Thursday, February 26, 2015

Thinking Like a Lawyer: Wrong Triangles

By Robert H.

What are lawyers good for?  Well here is one thing: Economists are better than you at noticing economic trade offs.  Engineers are better than you at noticing design trade offs.  We lawyers may just be better than you at noticing the trade-offs inherent to rule making. 

This may be oversimplified, but I think the following is a good model for how lawyers think about rules.  Imagine you've got n triangle.  The vertices are labeled "simple" "clear" and "good outcomes in the case(s) at hand."  When contemplating a rule change, pretend the current rule puts you in the middle of the triangle.  The problem with making and updating legal rules is that any move towards one vertex is liable to move you away from another. 

For example, Alex Tabarrok just blogged about a decision in which the Supreme Court ruled that some unsupervised state regulatory boards aren't exempt from the anti-trust act.  In this case, the Court ruled that a state regulatory board made up of dentists can't try to create a monopoly in tooth whitening for their own industry.  Tabarrok, not a lawyer, thinks that Kennedy was balancing federalist concerns (ie, letting states have the authority to regulate without federal interference) with concerns about regulatory capture.

Nope!  Or at least, not entirely.  He was also balancing along the triangle, as Alito's dissent makes clear.  "Dentists can't use regulatory capture to make us all pay more for tooth whitening" is CLEARLY the right result (good outcomes), even if you love federalism.  The problem is that getting there creates either ambiguity (moves away from "clear") or complexity (moves away from "simple").  That's because the new rule -- regulatory bodies like this need state oversight to be exempt from anti-trust law -- begs the question of what counts as sufficient state oversight.  That question can either be left unanswered for district judges to work out on a case-by-case basis, which creates an ambiguity, or it can be worked out in exacting detail now or at a later date, which will create complexity.  Complexity and ambiguity are bad, but Kennedy thought it was worth it in this case to get good results.

Alito didn't.  He wanted a simple rule -- if a state says a regulatory body is backed by the state then that's good enough, and the regulator is exempt from anti-trust.  That would have moved us away from good outcomes (now dentists get to screw us) but towards "simple" and "clear" (we now know exactly what sort of regulatory bodies are exempt, and the rule for telling us that that is relatively simple). 

Obviously there is more to deciding a case than imagining this triangle, there was certainly more going on here than imagining a triangle, and some laws are so awful that you can improve them along all three of these dimensions.  But there is definitely a truth here lawyers are sensitive to and most people are not: the world is really complex, our moral judgments are really complex, and if you want real world legal outcomes to match your judgment of right and wrong you are going to get law that is either very complex (which has costs) or which puts a lot of the burden on individuals applying ambiguous directives to the facts at hand (which has costs).   The result is universally disappointing law: if the law gets an unfair result it is bad; if it is so impenetrable you need to hire an expert to explain it to you it is bad; and if the best your lawyer can say is "well, it could go either way, the judge gets a lot of wiggle room here," it is bad. 

Good laws are less bad; no laws are good.

Wednesday, February 11, 2015

Anti-War Movies Don't Have to be Anti-The-War-They-Are-About

by Robert H.

The non-controversy about whether American Snipper is pro-war trickles on.  Spoiler: it isn't, except in the sense that all war movies are pro-war.

But one argument for why it is pro-war strikes me as particularly bad: "You can't set an anti-war movie in Iraq and not show the horrors of the Iraq war," the argument goes.  "Since this movie glosses over civilian casualties, the bad reasons for going to war, etc., it is pro-war."

The problem with this is that most of the best anti-war movies throughout history have not been anti-the-war-they-depict movies.  They have been anti-war movies.  This makes sense.  A movie that criticizes war generally shouldn't focus on why one war particularly is bad.

Examples: MASH heavily sanitizes and lightens what it was like to work at a MASH, and totally ignores any atrocities or strategic blunders the UN forces committed more broadly.  The Deer Hunter isn't about the massacre at Mai Lai or operation rolling thunder or the invasion of Cambodia or the US's bad strategic decisions or etc.  Same with Full Metal Jacket.  All Quiet on the Western Front (the film) doesn't have much that is explicitly "this is why the war shouldn't have been fought and these are the atrocities committed by the Germans."  Etc.

No one has a problem, now, reading these movies as anti-war films that just happen to be set in certain eras, not as anti-war films with a moral responsibility to correctly show the horrors of that particular war in that particular era.  Only in partisan politics mode does reading the movies that way makes sense.  For example, when the Deer Hunter was released, lots of pro-peace or pro-communist types complained about how ridiculous the movie's presentation of the NVA was.  "Right, uh huh.  They all forced their prisoners to play Russian Roulette or face torture.  Sure.  Way to apologize for American imperialism, Hollywood."

Forty years later, no one gives a shit.  The movie is obviously a broad story about innocence lost in war, and it could just as well be set in the Sepoy Mutiny with vicious Indians (or British) bad guys, or set in Iraq with vicious American (or insurgent) bad guys, or etc.  Who cares?  The point of the movie is the toll war takes on combatants, not that the Vietnam War was justified because the North Vietnamese were monsters.

The same thing happened with Army of Shadows.  The movie is about a resistance fighter who works for and meets De Gaulle.  Unfortunately for it, it was released in the last months of the De Gaulle presidency, when he was an extremely controversial figure.  So the movie gets panned as Gaullist propaganda, something it clearly, to modern eyes is not.

All quiet on the Western Front was perceived as anti-German specifically, not just anti-war, and banned in Axis countries.

And now it's American Snipper's turn.

Don't fall for the same trick all those Fascist and Communist and French (but I repeat myself) film critics did!  American Snipper may only be a mediocre movie, but it's a mediocre anti-war movie.  The fact that it isn't an endless procession of Americans killing civilians and not finding WMD does not change that fact.