Judicial Bias and the Death Penalty

Jonathan B. Wight

Obama justicePresident Obama has an eloquence and slow burning passion that is apparent in this video staged at a prison to talk about institutional injustice.

It provides the clearest statement I’ve heard of how small injustices at the margin—at each level of the justice system—compound to create systematic institutional bias.

This is moving for me to hear, when my state of Virginia executed someone this week for heinous crimes. The anger and vitriol directed against this evil perpetrator is surely justifiable. But the penalty of death is an irreversible punishment, and shown to be meted out disproportionately to some groups compared to others.

Since 1973, there have been 153 cases of death row inmates being exonerated by new information. Even if you believe that the justice system were squeaky clean in terms of doling out similar punishments to all people, the death penalty allows for no errors of fact or theory. And humans are not immune to both blunders.

Absolute punishments seem better fit for Medieval Ages when God’s certainty seemed closer at hand.

New book: Law and Social Economics

LawSEMark D. White

Over at the Association for Social Economics Blog, I talk about my latest edited book, Law and Social Economics: Essays in Ethical Values for Theory, Practice, and Policy, drawn from papers presented at the Allied Social Science Associations (ASSA) and Law and Society Association (LSA) meetings. Below is the table of contents:

Part I: Foundations

Chapter 1: "Towards a Contractarian Theory of Law," Claire Finkelstein

Chapter 2: "Environmental Ethics, Economics, and Property Law," Steven McMullen and Daniel Molling

Chapter 3: "Individual Rights, Economic Transactions and Recognition: A Legal Approach to Social Economics," Stefano Solari

Chapter 4: "Institutionalist Method and Forensic Proof," Robert M. LaJeunesse

Chapter 5: "Retributivist Justice and Dignity: Finding a Role for Economics in Criminal Justice," Mark D. White

Part II: Applications

Chapter 6: "Female Genital Mutilation and the Law: A Qualitative Case Study," Regina Gemignani and Quentin Wodon

Chapter 7: "An Unexamined Oxymoron: Trust but Verify," David George

Chapter 8: "On the Question of Court Activism and Economic Interests in 19th Century Married Women’s Property Law," Daniel MacDonald

Chapter 9: "Divergent Outcomes of Land Rights Claims of Indigenous Peoples in the United States," Wayne Edwards

Chapter 10: "Punitive (and) Pain-and-Suffering Damages in Brazil," Osny da Silva Filho

David Brooks on deference for incompetent authority in the wake of Ebola fear

Mark D. White

BrooksDavid Brooks' New York Times column this morning, titled "The Quality of Fear," makes a number of claims regarding the source of the panic surrounding the Ebola virus. As usual, he makes useful and insightful points, but he falls a bit flat when he tries to tie this episode into his persistent theme of deference for authority, especially when this episode—as he describes it—reinforces the very skepticism he laments.

His opening point about Ebola points out this dilemma:

In the first place, we’re living in a segmented society. Over the past few decades we’ve seen a pervasive increase in the gaps between different social classes. People are much less likely to marry across social class, or to join a club and befriend people across social class.

That means there are many more people who feel completely alienated from the leadership class of this country, whether it’s the political, cultural or scientific leadership. They don’t know people in authority. They perceive a vast status gap between themselves and people in authority. They may harbor feelings of intellectual inferiority toward people in authority. It becomes easy to wave away the whole lot of them, and that distrust isolates them further. “What loneliness is more lonely than distrust,” George Eliot writes in “Middlemarch.”

So you get the rise of the anti-vaccine parents, who simply distrust the cloud of experts telling them that vaccines are safe for their children. You get the rise of the anti-science folks, who distrust the realm of far-off studies and prefer anecdotes from friends to data about populations. You get more and more people who simply do not believe what the establishment is telling them about the Ebola virus, especially since the establishment doesn’t seem particularly competent anyway.

His point about isolation within social classes is a familiar one (although somewhat redundant, given what social class means), but more troubling is his transition to leadership and authority. Maybe I'm too young, but at what point in our nation's history have people known or felt "one with" those in authority? Aside from the elites in government, business, and the media, I doubt many Americans have ever considered an elected leader or appointed bureaucrat to be "one of us." After all, it is very difficult for people who have no power to connect with people who have power.

(When he writes of the changing perception of authority, perhaps Mr. Brooks is thinking of the increase in distrust in government following Watergate, but this is a separate issue from feeling connected with authority. I would also add that, given what we know how about government operated before Nixon, we would have been wise to be more distrustful back then as well. Trust based on ignorance is hardly a virtue.)

I would have preferred Mr. Brooks to end the piece with his last sentence above: "You get more and more people who simply do not believe what the establishment is telling them about the Ebola virus, especially since the establishment doesn’t seem particularly competent anyway." In my opinion, that's the core issue: incompetence. I'm sure the American people would love to be able to trust their elected leaders to have a handle on crises and a plan to deal with them—and to tell us when a crisis is not in fact a crisis. But we have seen little such competence from government leaders in a long time. Of course, the people behind the scenes, the (mostly) apolitical researchers and scientists and analysts who toil in anonymity for presidents and Congress, are not incompetent. But when their message is filtered through political interests (especially so nakedly and shamelessly) before they get to the people, they become suspect and unreliable. As a result, many people turn to television and the internet to listen to speakers who seem to talk directly to them, with no apparent agenda, even if what they say is hyperbole or simply utter nonsense.

(Brooks touches on the role of the media later in his piece, stressing how they intensify news and cause disproportionate panic. This is true, of course—but this would not have such an impact if people could rely on the true authorities to give them the information they need without having to doubt their motivations almost by reflex.)

Mr. Brooks makes his best point near the end of the article, but again I read it as giving more reason to be skeptical of authority, not less:

The Ebola crisis has aroused its own flavor of fear. It’s not the heart-pounding fear you might feel if you were running away from a bear or some distinct threat. It’s a sour, existential fear. It’s a fear you feel when the whole environment seems hostile, when the things that are supposed to keep you safe, like national borders and national authorities, seem porous and ineffective, when some menace is hard to understand.

In these circumstances, skepticism about authority turns into corrosive cynicism. People seek to build walls, to pull in the circle of trust. They become afraid. Fear, of course, breeds fear. Fear is a fog that alters perception and clouds thought. Fear is, in the novelist Yann Martel’s words, “a wordless darkness.”

Of course people are frightened, and Mr. Brooks is correct to point out that it is an amorphous, "existential" fear. We often make a distinction between risk and uncertainty, in which risk deals with known probabilities (such as the roll of a fair die) while uncertainty deals with unknown probabilities (such as keeping your job). But our current fears reflect another level of uncertainty altogether: not only uncertainty about what is likely to happen, but what can possibly happen at all.

Just think of the things people worry about these days (reasonably or not). Ebola. ISIS. Climate change. Economic inequality. Human trafficking. Civil war. Terrorism. Not as exhaustive list, and obviously skewed by my perspective, but I hope it gets the idea across, which is that these are not risks that can be insured against or "mere" uncertainities that can be planned for. These are perceived threats that, many of them, could not have been imagined before they occurred, have unknown and potentially catastrophic consequences, and have no clear solution. As a result, they all speak to the fragility at the core of human existence—they merit a certain level of fear that is not easily assuaged by political statements from authorities who do not seem to appreciate their gravity or the trepidation they reasonably cause.

As Mr. Brooks wrote, "It’s a fear you feel when the whole environment seems hostile, when the things that are supposed to keep you safe, like national borders and national authorities, seem porous and ineffective, when some menace is hard to understand." In such conditions, I think skepticism about authority is entirely justified, and should not be reversed until authority shows the people it deserves to be trusted. When Mr. Brooks writes that Ebola "exploits the weakness in the fabric of our culture," I think he is spreading the blame too widely. When authority tries to respond to such existential threats but cannot do so outside an explicitly political lens, the message, as valuable as it might be, becomes soiled, and people turn elsewhere for information (and misinformation). But can we blame them?

I fear I will never understand David Brooks' blind appeals to authority and his unshakeable trust in people with power to use that power responsibly. Then again, I was raised to be distrustful of authority (an attitude he would likely attribute to my class upbringing). I have not yet had reason to change my mind, though, and the incompetence he himself identifies this recent episode is hardly going to give me one.

Special issue of Journal of Bioeconomics: In Memorium of Elinor Ostrom

Mark D. White

OstromThe latest issue of Journal of Bioeconomics (16/1, April 2014) is dedicated to the work of Nobel laureate Elinor Ostrom, and features her last paper as the target article, to which a multidisciplinary assortment of scholars respond. The articles and abstracts (when provided) follow.

Elinor Ostrom, "Do institutions for collective action evolve?"

In this paper I will provide an overview of our findings from studying irrigation systems in the field so that readers who are not familiar with our prior research gain at least an initial sense of these findings. I will provide a second short overview —this time of the institutional analysis and development (IAD) framework offering a general method for doing institutional analysis. I will then introduce the possibility of looking at the change of rules as an evolutionary process. The method for studying the evolution of rules will be based on the IAD framework and on our long-term study of rules related to irrigation systems. In the conclusion, I return to the question as to why it is important to authorize resource users’ relative autonomy in the development of their own rules and to learn from the resulting institutional diversity.

David Sloan Wilson, "Cultural species and their ecosystems"

The target article was written for a workshop that I organized with Lin Ostrom titled “Rules as Genotypes in Cultural Evolution”. In my commentary, I describe the background for the workshop and target article in addition to commenting on the article itself. A compelling case can be made for functionally organized human groups as like species that adapt to their local environments. A cultural inheritance mechanism is required for this to happen, which functions analogously to genetic inheritance, although the mechanistic details need not be analogous. Indeed, a diversity of cultural inheritance mechanisms are possible that need not be mechanistically analogous to each other. In addition, most modern human populations consist of a diversity of functionally organized groups, or cultural ecosystems. The distinction between “species” and “ecosystem” is important because the concept of an inheritance system applies primarily to the former. Finally, positive cultural evolution in modern large-scale society must be engineered and an explicitly evolutionary perspective will add value to the enterprise.

R. Costanza, "A theory of socio-ecological system change"

Thráinn Eggertsson, "Governing the commons: Future directions for the Ostrom Project"

Now, when longitudinal data are available or soon will be, it is important to carefully consider research strategies for the second phase of the Ostrom Project. I recommend a problem oriented approach aimed at answering questions and solving puzzles that have emerged in the last 25–30 years and a focus on the political dimensions of the commons. Reading Lin’s paper in this issue, I found her proposal valuable but too narrow. I suggest that the longitudinal phase of the Project should deal explicitly with institutions and mechanisms for solving conflicts among local participants over how to divide the costs and benefits of using common resources. I offer, as an illustration, a number of research questions that emphasize institutions in the policy and constitutional spheres rather than in the operational one.

Avner Grief, "Do institutions evolve?"

Chris Hann, "Evolution, institutions, and human well-being: Perspectives from a critical social anthropology"

The work of Elinor Ostrom is important for those who deplore the fact that the rise of ethnographic methods has led mainstream socio-cultural anthropologists to lose interest in evolution. This trend in anthropology is illustrated with reference to research on property, where Ostrom herself made notable contributions. However, it is argued that her mature work on the evolution of rules and her privileging of low-level institutions do not pay sufficient attention to local cultural notions and reflect the bias of a powerful Western ideology.

Siegwart Lindenberg, "Sustainable cooperation needs tinkering with both rules and social motivation"

Claude Ménard, "The diversity of institutional rules as engine of change"

The target paper by Elinor Ostrom in this Special Issue carries a clear message about her research agenda: be attentive to institutional diversity, be aware of the danger of ‘monoculture’ and ‘monocropping’ of rules. Although Ostrom was fully aware of the necessity to focus on relevant and simplified variables in order to build general explanations, she deliberately adopted a bottom-up research strategy that opposes the top-down approach dominating social sciences. Her framework, developed through extensive field studies, shows the central role of “clusters” of rules in defining institutions and understanding how they change. My discussion is organized around this privilege conferred to rules. Section 2 posits her contribution, particularly her IAD model, in relation to New Institutional Economics. Section 3 focuses on what I consider her main contribution: her analysis of rules as the strategic point through which changes happen. Section 4 discusses some methodological issues, and Sect. 5 concludes.

Amy R. Poteete, "How far does evolution take us? Comment on Elinor Ostrom’s: do institutions for collective action evolve?"

Elinor Ostrom’s article in this issue suggests that institutions for collective action evolve, highlights parallels between biological and institutional evolution, and describes an hypothetical example of institutional evolution related to an irrigation system. The article is provocative but not definitive in that it does not demonstrate that evolution is more than a metaphor for institutional change and that institutions actually evolve. This commentary unpacks the concept of evolutionary change and evaluates how well various aspects of institutional change fit within this model of change. The analysis supports Ostrom’s contention that evolution is not just a metaphor for institutional change, but also suggests that not all institutional change can be classified as evolutionary. The commentary highlights the need for further conceptual and theoretical development to delineate various forms and processes of institutional change, distinguish between evolutionary and non-evolutionary change, and draw out the consequences of various forms of change.

Viktor J. Vanberg, "Collective action, institutional design and evolutionary 'blindness'