If I had been spending less of my recent news-reading time on sports, I might’ve known the name of Charlie LeDuff, a newspaper journalist who won a Pulizer Prize as a staff writer with the New York Times and authored two other books before he decided to return to his native Detroit and take a job as a reporter for the Detroit News.
LeDuff’s latest book, Detroit: An American Autopsy, is a first-person tale that begins with his return to his home town and his start with the News. His core thesis is that the story of Detroit, with its glorious rise and massive collapse, is the story of America. Detroit’s rise may have been more glorious than many cities, and its collapse more massive than all of them, but it was a leader of a national trend on the way up, and, LeDuff believes, it’s a coal-mine canary for the rest of us on the way down.
While LeDuff’s basic premise is a rejection of Detroit exceptionalism, it is difficult to ignore how exceptionally bad conditions are in the Motor City.
Once the nation’s richest city, Detroit is now its poorest. It is the country’s illiteracy and dropout capital, where children must leave their books at school and bring toilet paper from home. It is the unemployment capital, where half the adult population does not work at a consistent job. There are firemen with no boots, cops with no cars, teachers with no pencils, city council members with telephones tapped by the FBI, and too many grandmothers with no tears left to give.
A newly hired autoworker will earn $14 an hour. This, adjusted for inflation, is three cents less than what Henry Ford was paying in 1914 when he announced the $5 day. And, of course, Ford isn’t hiring.
Charlie LeDuff, Detroit: An American Autopsy, 5-6 (The Penguin Press 2013). “Murder capital, arson capital, poverty capital, unemployment capital, illiteracy capital, foreclosure capital, segregation capital, mayoral scandal capital . . . .” Id. at 70.
There’s more: “Detroit has the ignominious distinction of being the only American city to have been occupied by the United States army three times.” Id. at 43. It’s also the only American city that has had a population of over one million people (1.9 million in the 1950s) and subsequently contracted to below one million (fewer than 700,000 today). Id. at 45. Today, there are enough vacant lots to hold a city the size of Manhattan and San Francisco combined. Id. at 5. A substantial proportion of Detroit’s buildings are vacant, 62,000 of which are homes. Id. at 53. That the city filed for bankruptcy protection last week is the least surprising data point of all.
This book is hardly all data and statistics, though. There is a reason LeDuff is an award-winning journalist: he is good at finding stories, and he is good at telling stories. The stories here are public and personal: political corruption, the deaths of family members, severely underfunded public safety departments, underemployed siblings, arson as popular entertainment, marriage problems, a frozen body in an abandoned building, professional problems, death, and ancestry.
LeDuff has the ability to tell deeply personal stories at a fast pace. The book moves along quickly, even as the stench of civic and human death– mixed with the humorous, the heartwarming, and the raw, to be sure– mounts. While I’m becoming convinced that the only worthy use of the word “gonzo” in the journalistic setting is as shorthand for “Hunter S. Thompson,” I also think LeDuff is the best we’ve got in that space anymore, minus the smack-induced imaginations and partisanship (cf. Charles Pierce), and plus some red wine and a bit more focus and organization. Even if LeDuff sounds a little extreme at times, his voice is authentic, and the extremity of the reality he’s sharing certainly warrants some extremity on his part.
(After initially thinking I was unfamiliar with LeDuff, I later realized I knew of him from such events as the first, and only, “I ♥ the D” Golf Invitational, in which he golfs the length of the city, telling the stories he encounters along the way. It makes for good video, which is what LeDuff is doing since leaving the News for a local network news affiliate. Much of his video reportage is available here.)
I want to write that Detroit is a must-read for everyone, but there’s a simpler concluding admonition: ignore this book at your own peril. It’s compelling, informative, and entertaining, and I’m not sure we can ask much more of literature, particularly of the nonfiction variety.
Professor Randy Barnett is a right-libertarian constitutional scholar who unsuccessfully argued Gonzales v. Raich, 545 U.S. 1 (2005) on behalf of medical marijuana users and unsuccessfully argued Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. ___ (2012) on behalf of the healthcare law challengers, and who has appeared in these pages before. See here; see also here. Akhil Reed Amar is a leading progressive constitutional scholar who recently published an extensive book entitled America’s Unwritten Constitution: The Precedents and Principles We Live By. Earlier this month, Barnett published a review of Amar’s book in the Wall Street Journal. A few days later, Amar responded at length to Barnett’s review.
As illuminated in the review and the review of the review, the difference between these two hinges on what Barnett sees as Amar’s particular conception of the “living Constitution.” Barnett writes:
Now, it makes some sense to call the meaning that is implicit in the text the “unwritten Constitution.” After all, the implicit meaning is conveyed by what the text expressly says. But by including the judicially created implementing rules under this rubric, Mr. Amar suggests this doctrine is in some way the equivalent of the original, written one, and that this law of the judges can equal if not trump the law of the Founders. This is what living constitutionalism has always been about.
Mr. Amar acknowledges the problem. “Those who venture beyond the written Constitution must understand not only where to start, but also when to stop, and why,” he warns. “The unwritten Constitution should never contradict the plain meaning and central purpose . . . of an express and basic element of the written Constitution.” He adds: “The written Constitution deserves judicial fidelity, both because it is law and because, for all its flaws, it has usually been more just than the justices.” For the same reasons, he agrees that judicial precedent should not be allowed to trump or supersede the original meaning of the text. Where courts have gotten it wrong about the meaning of the text, the meaning—not the precedent—should govern. “A prior erroneous Court ruling does not properly amend the Constitution.” No matter how entrenched Jim Crow laws became after the Supreme Court upheld “separate but equal” in Plessy v. Ferguson, it was right to reverse that decision in Brown v. Board of Education.
This is all good and welcome. But Mr. Amar goes on to advocate an exception that is big enough to drive a living constitution through. “An erroneous precedent that improperly deviates from the written Constitution may in some circumstances stand,” he tells us, “if the precedent is later championed not merely by the court, but also by the people.” “When the citizenry has widely and enthusiastically embraced an erroneous precedent,” the courts may “view this precedent as sufficiently ratified by the American people so as to insulate it from judicial overruling.” When this happens, according to Mr. Amar, the erroneous precedent becomes part of America’s unwritten Constitution.
In other words, if what the judiciary is doing is popular enough, the unwritten Constitution promulgated by judges takes precedence over the written one. Despite the concession made to the written Constitution, this is really no more than a variation of living constitutionalism, one taken even further in the parts of the book where Mr. Amar contends that the unwritten Constitution also consists of numerous historical documents—like the Northwest Ordinance and the Gettysburg Address—along with institutional practices of Congress and the White House.
Amar sets out to refute this charge:
You wrongly suggest that this is my view: “If what the judiciary is doing is popular enough, the unwritten Constitution promulgated by judges takes precedence [according to Amar] over the written one.” I actually say something quite different, and far more nuanced: In the domain of unenumerated rights, popularity counts. Here is one key passage: “While a wave of new legislation would not ordinarily suffice to trump a precise and inflexible textual right, we must keep in mind that in this chapter we have been dealing with various rights that have not been specified in this way in the written Constitution. If the original judicial reason for deeming these rights to be full-fledged constitutional entitlements derived from the fact that American lawmakers generally respected these rights in practice, then such rights should lose their constitutional status if the legislative pattern changes dramatically. In this particular pocket of unwritten constitutionalism [my emphasis] what should ideally emerge is a genuine dialogue among judges, legislators, and ordinary citizens.” And here is another passage: “Thus, if the Court at time T1 gets the Constitution’s text and original understanding wrong and proclaims a right that does not in fact properly exist at time T1, and if the vast majority of Americans come to rejoice in this right, the Court at time T2 should affirm the originally erroneous precedent. The case, though wrong when decided, has become right thanks to an intervening change of fact — broad and deep popular endorsement — that the Constitution’s own text, via the Ninth and Fourteenth Amendments, endows with special significance. Note one key asymmetry: A case that construes a textual constitutional right too narrowly is different from one that construes the right too broadly. Even if both cases come to be widely embraced by the citizenry, only the rights-expanding case interacts with the text of the Ninth and Fourteenth Amendments so as to specially immunize it from subsequent reversal.”
Intelligent, thoughtful scholars like Amar and Barnett bring out the best in each other, or close to it, because they are willing to engage with each other and have an exchange that both sharpens the distinctions between the two and draws each to develop and defend his views. In this case, Amar has advanced an intriguing and creative constitutional notion. Barnett challenged it, and Amar’s response further defined the concept.
Perhaps it ultimately is too simplistic, but even high-minded conservative constitutional defenders like Barnett seem to forget a basic, mechanical objection to expansive constitutional approaches like Amar’s: they are undemocratic. Functionally, what the host of progressive, “living Constitution,” dynamic, “unwritten Constitution,” etc. approaches seek is a shortcut to or a circumvention of the constitutionally prescribed amendment process, the dangers of which should be self-evident. There probably is a reason that scholars in Barnett’s position do not rely on this fundamental objection– to which Amar’s vague appeal to the Ninth and Fourteenth Amendments looks like a grasping rejoinder– but it escapes me, especially because there does not seem to be an equally compelling response available to those in Amar’s position. (Note also that Amar’s qualification, that only those extra-Constitutional interpretations that expand rights are authoritative, is irrelevant in the face of a Federalist approach to liberty under the Constitution, in addition to being non-responsive to the fundamental, mechanical objection mentioned in this paragraph.)
It has been a long time since I have read fiction. Nonfiction has comprised effectively the entirety of my pleasure reading for years, and spending the past year developing ALDLAND has meant that sports news (i.e., more nonfiction, with the exception of hockey teams’ playoff injury reports) has dominated my online reading as well. Once I set aside Justice Breyer’s book earlier this year, I began to contemplate a return to fiction. I’m not quite ready yet, though, opting first to tackle Michael Sandel’s latest, which I’ve nearly finished. I also have contemplated reading Hampton Sides‘ Hellhound on His Trail: The Stalking of Martin Luther King, Jr. and the International Hunt for His Assassin next just as an excuse to remain in nonfiction’s friendly waters.
My inexplicable resistance to fiction nevertheless is slipping, however. Although I had no intention of reading or buying Jay Caspian Kang’s debut novel, The Dead Do Not Improve, I had been hearing about its release for a year, so it was easy enough to decide to take a peek when the Grantland blogger offered the first thirty-five pages of his book for free perusal online. My reactions to the experience of reading the opening of Kang’s novel were not complex or groundbreaking. My first thought was that it felt not so bad to be reading fiction again. My second was that the text seemed awfully autobiographical, and I couldn’t decide whether that irritated me. My third thought was confirmatory of my preconceived notion that there was no need for me to buy or read (now, the entirety of) this book. My fourth thought, upon completing the excerpt, was that maybe I would get the book, as a flippant way to ease back into fiction. I suppose that’s marketing at work, but my idea was that, rather than hold out on fiction not because I didn’t want to be reading it but because I felt I had to reengage in a particular way, and the choice of which fictional work would be my first would be too fraught.
I was not expecting to see any more of Kang’s text anywhere outside of the book’s covers when I came upon his recent Gawker post. Apparently a lot of other people thought The Dead Do Not Improve seemed pretty autobiographical too. For some reason, this (again, apparent) sentiment put Kang on the defensive, so he took to Gawker to try to tamp down the issue by presenting yet another, albeit much shorter, segment (italicized below by me for clarity) of the novel, this time with new annotations included:
To try to shove that top-down question of “how much of your life is in your character” and all of its political implications a bit further out to pasture, I’ve annotated an excerpt from The Dead Do Not Improve to tell you exactly what parts came from my life and what parts did not. My hope is that you will find these details to be about as unimportant as they ultimately are.
The true parts I have tagged IRL. The fictional parts are tagged FICTION.
Those mornings in the parking lot with my three friends, the Ronizm mornings: Seth Bloomberg (IRL: name altered) picked me up at seven-twenty on the dot.
In precal, I sat between Heba Salaama and Paul Offen. Years later, Heba Salaama, better known to the greater student public as Heavy Salami, won a hundred thousand dollars on some network TV weight loss show (IRL), but back before her dreams came true, in those pre-9/11 days when the last name Salaama was simply a curiosity, Heba was the terrifying, ethnically ambiguous girl who sat next to me in math, who kept telling me that I smelled like weed (IRL), who threatened to tell Ms. Butler if I didn’t let her copy last night’s homework (FICTION).
The entire exercise is available here. Upon reading all of it, my immediate reaction is that whether “these details” are “unimportant”– to the reader’s experience of Kang’s novel, presumably– is beside the point.
I chose the two excerpts of the excerpt that I did because they demonstrate a) Kang’s ability to use a particular, basic literary technique, and b) his decision not to employ that technique in a particular instance. Explicitly, Kang’s annotation reveals that he knows how to write about a person he’s met while disguising that person’s identity by using a different name, an elementary and widely accepted technique. There is nothing objectionable about writing about real people in the fiction context; indeed, it seems like it would be difficult to write convincing fiction about human beings without having met and being influenced by one or two. Still, as a matter of common courtesy and because there’s little to be gained by using real names, authors usually use a different name for their character. Like any author, Kang is familiar with this technique, and he demonstrates it with the character he calls “Seth Bloomberg.”
In the second excerpt, however, Kang declines to use this technique and goes out of his way to let us know that he’s chosen not to. “Heba Salaama,” the protagonist’s classmate, is a real person, and her name is Heba Salaama. Kang not only expressly tells us this, but he goes further out of his way to let readers know that Salaama is a real person by linking to a video of her. Within one sentence, Kang makes pointed reference to Salaama’s weight and ethnic background and mixes in a fictional part about academic cheating (recall the actual book does not contain the annotations being discussed here) before moving on to an extended discussion of his actual high school’s “lone autistic kid,” whose real name Kang also uses.
The issue here is not that Kang’s protagonist, named for another of Kang’s actual classmates, dwells on the physical characteristics, ethnic background, or mental capacity of other characters. Writers should be honest in this way, and protagonists, however autobiographical, do not have to be morally good people. Instead, the issue is why Kang felt the need to use the real names of real people like Salaama. Even if it isn’t a requirement for their protagonists, writers ought to be morally good people, and even though morality isn’t necessarily about balancing, two initial questions come to mind: 1) What does Kang gain by using the real names of people like Salaama?, and 2) What do people like Salaama lose when Kang incorporates them into his story, and publicly highlights likely unflattering episodes of their lives? For himself, Kang appears oblivious, which borders on the literally unbelievable.
Earlier this year, a friend sent me a copy of Surely You’re Joking Mr. Feynman! (Adventures of a Curious Character), the oral memoir of Nobel Prize-winning physicist Richard P. Feynman. Upon completion, as the title implicitly promises, the reader is left with a strong sense of Feynman’s character: extremely self-confident, but never taking things too terribly seriously. While he credits the latter– a sort of everyman approach to life’s puzzles and adventures– for allowing him to take creative approaches to problem solving in physics and otherwise, it may be something of an outer surface he projects on top of his self-assured and extremely intelligent individuality. He doesn’t not remind me of Randy Pausch, late author of The Last Lecture. Still, Feynman is able to illustrate his developing personality over time, and stories about his time in Los Alamos, Brazil, and Las Vegas are fun and show readers a very well-rounded individual who could do plenty more than model nuclear physics.
Ninety-five percent of the book is Feynman telling stories, but he steps back at the end to offer some broader, more philosophical observations on the world after relating his time attempting to hallucinate with Dr. John C. Lily. Feynman expressed concern that, despite all of the scientific advances of the twentieth century, he was not living in a truly scientific age writ large because people continued to adhere to beliefs and take actions even though these approaches wouldn’t stand up to logical examination. Simply, Feynman wanted to apply the scientific method to everything and ask, for example, what educators were thinking about their new models for teaching reading when literacy and reading test scores were not improving as a result of these new approaches.
Another example is how to treat criminals. We obviously have made no progress– lots of theory, but no progress– in decreasing the amount of crime by the method that we use to handle criminals.
Richard P. Feynman, Surely You’re Joking Mr. Feynman! (Adventures of a Curious Character) 340 (W. W. Norton & Company 1985).
There’s a lot to be said about our criminal justice system and its failures, with particular comment on incarceration rates, racial prejudices, narcotics policy, and the death penalty, among other topics, but the semi-stated assumption in Feynman’s observation, that the goal of the criminal justice system is to reduce crime, seems worth examining in the first instance.
In discussing the theories that guide our criminal justice system, two apparently competing approaches are most prominent. One is the rehabilitative theory, which argues that the purpose of the system is to limit recidivism by teaching convicts how to become functional, productive members of society. The retributive theory, by contrast, is focused on punishment, attempting to balance the scales for the wrong done to the victims of the crime by exacting punishment on the convicted criminal.
Notably, both of these theories look at how we should treat a person following conviction. While Feynman may be making indirect reference to the rehabilitative approach– by processing all criminals through a rehabilitative program we build up the particularly (legally) depraved among us and thereby reduce recidivism and thus decrease crime rates– I read him as criticizing the failure to reduce crime in the first instance, which is the reading that gave me pause. That’s because the “science” of criminal justice does not appear to address reducing crime in the first instance.
There probably are a few reasons for the preference for an ex post approach over an ex ante one. First, there is a fear in criminal justice about the possibility of prosecuting “thought crime” that causes many to put on the brakes when it looks like things are moving toward punishing a person who is contemplating but has not actually begun to physically commit a crime. Second, there’s the possibly more monumental task that would be reforming the conditions of society generally such that fewer people committed fewer crimes, recognizing that there are a variety of individual and societal factors that drive criminal behavior.
Feynman’s criticism, and its incorporated assumption, therefore probably is slightly misguided. His broader point nevertheless is well-taken. For all the resources we expend on the criminal justice system, things don’t seem to be improving. While critics have identified numerous possible points of causation and adverse consequences, meaningful reform does not appear forthcoming.
Last month, the Supreme Court heard oral arguments in three consolidated cases, Perry v. Perez, Perry v. Davis, and Perry v. Perez, all having to do with state and federal elections in Texas. The cases are complicated for a number of reasons, and they even seemed to give the usually confident justices some trouble, as Lyle Denniston’s report on the oral arguments for SCOTUSblog indicates. The situation is complicated in terms of both procedural and substantive law, as there are challenges to Texas’ policies on different grounds in different courts, with a number of different entities all advancing their own remedial proposals, all with a pressing deadline that requires some solution in time for state primaries ahead of this fall’s general election. At the root of these cases, though, are fundamental questions about the Voting Rights Act of 1965, a central piece of the civil rights legislation of the 1960s that already has been facing some fundamental questions in the last few years. In 2006, after much debate, Congress voted to extend the expiring legislation for another twenty-five years, and in 2009, the Supreme Court avoided ruling on the constitutionality of a key provision of the Act while expressing doubts about its ongoing constitutionality. See Northwest Austin Mun. Util. Dist. No. 1 v. Holder, 557 U.S. ___ (2009).
Voting Rights Act litigation usually focuses on one or both of two sections of the Act. Section 2 contains the Act’s general rule against voting discrimination. Section 5, the more controversial of the two, requires certain identified jurisdictions, typically in the South, to seek approval from the Attorney General before making changes to election procedures.
In an excellent and extensive piece that followed the Northwest Austin decision, Joel Heller outlined the Voting Rights Act’s legal landscape and argued that the interpretive tools and sources of authority upon which the Court relies in its Voting Rights Act (“VRA”) cases “present historical, ideological, and statistical perspectives on the question of the continued necessity of § 5, with an especial focus on the South. They tell divergent stories about history, race and voting.” Joel Heller, Faulkner’s Voting Rights Act: The Sound and Fury of Section Five, 3 (2011), avalilable here. What’s missing, according to Heller, is “the region’s literature. Yet many of these works, in particular the novels of William Faulkner, address some of the same concerns as the VRA. Specifically, a prominent theme in Faulkner’s work is the power of memory in the South and the ongoing influence of the past on contemporary actions and attitudes.” Id.
As a legal matter, Heller argues that it’s appropriate for courts to consider literature:
Literature can serve as a probative tool for understanding and evaluating policy because it is often, like law, a response to social problems. Especially with a measure like § 5 that touches on such fundamental matters in American society as racial equality and voting rights, Congress and the courts should make every effort and consult every relevant source in order to understand fully the issues at stake. As a chronicler of the pre-VRA South that Congress was responding to when it enacted and reauthorized § 5, Faulkner could prove a valuable resource in this undertaking. Ignoring his examinations of the role of memory in this context risks losing out on the insights of a uniquely astute observer of Southern culture and psychology.
Id. at 4.
The ongoing question in VRA § 5 litigation is whether the prophylactic measure still is needed, and this inquiry requires a court to determine what evil remains present in the governed jurisdictions and whether that evil necessitates the continued application of § 5. Heller continues:
Just as § 5 is a solution uniquely concerned with the past, Faulkner’s novels show that the lingering power of the past is also part of the problem. Rather than punishing the sons for the sins of the fathers, § 5 can be seen as targeting the independent concern of a past-haunted society and the uncertain results which the unchecked power of memory can produce in the present. . . . By focusing on the extent to which “things have changed in the South,” the Court ignored the possibility that, for some, “the past is never dead, it is not even past.”
Id. at 4-5. In short, Heller has identified a theme common to the creation, implementation, and judicial interpretation of § 5 and Faulkner’s novels: “the question of how the past and memories of it continue to shape current attitudes and actions.” Id. at 28.
Heller’s article is thorough and thoughtful, and after thinking about it for four or five months, I still find little to add to it or comment upon. As a matter of mere judicial mechanics, strict jurists may reject the notion that judges should consider much beyond the language of the statutes and rules at issue in the case, but they would completely miss the point of the article. Moreover, where courts in VRA § 5 cases already routinely are considering things beyond the narrow scope of legal authority, judges’ abilities to define the bounds of permissible authority for consideration are diminished. In this vein, Heller has made his case for the necessity of the inclusion and consideration of material like Faulkner’s works, which speak to the very inquiry in which the courts in these cases are engaging in both a historical and thematic manner.
The full text of the article is available for download here.
Last week, I had the fortunate opportunity to hear two presentations by (and briefly meet) Michael Sandel, a leading political theorist and, less magnanimously, a substantial influence on my undergraduate thesis. While a review of his latest book, the New York Times bestselling Justice: What’s the Right Thing to Do?, will have to wait until I finish Justice Breyer’s book, I wanted to make a timely note of the experience of hearing and meeting Sandel.
The morning lecture, thoroughly covered by The Chautauquan Daily, was a traditional presentation in which Sandel familiarized the audience with his approach to public discourse. Sandel carries the mantle of Aristotelian civic republicanism into this late-modern age, arguing that deliberation over the good life, morality, and spirituality, is an appropriate and necessary part of our public discourse. Rather than restraining public debate to a narrow set of political values and leaving things like religion and morality to the private sphere, Sandel believes– contrary to the prevailing view– that people should not have to hold back parts of themselves when participating in public discourse. While I’m not sure he’s gone so far as to say this outright, I think his approach rejects the public-private division contemporary liberal society mandates, instead advocating a broad spectrum of public life in which the public-private deliberative division melts away.
The afternoon lecture, by contrast, was styled after one of his interactive classroom presentations, in which he engaged the audience on questions of policy. Did the handicapped golfer, Casey Martin, have a right to use a cart in PGA events? Should state governments limit marriage to heterosexual couples?
At the end, he took audience questions, the last of which presented a good opportunity to explain his approach. The question came from a self-described libertarian, who told Sandel that he didn’t think the government had any business even answering the questions Sandel posed. The questioner said that the PGA, a private organization, should be able to include or exclude whomever it wants, and the government has no authority to say otherwise. As for state governments, the questioner explained, they should not be regulating activities, such as marriage, between consenting adults.
Sandel used this opportunity to “test” the questioner to see if he really would adhere to a libertarian viewpoint as applied to more controversial facts. For example, would the questioner allow the PGA to restrict its events to white golfers? The questioner said he would boycott the events, but the PGA could do so. Sandel also inquired of the questioner’s acceptance of various extreme activities between consenting adults, but the questioner stood by his position. Apparently satisfied that the questioner was, in fact, a true libertarian, Sandel concluded the presentation without further substantive comment.
This exchange was a missed opportunity for Sandel. Rather than defend his view, or at least helpfully contrast it with the libertarian perspective for the attentive audience, Sandel did little more than put the questioner through the paces of a libertarian litmus test. What’s unfortunate is that he had a good response. In his 1996 book Democracy’s Discontent, Sandel wrote about the Lincoln-Douglas debates of 1858, when the two politicians debated slavery and other issues. Stephen Douglas supported a liberal position: because people disagreed as to the morality of slavery, the federal government ought to maintain a neutral position and allow the states and territories to decide the question for themselves. Abraham Lincoln, on the other hand, took a position in line with Sandel’s civic republican view and in opposition to slavery on moral grounds, observing that anyone can advocate political neutrality “who does not see anything wrong in slavery, but no man can logically say it who does see a wrong in it; because no man can logically say he doesn’t care whether a wrong is voted up or voted down.” Michael Sandel, Democracy’s Discontent 22 (The Belknap Press of Harvard University Press, 1996).
Lincoln’s view is a direct challenge to those like the questioner, who say that while they personally (morally) oppose a particular activity, the best public policy respecting it is one of neutrality. This is the query Sandel should have put before his libertarian questioner.
Not to be confused with the movie of the same title, Life is the 2010 autobiography of guitarist and Rolling Stones co-founder Keith Richards. Finally catching up my reviews to some reasonable proximity to the subject book’s publication date, cf. here and here, I started reading Life about five weeks ago as an enjoyable distraction from the legal matters that had been commanding my time. How surprised was I, then, to read the opening lines of Richards’ book: “Chapter One/ In which I am pulled over by police officers in Arkansas during our 1975 US tour and a standoff ensues.” Keith Richards, Life 3 (Little, Brown and Company 2010). Rock star hijinks and clashes with authority I expected; starting off with a primer on Fourth Amendment search and seizure law I did not. The beneficiary of some small-town politics, Richards escaped that particular encounter with the authorities and returned his readers to tales of his early days in England. A friend (and real writer) reviewed Life for JH Weekly. Just as Richards, in the book, often had his friends interject where they might happen to recall an event with more clarity than he or their voice otherwise would be a welcome contribution, I here will defer to a professional and offer my own reaction afterwards.
After a nuclear holocaust, nothing will be left alive except cockroaches and Keith Richards. In his wildly popular autobiography, Richards seems moved to demonstrate his own amazement at the length of his mortal sojourn, and he offers testimony in defense (the man’s spent much time in litigation) of his remarkable resilience. There’s a romance in his recounting of “fate-cheating close shaves” and the years when “we were just trying to stay alive and stay one step ahead of the law.”
Life confirms, amends and elaborates upon nearly 50 years of Keef mythology with stories of being manhandled by maniacal fans; of the ending of an era at Altamont; of bedding Brian Jones’s lady (and Mick’s lady); of the familial rivalry between he and Mick and of his repeated cold-turkeys and returns to smack. (He does admit to being an addict.) The narrative proves entertaining and, at turns, gut-wrenching and heart-breaking, comical and juvenile, sagacious and glad. Pleasantly biased, Richards’s voice resonates on the page, both engaging and disarming his reader with his tremendous self-awareness, his active relationship with his public image and his own intense sense of confidence. He’s honest, but there’s a pathos involved in the telling: “I was never really interested very much in my look, so to speak, although I might be a liar here.”
The book is enriched by Richards’s inclusion of excerpts of his journal from the early days of the Rolling Stones, as well as interviews of friends, collaborators and family, sharpening the points and defining the lines of the narrative. There’s a tragic beauty and Dickensian quality to his son Marlon’s recollections of time spent in Long Island. Saxophonist Bobby Keys adds delicious flavor. And I took great pleasure in Richards’s recounting the days of his boyhood in Dartford in the 40s: remembering his parents riding their tandem bicycle, taking walks with his grandfather Gus and playing his first guitar.
Amidst the book’s picaresque tone, plunderers will find it’s true bounty: Richards’s relationship with music and music-makers. There’s an education to be had as he guides readers through his musical development. He displays his ardor for Chicago Blues, Tin Pan Alley, Howlin’ Wolf and so many others (including Jackson Browne). He chronicles his technique development and his collaborations, remarking that “nothing came from itself” and in the biz “mostly there are no secrets.” Richards recounts the birth of albums and songs, from inspiration and writing, to tinkering and rehearsing, to recording and producing, to touring and performing. Rolling Stones fans will surely celebrate this intimate look at songs that have already won their hearts. – Julia Hysell
“Book Reviews,” JH Weekly (Jan. 5, 2011).
The whole entourage had exploded in terms of numbers, of roadies and technicians, and of hangers-on and groupies. For the first time, we traveled in our own hired plane, with the lapping tongue painted on. We had become a pirate nation, moving on a huge scale under our own flag, with lawyers, clowns, attendants.
Richards, supra, at 326 (discussing the beginning of the 1972 tour). Upon starting Life, I expected I would be impatient to get into “the action,” but I found myself enjoying Richards’ thorough recollections of his childhood in 1940s England and his caring telling of his family history. Perhaps unsurprising to those familiar with his later lifestyle, these early days comprise some of Richards’ most vivid stories here.
One of the main things I was looking for was Richards’ memories of Gram Parsons, the influential American musician known as “the father of country rock.” Although Parsons died just before his twenty-seventh birthday (when Richards was only twenty-nine), the two became close friends while Parsons was alive. Outside of Bobby Keys and the mothers of Richards’ children, Anita Pallenberg and Patti Hansen, Parsons may be the most mentioned non-Stone in Richards’ tale. The two met in the summer of 1968, and four years later, Parsons’ country rock influence would surface in the Stones’ greatest work, Exile on Main St. Of their first meeting, Richards writes:
When I fell in with Gram Parsons in the summer of 1968, I struck a seam of music that I’m still developing, which widened the range of everything I was playing and writing. It also began an instant friendship that already seemed ancient the first time we sat down and talked. It was like a reunion with a long-lost brother for me, I suppose, never having had one. Gram was very, very special and I still miss him.
Id. at 247. The two shared a passion for music and, unfortunately for Parsons, a deep appreciation of heroin. It was Keys who told Richards of Parsons’ sudden and untimely death.
Much of Life is spent relating stories about Richards and his friends, like Keys, Parsons, and myriad others. The book is not heavy on music per se, although there is a detailed guitar lecture about one-third of the way in, and the reader won’t depart without knowing Richards’ musical influences and idols, mostly black American blues musicians he mentions often. Graciously, Richards relates details of actual, identified album recording sessions (unlike Bob Dylan’s foggy Chronicles, Volume I) and even opens windows into the writing of various songs. He appropriately spends much time on the recording of Exile on Main St., while the Stones were tax exiles in France, and the reader can compare the dynamics of the Jagger/Richards songwriting duo starting from their first tune, written while the band’s first manager had locked them in a kitchen.
For a life spent getting by with his friends– and now related in such a fashion– the reader learns little about the other band members. Richards’ fellow Stones are surprisingly one-dimensional and scarce throughout the book. Brian Jones gets the most attention in the early going, and the reader learns about Ian Stewart’s pivotal early role (Richards credits the slightly older piano player with founding the band) and ongoing participation with the group, but the elusive Charlie Watts is, save for a couple brief episodes, disappointingly elusive in these pages, and Mick Taylor (Jones’ replacement) and Bill Wyman barely cast pale shadows on the scene.
Even Mick Jagger receives bare lip service; while peppering conservative praise through his periodic references to Jagger, Richards otherwise consistently presents his “soul brother” / “Glimmer Twin” in a negative light, and one suspects wounds remain too fresh today for him to write openly even about their younger days together. (Interestingly, it was another man named Bill Wyman who would attempt to lend flesh to the bare bones provided Jagger’s presence Richards’ Life with a fictional imagination of Jagger’s private reaction to the book.)
Overcoming the legalistic hurdle on page one, I enjoyed Life and found it a fun look into an often-imagined world. While I would have liked more on the early days of Keith and Mick, the persona of Charlie Watts, and the emergent collaborations portrayed in 1968′s The Rolling Stones Rock and Roll Circus (featuring Taj Mahal, The Who, Jethro Tull, Marianne Faithful, and The Dirty Mac), I learned more about Ian Stewart, Brian Jones, the X-Pensive Winos (the guitarist’s well-stocked solo band), and Richards’ time in Jamaica. For me, it was the right book at the right time; it was well-paced and made me want to listen to music.
The Flying Burrito Brothers – “Wild Horses,” Burrito Deluxe (1970)
Keith Richards – “Connection,” Live at the Hollywood Palladium (1988)
The Rolling Stones – “Happy,” Exile on Main St. (1972)
Toots & the Maytals (feat. Keith Richards) – “Careless Ethiopians,” True Love (2004)
The Rolling Stones – “Salt of the Earth,” The Rolling Stones Rock and Roll Circus (1968)
Nearly three years ago, a friend gave me a copy of I’ll Take My Stand: The South and the Agrarian Tradition by Twelve Southerners. The book, first published in 1930, is a collection of twelve essays by twelve different authors: Donald Davidson, John Gould Fletcher, H. B. Kline, Lyle, H. Lanier, Stark Young, Allen Tate, Andrew Nelson Lytle, H. C. Nixon, F. L. Owsley, John Crowe Ransom, John Donald Wade, and Robert Penn Warren. Known as the Agrarians, these were not men of the soil (though they favored the life and the application of its ideals), as Virginia Rock’s appended biographical essays betray, but men of letters with diverse, primarily academic, backgrounds. According to Louis D. Rubin, Jr., author of the Introduction to the 1962 edition, the collaboration between the twelve was loose. Each had some tie to Vanderbilt University, and each, through his essay for this book, aimed to contribute his views on the general notion expressed in the book’s title: “all tend to support a Southern way of life against what may be called the American or prevailing way; and all as much as agree that the best terms in which to represent the distinction are contained in the phrase, Agrarian versus Industrial.” The Civil War was over, although it seemed to be a recent memory in the minds of many of the writers. Rubin also wrote the Introduction to the 1977 edition, in which he provided additional context for the authors:
They were writing squarely out of an old American tradition, one that we find imbedded in American thought almost from the earliest days, and that runs counter to yet another old American tradition. The tradition out of which they were writing was that of pastorale; they were invoking the humane virtues of a simpler, more elemental, nonacquisitive existence, as a needed rebuke to the acquisitive, essentially materialistic compulsions of a society that from the outset was very much engaged in seeking wealth, power, and plenty on a continent whose prolific natural resources and vast acres of usable land, forests, and rivers were there for the taking.
The particular pastorale they wrote, however, was given substance and urgency by their own historical situation. They were southerners, young men born into a society that had only belatedly experienced the full impact of the industrial dispensation, and which in their own lifetimes had become caught up in the surge of overwhelming social, economic, and political change, so that the contrasts between earlier ways and later were dramatically visible. Nor were they external observers; they felt the change within themselves, and knew at first hand the problems of definition involved, and could thus recognize and identify many of the alternatives. Moreover, there was an historical circumstance that bound them to perceive the changes that were altering their community in terms of deeply felt historical loyalties and sectional self-defense. Thus their special version of pastoral rebuke possessed a concrete imagery and an historical depth that imbued it with drama and passion. They did more than merely admonish and prescribe: they “took their stand.”
The question that remained open was, “how far shall the South surrender its moral, social, and economic autonomy to the victorious principle of Union?” The authors’ response is not “neo-Confederate nostalgia,” although modern readers likely will bristle at the casual racism that crops up in some of the essays. To the extent possible, however, it is worth overlooking these anachronisms, because much of the material “speak[s] to our economic and ecological situation with a clarity that can be recognized today as never before.”
The essays, from which I have quoted at length here and elsewhere, are varied and often dense. Some, like Wade’s “The Life and Death of Cousin Lucius” (and to an extent Lytle’s “The Hind Tit,” these also being the two essays respectively represented in the links in the previous sentence), take a narrative form, like a myth or fable. Others, like Ransom’s “Reconstructed but Unregenerate” and Lanier’s “A Critique of the Philosophy of Progress,” are more straightforward, traditional academic papers. Still others– Davidson’s “A Mirror for Artists,” Fletcher’s “Education, Past and Present,” and Tate’s “Remarks on the Southern Religion”– highlight a particular topic.
The final essay, “Not in Memoriam, but in Defense,” by Young, who Rock tells us “disavowed a personal commitment to the Agrarian cause (even though he had a long, warm correspondence with both Davidson and Tate)” but “saw himself among all of the Agrarians as ‘most truly expressing the Southern idea,’” provides some concluding perspective that also includes language that functions as introductory material. While Rubin urged a realistic approach to the texts in his Introductions, driven, as mentioned, by a belief that, despite whatever historical yearnings the authors may have harbored, their message remained important and viable in later decades, Young’s realistic outlook comes through frankly in his essay:
If anything is clear, it is that we can never go back, and neither this essay nor any intelligent person that I know in the South desires a literal restoration of the old Southern life, even if that were possible; dead days are gone, and if by some chance they should return, we should find them intolerable. But out of any epoch in civilization there may arise things worth while, that are the flowers of it. To abandon these, when another epoch arrives, is only stupid, so long as there is still in them the breath and flux of life. In our American life today good things are coming in, which we should try to understand and to share, so far as our natures allow. But it is just as obvious that good things are going out….It would be childish and dangerous for the South to be stampeded and betrayed out of its own character by the noise, force, and glittering narrowness of the industrialism and progress spreading everywhere, with varying degrees, from one region to another.
…Though the South…is our subject, we must remember that we are concerned first with a quality itself, not as our own but as found anywhere; and that we defend certain qualities not because they belong to the South, but because the South belongs to them.
The authors endeavor throughout to both define and defend Southern ideals and virtues and define and warn of the dangers and vices of (Northern) industrialism. Despite Rubin’s reminder that “no single author is responsible for any view outside his own article,” common themes plainly emerged, even if they might appear, to modern readers, to be in conflict. The authors write both of individualism and collectivism, for example. They expressed a desire for self-reliance, not as modern voices call for personal responsibility in behavior, but as the freedom and ability to rely on oneself alone. Collectivism appeared at different levels. At a basic level, the authors defended elements of social order, like the family and the church. Their project itself was the product of a collective effort, however loose, and they were defending the values of a collective society as against the sweep of those of an intruding society.
Warning of the destructive nature of progressive industrialism is chief among the group’s messages, and to that end, the authors defend on all fronts. There are good things in life and good ways of living life that do not lend themselves to the sort of quantification and monetization industrialism encourages. Leisure has no place in the industrial lifestyle. Slavery made possible this Southern leisure, a fact the authors, to their detriment, largely pass upon without serious consideration. Modern readers ignore the authors’ points about the virtues of leisure– stepping outside the incessant push of industrialism– to their own detriment, however. Absent a ready supply of free human labor, the Southern aristocratic lifestyle and its accordant leisure probably would not be possible. That does not mean that religion and the arts must be lost to industrial progress and commodification. The same is true of the natural environment, the destruction of which also concerned the authors.
The Agrarians don’t fit neatly into our modern political milieu; they are neither Left nor Right as we usually understand those positions today. Much of this is due to the acceptance, by both sides, of the industrial economy and its virtues, which have become the national norm. In this way, the Agrarians remain situated as critics of a philosophy and a culture that is merely more widespread today than it was in 1930. Matching the constellation of policy preferences of neither side, they (generally speaking– the group appears to include liberals and conservatives) favor community, religion, family, and environmental values, while opposing the intervening forces of the public sector (government) and private business sector (industry).
Partly because they do not fit a partisan mold, and partly because the objects of their criticism remain in force, the Agrarian critique continues to be a valuable one. Like this review, some of the essays meander at times, and I was disappointed in Warren’s contribution, as the author of All the King’s Men was the only contributor recognizable to me at the outset. I found his essay a bit lighter on salient substance and a bit heavier on anachronistic trappings than the others. Even with its meanders, I’ll Take My Stand is a robust collection, and it remains valuable and relevant for readers in 2011.
As mentioned above, I’ve posted excerpts of two of the essays here and here. Portions of the 2006 edition are available from Google Books here. (I have not seen the 2006 edition, so I would recommend the 1983 edition, pictured above.) A more complete, organized, and factually accurate history of the Agrarians is available here.
Potato Moon – “Railroad Song,” After the Harvest (2007)
Alabama – “Song of the South,” Southern Star (1989)
Alabama – “Dixieland Delight,” The Closer You Get (1983)
The Band – “The Night They Drove Old Dixie Down,” The Band (1969)
U.S. Supreme Court Associate Justice Stephen Breyer visited Vanderbilt University Law School today to deliver a lecture, teach a class on administrative law (the subject he taught while at Harvard Law School, where he was a professor from 1967 to 1980), and sign copies of his book, Making Our Democracy Work: A Judge’s View. I have yet to read the book, but I have loosely kept up with Breyer’s recent interview tour. My interpretation is that the Justice, very frequently in the the minority in his years on the Court, felt the need to explain and preserve his judicial philosophy in an extrajudicial manner. There is precedent for judges setting out their jurisprudential views in book form, and even though Breyer probably wouldn’t admit it, Making Our Democracy Work feels a little bit like a response to A Matter of Interpretation: Federal Courts and the Law, a 1997 book by Breyer’s colleague, Justice Antonin Scalia. I plan to post a review here once I finish Breyer’s new work, and I am hopeful that it will be more timely than my last book review.
Breyer’s lecture began with an explanation of Alexander Hamilton’s vision of the role of the Supreme Court in the federal government, and, taking this as a launching point, sought to illustrate through examples the ways in which we have tried to answer a practical question the Founders could not: how will the justices navigate their role as unelected officials charged with making decisions that may contravene the actions of the elected branches. Breyer compared Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), Brown v. Board of Education, 347 U.S. 483 (1954), and Bush v. Gore, 531 U.S. 98 (2000) with a focus on the enforceability of unpopular decisions. Following Worcester, President Andrew Jackson refused to adhere to Chief Justice John Marshall’s ruling that Cherokees living in northern Georgia were allowed to stay on their land, instead sending them on the Trail of Tears to Oklahoma. The tumult in Arkansas following the Brown decisions is a well-know part of American civil rights history. This time, though, the presidential use of the military was in obedience of the Court’s ruling. Finally, Breyer observed that, while anger and resentment followed the Bush decision, a peaceful transfer of power in accordance with the Court’s decision took place. Then and today, Breyer said that he thinks Bush was wrong, but he also noted his agreement with Senator Harry Reid’s view that this nevertheless was an appreciable moment in American history for the public’s response. See here. Breyer also commented on two additional controversial cases: Dred Scott v. Sanford, 60 U.S. 393 (1857) and Korematsu v. U.S., 323 U.S. 214 (1944). For Breyer, these two cases illustrate conflict between the Court and the Executive in a war context. Disagreeing with both outcomes, Breyer acknowledged that Korematsu raised the question of which governmental branch should be running a war– placing his theme of democratic deference in a difficult light– but seemed to argue that the facts were such that the Court could have deferred to the Executive without reaching the outcome it did. Despite a supposed attempt by Chief Justice Roger B. Taney to rule in such a way as to avoid a civil war, Dred Scott, Breyer said, is the Court’s worst decision.
I enjoyed Breyer’s remarks, and I liked how he incorporated rule of law and civic discourse and dispute resolution themes into the Hamiltonian framework he referenced throughout his talk. I also found helpful the way he presented the three cases in chronological order to highlight a developing answer to the question the framework implied. It was good to see the Justice, age seventy-two, in strong form, and I am looking forward to reading his book.
UPDATE: VULS has made available a video of the entirety of Breyer’s lecture:
As promised, the following is my review of Nudge: Improving Decisions About Health, Wealth, and Happiness, by Richard H. Thaler and Cass R. Sunstein. This isn’t an especially timely post (the book originally was published in 2008, and I read the “Revised and Expanded Edition” from 2009), but, for its popularity and apparent influence, I do not think many of the readers of this site also have read this book.
The book is concerned with the way people deal with choices in their lives. The authors refer to an arrangement of options– for example, the layout of a food buffet– as choice architecture. Choice architecture is manipulable, and choice architects have the ability to control decision making in a meaningful way through the presentation and arrangement of options. “Humans predictably err,” and, by understanding these cognitive biases, choice architects can shape outcomes. Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness 7 (Penguin Books 2009) (2008). There is an entire set of studies and literature on cognitive biases that is emerging, particularly in the behavioral economics literature. Examples include confirmation bias, self-serving bias, and anchoring bias. A detailed exploration of these and other cognitive biases is beyond the scope of the book and this post. What is important for Thaler and Sunstein is that everyone has these systematic biases. Also important to Nudge is pointing out the “misconception…that it is possible to avoid influencing people’s choices”; in other words, there is no such thing as neutral choice architecture. Id. at 10; see also id. at 249-51 (discussing different types of neutrality and situations in which neutrality may be possible). Intended or not, every arrangement of options has an effect on those faced with the options.
The core of Nudge‘s contribution is an approach to choice architecture (which also could be thought of as system organization) the authors call “libertarian paternalism.” As the authors explain:
Libertarian paternalists urge that people should be free to choose. We strive to design policies that maintain or increase freedom of choice. When we use the term libertarian to modify the word paternalism, we simply mean liberty-preserving….Libertarian paternalists want to make it easy for people to go their own way; they do not want to burden those who want to exercise their freedom.
The paternalistic aspect lies in the claim that it is legitimate for choice architects to try to influence people’s behavior in order to make their lives longer, healthier, and better. In other words, we argue for self-conscious efforts, by institutions in the private sector and also by government, to steer people’s choices in directions that will improve their lives. In our understanding, a policy is “paternalistic” if it tries to influence choices in a way that will make choosers better off, as judged by themselves.
Id. at 5 (quotation marks omitted). Thaler and Sunstein call this influencing “nudging”:
A nudge…is any aspect of the choice architecture that alters people’s behavior in a predictable way without forbidding any options or significantly changing their economic incentives. To count as a mere nudge, the intervention must be easy and cheap to avoid. Nudges are not mandates. Putting the fruit at eye level counts as a nudge. Banning junk food does not.
Id. at 6. The authors acknowledge that “some of our nudges do, in a sense, impose cognitive (rather than material) costs, and in that sense alter incentives,” but argue that “nudges count as such, and qualify as libertarian paternalism, only if any costs are low.” Id. at 8.
Much of the book covers case studies showing nudging in action or how the greater use of effective choice architecture could improve outcomes for people. These examples include saving money, financial investment, the privatization of social security, prescription drug plans, organ donation policies, environmental conservation, school choice, health care, and marriage policy. While I’m not sure that Thaler and Sustein’s proposal for a “privatization” of marriage in which states only issue civil unions fits neatly within this book’s framework, I do think it could make a good topic for a future post here. If you are especially interested in these and the many other examples of nudges, the revised edition of the book or the authors’ regularly updated blog are good places to look.
Near the end of the book, the authors respond to certain objections to their approach. The first objection is that of the classic slippery slope: if we permit this limited paternalistic intervention, it won’t be long before government overreaches, and ”highly intrusive interventions will surely follow.” Id. at 239. Thaler and Sunstein have substantive and structural responses to this objection: first, they would prefer this sort of critic to engage with them as to the merits of the chosen policy preferences rather than the structure itself, and second, this sort of structure is inevitable: “It is pointless to ask government simply to stand aside. Choice architects, whether private or public, must do something.” Id. at 240. They continue:
Those who make this argument sometimes speak as if government can be absent– as if the default terms that set the background come from nature or from the sky. This is a big mistake. To be sure, the default terms that now apply in any particular context might be best…. But that view must be defended, not assumed. And it would be odd for those who generally hold government in extremely low esteem to think that in all domains, past governments have somehow stumbled onto a set of ideal arrangements.
Id. at 241. Thaler and Sustein also do not think that a traditionalist, Burkean response based on the wisdom of longstanding social practices has much value here because “inertia, procrastination, and imitation often drive our behavior.” Id.
A second objection is that choice architects may have their own agendas, the implication being that these agendas could be “evil” or otherwise not in people’s best interest. Recognizing “that choice architects in all walks of life have incentives to nudge people in directions that benefit the architects…rather than the users,” the authors nevertheless believe that “lin[ing] up incentives when we can, and employ[ing] monitoring and transparency when we can’t” will be sufficient to overcome this issue. Id. at 242. Freedom of choice and transparency are important in this area. Related is John Rawls’ publicity principle: “In its simplest form, the publicity principle bans government from selecting a policy that it would not be able or willing to defend publicly to its own citizens.” Id. at 247. This would prohibit secrecy on the part of the government when it alters legal default rules, for example.
Thaler and Sunstein present and respond to other objections, but, at this point, I would like to both encourage readers to include their questions and critiques in the comment section below and offer my own thoughts.
First, despite the widespread, sweeping accolades for Nudge, I am not convinced that this is an especially groundbreaking book. Advertisers have been doing this sort of thing for years, grocery stores and casinos are consciously designed to make us spend more time and money in them, and there are entire fields of public relations, marketing, and advertising focused on driving individuals’ decision making towards particular ends by playing on the individuals’ desires, habits, interests, and incentives. Nudge does bring the idea of cognitive biases to the public in a way probably not present before, but it barely explains these biases, and there’s almost no discussion of the fascinating research in that area. The book also missed a chance to do a bit more (perhaps empirical) work to explore just how people respond to various nudges as a general matter that might allow readers to apply the conclusions that followed therefrom in leadership settings in their own lives. I appreciate that the book is geared toward a general audience (of which I may or may not be a member), but I found it a bit too light.
Second, I think the second objection I mentioned above– a concern over the goodness of the intentions of choice architects– is a serious one that the authors fail to rebut sufficiently. Anyone who spends time studying cognitive biases and systematic human behavior should be able to take that knowledge and design a system that preferences any particular outcome, even ones that are not “beneficial” to users. Thaler and Sunstein recognize, through the myriad examples they cite throughout their book, that this happens all the time; they simply chalk it up to bad choice architecture and poor nudging. This might very well be the case in the examples they chose. The “bad” outcomes there could be a result of a lack of organization, planning, awareness, knowledge, or forethought. But what if similarly “bad” outcomes resulted from a knowledgeable, organized, aware choice architect and choice architecture? Freedom of choice and transparency might help here, but there seems to be no special reason why they should. An early example in the book is a school cafeteria in which a choice architect may organize food in a way that makes students more likely to choose fruits and vegetables and less likely to choose junk food. The reason this works has nothing to do with the nature of the fruits and vegetables (or that nature vis-a-vis the students) and everything to do with the systematic biases of the students themselves. So long as the libertarian constraint is in place, the students can choose whatever they want, but the paternalistic element permits the choice architect to select any option as the preferred option. Fruit, vegetables, and junk food are mere variables in this arrangement. (In political theory terms, the structure here is largely deontological, the right to define “the good” resting solely with the choice architect.) Additionally, Thaler and Sunstein place no duties on the choice architect in his or her selection of the “good” alternative. An obvious one might be a duty to be informed. The cafeteria administrator might have some idea that fruits and vegetables are healthier than junk food, but we also are told that dark chocolate and red wine (though not for children) have health benefits too. How should one evaluate this particular tradeoff, and how should one evaluate it against all of the dietary decisions that go into putting together a balanced meal? Does a “balanced meal” mean the same thing for every student? For a majority of students?
I think concerns about the qualifications and motivations of choice architects are greater than Thaler and Sunstein admit, and, if nothing else, deserved a more adequate defense. Overall, though, I am glad I read the book, and I think it does a good job of spurring discourse. Irrespective of whether you’ve read Nudge, I welcome your thoughts below.