Telling it like it was

Lovely story in today’s Times Diary:

Today marks the 35th anniversary of the death of Sir Douglas Bader and I couldn't let it pass without this story about the RAF hero. He was giving a talk at an upmarket girl's school about his time as a pilot in the Second World War. "So there were two of the f***ers to my right, three f***ers to my right, another f***er on the left", he told the audience. The headmistress went pale and interjected: "Ladies, the Fokker was a German aircraft." Sir Douglas replied: "That may be, madam, but these f***ers were in Messerschmitts".

Terrific story. Wonder if it’s true.

Richard Posner retiring? Not exactly.

On Saturday, Richard Posner retired from his position as the lead judge on the Seventh Circuit Appeals court. For some of his legal peers this may come as a relief, because it means that they won’t have to continue their unequal struggle to keep up with the rulings of the most influential jurist in recent American history. Cass Sunstein, a legal scholar and colleague of Posner’s at Chicago has a nice appreciation of his mentor in which he enumerates the 3,300 judgments that Posner handed down during his time as a judge and explains his significance as a legal thinker. “In the modern era”, he writes, “no one comes close to Posner in terms of the sheer width and depth of his influence on contemporary law”.

Posner’s approach has a deceptively simple starting point: We should focus insistently on the real-world consequences of legal rules.

Suppose that a company has emitted pollution, causing injuries to its neighbors, and the neighbors want to shut the company down; that poor people have purchased refrigerators on credit for what seems to be a very high price, and they want to get out of the deal; that a company has gotten really big, and regulators want to break it up.

In his academic work in the 1970s, Posner asked what different legal rules would actually do, and he used the tools of economics, with its focus on incentive effects and unintended consequences, to answer that question. If the victims of pollution have a legal right to shut companies down, the injuries will stop, but the companies’ workers and consumers will be hurt, which means that courts have to make some tough trade-offs. If poor people can get out of the refrigerator deal, they won’t have to pay that high price, but companies might not want to give credit to poor people in the future.

In countless areas of the law, Posner showed that economic analysis casts a new and often surprising light on questions that people might otherwise try to answer with unhelpful intuitions.

What has always fascinated me about Posner is his role as the most formidable public intellectual in the US since the death of Daniel Patrick Moynihan. For anyone interested in ideas he’s both inspiring and infuriating: inspiring because of the range of his interests and the power of his intellect; infuriating because of his astonishing productivity and his ability to write pellucid prose.

On his intellectual range, Sunstein writes:

It is astounding but true that many of Posner’s contributions have come wholly or mostly from outside of the area of economic analysis of law, with valuable work on (for example) law and literature; on how to deal with catastrophe; on economic crises; on national security threats; and on the federal judiciary itself, and whether it is political, and what it does well and poorly.

On his literary style, the two books of his that I know are Public Intellectuals: a study in decline and his 2011 book on the 2008 banking crisis, A Failure of Capitalism: The Crisis of ’08 and the Descent Into Depression.

Reviewing the latter in the New York Times, Jonathan Rauch observed:

You know that story, and Posner tells it well, with a particular flair for showing how dozens of moving parts interacted. Being Richard Posner, however, he is not content to be an amiable guide through the thicket. His real interest is in finding and detonating grenades in the underbrush.

One is right there on the title page, which flaunts the D-word. The current crisis, Posner maintains, is a depression…

The thing that’s really interesting abut the book is that Posner — in characteristic contrarian style — doesn’t buy the conventional wisdom that the banking catastrophe was (in President Obama’s words) “a perfect storm of irresponsibility and poor decision-making that stretched from Wall Street to Washington to Main Street.” In other words, capitalism is a perfectly good system ruined by crazy, greedy and irresponsible people. Posner disagrees — which, for a guy who has spent most of his career using ideas from economic theory to illuminate legal questions, is remarkable. Instead he argues that what the crisis showed is that markets are not intrinsically the self-correcting mechanisms of economic theory. “The mistakes were systemic”, he wrote, “the product of the nature of the banking business in an environment shaped by low interest rates and deregulation rather than the antics of crooks and fools.” Markets, of their own accord, will sometimes collapse and be unable to right themselves completely for years at a stretch.

That remind you of anyone? For me, it’s back to Keynes, for two reasons. The first is that Keynes had the same insight into the capacity of a market system to reach an equilibrium at a very low level from which it cannot recover. And secondly because Posner, in his ability to change his opinion on something he has believed for years, brings to mind Keynes’s alleged retort to a journalist who accused him of inconsistency: “When the facts change, I change my mind. What do you do, sir?”

(Sadly, this attribution may be apocryphal. Sigh. Some things are too good to check.)

Anyway, the good news that although Posner will not be judging any more, he will still be writing. And still exploding grenades in the undergrowth. More power to his elbow, as we say in Ireland.

An existential threat for the digital giants?

This morning’s Observer column:

So now we find ourselves in a strange place where huge corporations are in a position to determine what is published and what is not. In a working democracy, this kind of decision should be the prerogative of the courts. It’s as if society has outsourced a critical public responsibility to a pair of secretive, privately owned outfits. And it raises a really interesting question: why have two companies that have hitherto always maintained that they are mere conduits for free expression suddenly become conscientious censors?

The answer is that they fear that if they are not seen to be doing something about it, then the lawmakers will act. Until recently, this didn’t seem very likely. But things have changed…

Read on.

Discharging Trump: medics should be on tap, not on top.

As readers of this blog know only too well, I think that Trump has psychiatric and personality problems that make him unfit for the office that he holds. But reaching that conclusion is the easy bit. The really problematic part is what to do about it. There are at least three questions. 1. Who decides that the President has to be relieved of power? 2. What kind of process is required? And 3. How is all this to be squared with democracy?

There’s a thoughtful piece by Peter Kramer and Sally Satel (two psychiatrists with opposing political affiliations) about these questions in today’s New York Times.

The peg for their opinion piece is the fact that 28 Democrats in Congress have put forward a Bill which could lead to a formal assessment of Trump’s mental fitness.

The bill seeks to set in motion a part of the 25th Amendment that empowers Congress to establish a body to assess the president’s ability to govern. The commission created by the bill would have 11 members, at least eight of whom would be doctors, including four psychiatrists. If the commission doctors found Mr. Trump unfit to govern and the vice president agreed, the vice president would become acting president. Since the 25th Amendment was written to address temporary disability, it allows the president to announce that he has recovered — presumably Mr. Trump would do so immediately — and force a congressional vote on the finding of unfitness.

Their view is that the role of professional psychiatrists in all this is problematic. That’s a polite way of saying that it’s bonkers. Having a majority of professionals on the commission is totally inappropriate. Removing a president in a democracy is a political, not a medical, matter.

Kramer and Satel conclude, sensibly:

If the time comes that Congress finds Mr. Trump unable to discharge his duties, its members should appoint a bipartisan commission dominated by respected statesmen to set the removal process in motion. Obviously, if a president’s health deteriorates drastically, medical consultants should be called in. But when the problem is longstanding personality traits, a doctor-dominated commission simply provides cover for Congress — allowing legislators, presumably including those in the majority, to arrange for the replacement of the president while minimizing their responsibility for doing so.

Spot on. Medics should be on tap, not on top.

Does this apply to blogging too?

Reading Two Paths for the Personal Essay by Merve Emre, I was struck by this passage:

Taking an unapologetically snobbish tone in her 1905 essay “The Decay of Essay Writing,” Virginia Woolf lamented how the nineteenth-century democratization of literacy had flooded the literary marketplace with personal essays. A new class of writers, blinkered by the “amazing and unclothed egoism” that came from asserting one’s importance through reading and writing, thought nothing of sacrificing “their beliefs to the turn of a phrase or the glitter of paradox,” Woolf complained. Theirs was a mass demonstration of newly acquired cultural capital over and above any aesthetic or political purpose they may have had for putting pen to paper in the first place. “You need know nothing of music, art, or literature to have a certain interest in their productions, and the great burden of modern criticism is simply the expression of such individual likes and dislikes—the amiable garrulity of the tea-table—cast in the form of the essay,” Woolf wrote, scolding those middle-class writers who would dare leave their grubby prints on the windowpane of good prose. If one can set aside her disdain, there is a larger point: too many people writing have nothing interesting to say and no interesting way in which to say it.

So if Mrs Woolf were alive today she would be similarly dismissive of blogs, especially this one!

The Republicans’ dilemma

Peter Wehner, writing in the New York Times:

A new Washington Post-ABC News poll illustrates the dilemma Republican politicians face. It found that 28 percent of polled voters say they approved of Mr. Trump’s response to Charlottesville. But among Republican voters, the figure was 62 percent, while 72 percent of conservative Republicans approved.

The more offensive Mr. Trump is to the rest of America, the more popular he becomes with his core supporters. One policy example: At a recent rally in Phoenix, the president said he was willing to shut down the government over the question of funding for a border wall, which most of his base favors but only about a third of all Americans want.

Implication: anyone hoping for impeachment from a Republican Congress is engaging in magical thinking.