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Peter Gerdes
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I pointed out some more reasons why we would not want to really enforce laws smoothly (indeed can not since gossip, employer discrimination, increased likelihood of reoffense will all be effects of even a conviction with a small penalty) in a comment to the first post. Here are a few more thoughts. First, it's not always clear what it means that the law has smooth penalties. Suppose a speeding ticket is always $500 but the probability that cops will pull you over when speeding is a smooth function of how much you are speeding. Is this a smooth law because the expectation of punishment varies smoothly with behavior or a bumpy one since the penalty is always $500 even for speeding 1 mph. I think our intuitions say that it is the actual penalty that should vary smoothly not just the expected. It's unjust to have a huge prison term because you were unlucky even if you went in with a low expected number of years in prison. Secondly, while I agree with some of your points I don't think you provide enough justification. For example, one might imagine setting, as a matter of law, the penalty as a function of the risk of death/non-consensual sex/etc.. created by your behavior in excess of some threshold. The reason we can't usefully set such laws is that people are very poor at reasoning about probabilities this way and they are especially bad at ignoring disastrous actual effects when judging how harmful a behavior might be. --- Having said all this I also would note that we don't really believe that the level of punishment should turn on how probable it was that the defendants behavior would lead to harm (or how likely it was that his belief the other party consented turned out to be wrong). For instance, consider someone named David Jones who thinks "In general a woman has to verbally tell you she wants sex free of intoxicants in clear terms in her native language immediately before the act but any woman whose middle name is "Fuck Me David Jones No Matter What I Say." consents to sex even if she verbally disavows this fact." Sure, it's a really weird belief but it's not impossible. This behavior is extremely unlikely to ever lead to non-consensual sex and his beliefs that women consent when they satisfy this standard is actually quite reasonable. After all it is VERY unlikely that his judgement will be wrong. But imagine he meets someone who happens to have that middle name and, despite convincing evidence that she meant another David Jones or did it on a lark, really believes she consents to sex and ends up raping her. True, his rule for inferring consent was extremely unlikely to be wrong because it is super improbable to meet someone with that middle name but we don't feel the improbability of meeting such a person is what should govern how much he should be punished. True, this was a really implausible rule for behavior but the same issue comes up with many more plausible ones. Moreover, this highlights a theoretical problem for smooth laws. There simply is no fact out there about how dangerous or unreasonable a defendant's behavior truly was. Any such conclusion about dangerousness requires you pick a particular rule to describe the defendant's conduct. Did the man who mistakenly shot the police officer have the rule "Fire at anything moving in the dark around the house." or just "Fire at something dark moving around the house during a murder spree after hearing glass break"? Either one correctly describes what the defendant actually did yet they differ starkly in how reasonable and dangerous they are. Yet, no fact about what actually happened can prove one correct or the other.
One possible explanation is that the penalties imposed by conviction can't be made smooth. In particular, having a criminal conviction for *ANY* sexual misconduct (particularly some form of sex without consent...even if the assumption of consent was almost reasonable the fact that it was prosecuted means it was wrong) imposes substantial costs in terms of employment and social opinion. The nuanced contextual details which might cause us to impose a very light sentence on someone who had non-consensual sex, e.g., somewhat understandably but still somewhat recklessly, will be lost in future job interviews, gossip etc.. making it impossible to avoid those effects of a criminal conviction most likely to interfere with reform. Furthermore, the mere psychological (and perhaps physical) effects of being exposed to our prison system can't be avoided even for a short sentence. Additionally, we inevitably must rely on fallible human decision makers to impose the sentence and it's almost impossible to reach into this process and draw legal bright lines. It's much easier to use appeals courts to draw lines about the elements that must be proved for a conviction. When asked if someone is guilty we phrase the question and prohibit evidence about how bad it was for the victim to deliberately focus the mind on the behavior of the accused. Since their is no reasonable way to infer how much harm a person's behavior would usually cause (if the victim had said no do we assume they would have stopped) we use the harm it actually caused as a guide to punishment. However, since the actual harm depends on factors far beyond the defendants control a smooth law would run the risk of sending a defendant who only acted slightly unreasonably to a very long sentence once the judge/jury/whatever hears how much suffering the victim underwent. --- Another important problem with smooth enforcement of criminal sanctions is that usually this means behavior that has some probability far short of .5 of causing substantial harm, e.g., driving with BAD .06 or making a possibly false assumption that the objections are part of sexual role play. If we made enforcement smooth it means convicting people who were unlucky enough to have a victim while letting most people who behaved in exactly the same way go free because they didn't create a complaining victim. This is not only unfair but makes it to easy to simply start punishing people because someone got hurt not because they acted wrongly. -- Basically, I think it all comes down to the fact that people aren't very good at reasoning about smooth functions of probability that produce very unsmooth actual results.
Interesting, but I think the article ultimately makes the same kind of mistake it criticizes Feinberg in making when he attempts to draw a distinction between disorders of rationality and disorders of mood. In particular, the assumption that there is some accessible standard we can use to decide if someone is capable of making rational choices about continuing their life. Supposedly, the case where Alice wants to kill herself because she is convinced that Martians have invaded the town and will inevitably kill her is a clear example of someone lacking the capability to make rational choices about continuing their life. Yet, nothing in this example requires that Alice make any false logical inference. Alice might calmly say that, "Yes, I could be wrong and if so I would be making a terrible mistake but nonetheless the behavior of individuals A, B and C convinces me that it is overwhelmingly likely they are Martian spies." She might agree with you about all factual details about these people's actions and simply insist that their actions (which are merely slight variations in schedule/mood) are sufficiently abnormal to justify her conclusion. Before you throw this out as absurd consider the documented cases where people suffer a disconnect between their visual and emotional system and, despite otherwise complete rationality, are unable to see their loved ones without concluding they are imposters. Now consider Amy who, like Alice, wants to kill herself but because she has been diagnosed with an illness offering only a tiny chance of successful treatment and great suffering/humiliation if that treatment fails. Amy, however, readily admits that if she had to choose between ceasing to exist and enduring this risk for even a small chance at continued existence the later option is clearly preferable. But, like most Americans, Amy happens to believe that she will continue to exist in the afterlife after she dies (and doesn't think she will be punished for suicide). Like Alice, when questioned about her belief in the afterlife she is only able to point to fairly mundane events and insist that things like the experience of beauty or love are enough to justify her belief in a caring god and thus an afterlife. What, if anything, is the difference between Amy and Alice. I can't think of any except that Amy socially conforms while Alice adopts a non-conformist view. I happen to think that it is much more likely that there really are Martians hiding under the surface of the planet and spying on us using their advanced technology than a caring god created this world. I tend to think it is Amy, not Alice, who shows a greater inability to evaluate the available evidence and reach appropriate conclusions (even though both may be perfect Bayesians differing only in their priors). --- Now perhaps you might want to invest the fact that Amy accepts a widely held societal belief with some significance to distinguish the cases but I think this reaction shows the pragmatic inadequacy of the approach. Ultimately, if you are willing to lock up Alice you have to make brute choices about what kinds of things it is and isn't acceptable to assume and this means that `cult members' and other minority religious beliefs will be treated very differently than mainstream beliefs. Without a bright line like a test of logical reasoning ability assessed purely on it's mathematical correctness inevitably judges will lean towards preventing the travesty they see in front of them when someone is trying to make a choice that society feels is deeply mistaken. Without any clear way to distinguish belief in UFOs from belief in Christ that lean will simply progress to the same status quo we have now where people ultimately reach the conclusion they feel is best for the person in their gut.
After reading your linked article I have two objections. First you assert ################# Activism (or even seeking to free ride on another institution’s activism) requires that the insti- tution hold a long position on stocks of underperforming corporations. Doing so will act as a drag on the performance of the institution’s portfolio ################## This seems to be in direct conflict with the efficient capital markets theory. If the markets are efficient once a management/stockholder issue becomes public the share price will immediately adjust to reflect the new expected future value of the company. Absent inside information unavailable to the general market (and likely illegal to trade on) continuing to hold the assest shouldn't be any worse than selling it (tho you may want to adjust other assets in your portfolio to manage risk). More below. ########### Indeed, the logical implication of the efficient capital markets theory and portfolio theory is that the best investment approach is passive indexing, which in fact has become a widely followed strategy among both individual and institutional investors. Because expense minimization is an important aspect of passive indexing strategies, investors following this approach are unlikely to become active governance players. ######################## While I agree that diversification may mean that current holdings in a particular company may be too small to justify the return on an attempt to recall the board or the like it isn't true that efficent market or portfolio theory would advise purely passive investing for large institutional investors in these situations. Consider the case where the board of directors is clearly running an obviously highly competitive and valuable business into the ground. The capital markets will already have factored in the risks of the company going down and the expense that would be needed to try evicting the board into the price of the stock. So it all comes down to whether you have a competitive advantage over other players who might try and restore value to the corporation by evicting the current board. If you are a institutional investor with the in-house know-how and organizational tools to run a proxy fight then you likely have lower costs for trying to oust the board and a higher chance of success. Especially if you can purchase up all the company's shares then **those shares are worth more to you than to other investors because you have to spend less per share you own to turn the company around than they do.** I don't think it's even true that portfolio theory necessarily frowns on owning an entire company. Yes, diversification is important but if you have enough money (say like the huge banks) owning a whole company doesn't necessarily conflict. ------------ I think a better argument here is that as long as a proxy conflict requires a non-trivial expenditure institutions will always prefer to purchase a controlling or even complete block of stock rather than working with other shareholders so they concentrate more of the expected benefits that justify paying the cost to accrue to them. Thus it is takeover rules that may matter more. Also your point about self-dealing was right on but if I were you I'd give an example or two about why this is so troublesome. In particular if Institution M owns 90% of a competitor but only 10% of this company it's interest would like in sabatoging the company so as to make money at the expense of the other shareholders. Much like the situation with the securitized mortgages designed to fail. While this is a pretty compelling argument it's only suggestive so long as you don't explain why the level of shareholder rights currently enshrined in the law is optimal. **Yes, you've convinced me that too much shareholder rights are bad but surely it would also be bad if the board could completely eliminate shareholder oversight so what is your reason for thinking the optimal balance doesn't grant slightly greater shareholder rights?**
Toggle Commented Jun 24, 2010 on Gut Proxy Access at ProfessorBainbridge.com
Many serious with disclosing spousal relocation issues in advance were already mentioned above but I'd like to add another one. Often the willingness of the spouse to relocate depends on their ability to find a decent job in the region. This creates the obvious problem that you don't know whether a location is going to be acceptable until your spouse hears from the employers they applied to. That's certainly the position I will find myself in shortly.
As to the broader question under discussion I think we are approaching a region were our standard models start to break down and the concepts we've built on those foundations start becoming incoherent. By way of analogy consider the Newtonian model of physics. So long as we are describing objects that move slowly relative to the speed of light it's meaningful to say that 1/2mv^2 is the definition of kinetic energy while also thinking of kinetic energy as the capacity to do work. In the Newtonian model those two notions are necessarily coextensive so as Quine classically points out there is just no fact of that matter as to which of these is the 'real' definition of kinetic energy pre-Einstein. However, when we leave the Newtonian realm and try to deploy the concept of Newtonian kinetic energy and insist it both be computed using 1/2mv^2 (m=rest mass) and satisfy our idea of energy as capacity to do work the concept itself is revealed to be no longer well defined. I would argue that once you leave the world of folk psychology and start doing these kinds of experiments concepts like 'want', 'desire', 'motivation' etc.. suffer a similar fate. Indeed, I would go so far as to say that once you start doing serious brain science even our notion of causation is rendered incoherent (yes there are regularities across time but I submit that causation is a concept rooted in the simplifying assumption that our deciscions are made 'freely'). So ultimately I think it's just misleading to describe the observed result as showing that people are 'really' doing these things for ignoble reasons or the like. Rather those concepts simply stop being good ways to describe the world in these kind of situations.
Toggle Commented May 10, 2009 on Generous Lust at Overcoming Bias
@Hopefully Anonymouse, I don't see much tension. Indeed it seems to be very similar to men's behavior. Sure there is a sense in which every guy would 'prefer' to be married to Angelina Jolie or another world famous model/actress but it's only the very weak counterfactual sense that if they'd been invited to Hollywood parties and been hit on by movie stars during their teen/early adult years they would have most probably taken that option instead of pursuing the kind of girl they did/are hooking up with. Going for broke and refusing all but the very best potential mates regardless of your own pulling power isn't a very good genetic strategy. Much better to cut your chances of getting with a super model by a tenth or even a hundredth if that bumps up your chances of landing the slightly more fit mate in your league. In particular once you realize certain mates our out of your league it will be advantageous to signal to those who are that you're willing to make long term commitments to raising offspring with them instead of trading up first chance you get. The obvious way for this to happen is to evolve the ability to genuienly feel strong sexual attraction and strong devotion to your best plausible option. In other words men and women are evolved to find mates in their own league attractive even if that's pretty far down on the desirability scale. Women find project boys attractive because they look like an evolutionary fire sale. Since her competitors don't see the boy's potential the girl has a good chance or landing him even though mating with him offers more benefits than most of the guys in her league. --- I realize I'm not giving you a theory. I'm just suggesting why this doesn't seem problematic to me.
Toggle Commented May 10, 2009 on Generous Lust at Overcoming Bias
Uhh so who is the moderate psuedo-democracy that is supposed to lose control? In the Reichstag fire there was a pretend democracy under the chancellor that was subverted by hitler when the chancellor invited them into power. The final act of this being the reichstag fire. In the islamic world there are no correspondingly weak leaders. Whatever else you might say about the house of saud, Mumbarak, or the syrian government they aren't exactly concerned about the apparence of democracy and are more than willing to do what it takes to stay in power. I simply don't see how these demonstrations are supposed to lead to some hardliner seizing power.
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