by Cass Sunstein
Princeton University Press • 2001 • 202 pages • $29.95
Reviewed by Andrew Cohen
Developing technologies such as the World Wide Web and e-mail have become fixtures in our daily lives. But is the Internet consistent with human flourishing in a free society?
In Republic.com, Cass Sunstein, a prominent legal scholar at the University of Chicago, sometimes praises the Internet. It improves access to information, facilitates communication, enhances consumer convenience, and provides new opportunities for community development and self-expression. But he also has misgivings. The Internet, he argues, isolates us from one another. It fragments discourse, polarizes ideologies, and curtails the unwanted and unexpected encounters that shape citizens in a free and heterogeneous society. Sunstein advocates government regulation to curtail the Internet’s negative effects.
Sunstein is wrong about the Internet, but interestingly so. He is wrong both because he underestimates how the Internet enhances human freedom, and because he gravely overestimates the justification and practicality of government regulation. But his views are interesting because they highlight how differing conceptions of a good society shape attitudes toward emerging technologies.
The author begins by rejecting the notion of “consumer sovereignty,” which he rightly sees as motivating much praise of the Internet. With consumer sovereignty, individual preferences in the market determine private choices and, when aggregated, social outcomes. Citizens are most free when nothing hinders the choices they make alone or together with willing confederates. But Sunstein rejects the sovereign consumer’s unlimited power to customize a communications universe. He believes freedom is not mere preference satisfaction but enlightened preference satisfaction. His alternative notion of freedom extols a “political sovereignty” where only properly enlightened preferences that survive public deliberation may determine outcomes. He hopes to curtail the supposedly invidious effects of consumer sovereignty with government programs that would ensure proper exposure to key issues and the range of reasoned opinions. The government would subsidize properly structured “deliberative domain” and information websites, and it would impose “must carry” rules on popular and partisan sites by, for instance, requiring links to appropriate alternative views.
At times it is difficult to believe that Sunstein has spent much time on the World Wide Web. The largely unregulated Web has enhanced human freedom in ways that bear emphasis. Consider that before the Internet, opportunities for communication—especially with strangers—were usually restricted to insubstantial chance encounters in the streets. The ordinary citizen had little awareness or understanding of the views of differently minded persons. Further, the dominance by a few major media outlets, combined with restricted opportunities for entry into the information market, wound up marginalizing minority views. Since communities were geographically situated, citizens had comparatively restricted opportunities for exploring alternative ways of thinking and for forming bonds with persons who shared their values.
The Internet changed all that. Our appreciation of diversity went beyond the brief blurbs allowed into mainstream media. Ethnic and ideological minorities found a voice and a forum. People had greater opportunities to form and sustain voluntary communities across vast distances. All this enhances and protects freedom. It expands individuals’ opportunities to define and live considered lives of their own.
Sunstein’s proposed regulations are thus philosophically unjustified. He appeals to the canard that all rights are creations of government, and so claims that the issue is not whether government should regulate, but how. Sunstein thus conflates institutions that protect rights with considerations that justify rights. His totalizing “political sovereignty” conception of freedom assimilates everything into a politically governed public sphere. But to borrow Sunstein’s terminology, this is not consistent with our shared understandings of human liberty.
Requiring content of any media (electronic or otherwise) restricts the liberty of information providers by subjecting them to the whims of bureaucrats or a supposedly enlightened mob. What is “an appropriately wide and diverse range of options” depends on substantive value questions that free individuals best determine on their own or in voluntary cooperation with others. More worrisome still is the chilling effect any regulation has on the available information and discussion that are supposedly key components for cultivating autonomous life plans.
Sunstein’s proposed regulations are also empirically suspect. Will increased customization of communication wall us off from one another? I doubt it. But this is a question that awaits the findings of social scientists. What to do in the meantime?
What sets up walls, both personally and socially, are media that must pass government muster (however “modest” the regulations may seem). Soviet citizens huddled around the day’s edition of Pravda were getting exactly the sort of information that bureaucrats wanted them to get, and no more. But consider a report in the New York Times from last August 4. Individuals in closed societies such as China and Iran are increasingly getting their news from the Web. This bodes well for freedom. And it is because individuals are increasingly able to set up communications universes of their choosing that such information is both available and consumed.
Andrew Cohen teaches philosophy at the University of Oklahoma.
Crypto Anarchy, Cyberstates, and Pirate Utopias
edited by Peter Ludlow
MIT Press • 2001 • 451 pages • $60.00
Reviewed by Andrew P. Morriss
This volume offers a wildly uneven array of original, revised, and reprinted writings on the broad topic of anarchy and the Internet. The 26 contributions are divided into five major sections covering: “The Sovereignty of Cyberspace,” “Crypto Anarchy,” “Shifting Borders,” “The Emergence of Law and Governance Structures in Cyberspace,” and “Utopia, Dystopia, and Pirate Utopias.”
There are three reasons to read this book. The first is that it offers a wonderful window onto the evolution of thinking about the Internet. The “Crypto Anarchy” section, for example, includes Dorothy Denning’s hyperbolic “The Future of Cryptography” from 1996, in which she denounces widely available crypto as unleashing a flood of child pornography and other ills; an excellent, point-by-point response to her piece by Duncan Frissell; and a new (1999) piece by Denning and a coauthor repeating the same sorts of arguments with updated hyperbole. Seeing these pieces juxtaposed should make anyone skeptical of claims that governments absolutely, positively must have access to everyone’s communications just in case someone decides to do something bad.
The second reason to read the book is that it contains some marvelous documents and accounts of important events in the history of the Internet. Jennifer Mnookin’s “Virtual(ly) Law” recounts some of the history of the famous LambdaMOO virtual space and its attempts to develop a legal system in cyberspace. Charles Stivale’s “help manners” provides a fascinating counterpoint to some of Mnookin’s factual claims. (Both, unfortunately, tend to be written for people already familiar with the issues they discuss and so a bit cryptic to outsiders.)
The third reason is that the book provides the answer to what socialists and statists think about the Internet. The last section on utopias and the concluding appendix, which contains an interview with Noam Chomsky, are filled with frustrated statist rantings along the lines of, “The nuclear family becomes more and more obviously a trap, a cultural sinkhole, a neurotic secret implosion of split atoms—and the obvious counter-strategy emerges spontaneously in the almost unconscious rediscovery of the more archaic and yet more post-industrial possibility of the band.” There are also attacks on Thomas Jefferson for being a slave owner, corporations for being corporations, and Wired magazine for being written by and for white males. Pirates are praised for being multicultural democrats.
Indeed, some of the selections sound like the “anti-Wired.” Long-time (but now retired) Wired columnist Nicholas Negroponte (head of MIT’s Media Lab, which is—apparently shockingly—funded by corporations!) gets an entire chapter devoted to attacks on his columns. As an example of the caliber of these attacks (and this section of the book), Negroponte’s comment that the Media Lab invents things rather than studying their moral implications is quickly linked to Hiroshima: “The ‘Dammit, Jim, I’m-an-Inventor, Not-a-Social-Scientist’ defense died at Hiroshima, where Robert Oppenheimer’s blithe dismissal of the moral implications of his invention . . . came back to haunt the world in nightmare images of walking corpses.” Well, not really. The Media Lab doesn’t build bombs, it builds gizmos to exchange business cards by shaking hands. Not quite the same thing.
The illogical arguments in the antilibertarian sections of the book are all too familiar: Negroponte is an inventor (or at least manages some inventors), Oppenheimer was an inventor, therefore Negroponte has blood on his hands. Or Jefferson owned slaves, therefore everything Jefferson did was a bad idea. (That Jefferson needs to be hauled in to indict the Internet shows how desperate its opponents are.) There is no room here for arguments that Jefferson, like the rest of us, was a morally imperfect person, but nonetheless had some pretty good ideas on liberty—ideas that ultimately contributed to the abolition of slavery in this country despite his personal failings on the issue. Fortunately, most of the unintelligible nonsense is concentrated in the final section and doesn’t outweigh the useful material. Ideas on Liberty readers will find the essays on cryptography and sovereignty more interesting and less filled with postmodern academic jargon.
In short, this is a flawed book, with far too many selections marred by jargon and fuzzy thinking. However, it also contains primary source documents and thoughtful reflections from a variety of perspectives on important issues relating to the Internet. Anyone interested in anarchy and the Internet should read at least those parts of the book.
Contributing editor Andrew Morriss is Galen J. Roush Professor of Business Law and Regulation at Case Western Reserve University, Cleveland, Ohio, and a senior associate at PERC.
Armed: New Perspectives on Gun Control
by Don B. Kates and Gary Kleck
Prometheus Books • 2001 • 363 pages • $27.00
Reviewed by Joyce Lee Malcolm
For 77 consecutive days in the fall of 1969 the Washington Post published editorials calling for stricter gun controls. This was something of a record, even for the Post, but it was, and remains, typical of a national media in which three-quarters of the newspapers and most of the periodical press vociferously support curbs on gun ownership. It is not merely media bias, however, that provoked Don B. Kates and Gary Kleck to write Armed: New Perspectives on Gun Control. The press is entitled to its opinions. What concerns Kates and Kleck is the fact that this bias has carried over into news coverage and distorted the information presented to the public. At the same time that the national media treat the public to intense coverage of every gun accident or shooting and dutifully report every study that seems to justify firearm restrictions, they routinely downplay defensive uses of firearms and scholarly investigations that fail to find a link between legally owned firearms and violence. As a result, much of the ordinary American’s “conventional wisdom” about the use and abuse of guns is simply wrong when all the available evidence is considered. Kates and Kleck hope to provide that unreported component and correct misconceptions.
Consider a few examples they cite of the conventional wisdom produced by unbalanced reporting. Kates points out that the publicity given every unfortunate accident in which a small child is killed by a gun has convinced the public such tragedies are both common and increasing. In fact, in a nation with some 2 million to 2.4 million privately owned firearms, gun accidents kill only ten to 20 children under the age of five each year, less than half the number who drown in the bathtub. While even one death would be one too many if guns served no useful function, studies such as Kleck’s survey of defensive uses of guns, investigations rarely reported by the media, found that up to 2.5 million Americans use guns annually to defend themselves and their children. They may be rare, but are fatal gun accidents increasing? During the 30 years from 1968 through 1997, even as the stock of civilian firearms rose by 262 percent, fatal accidents dropped by 68.9 percent.
Then there is the conventional wisdom that armed citizens are likely to kill someone by mistake. It turns out that such erroneous killings by private gun owners total about 30 a year. The police, by contrast, erroneously kill five to 11 times that number. Conventional wisdom also holds that ordinary individuals who have a gun in the house are likely to reach for it in a fit of anger and murder someone. Yet homicide studies consistently show that the great majority of murderers are not your average citizens but individuals with a long history of crime and violence.
Kates and Kleck are ideally suited to survey this complex and contentious subject. Kates is an attorney and a specialist in the constitutional and legal aspects of firearms ownership. He has closely examined the recent spate of criminological and sociological studies that have appeared in leading medical journals by physicians who frankly admit to viewing the gun as a “health hazard.” Kleck, professor of criminology at the School of Criminology and Criminal Justice of Florida State University, has conducted original research into defensive gun use—a statistic the police don’t bother to record—and other topics on the criminology of firearms. The long list of books and articles both men have written comprise a major contribution to “the great American firearms debate.”
Armed is one of those handy and well-organized reference works that can be read straight through or consulted on virtually any aspect of its topic. It provides comprehensive coverage of the gun controversy from the issue of whether guns are useful for self-defense and the arguments for moderate as opposed to prohibitionist controls, to the profile of the typical gun owner and the latest stage in the debate over the meaning of the Second Amendment. Just as important, given the aims of its authors, Kates and Kleck have that rare ability to write jargon-free and lively prose. Their book is informative and accessible without talking down to its audience.
And here I must admit my only reservation. To achieve its authors’ greater goal, this book needs to become a reference source used by the mainstream media. That does not mean the Washington Post needs to change its long-held opinion on gun control in the light of additional evidence—although that would be refreshing. It does mean that the media would have the materials ready at hand to offer the public a more accurate and balanced view of this crucial topic. And would do so. A copy in the hands of fair-minded reporters and editors might go a long way to correcting the present misconceptions. But are they interested?
Joyce Lee Malcolm is a professor of history at Bentley College and senior advisor, MIT Security Studies Program.
by Gary T. Dempsey
with Roger W. Fontaine
Cato Institute • 2001 • 215 pages
• $19.95 hardcover; $10.95 paperback
Reviewed by George C. Leef
The destruction of the Taliban government in Afghanistan and its replacement by a new regime that is at least not certifiably lunatic has led to discussions on the role that the United States should play in that country’s future. Some advocate a big “nation-building” program designed to create a model democracy. Fool’s Errands, however, counsels that “nation-building” has in the past been a costly failure that we should stay away from in Afghanistan and everywhere else.
Authors Gary Dempsey, a foreign-policy analyst with the Cato Institute, and Roger Fontaine, who served on the National Security Council under President Reagan, here survey the history of U.S. interventions in foreign nations for the purpose of transforming them—to end violence, replace despicable rulers, promote democracy, and generally to make life less Hobbesian for unfortunate people. Most of the book is devoted to analysis of our most recent nation-building escapades: Somalia, Haiti, Bosnia, and Kosovo. In each case, we learn much about the futility and even counter-productivity of our efforts that strongly contradict the official optimism spun out by the Clinton administration.
The recent movie Black Hawk Down reminded Americans about our unhappy adventure in Somalia in 1992–93, which began in the first Bush administration. Dempsey and Fontaine fill in many details of that fiasco that were downplayed or entirely ignored by the media and Clinton administration spinmeisters. Although there certainly was starvation on a large scale in Somalia in 1992, the authors note that the worst of it had passed by the time of the nation-building operation, and the free food shipments were devastating to the efforts of Somali farmers. Moreover, the U.N. and American peacekeeping force, far from reducing the level of violence, actually raised it. The authors write, “Many Somalis . . . came to view U.N. peacekeepers as just another clan, with its own set of enemies and allies, fighting to get its way. The round of warfare that broke out between UNOSOM II and [Somali warlord Mohamed Farah] Aideed would last for four months and produce thousands of casualties.”
Most enlightening of all is the authors’ postscript on Somalia, “By 1997, two and a half years after the last U.S. troops departed, commerce was booming in Somalia, the markets were full, and people who had previously eked out their existence with the barrel of a gun had gone into business importing, exporting and transporting goods.” Peace—at least as much as the Somalis had ever known—had returned, despite our useless meddling.
Haiti was the next of President Clinton’s nation-building exercises. When a military coup deposed the elected president, Jean Bertrand Aristide (elections in Haiti are anything but reliable expressions of popular will), Clinton pressured the Haitian military to give up power to the supposed democrat. Through economic sanctions that managed to depress the already low standard of living to abysmal levels, the U.S. government got the ruler it wanted. Once Aristide was in power, U.S. troops were sent in to help keep him there and support a variety of structural changes Washington wanted to make. But it was all for naught. The authors explain that, “Few, if any, in the Haitian government favor a working market economy or even understand what the term means, and no political culture prevails with widespread acceptance of the habits, beliefs, and values that sustain . . . democratic institutions.” Aristide rules Haiti with an iron hand, and progress is imperceptible.
Bosnia and Kosovo have been more of the same—costly, feel-good political grandstanding that changes nothing. An anecdote will convey the absurdity of it all. A top nation-building official announced a program designed to reduce ethnic hatreds in Bosnia. He was going to have 300,000 T-shirts printed up with the new, Western-imposed flag of Bosnia and see that they were distributed to a cross-section of Bosnian children. There is no evidence that children of the rival Bosnian groups are being won over to the ideas of peace and democracy by the wearing of T-shirts. There is, however, evidence that many Bosnian adults are coming to depend on the inflow of American aid. Nation-building, it turns out, has a lot in common with domestic welfare schemes.
Nothing in the U.S. Constitution authorizes the president or Congress to engage in foreign nation-building. This timely book shows how wise the Founders were in trying to limit the federal government to just a few necessary domestic tasks. Transform other nations? Forget about it.
George Leef is book review editor of Ideas on Liberty.
Preference Pollution: How Markets Create the Desires We Dislike
by David George
University of Michigan Press • 2001 • 184 pages • $49.50
Reviewed by Gary M. Galles
David George, professor of economics at LaSalle University, wishes to tar markets for what he sees as adverse social trends. To put the blame where he wants, he begins by asserting a “retreat in governmental efforts to alter market outcomes.” The, truth, however, is that far from markets squeezing out government control, they are increasingly distorted or displaced by government intervention. Despite all the talk about scaling back government regulation and redistribution, there has been very little of it, while new laws, regulations, and taxes are added continuously.
George’s overreaching for his premise is clear from his meager supporting references. One is from a book about what politicians say, which ignores the gulf between what they say and what they do. Another cites President Clinton’s 1998 Economic Report of the President stating that he was “committed to reducing the burden of government regulation” as further proof. He even credits libertarians’ “strong influence on traditional conservatives and traditional liberals alike” for rapidly growing reliance on markets—surely a surprise to libertarians.
The core of the book, a twist on the long-since-refuted argument in John Kenneth Galbraith’s 1958 The Affluent Society, is no more compelling.
Galbraith claimed that marketing created artificial consumer wants (termed the “dependence effect”), so that the market system should not be given credit for its superiority in satisfying those “frivolous” wants. However, that argument was decimated by Hayek’s 1961 article “The Non-Sequitur of the ‘Dependence’ Effect” (which George cites only once, without discussion). Hayek pointed out that all human desires beyond the most primitive are culturally influenced, so nothing about marketing renders the wants it influences unworthy of satisfaction. Further, Galbraith’s argument implied that people’s tastes for art, music, and literature would not merit satisfying either, being similarly influenced. Finally, Hayek pointed to the advantages of private-sector advertisers’ competing for consumer patronage versus the alternative—government coercion.
George’s book attempts to rescue Galbraith’s antimarket attack from Hayek’s demolition. In particular, he tries to resurrect the claim that the preferences marketing creates are objectionable, so that markets produce socially inefficient results. He does this by using what he calls “higher-order” preferences, which he claims markets give insufficient attention to, resulting in market failure.
Higher-order preferences are preferences about your preferences. For example, while your preference now may be a hot dog rather than something healthier, you wish you preferred the healthier food to the hot dog. But that means marketing efforts that increase the value you place on, and hence your purchases of, hot dogs (an “unpreferred preference”) impose a cost on you by moving you away from the preferences you wish you had. Further, George asserts, that cost will not be reflected in market choices, because sellers need not compensate consumers for any such change in preferences. As a result, he morphs Galbraith’s criticism of markets for “frivolous” taste creation into a criticism of markets for paying insufficient attention to our supposed desires to change our preferences.
There are many holes in George’s argument. Even if people had preferences about their preferences, that would not cause a market failure. Buyers would include the value of any movement away from their preferred preferences as one of the costs in making a choice, and any movement toward them as one of the benefits. Therefore, it would be reflected in their market choices.
George also recognizes the rapid growth of markets explicitly devoted to taste changing (for example, diet centers). But rather than recognizing that it severely undercuts his argument, he claims it just proves the existence of “market failure in preference production in the economy at large.” In other words, that some specialize in changing tastes proves a market failure in changing tastes. One would expect an economist to be less willfully blind to the logic of specialization according to comparative advantage.
After all this, George puts forward no specific solutions to the market failure he imagines. He says that “collective action is the only possible solution,” but if he were to spell out the details of any imagined government “solution,” the problems and contradictions would be so obvious that no one would “buy” what he had to say.
While George’s book is hard to take seriously, his argument could be recast as an endorsement of markets over government action. Let’s say that people would generally prefer to be more ethical. They wish they didn’t want to steal. Market systems, by preventing theft, move people closer to that ideal. But government makes stealing so tempting, it attracts people into theft via politics, moving them away from how they wish to be. Would George conclude that we need to whittle the state back to the libertarian ideal so that it doesn’t interfere with our “higher order preferences”?
Gary Galles is a professor of economics at Pepperdine University.
Frontiers of Legal Theory
by Richard A. Posner
Harvard University Press • 2001 • 453 pages • $35.00
Reviewed by Donald J. Boudreaux
I am one of Judge Richard Posner’s most sincere and enthusiastic admirers. Not only am I, like everyone who knows of him, in awe of his remarkable rate of scholarly output, I also deeply admire the content of his scholarship. He is one of the most creative and engaging scholars of the past century.
Frontiers of Legal Theory is a collection of 14 of Posner’s articles and talks, all of which are published separately elsewhere. As a result, only two general threads connect the essays into a single book. One is described by the book’s title—but then, nearly everything that Posner writes is on the frontiers of legal theory. For more than 30 years he has been the most intrepid and creative advocate of examining, and molding, law with Chicago-style economics. From antitrust and utility regulation to literature to the history of ideas to the economics of allowing birth mothers to sell their parental rights in their infant children to the Clinton sex scandal, Posner’s fascinating mind has touched almost every conceivable issue in the social sciences and shown how economics can illuminate them.
The second thread is Posner’s long-time insistence that law be understood and crafted pragmatically. He sensibly rejects the idea that law does or should reflect a morality that transcends human reality, as well as the opposite idea that law is nothing more than the imposition by the powerful of their greedy will on the weak. Whether his pragmatic, economics-based understanding of law is the best alternative to these (and other) notions of law is a question that no review of this size can hope to answer.
Having read nearly all of Posner’s books, I must report a regular occurrence. When reading him, I often think to myself, “What?! That can’t be right.” But invariably, as I read on, I discover that his arguments almost always convince me. And even when I remain unconvinced, I find that I’ve learned a surprising amount by taking him seriously.
What do I find in the book reviewed here? Too many interesting things to evaluate in a short space. Posner here speculates about the influence of Jeremy Bentham on the law-and-economics movement. He explores the markets for speech, for history, for social norms, and for scholarly output. He illuminates the law and economics of possession, of testimony, of emotions, of forensic evidence, and of judicial performance. This range is indeed wide.
To get a sense of Posner’s thinking, consider this sample of points made in this book: It makes good economic sense to protect flag burning under the First Amendment because “The force of the gesture is greatly weakened if . . . the person cannot be punished for burning the flag. The cheaper the talk is, the less credible it is; toleration keeps it cheap.”
“By insisting in the name of the Constitution that public schools be entirely secular, the courts increase the demand for the services of (private) religious institutions, and by doing so strengthen religion. What social conservatives denounce as the antireligious character of the Supreme Court’s religion decisions may actually be one of the reasons that Americans are more religious than most of the populations of other modern nations.”
In defending the Anglo-American jury system (against the supposedly better inquisitorial system), Posner says, “The very fact that the American jury trial facilitates public evaluation—that the mistakes of the system are harder to bury—guarantees that the system will look less efficient than one that operates behind a veil.”
Posner’s book bulges with insightful observations. But it is not without flaws. One minor one is inconsistency with some of his other work. In arguing that academics serving as expert witnesses are generally reliable, Posner says that they are kept from acting carelessly or dishonestly by their desire to protect their reputations. But in another of his books, Public Intellectuals: A Study of Decline, Posner argues that academics are surprisingly unreliable sources of knowledge, in large part because they have the security of tenure, diminishing their accountability for what they say.
The larger flaw is that Posner is too much of a legal positivist. As I read Posner and am awed by his brilliance, I’m simultaneously troubled by his treatment of law enforced by a sovereign power as superior to law that grows organically and spontaneously. Posner is aware that law is not exclusively the product of the sovereign’s coercive powers, but he doesn’t (in my view) take seriously enough the promise of polycentric law for advanced societies. Polycentric law is what scholars such as Randy Barnett, Bruce Benson, and David Friedman recognize as growing out of the competition of decentralized legal jurisdictions.
Despite these shortcomings, this book pays enormous dividends to careful readers.
Donald Boudreaux is chairman of the economics department of George Mason University, former president of FEE, and monthly columnist for Ideas on Liberty.