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The decision in Citizens United v. FEC incited much debate and hand-wringing. Are companies people? Is corporate speech protected? Does the metaphor of the market apply to freedom of speech and, if so, does that mean more regulation or no regulation?

One thing it did not anticipate, however, was more transparency.

The New York Times reports today that Citizens United contains within it the lances by which to slay the opaque shadows of corporate interests said to soon dominate the airwaves and field of public debate. The opinion and those who wrote it, notably, Scalia, would have the free and open expression of corporate interests, but only if they are held responsible for their statements.

Says Robert Scalia, “Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.”

It is not a complete revocation of the unbridled free-market conceit equating speech to a marketplace. But it does impart caution into the notion that if it’s a marketplace, then we should eliminate all regulation forthwith.

Did the human capacity to reason evolve as a mechanism to acquire truth? Or was it only in the service of winning arguments?

This is the question at the center of an article by Hugo Mercier and Dan Sperber in The Journal of Behavioral and Brain Sciences. Described by the New York Times, the article observes that language and reason have little to do with “truth and accuracy.” Quoting Mercier:

Reasoning doesn’t have this function of helping us to get better beliefs and make better decisions. It was a purely social phenomenon. It evolved to help us convince others and to be careful when others try to convince us.

The position of Mercier and Sperber would appear to provide an evolutionary explanation for all manner of rhetorical devices and tendencies. Individuals, for example, have a tendency to ignore data that does not support their case. This phenomenon is called confirmation bias. In a sense, reason isn’t an instrument by which to acquire truth. Instead, it’s perhaps more ambiguous. Reason is a means by which to convince others, change their minds. Reason is coercive.

Mercier and Sperber’s argument has inflamed some elements of the academic community. Darcia Narvaez, an associate professor of psychology at the University of Notre Dame diminished the theory as a moment of academic fashion:

[it] fits into evolutionary psychology mainstream thinking at the moment, that everything we do is motivated by selfishness and manipulating others, which is, in my view, crazy.

Others have remarked that Mercier and Sperber’s argument is in fact an example of the wisdom of crowds or the aim of deliberative democracy, described by Rawls and Habermas. Jonathan Haidt, a professor at UVA quoted by the Times, suggested as much:

Their work is important and points to some ways that the limits of reason can be overcome by putting people together in the right way, in particular to challenge people’s confirmation biases.

Mercier and Sperber appear to be heading in this direction, as well. Their article points to the advantages of group dynamics in the development of strong arguments. The group, after all, is equipped to present and vet many perspectives in rapid succession. The group could conceivably pick apart instances of confirmation bias and illuminate flaws in reasoning. According to Mercier and Sperber,

At least in some cultural contexts, this results in a kind of arms race towards greater sophistication in the production and evaluation of arguments. When people are motivated to reason, they do a better job at accepting only sound arguments, which is quite generally to their advantage.

Yes. Reason may be coercive, but Mercier and Sperber seem to be saying that with enough reason, enough speech, the group should arrive at a better outcome. Indeed, it’s reminiscent of the logic underpinning the metaphor of the marketplace of ideasthat more speech and more argument might spawn better speech. Justice Holmes, who coined the phrase in 1919, would be proud.

The marketplace metaphor, however, is flawed. As we’ve seen at other times, through the views of Ronald Coase, Justice Stevens, and others, an efficient market in speech does not equate to some Spenserian concept of survival of the fittest.  Indeed, Mercier rather off-handedly observed, “It doesn’t seem to work in the U.S.” Which leaves us with a question, just what is this metaphor we call the marketplace of ideas? Is the mere presence of a group itself sufficient to present and vet a variety of arguments? How do economic resources distort the marketplace of ideas?

it is pictures rather than propositions, metaphors rather than statements, which determine most of our philosophical convictions
–Richard Rorty, Philosophy and the Mirror of Nature

Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it.
Benjamin Cardozo

We exist in a free marketplace of ideas, or so we might say. The Supreme Court’s recent opinion on Citizens United v. the Federal Election Commission sought to protect that marketplace by curbing regulations on corporate spending on political speech. As the Court opined, these regulations constituted censorship, and “the censorship that we confront is vast in its reach.”

The majority opinion of Citizens United v. FEC has been framed in many ways. President Obama observed in his State of the Union, “the Supreme Court reversed a century of law that I believe will open the floodgates for special interests.” Lawrence Lessig characterizes it as indicative of the progressive and now explicit capture of our elected institutions by corporate interests. And perhaps more sinister, Ronald Dworkin, writing for the New York Review of Books, speculates that the majority repositioned the case, accelerated its consideration, and designed the decision to aid the Republican party in the 2010 election season.

The Supreme Court’s majority countered that these concerns are moot to hysterical. Instead, they asserted that the proper function of the free marketplace of ideas relies on liquidity, and what better way to increase liquidity than to throw out the McCain-Feingold bill, undermine longstanding bans on direct campaign contributions that date back to 1907, and otherwise tear down the restrictions that had kept corporate spending in check. The free marketplace for ideas, after all, would yield the fittest through rude competition. The question before the court was only whether that marketplace was free. From there, the Roberts Court could presumably “call balls and strikes.” Read the rest of this entry »

Each firm has lost business in, and has reduced investment in and output of United States equity research as a result of the free riding by Fly and other services. This is a bread-and-butter case of hot-news appropriation.

Benjamin Marks to US District Judge Denise Cote: via Bloomberg.

The case of Barclays v. provides a recent test of the hot news doctrine in the investment research industry. Claims that Fly on the Wall was just reporting the news from the free marketplace of ideas would not protect them. Instead, Judge Denise Cote’s findings of facts and conclusions of law following the March 8-11 bench trial would institute an injunction that embargoed recent headlines and materials from the plaintiffs from publication by Fly on the Wall. The news of her decision has lathered the industry into froth over whether Thomson/Reuters and Bloomberg may be next. But its application may be greater than that. Though the opinion ruled in an industry that is traditionally seen as different than the news industry – investment research – can its application in the broader news industry be far behind? Read the rest of this entry »

this push towards things becoming more open is probably the most powerful and transformative social change… We may be the company that really leads this movement….It’s not clear that anyone else is going to manage it correctly.

Mark Zuckerberg, outlining the steady erosion of the concept of privacy in our time: WSJ

Jessica Vascellaro’s cover-story in the WSJ seats Facebook in a tension between going public and Zuckerberg’s remarkable ability to “delay gratification” and take a seat in “a long queue of tech barons with grand ambitions.” The real story, however, may be in her subtle jibes at one who might become “world’s richest twenty-something.” More than a thinly veiled personal attack, Vascellaro may be hinting at something more substantial: that the question of privacy in the 21st century will be meaningfully shaped by an ambiguous and controlling figure. Read the rest of this entry »

Half the wrong conclusions at which mankind arrive are reached by the abuse of metaphors, and by mistaking general resemblance or imaginary similarity for real identity. Thus people compare an ancient monarchy with an old building, an old tree, or an old man, and because the building, tree, or man must from the nature of things crumble, or decay, or die, they imagine that the same thing holds good with a community…All that we hear every day of the week about the decay of the Turkish Empire, and its being a dead body or a sapless trunk, and so forth, is pure and unadulterated nonsense.

Lord Palmerston on Turkey, from his letters to Lord Granville and his brother.

Lord Palmerston recoils from the insistent caricature of the Turkish empire as in decay, a dead body or sapless trunk. Instead, he sees these for what they are, metaphor’s ability to mistake similarity or resemblance for identity.

Lord Palmerston’s letter continues with an overt shift in his language. He frames Turkey in terms of self-consciously technocratic considerations fitting a statesman. He continues: “if we can procure for it ten years of peace under the joint protection of the five Powers, and if those years are profitably employed in reorganizing the internal system of the empire, there is no reason whatever why it should not become again a respectable Power.” The problem of Turkey shifts from one of managing organic decay to a geo-political issue requiring the coordinated application of political resources.

Anthony Trollope would call these letters, in 1882, “sententious morsels of didactic wisdom, which would not have been put there in the hurry of private correspondence unless they had been intended for other eyes.” Nonetheless, the underlying wisdom around the nuance of metaphor persists. Metaphors are not merely rhetorical flourishes, but powerful tools that shape our understanding through the careful juggling of similarities. Benjamin Cardozo would later echo his caution in the context of the law. Cardozo warned in 1926, metaphors in law are “to be narrowly watched, for starting out as devices to liberate thought, they end often by enslaving it.

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