Mark D. White

Writer, editor, teacher

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I’m a professor in the Department of Philosophy at the College of Staten Island/CUNY, where I teach courses in philosophy, economics, and law, and the author/editor/co-editor of several books.

  • Justice Does (Unfortunately) Have a Price in a World of Scarcity

    Mark D. White

    Recently, it was reported that the state of Missouri started providing cost estimates of various punishments to judges during the sentencing phase of criminal trials. Of course, this set off a firestorm of controversy regarding the appropriate role (if any) that the financial cost of punishment—particularly imprisonment—does or should play in a judge’s decision-making. Those who follow the economic approach to law would see nothing untoward in this; to that way of thinking, monetary costs are just one element of the cost-benefit analysis that informs every legal decision, including optimal sentencing. If prison costs rise, then judges should impose imprisonment less often (or to a lesser degree), even though that may reduce deterrence and increase costs (by a lesser amount) elsewhere, as long as total welfare in society is maximized.

    But those who hold to a more traditional view of justice may recoil at this reduction of legal decision-making to dollars and cents, especially in an area such as criminal law which relies on concepts like wrong, guilt, and desert, claiming instead that “justice has no price.” And I would agree that justice has no price—in an ideal world. In such a world, every criminal offender would be apprehended, all defendants would be tried in court before a jury, and every convicted criminal would receive his deserved punishment. What that person “deserves” is subject to debate, of course, but it would not be determined by “mere” monetary costs, but rather some version of retributive justice that demands punishment in proportion to one’s crime.

    Alas, we do not live in an ideal world. Ours is a world of scarce resources, and has long been so; resource constraints did not emerge fresh with the current economic malaise. If society were to apprehend, prosecute, and punish every criminal offender according to the severity of his crime, we would have no resources remaining for education, national defense, or any other goals that people may feel government should pursue. As every introductory economic student learns on the first day of class, scarcity makes hard choices necessary, and the hardest ones occur when principles—such as justice—must be compromised.

    Because of scarcity of resources, we must balance the principle of just punishment with the other principles and goals that society regard as important (and that we elect our representatives to promote). We can certainly prioritize these principles and goals, but we have to pursue them simultaneously, and somehow allocate our limited resources among them. Of course, people responsible for budgeting, from the smallest municipality to the entire country, face that problem every day. But even once such allocations are made, the problem does not end; rather, it is shifted to the next level of decision-making down the line, including to those responsible for making decisions in the criminal justice system. And among these decision-makers are judges, who must balance legal principles in their courtrooms every day, from seemingly minor evidentiary rulings to sentencing decisions of potentially life-shattering proportion.

    But are costs—or consequences in general—an appropriate factor in balancing principles of justice? Consider the lone police officer who witnesses two persons in the process of a home invasion. Once they notice her, each suspect runs in a different direction. The officer knows both should be apprehended, since both are equally suspect of wrongdoing, but she can only catch one. Which one? Perhaps she recognizes one suspect from previous warrants, or she thinks he may be key to a larger ongoing investigation. Maybe the state would have a better case against one, or he may simply be slower and therefore easier to catch. Any way she chooses, a choice must be made, and if the two suspects are equally deserving of apprehension, then a focus on justice is not going to help make the decision—but consequences might. A prosecutor may make a similar decision with respect to two cases of equal merit in terms of justice, but one of which will be much more costly in terms of time, money, and resources. If considerations of justice do not make the choice clear, costs might.

    Judges are no less immune to these tragic compromises than police officers and prosecutors. It does no good to ignore the fact that justice does have a price—in a world of scarcity, it must. Apprehension, prosecution, and punishment of criminals all take resources from other important needs and goals, so their costs do need to be considered, both externally (in comparison to other societal goals) as well as internally (within the criminal justice system itself). But ideally, costs will be a secondary consideration only, a way to help make tough decisions when balancing principles of justice, and not the primary concern.

    (For more on balancing principles within criminal justice, see the earlier post here.)

  • Federal judge orders injunction against “don’t ask don’t tell” policy

    Mark D. White

    This afternoon, U.S. District Judge Virginia Phillips ordered a worldwide injunction against the Clinton-era "don't ask don't tell" policy in the United States military, under which homosexual servicemen and women must keep silent about their sexual orientation. As I wrote earlier, this demeans our proud men and women serving their country, both straight and gay: the straight ones, for being presumed unable to serve among gay comrades, and the gay ones, for being blocked from military service and for being encouraged to lie rather than be duscharged. I hope this ruling stands.

  • Call for abstracts for Superman and Philosophy

    Welcome to the new home of The Comics Professor, where I hope to update and comment much more often. (My older posts are still available at the Blogger.com site.)

    For my first post, I have the call for abstracts for my next edited book in the Blackwell Philosophy and Pop Culture series:

     

    Call for Abstracts

    Superman and Philosophy

    Edited by Mark D. White

     

    The Blackwell Philosophy and Pop Culture Series

     

    To propose ideas for future volumes in the Blackwell series please contact the Series Editor, William Irwin, at wtirwin@kings.edu. 

    If you have comments or criticisms for the series, please read “Fancy Taking a Pop?” at http://www.philosophypress.co.uk/?p=1131  and join the discussion in the comments section.

    Abstracts and subsequent essays should be philosophically substantial but accessible, written to engage the intelligent lay reader. Contributors of accepted essays will receive an honorarium. 

    Possible themes and topics might include, but are not limited to, the following:

    Does Superman have to follow the same morals that we do?; Can Superman truly love Lois? Would Superman want to live forever?; Superboy and the Legion of Super-Heroes: Time travel and predestination ; Is Lex Luthor humanity’s true savior?; Is Superman too good?; Superman Red/Superman Blue: The implications of split personality; Does Superman deserve to have a “real” life?; Superman Walking: Can Superman ever truly connect with humanity?; Superman vs. Clark Kent: Questions of identity; Is Superman human? The nature of humanity and personhood; Is Superman still super without his powers: The nature of heroism; Is banishment to the Phantom Zone just punishment?; How does the guild system on Krypton reflect Kryptonian political philosophy?; Does Superman have the right to give up his powers for love?; Superman and the Űbermensch; Does the existence of a Superman make humanity obsolete?; What happens when a Superman dies?; What would Superman do? The temptation of ultimate power; Supermen of Infinite Worlds: Alternate realities and free will; Is Lex right—is Superman humanity’s curse?; Where Do Superman’s Loyalties Lie: Earth, Krypton, or elsewhere?; Truth, Justice, and the American Way: What set of values—if any—does Superman represent?; Making a Superman: Character and the Kents

    Submission Guidelines:

    1. Submission deadline for abstracts (100-500 words) and CV’s: February 7, 2011

    2. Submission deadline for first drafts of accepted papers: August 15, 2011 

    Kindly submit abstract (with or without Word attachment) and CV by email to: Mark D. White (profmdwhite@hotmail.com)

  • New York City attempts to ban using food stamps to buy soda

    Mark D. White

    When it rains…

    As the New York Times and many other news organizations have reported, New York City mayor Michael Bloomberg (together with New York State governor David Patterson) are petitioning the U.S. Department of Agriculture for permission to block the city's 1.7 million food stamp recipients from using the funds to purchase soda and other sugary drinks.

    Of course, this is nothing new or surprising from Mayor Bloomberg, who has already enacted curbs on trans fats in city restaurants as well as increased limitations on smoking (possibly to be extended to city parks and other public outdoor areas). But this recent move is different in that it applies only to recipients of the food stamp welfare program, and therefore is an additional limitation on how state-provided funds may be spent (alcohol, tobacco, and prepared foods are already blocked) (After all, a food stamp recipient may have other sources of cash income which he or she can use to buy soda as well as alcohol, cigarettes, and so forth.)

    The obvious argument for such restrictions is that the state–which is to say the taxpayers–are providing recipients with aid to help ameliorate the effects of poverty, so the state is wholly within its rights to limit the use of that aid as a condition of receiving it. Setting aside the classical liberal or libertarian arguments, both principled and pragmatic, against welfare programs, which are not my concern at the moment, one can still question, given the existence of food stamp programs, the ethics of placing paternalistic restrictions of the use of such aid.

    If the state is gonig to provide aid to its worst-off citizens, the least manipulative way to do that is to provide cash (such as in Milton Friedman's negative income tax proposal). As a further step, if the state wants to focus on food poverty, it may issue food stamps (actually a debit card now, but the name has stuck) that are limited to purchases of food (and basic household items such as soap), assuming that food will be one of the primary purchases made by citizens in poverty (after housing, which the state also actively subsidizes). This is manipulation and paternalistic, but in the grand scheme of things, it is rather mild.

    But one can question if the state goes too far when it narrowly defines what food items are to be excluded, based on what it wants people to consume or not. Note the city's proposed formula (from the linked Times article):

    The ban would affect beverages with more than 10 calories per 8 ounces, and would exclude fruit juices without added sugar, milk products and milk substitutes. A 12-ounce soda has 150 calories and the equivalent of 10 packets of sugar, according to the health department. City health officials say that drinking 12 ounces of soda a day can make a person gain 15 pounds a year.

    It does not take a prognosticator to predict the maneuvers by the soft drink industry to work around that (such as CAFE standards affected the automotive industry). (And I'm not even going to touch the bit about soda's ability to "make a person gain" weight, as if consumers cannot adjust their exercise and diet routines to accommodate the occasional Coke.) But my main point is the micromanagement involved in such precise delineations of what can and cannot be purchased with food stamps (especially given the other resources, however meager, that may be at recipients' disposal to buy the occasional Coke).

    But I must give the mayor credit–he is not shy about his intentions, saying:

    This initiative will give New York families more money to spend on foods and drinks that provide real nourishment.

    And that's the crux of the issue: the mayor will decide which "foods and drinks provide real nourishment" for the city's 1.7 million food stamp recipients. Of course, he has already made that choice for all New York City residents insofar as he banned trans fats from restaurants. But limiting the use of food stamps is no less paternalistic for the welfare program aspect of the situation; restricting welfare assistance to food is limiting enough, but giving recipients a state-approved shopping list is going too far.

    You can't make every New Yorker healthy, Mayor Bloomberg. But you can respect their choices, and let them bear the consequences of their actions. Even a real parent would do that.

  • Political nudges in the Third Reich

    Mark D. White

    Not long ago, in my chapter for Essays on Philosophy, Politics & Economics: Integration & Common Research Projects, edited by Christi Favor, Gerald Gaus, and Julian Lamont, I wrote the following as a cautionary tale regarding the political implications of "libertarian paternalism" (or "nudges"):

    Suppose the members of a local election board, who are charged with designing the ballot for an upcoming presidential election, “know” who the local voters should choose, based on what is good for them, and are afraid they might choose the other candidate based on emotional appeals and negative advertising. So they use BLE [behavioral law and economics] principles to structure the ballot in such a way that more voters will “choose” the “right” candidate. They are still free to choose the “wrong” candidate, but the ballot was designed to lead the voters to the “right” conclusion—the candidate that represents their “true interests.” I hope this “nudge” seems less benign and illustrates the danger of BLE policies when taken beyond the realm of more personal choices like saving… (p. 212) 

    Little did I know that this precise type of voter manipulation–albeit tremendously obvious and clumsy–may have been practiced by none other than Adolf Hitler. Dan Ariely brings us this news:

    Hitler seems to have had a few of these tricks up his sleeve as well, as seen here in this 1938 voting ballot:

    File:Stimmzettel-Anschluss.jpg

    Translation: ”Referendum and Großdeutscher Reichstag; Ballot; Do you agree with the reunification of Austria with the German Reich that was enacted on 13 March 1938 and do you vote for the party of our leader; Adolf Hitler?; Yes; No”

    And before anyone says it, this is not a facile attempt on my part to link those with whom I disagree to Hitler; I abhor such rhetorical tomfoolery. It is not the identity of the perpetrator here that interested me, but rather the use of nudging in the election process–such as it was–and its correspondence with what I wrote.

  • Strategic mortgage default and efficient contract breach

    Mark D. White

    Following up on Jonathan's post on rules, norms, and contracts from July, I just came across (thanks to ContractsProf Blog) a paper titled "Strategic Default: The Popularization of a Debate Among Contract Scholars" by Meredith R. Miller of Touro College – Jacob D. Fuchsberg Law Center, forthcoming in Cornell Real Estate Journal. I have yet to read it in its entirety, but in it Miller seems to discuss well the conflict between morality'promise and efficiency in interpreting contractual agreements, especially as this debate was conducted in the public sphere as well as the academic. From the abstract:

    A June 2010 report estimates that roughly 20% of mortgage defaults in the first half of 2009 were “strategic.” “Strategic default” describes the situation where a home borrower has the financial ability to continue to pay her mortgage but chooses not to pay and walks away. The ubiquity of strategic default has lead to innumerable newspaper articles, blog posts, website comments and editorial musings on the morality of homeowners who can afford to pay but choose, instead, to walk away. This Article centers on the current public discourse concerning strategic default, which mirrors a continuing debate among scholars regarding whether the willful breach of a contract has a moral element.

    For those scholars that maintain that it is possible to describe and prescribe contract law with a general, unifying theory, the debate is primarily one between promise-based theories and economic theory. This debate between promissory and economic theory reflects a perpetual volley concerning whether contract law should reflect the primacy of morality or efficiency.

    The argument of those that support strategic default reads like a case for efficient breach. Many of these commentators argue that the mortgage contract simply presents home borrowers with a choice: pay or surrender the property in foreclosure. If a homeowner is deep underwater, she is better off defaulting and the lender is no worse off relative to the bargain (after all, the lender agreed to foreclosure as a remedy). However, those who argue in favor of strategic default are counteracting a prevailing social norm that it is fundamentally immoral to willfully breach a contract. Many of the blog comments and even newspaper editorials have reflected a general sense that the homeowners who strategically default are acting shamefully.

    The public discussion further mirrors the academic debate about whether encouraging efficient breach enables the greatest public good or, instead, undermines the very convention of contracting. On the one hand, strategic default serves as an example of how encouragement of breach of contract may lead to a breakdown of confidence in the marketplace and, in turn, could inhibit market activity. On the other, it is difficult to muster sympathy for lenders, whose imprudent loans are a large piece of the systemic problems that precipitated the housing crisis.

    In the end, to the extent that questions of morality are nuanced and contextual, the example of strategic default elucidates the futility of either morality or efficiency as a unifying descriptive or normative theory of contract law. Indeed, it suggests that instead of focusing on individual contracts between borrowers and lenders, a more fruitful public discourse should be reframed to focus on appropriate systemic reforms to prevent the practices that played a part in devastating outcomes for the housing industry, families and communities. Because the concerns about strategic default – neighborhood depreciation and market collapse – are systemic, the solutions should be driven by those concerns, rather than shaming individual borrowers who decide to walk away.

  • Elizabeth Warren, simplification in lending, and competition

    Mark D. White

    Harvard law professor Elizabeth Warren, special adviser to the secretary of the Treasury for the Consumer Financial Protection Bureau, has an op-ed in the Wall Street Journal this morning (subscription may be required), in which she argues that simpifying consumer credit products will please both consumers and lenders and will promote competition. After describing meeting with a variety of lenders, she writes:

    The very early feedback I've received indicates that the industry is eager for simplification. Some bankers have told me that a short, easy-to-read agreement is exactly what they want. And many others have expressed their interest in working with the new agency to advance a robust market for consumer credit—one that produces real competition that benefits millions of Americans.

    If in fact "the industry is eager for simplification," what exactly is stopping them from achieving it? If consumers want simplification, why aren't lenders bending over backwards to give it to them? Is there some Prisoners' Dilemma in the industry that is preventing these win-win situations? It is difficult to see how: if consumers respond positively to simplified products, then lenders have a clear incentive to provide them, especially if other lenders don't. Government action is rarely needed to promote competition; why is it needed in this case, especially in the absence of Prisoners' Dilemma-type problems?

    Perhaps she's arguing that simplification must be an industry-wide effort, e.g. to standardize the presentation of key terms and provisions on common lending products, which was already done to some extent by previous legislation. (If you've received a credit card offer recently, you've seen the effects.) But even if consumers want more standardization and simplification, there are ways to achieve it without a new government bureaucracy: for instance, entrepreneurs are free to launch magazines or websites (like Consumer Reports) which focus on lending products. (In fact, there are many: just search Google for "credit card comparison site," for instance.) If this service is important enough to consumers to warrant government action, it should be important enough for them to support such a private concern as well.

    (For more on Professor Warren, financial reform, and libertarian paternalism, see this previous post and the paper linked within.)

  • No, Professor Krugman, Economics Is a Morality Play

    Mark D. White

    I usually try to ignore Paul Krugman, but sometimes I can't. (Sorry.) Thanks to Steve Horwitz (here and here), I lit upon Krugman's September 28 New York Times blog post, "Economics Is Not a Morality Play," in which he writes:

    The market economy is a system for organizing activity — a pretty good system most of the time, though not always — with no special moral significance.

    But as I've argued elsewhere, the (pure) market economy preserves individual choice and values and thereby embodies respect for the autonomy and dignity of persons. And this has tremendous moral significance, at least if you care about such things as autonomy and dignity.

    What Professor Krugman does not seem to understand is that when he approves of something "working" ("Cuba doesn’t work; Sweden works pretty well"), he is making a moral judgment based on promoting the goal of "working" (whatever he means by that). Whether he adheres to some version of utilitarianism (promoting some measure of well-being) or a squishy undefined pragmatism ("whatever works"), his system is just as ethically loaded, and depends on just as many controversial moral presuppositions, as deontology or virtue ethics, which presumably is what he is referring to as "a morality play."

    Economics cannot escape ethics, and people like Paul Krugman ignore that fact as their own peril–and, proportionate to their influence, ours as well.

  • Wall Street Journal letters on health care, privacy, and choice

    Mark D. White

    I thought the first two letters to the editor in Tuesday's Wall Street Journal were excellent, reinforcing a point made in my chapter from Accepting the Invisible Hand: Market-Based Approaches to Social-Economic Problems on markets, dignity, and health care (see this previous post):

    Dr. Sally Satel helpfully describes some of the factors inhibiting compassion in the practice of medicine ("Physician, Humanize Thyself," Taste, Sept. 17). Apart from the question of whether compassion can be taught anywhere, let alone in a medical school, in the current environment of "managed care" and government micromanaged "best practices" there is not much hope for compassion with or without cloaking ceremonies. Compassion for one patient can consume the time needed for diagnosis of others. We may be lucky if we can make do with competence.

    Whatever the Affordable Care Act delivers, it will not be compassionate medicine from a distant and indifferent government bureaucracy. We would all do well to invest as individuals in building our relationships with our own physicians to help us make personal medical decisions. Compassion in medicine is now effectively forbidden by law, at least until the bureaucrats approve a billing code for it.

    Jason Segall

    Americans for

    Free Choice in Medicine

    Newport Beach, Calif.

     

    Humane, compassionate physicians may be the ideal but first I want competence. Next, I want my doctors to be zealous advocates resisting intrusions into our intimate and privileged relationship.

    I am continually puzzled that liberals defend Roe v. Wade and the right to abortion yet ignore its foundational principle when it comes to supporting government-run health care. The abortion cases all rely on Justice William O. Douglas's discovery in Griswold v. Connecticut of those famous "penumbras, formed by emanations" from the Bill of Rights protecting privacy rights of married couples and the right of a woman to consult her physician about contraception.

    Liberals have always said they want Uncle Sam to stay out of our bedrooms. Can't we agree that we don't want any third person—with or without a checkbook—in the examining room with our physicians, not the president, not Congress and not any bureaucrat?

    Roger H. Leemis

    Southfield, Mich.

  • Blondie, health care, and Nudge

    Mark D. White

    Yesterday's Blondie strip was enlightening, albeit (likely) unintentionally so:

    Blondie2010-09-25 

    I imagine Dagwood's response to the incentives provided by having to deal with some of the expenses of one's own health insurance is supposed to elicit disgruntled agreement among readers. But it really highlights an unintended consequence of the alternative: if individuals aren't responsible for any of the costs of their own health care, they have less incentive to pay attention to their own health and adjust their behavior accordingly. (The more cynical among us would recognize that the Nudgers will happily regulate people's behavior for them–how convenient.)