The charge of thinking about people atomistically is frequently leveled at libertarians, often at economists, and inevitably at libertarian economists. I find that particularly ironic in the face of some “living wage” arguments. The idea that a low-skilled laborer deserves a wage he can live on, and in some variants support a family on, presupposes that he needs to live on it. While it’s true that many unskilled and low-skilled jobs are done by adults, a great many of them are done by teenagers who do not live on their own and hence do not “need” to be able to support themselves. Even among adults, many adults in low-wage positions live with other workers, whether roommates, partners, or spouses. To assume that all low wage earners are therefore struggling to get by and need help from policy makers seems, well, atomistic.
Everybody wants low-wage earners to be better off. I also grant that many people are desperately poor and have few or no options for help from family, friends, and others. But policy does not happen in a vacuum, and low-wage earners are not atomistically separate. It is socially irresponsible not to take these facts into account when considering policy.
This is a homework assignment I did for Law & Economics. The assignment was about legal liability for cuckoldry. I am posting it here not because I believe in it wholeheartedly or think it’s a great analysis, but because it came out drastically differently than I expected it to.
Keep in mind that law & economics is concerned with analyzing the efficiency of the law, not with philosophical concepts of justice and the like. From a justice-based perspective, I think this would have gone pretty far in the other direction, but thinking about efficiency helps to explain why it is the way it is, not how it should be.
Also, I had to keep it under a certain length, so some things that may be controversial or in need of further explanation did not get the full treatment.
The law that currently applies to cuckolded men is that once they have taken on the role of a father in a non-biological sense (i.e. raising children, contributing money to their upkeep, etc.) they are obligated to continue in some way if the man and woman are married. If they are unmarried there is slightly more room for exit on the part of the male, but the principle is similar. There are, of course, variations from state to state, but this model prevails overall. In some states, the male may sue the female to recover funds, but this is limited.
The efficiency of this law rests on the long-standing premise that the people who should be protected by the law are children first and women second; hence, males who divorce their spouses (after making this discovery or not) still typically owe child support, and this is an efficient way to see that the children are still cared for until adulthood. However, the goals to be served efficiently are made in response to other, broader circumstances. For example, if all children were supported by manna from heaven, there would hardly be much need for child support payments from divorced men. Family law in the United States mainly derives from periods long since buried in history, before the welfare state and before women had the kinds of economic opportunities they have now, and perhaps there are more efficient ways to see that children are looked after in the 21st century.
It’s clear that the care exercised in this situation is almost entirely at the discretion of the mother. (If she is pregnant as a result of rape, this is a different issue and should lead to an entirely different set of legal concerns and channels for resolution.) This was not very observable in most cases before paternity testing, and even now is only observable after a gap of a few months at minimum. Before this care was knowable it made sense not to hold suspected mothers liable for cuckoldry in the interests of protecting children, but now that the care is knowable it is easy to know mothers are liable. Except in cases of rape as noted, pregnancy does not happen without preventable action on the part of the mother. The incentives for care on the part of the mother before paternity testing were much more limited than they would be with paternity testing in which the mother is held liable for cuckoldry; in the present legal regime, these incentives are somewhere between, closer to the older case.
If paternity test technology had been available in, say, the 1920s, there still might have been a case for making cuckolded fathers pay (when the biological father could not be located) because the mother in most cases would not have been able to provide for them on her own. However, today, this problem has been somewhat mitigated. There are more women participating in the official labor market than when these laws were initially framed, and the wage gap has decreased. In the worst case, the mother would have to depend on various welfare programs which were not available when this body of law was shaped. Though this seems undesirable, tens of millions of people already do so without the law attempting to intervene to prevent them from doing so.
Let us suppose that the law were changed such that cuckolded men could cease child support (and other non-monetary support) and sue their wives for damages. This would certainly incentivize greater care on the part of mothers. This threat would probably be sufficient for the majority of prospective mothers, but the minority who failed to respond as predicted would be an interesting legal issue. These would be the low-conscientiousness types that behavioral economics makes so much of lately. Not only would they by assumption fail to exercise care in becoming pregnant by men not their husbands, but they would likely have few resources of their own for child care, much less for paying damages to their cuckolded husbands. They could be threatened with jail time, but by and large will probably have little to contribute.
It’s important at this point to consider the magnitude of the phenomenon. Estimates vary, but it seems that something around 3% of births may be of interest for our present discussion. If we assume that ⅔ of women will exercise greater care under threat of liability for damages, we’re still left with ⅓ who will not, and it’s likely that this is the end of the spectrum that will contain most of the women who are unable to provide for children on their own. Approximately 1% of children being potentially unprovided for (except for welfare programs) does not necessarily seem like a massive social problem, especially against other, similar social issues like children born to single mothers on welfare in general.
So far I have not mentioned the other element of the equation: the biological father. It is probably correct to say that cuckolded men tend to have more resources to contribute to child rearing than the biological fathers at issue here. Supposing the law were to make paternity testing mandatory, this may not have much effect anyway; if the biological fathers cannot pay, the social problem isn’t really solved, and by only slightly controversial postulate the biological fathers will usually not be able to pay. There is some endogeneity here, however: if cuckolds could sue their wives for damages, the wives would have much more incentive to try to collect resources from biological fathers, who would then have more incentive to raise funds (or to avoid the situation before the fact). Working out punishments such that it would be preferable to pay child support rather than take the punishment is in principle doable. Still, there would be less provision for children than in the current scenario, even if by a small percentage.
In the worst case, when neither the cuckold nor the biological father contributes resources to the children, the slack would be taken up by welfare programs. As the mothers in this case are already the least conscientious, they will likely contribute little directly. This is undesirable for a number of reasons, although single mothers on welfare currently exist in great numbers already so it’s not clear that this is a high-priority social problem.
There may be a case for some “nudging” in making prenatal or immediate post-birth paternity testing part of the standard suite of procedures performed. This is surely an awkward time for a prospective father to ask, many tests are already being done, and the marginal cost of one more relatively inexpensive test makes it a good idea. If this were standard procedure, cuckolds would be able to deny paternity before most of the expenses were incurred. Knowing this, women would be incentivized to avoid the situation as well. Having it be standard practice would be a greater deterrent than paternity testing currently is; when every expectant couple is aware of this milestone, it will form part of their plans. Surely the costs of litigation and monitoring for child support actions are very great drain on the public purse comparable to the medical costs this would engender.
An added benefit to this would be counseling at the hospital for cases like this. Hospitals have little incentive to care about this directly, but the fact that they would be on the front lines would lead to some kind of established protocol rather than the haphazard legal approach now. At the very least, they would accumulate a reference list of specialists. In the thought experiment where paternity testing becomes standard but without any other changes postulated, this in itself may lead to better clarification of the law in this regard.
Overall, however, it seems that the law does not really care how children are provided for, just that they are. The situation currently obtaining may be unsatisfactory, but it is not clear that there is any more efficient way to accomplish this goal.
Rule 12 Player Conduct
Section 2 Personal Fouls
Article 5 No player shall twist, turn, or pull the facemask of an opponent in any direction.
Penalty: For twisting, turning, or pulling the mask: Loss of 15 yards. A personal foul. The player may be disqualified if the action is judged by the official(s) to be of a flagrant nature.
So say the official NFL rules. Note that “flagrant” violations may receive extra penalties; even unintentional violations are penalized. The motive is obvious: the infraction can seriously hurt a player.
If you understand this penalty, you already understand two of the important principles of the field of law & economics. There are certain things we want to discourage in the interests of society, and some of these things fall within the scope of the law, broadly defined. (We’d also like to discourage other things, for example being a generally negative person, but this is outside the scope of the law.) In criminal law there must be some level of mens rea (“guilty mind”), but in civil law, the component of the law that deals with dispute resolution, mens rea is not necessary. Penalizing actions that cause harm even when performed unintentionally induces a greater level of care among people who might possibly perform the act in the future. The facemask rule was introduced in 1956. Unfortunately, little game footage survives from this period, but it’s easy to see that once players were told about the new penalty they would take greater care to avoid accidentally committing the infraction, even though it always happens within a matter of seconds, in the heat of the moment. I have yet to see a facemask violation that seemed intentional. But even unintentionally it can cause great harm to a player, so it still needs to be discouraged.
That is the first principle of law & economics you might already intuitively understand. The second is that “law” does not simply refer to legislation passed by the US Congress or its equivalents in other countries. The law in football is codified in the NFL Rulebook and enforced by the NFL, not by any government. The law at your workplace overlaps with government law, but not entirely; there is still some internal process for resolving many workplace disputes, even if it is fairly informal. It would be absurdly inefficient for government at any level to involve itself with facemask penalties or which stapler belongs to whom.
Law & economics is a broad and rich field. I don’t mean to suggest that all of its principles can be understood without delving into the literature. But it is not ivory tower stuff. Its logic applies all over the sphere of human activity. Read more here.
In any political debate there are two currents underpinning each participant’s position: the preference-based one and the factual one. These aren’t typically distinguished very carefully, but they exist anyway. For instance, one could hold that more immigration from Latin America is desirable from a cultural point of view but that the economic absorptive powers of US society are not sufficient to support it. Or one could hold that it is both desirable and possible for the US law enforcement system to prevent large numbers of people from consuming some illegal drug. Etc, etc.
Not only is it important to separate these admittedly related currents, but it’s important to remember that different people and different debates are guided by different proportions in underlying justifications. It’s probably true that somebody, somewhere is guided by one exclusively without regard to the other, but in most cases these two exist side by side.
Especially since getting to graduate school I tend to rely less on (my-own-)preference-based justifications for my positions and more on factual ones. Obviously, there is still room for debate no matter which part you choose to rely on more; it could be that I have incorrect beliefs about facts, however much I try not to, and I could debate with somebody having the same preferences I have about alternative means of realizing them. The Affordable Care Act is a popular subject of these kinds of debates—I think most people probably want affordable, quality health care to be available to large numbers of people, but there is considerable room for disagreement about whether the ACA is an efficient way to accomplish this.
I don’t mean to slight preferences by saying they are all beyond rational investigation. Philosophy informs (creates?) our preferences, and to the extent that philosophy is about discovering truth, there is room for debate on correct positions. But this is not what I’m expert in, so I don’t make a habit out of it.
It shouldn’t automatically be cause for suspicion when preferences and factual suppositions point a person in the same direction. In fact, it’s probably the exceptional case in which they don’t. But in the interests of intellectual honesty it’s important to make the distinction so we know what we’re talking about and why. And in the interests of strategy, of “dialogue”, it’s important to remember that other people may not use the two threads in the same proportion that you do. Not only will this help you get to the root of the problem quicker, but it will help you from seeing the world like a medieval morality play in which every conflict is good vs. evil. Related: Which Side Are You On? Robert Wolff, Murray Rothbard, and Me by David D. Friedman.
A question occurred to me the other day, and I still haven’t been able to think of a good answer.
Why are used car commercials always the same low-quality productions no matter where or when you see them? They break down into one of two kinds: loud announcers yelling over forceful graphics about how they will not be undersold, or the owner (and sometimes staff) doing something silly to get your attention. These are the only kinds of used car commercials I have seen on television in my lifetime, and I have seen them all across the country. There must be something about the nature of used car sales that causes this to be true, as the commercials are not coordinated all over the country but end up the same nonetheless.
For the silly type, I can think of a reasonable explanation: people don’t trust used car dealers, so the commercials attempt to humanize them. Instead of seeing the dealers as slimy, disreputable types who are trying to take your hard-earned cash and give you junk in return, they aim to make you see them as jolly guys who are a lot like you and who definitely wouldn’t rip you off.
For the loud type, it’s not as obvious. I suppose the idea they want to convey is that these deals are so damn good you just have to know about them. But this answer is unsatisfactory. If they’re that good, why do they have to yell? Why the cheap, flashy graphics? Part of the answer, no doubt, is that the target audience is not the same target audience that might buy BMWs. For high-end cars the reputation of the brand is very important, and they spare no expense to show themselves as elegant, classy, long-term kinds of brands. The kinds of cars sold at used car dealerships with loud commercials are not the same kinds of cars, and the target audience has less to spend on superb quality and elegance. Like it or not, market research and sales feedback somehow indicate that people respond to loud, flashy commercials. Maybe because they seem so authoritative? When they’re not advertising the high quality of the brand, they’re left having to advertise the dealership itself and its deals.
Remember, if other types of commercials brought in more money, they would run other types of commercials. It is because these types of commercials work that they are the only ones you see.
Readers of history have for centuries been fascinated with the Fall of the Roman Empire, however inapt that designation may be. In a passage from his book The Origins of France, Edward James offers two reasons for the transition. The Romans settled the Visigoths in Aquitania as foederati, i.e. as a governing body acting on their behalf. The local aristocrats cooperated as a means of increasing their own authority in the changing regime, and in general the local inhabitants were tired of Roman tax burdens.
In his letters Sidonius paints a lurid picture of the ruin into which the Catholic Church in south-west Gaul was falling under Euric’s rule. Even as a bishop he preserved a considerable pride in his membership of the Roman Senate, and his letters tell us a good deal about its reactions to the Germanic invasions. Some senators continued, or feigned to continue, the traditional life-style, living in luxurious villas on their country estates, reading, writing, playing backgammon or a somewhat elementary ball-game… But others seem to have made a determined effort to exploit the new conditions, like Syagrius, who very sensibly (but to Sidonius’ open amusement and incomprehension) acquired a fluent grasp of Burgundian. Some aristocrats obviously welcomed the extension of Germanic power in Gaul. They preserved their estates (or the most profitable parts of them), and their social status, and in all probability they increased their political influence. Under Euric, Romans acted as advisers and ministers; one of Sidonius’ friends commanded Euric’s navy. For how many senators was Arvandus, the praetorian prefect of Gaul, speaking when he wrote to Euric suggesting that he make war on the ‘Greek’ Emperor (Anthemius, appointed in Constantinople), and divide Gaul up between the Visigoths and the Burgundians, ‘according to the law of nations’? Other sections of the populace may have viewd the disappearance of Roman rule with still less regret. The strange Christian moralist Salvian of Marseilles, one of the founders of the long-lived historical myth of the clash between late Roman decadence and Germanic virtue, pointed out around 440 how heavy the burden of Roman taxation was (a fact confirmed by modern research) and concluded that ‘it is the unanimous prayer of the Roman people in that district that they may be permitted to continue to lead their present life among the barbarians’.
Considering the numerical inferiority of the various Germanic groups that caused trouble inside the boundaries of the late Roman Empire—I recall an estimate that the Visigoths in Spain were only 1-2% of the population—in tandem with the many troubles at the boundaries, the system of using the Germanic groups as foederati makes good sense. The acceptance and persistence of this Germanic authority would still have to be explained, but this passage illuminates two very good reasons.
From Early Medieval Spain by Roger Collins:
The ‘Fall of the Roman Empire’, in the sense that a coherent and unified system of military and civil administration covering most of western Europe and North Africa, which was in being at the beginning of the fifth century had ceased to exist by its close, was a process scarcely perceived by those who lived through it.