But now, that book is open: man can know all, the seal seems to proclaim. And that is the problem with modern scholarship. That is the problem with secular humanism: there is no humility, there is no recognition that man cannot grasp all there is to know about the world. Man's knowledge is definitively bounded. And scholarship must recognize that point.

Saturday, February 27, 2010


The last two months have been very fertile song-writing ground. I'm reminded of a quotation by C.S. Lewis: "Even in literature and art, no man who bothers about originality will ever be original: whereas if you simply try to tell the truth (without caring twopence how often it has been told before) you will, nine times out of ten, become original without ever having noticed it."

Anyone who knows me will tell you that my musical tastes are not advanced. They are diverse, but they do not seek out creativity or novelty. Just give me a good riff and a pithy, sentient lyric. That's all I need. "Three chords and the truth," if you will.

Maybe I'll put some lyrics up. Until then, just check me out when I get the courage to do an open-mic night here in Chapel Hill.