Friday, May 08, 2009

Do Androids Dream of Electric Justice?

Obama must be a master of some sort of dark-art political aikido. How else could he get his opponents to come out against empathy? Obama mentioned that he'd want to nominate a justice with the capacity to exhibit this quality:
Now, the process of selecting someone to replace Justice Souter is among my most serious responsibilities as President. So I will seek somebody with a sharp and independent mind and a record of excellence and integrity. I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people's lives – whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.

I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving as just decisions and outcomes...
Jeff Sessions (R-Jesusland) responded:
"The danger of that is: what is empathy? Empathy is a totally non-objective standard. It is utterly subjective. In other words, I don't like you so I have no empathy for you, but I have empathy for your opponent therefore I'm going to tilt the playing field in favor of the person who's suing you or you are suing.
Or as SadlyNo shortered it:
You know who had empathy? Hitler, that's who.
So I guess the Republican position is that we need to screen all prospective jurists with the Voight-Kampff Empathy Test and exclude those who pass.

This is sure to be another winning strategy for the GOP. Everyone wants a justice system packed with replicants. What with them already successfully running the Terminator for governor of California I'm beginning to think that the party may already be a front for a robot takeover.

There's been much commentary about this, but I liked this one by Jonah Lehrer points out that the lack of empathy is not impartiality but psychopathy, and also pointed out that Adam Smith laid out how empathy was the basis of morality and justice a couple hundred years ago.

Empathy is one of those concepts that cuts across and connects a whole swathe of things I'm interested in, including personhood, group formation and polarization, artificial intelligence, and politics. My dissertation (which was ostensibly about novice programming environments) was partly taken over by the question of how one attributes agency to things, and how one applies certain cognitive frames to quasi-animate objects that enable projection, identification, attribution of goals and emotions. The question of empathy in politics was how commenter Michael and I started our long and tedious debate – I thought that it was useful to apply empathetic thinking to the activities of criminals, he thought that it was just awful and you shouldn't. And of course, it was a central theme of Phil Dick's work.


Michael said...

Your 'empathy' for criminals seemed awfully like apologia and justification for their deeds. You claimed that the pimp and the dope peddler did not differ fundamentally in their economic activities from Warren Buffett in his; the conduct of a murderous gang member did not fundamentally differ from th conduct of Gen. Petraeus as a soldier. If such an attitude is what empathy means, this is not what I want to see in a judge.

A judge is supposed to weigh cases impartially, without favor toward one litigant at the expense of another. The danger of the kind of "empathy" you and Obama seem to want is that it puts the judge's thumb on the scales of justice.

There is an old anecdote about Sir Nicholas Bacon, the father of the famous Sir Francis. Sir Nicholas eventually became Lord Keeper of the Great Seal and was an important courtier in the early part of the reign of Elizabeth I. At one point in his career, he had been a judge, and a thief named Hogg was brought before him. The thief was obviously guilty and nothing remained but to pass sentence. At this point the culprit appealed to the magistrate's empathy, suggesting that since he was named Hogg, and the judge Bacon, they might be related. Sir Nicholas responded that, indeed, it could be so; but even if it were, bacon was simply hog that had been well hanged. What we need is more judges like Sir Nicholas,

mtraven said...

Empathy just means being able to take the view of someone else. It is a viewpoint, a cognitive tool. It may be that to understand all is to forgive all, but nobody is seriously arguing that we can dispense with the notion of crime and punishment, even if we can understand the criminal's motivations. While crime must be punished, that hardly seems sufficient for anyone who wants to understand humankind or morality.

Judges need empathy because the application of the law is not a purely formal or mechanical process. If it was, we could have computers do it. Judges, especially high court judges that must interpret the law, need to do so with a full grasp of the situation.

To take a non-controversial example: a man accused of murder may use self-defense as a defense. The judgement of whether this defense is valid requires understnading the defendent's state of mind, whether they were in fear of their life, whether they had other actions open to them, whether they intended to kill, whetgher they were acted in the heat of passion. Deciding all these subordinate criteria requires placing oneself in the mind of the defendent, that is, empathy.

You claimed that the pimp and the dope peddler did not differ fundamentally in their economic activities from Warren Buffett in hisI believe I claimed that it was a useful point of view to consider them as both proceeding from basically similar motives. In other words, their activities are not identical but have interesting similarities.

the conduct of a murderous gang member did not fundamentally differ from th conduct of Gen. Petraeus as a soldier.Ditto.

Michael said...

Your example of the use of empathy in a case of killing alleged to be in self-defense is not how such cases are judged. In practice, objective criteria are used: for example, was the person killed an invader in the killer's house? was he armed? was he in the process of committing a crime? did he have a criminal record? etc. All of these points, which may be factually established rather than divined by some sort of psychobabble, are what determine that his killing was done in defense of hearth and home. It is not necessary to get inside the mind of a householder who has shot a burglar to know why he did it and that it meets the standards of justifiable homicide.

Mercy to the criminal or deviant is not mercy to society. It only encourages more criminal or deviant behavior, in the long run enlarging the number of victims. Thinking of a pimp or dope peddler as in any way similar to a legitimate businessman, or of a gangbang murderer as in any way similar to an honorable soldier, is the starting point for this kind of misguided mercy.

Obama in his description of empathy used as one example that of an adolescent girl who was pregnant - the implicit suggestion being that an 'empathetic' judge, in view of the predicament she found herself, understand why she wished to get an abortion, and would allow her to do so. Of course, we have seen over the past fifty years the consequence to which such thinking has led - millions of abortions a year, as well as the burgeoning of bastardy, with all the woes that means for the future of such children and those with whom they may interact.

Fifty years ago the rate of illegitimate birth amongst whites was disappearingly small; abortion was everywhere probihited, and birth control was highly restricted if not prohibited. The result of 'empathetic' judicial removal of these prohibitions has not been a lessening in its occurrence, but a removal of its stigma. Social pathology has of course increased, rather than diminished. All because of the sort of 'empathy' of which Obama wants to have more! Such good intentions do not merely pave the road to hell, but make it into a superhighway.

TGGP said...

I've been listening to Supercrunchers, and I think that it would be better if we replaced judges with computers.

mtraven said...

I am completely happy to let Republicans leave the quality of empathy to the Democrats, the better for them to play the role of Gradgrinds and Scrooges that they seem to aspire to. That will hasten their decline into well-deserved irrelevance.

My example of how empathy impacts legal judgement wasn't that great (although still valid, I believe). Here's a better one.

TGGP: there aren't computers that can do the job of the Supreme Court, so good luck with that. Attempts to impose computer-like inflexibility on lower court judges with forced sentencing guidelines have mostly been disasters.

Michael said...

Before dismissing critics of judicial 'empathy' as Gradgrinds and Scrooges, perhaps it would be helpful for you to consider how Obama has used the word. It is the meaning with which he invests it that needs to be understood to know how it will affect his selection of judges.

A week ago Sunday the New York Times published an account of Obama's likely approach to replacing Justice Souter. In it, Geoffrey Stone, a former dean of the University of Chicago law school, was quoted as recalling that Obama often expressed concern that "democracy could be dangerous," since popular majorities could be "unempathetic" about "the concerns of outsiders and minorities." It may reasonably assumed that he expects judicial "empathy" to counteract these "unempathetic" tendencies. Of course, what this means is nothing more than that the democratic process is fine when it serves the cause of the left - like ramming socialized medicine through Congress by a budget reconciliation process to prevent a filibuster in the Senate - but democracy isn't OK when it doesn't serve the purposes of the left, e.g., referenda requiring public institutions to use color-blind criteria rather than 'affirmative action' racial quotas, or defining marriage as a union between one man and one woman.

We can see Obama's approach to 'empathy' at the expense of the rule of law in a couple of recent illustrations. One of them is the bailout/restructuring of Chrysler. I do not know - based on your previous utterances on financial matters- if you are aware of how the settlement of corporate debt works in the normal sort of bankruptcy. Pardon me if I belabor the obvious by pointing out that bondholders are ordinarily the senior creditors; i.e., their claims are satisfied first out of the assets of the bankrupt corporation, before subordinate secured debt, which in turn comes before that held by unsecured creditors.

In the case of Chrysler, there were enough assets that its bondholders might well have realized 100 cents on the dollar, had the corporation gone through ordinary bankruptcy in the Federal courts. However, Mr. Obama's 'empathy' wishes to spare the United Auto Workers' union the rigors of a straightforward bankruptcy. His "surgical" bankruptcy plan requires the company's bondholders to receive less than they would as secured creditors under standard bankruptcy law. Under the plan, the UAW will own 55 per cent of Chrysler, 35% will go to Fiat SpA, while the secured creditors get no ownership and only 29 cents on the dollar.

The administration secured the agreement of large banks owning Chrysler bonds through pressure it could exert on them by virtue of having placed TARP funds in them. Of course, this settlement will result in a direct hit to their capital - both privately held, and that representing the taxpayers' money. Nothing is too good for the UAW! On the other hand, holders of Chrysler bonds who were not recipients of TARP money are the ones really worst off. All they got for their objections to this treatment was to be denounced by the president as "speculators."

This is all probably violative of Article I, section 8, clause 4 of the Constitution, which provides that Congress shall establish "uniform Laws on the subject of Bankruptcies throughout the United States," but the last Chrysler creditors to hold out against settlement on Obama's unfair terms declined to pursue litigation against them on this basis, concluding that it would be both financially and politically ruinous. Chalk up one for "empathy"!

On another such point, contrast the Obama administration's approach to two issues both intimately involving the black community.

In the first week of May, officials of the Justice department appeared before Congress and very publicly urged it to change laws that result in sentencing disparities between persons convicted of dealing in 'crack' as opposed to those dealing in powdered cocaine. Existing sentencing guidelines, established during the crack epidemic of the 1980s (with the positive vote of at least half the then members of the Congrsssional black caucus), set the same minimum 5-year sentence for someone selling more than 5 grams of crack that applies to those selling more than 500 grams of powdered cocaine. Blacks make up 85% of crack offenders.The Obama administration has chosen to make the disparate treatment of black and white drug dealers a top priority.

Of course, even if the president achieves his objective, addressing the disproportionate time served by black criminals will do nothing to address their disproportionate numbers - one-third of black males born in 2001 are projected to end up incarcerated at some time during their lives. This is not a product of racial discrimination, but of cultural degradation.

One of the more effective ways of combating that degradation is to endeavor to give black youngsters decent educations. There is much evidence showing an inverse relationship between educational attainment and cirimality. Yet here, the Obama administration's famous "empathy" is curiously lacking. Obama and his secretary of education, Arne Duncan, have been working actively to destroy Washington, D.C.'s Opportunity Scholarship program, which provides low-income children with $7,500 a year to use towards tuition at private schools.

They cannot say the program is not working. The education department's own most recent study showed that recipients of the scholarships (99% of whom are black or Hispanic) notably outperforming their public-school peer group in reading. Despite this, the administration has announced that while it will allow current students to remain in the program, it won't allow any new kids to join them. What a triumph of reasoning - if the president believes the program is effective enough to allow existing students to continue, why doesn't he want to contunue the program?

The answer is, of course, that Obama's primary loyalty is to the teachers' union, which detests the idea of vouchers as a threat to its economic well-being, and in consequence has no problem forcing the children of the black welfare slums to remain in public schools that fail to educate them. The only possible conclusion is that Obama's vaunted 'empathy' extends to black criminals more than it does to black school children.

I am reminded of the story told of the old Communist boss of Poland, Gomulka. On being presented by one of his subordinates with a request from a grammar school for money to buy new books, he turned it down. Later that day, another apparatchik came in with a request for a cinema projector for use at a minimum-security prison, and he approved it.

The first underling happened to overhear this, and asked Gomulka, why do you approve a cinema for the convicts, and turn down new books for a grammar school?

Gomulka responded: "Well, I don't expect to go back to grammar school!"

In any event, it is clear that "empathy" in Obama's usage is just a code-word for disregard for the rule of law, the democratic process, and the plain meaning of the Constitution, in favor of expediency, cronyism, jobbery, patronage, and theft by taxation or executive order. The use of arbitrary power to deliver favors to labor unions is particularly worrisome. Obamaism is showing itself to be disturbingly close to Peronism.

TGGP said...

Orin Kerr (a law type person) has a post on the issue.

Supercrunchers discussed some formulae that were incorporated into the justice system and how things went sideways when they weren't followed. I think eventually we will have computers replace judges. I hope I live to see it.

TGGP said...

I forgot to mention that I liked one comment a person at VC made about judges "punting" (I don't know if that ever happens in practice). I think in general it would be desirable for people to "punt" when sufficiently uncertain, but unfortunately misplaced certainty is rewarded with higher status.

mtraven said...

You are missing the point, which is that while Obama is a very skilled politician, he also has the benefit of the immeasurable incompetence of his opponents. If they are determined to go on the record as against empathy, that's their choice and I applaud it. Let's see how well that plays out on election day.

That full-bore democracy can be dangerous to minorities and requires other structures to limit its power is not exactly a radical idea that Obama invented; it's a fundamental tenet of the US system of government that goes back to Madison or earlier, as I'm sure you must know.

The right is busily distorting the meaning of empathy to suit their propagandistic purposes, but it won't wash. Empathy does not equal bias. You didn't bother to respond to the link I sent about the gay rights issue and Brennan's initial lack of empathy and later regret.

Re the Chrysler bailout and other government interventions in the economy, I have no very strong opinions on whether they are wise or just, but the idea that there is something specially biased about this particular deal is ludicrous -- we have just finished ladelling trillions of dollars into the financial sector, so the government is involved up to its elbows in the economy. There have been a great many settlements in the past where the unions were coereced to give concessions; if they are making out better this time that's because their side won. You seem to be shocked that politics is about interest and that politicans act to favor the interests of their supporters. Do you think Obama somehow invented this? Did you object as strongly when the Bush administration chose policies favorable to KBR and the Carlyle Group?

Even more fundamentally, there has never been a economy that operated on its own free of government interference, from the railroad land-grants through Truman and Kennedy's efforts to control the steel industry to today's massive attempts to compensate for the dismal failure of self-regulation in the financial industry. Oddly, you don't seem to object to the shockingly obvious permanent feedline to the treasury enjoyed by the defense industry, and you didn't seem overly upset by the bailouts of AIG and other such entities, but let the government act in a way that's mildly favorable to unions and suddenly it's a scandal. Why is that I wonder?

Obamaism is showing itself to be disturbingly close to Peronism.Keep telling yourself stuff like that. The more insane the right gets, the better Obama looks, which was my original point. I am really enjoying all the frothing at the mouth. Glenn Beck just said on the air that he was worried that ACORN was planning to have him assassinated.

Michael said...

"The dismal failure of self-regulation of the financial industry"? Again you show how ignorant you are of the financial industry.

The financial collapse originated not because the financial industry operated in an untrammelled free market, but because it operated in one badly distorted by misguided regulation.

I have before pointed out to you the huge role of the GSEs. Fannie Mae and Freddie Mac, both of which were creations of government, and which continued to take direction from it, not being truly private enterprises in any meaningful sense. Indeed, the secondary mortgage market was effectively created by Fannie Mae, which began as a New Deal agency in 1938 and which was "privatised" under Lyndon Johnson in 1968 as a subterfuge to get its debt off the federal balance sheet. It is of course the secondary mortgage market that was 'ground zero' of the current collapse.

I may not have said anything in particular about AIG's bailout, but I have strongly criticised the TARP program many times in your comment sections. Oddly enough, though, AIG plays into a point that is well worth making about how the collapse came to happen.

Contrary to your comment about "the dismal failure of self-regulation of the financial industry," commercial banks (at least) are minutely regulated by several authorities. The FDIC, the Federal Reserve, and either the Comptoller of the Currency (in the case of nationally-chartered banks) or state banking commissions (in the case of state-chartered banks) each conduct examinations for safety and soundness, for compliance with such measures as CRA, truth-in-lending, or bank secrecy regulations, and of operations other than lending, such as those of trust departments. It is typical that every one of the 8000-plus commercial banks in the United States undergoes at least one, and possibly more, such examinations in the course of a year.

It is usual for the examination of a bank's loans to include reviews of individual credits. My bank, for example, serves a community that lies along a river valley. On one recent compliance audit, every mortgage we held on a property lying within the 100-year floodplain of the river was examined to be sure that the borrower carried flood insurance. This is not untypical of the degree of detail into which such regulatory agencies routinely go.

You might care to learn what the Basel Accords are. These set international standards for the evaluation of the quality of banks' loan and investment portfolios, and those standards are applied by the Federal Reserve examiners during their reviews of the assets held by American commercial banks.

It so happens that the Basel standards set an institututional preference for investments in so-called "investment grade" securities over single loans to individual or corporate borrowers, however well-qualified. Furthermore, securities covered by insurance against default receive higher credit ratings. Regulations thus give a quasi-governmental authority to credit rating houses like Standard & Poor's, Moody's, and Fitch; and they give rise to a market in credit-default swaps, which are used by the bond insurance houses as a way of hedging against potential liability. Far from 'self-regulation" being the source of dismal failure, the structure that failed was designed, and supervised at every step of its erection, by government regulatory agencies.

AIG was caught up in the collapse of the credit-default swap market; it sold credit default swaps on collateralized debt obligations (like those issued by Fannie Mae and Freddie Mac, and their principal feeder in the secondary mortgage market, Countrywide Financial). These had of course declined in value, exposing AIG to tremendous losses.

Government bailed out AIG because at least some people in government (unlike you) realized that government had some responsibility for those losses, as it did for the losses of its creations, Fannie Mae and Freddie Mac.

There were certainly people in the private sector who acted in foolish and destructive ways before the collapse took place. The important thing to realize, though, is that what they did was what the regulatory structure gave them every incentive to do. The parallel to what happened in the 'twenties, when Washington exercised approval of foreign credits in the U.S. market, and thus led individual investors and country banks to believe they had its implicit guarantee, is exact. See Chernow's book "The House of Morgan."

I believe that there is a proper purpose for bank regulation, and that is to protect the safety and soundness of small depositors. Problems arise when regulation is used to allocate credit to politically favored classes (as, e.g., Fannie Mae's and Freddie Mac's lending practices were directed to do by Congress, which, given their market-dominant position, gave other lenders no choice but to meet or beat them, or walk away from the business). This worked at cross purposes to safety and soundness.

It is hardly the case that there was no regulation or too little regulation of the financial system. Rather, the regulation there is (which is extensive) is badly designed and gives perverse incentives. We now have to live with the results.

mtraven said...

I'm really not equipped to argue about the details of bank regulation with you. But your story doesn't jibe with the facts as I have heard them, which includes a $60 trillion market in credit default swaps that was entirely unregulated, and the complete failure (and/or corruption) of the rating agencies. Both of these were major factors in the current financial meltdown.

Michael said...

Credit default swaps were invented in 1997 by the trading department at J.P Morgan Chase. That is most certainly a regulated bank under the authority of FDIC, the Federal Reserve system, and the Comptroller of the Currency. If you do not believe its trades were subject to examination by any or all of these authorities you are simply ignorant.

The current regulatory status of credit default swaps at the time of the collapse owed its existence to the Commodity Furutes Modernization Act of 2000, signed into law by President Clinton on December 21, 2000. Not regulated? No. Governed by by badly drawn law and regulations, which gave perverse incentives? Most assuredly.

Useful explanation may be found in the book "Fool's Gold" by Gillian Tett of the Financial Times (Free Press, 2009). While the subtitle makes reference ot "Wall Street greed," the text of the book makes clear the centrality to the collapse of the international bank regulatory standards set by the Basel accords and the way in which governments conferred quasi-regulatory authority on the rating agencies you mention. If regulation did not put so much emphasis on the importance of ratings given by these agencies, the investment portfolios of banks would probably not have adhered so slavishly - and disastrously - to them. Were the rating agencies 'corrupt'? Perhaps so, but no less than the governments themselves, with people like Chris Dodd lining their pockets in return for giving rent-seeking opportunities to those who bought their favors. We often hear that commerce corrupts politics, but the truth is often the converse - politics corrupts commerce. As the size and power of government increases, there are more favors for politicians to hand out in return for suitable bribes - and the worst of them are those that cloak such activities under the guise of 'helping the disadvantaged.'

There is a branch of economics, rather uninformatively called 'industrial organization,' which in fact is devoted to the study of ways in which markets are influenced and distorted in their actions by the effect of regulation and taxation. Banking and finance are perhaps more so than most areas of economic endeavor, since they have been subject to more regulation for a longer period of time than other industries. The explanation of the collapse lies - as I've said before - not in no regulation, but in bad regulation and the perverse incentives it has given.

Michael said...

Further to the point of credit default swaps - there is a reason they are called 'derivatives,' in that they derive from an antecedent transaction in a fashion analogous to that in which a derivative in mathematics does from an antecedent function. No antecedent, no derivative.

Derivatives are not to be blamed for the unsoundness of the antecedent transactions. In the case of credit default swaps, while they may have magnified its effect, they were not responsible for the panic of 2008. Unsound underlying transactions - bad credits - were to blame. Had they not been unsound there would have been no credit collapse.

The unsoundness of these underlying credits was of course primarily a result of the politicization of the mortgage market, based on the idea that everyone ought to be able to buy a house regardless of his ability to put up a down payment, his resources to repay the balance lent, or the realistic value of the pledged collateral. You still don't seem either to understand or to be willing to acknowledge the massive dominance the GSEs, Fannie and Freddie, had in the mortgage credit market, and the extent to which their operations were conducted in accord with political directives rather than sound business judgment.