The Contents of One’s Own Mind

This link goes to a fascinating little explainer by Popehat on Twitter.  Excerpted here and lightly edited for readability:

The Fifth Amendment says you can’t be “compelled in any criminal case to be a witness” against yourself. The government can’t compel testimony from you if it might incriminate you — at least not without a grant of immunity.

One of the issues the courts have had to confront is this question: what is testimony? Is a sobriety test testimonial, especially if you have to talk? A blood test? Mandatory filing of tax returns? A handwriting sample? And so forth.

Now, pre-existing items and documents are not testimony. It’s not testimonial if you’re forced to turn them over — in the abstract. But there’s a nuanced, complicated exception. Sometimes the “act of production” can be testimonial.

The idea is that if the government subpoenas you for documents, and you turn them over, you are admitting the existence, authenticity, and your possession of the documents — and those may be incriminating. So even if the documents aren’t testimony, producing them might be.

So years ago, the Supreme Court decided that sometimes, if it wants to compel production of documents, the government will have to offer what’s called “act of production immunity” — they can’t use your production of the documents against you.

Then, in 2000, the Supreme Court expanded the doctrine in the case of Clinton associate Webster Hubbell. The case involved very broad fishing-expedition style subpoenas from Independent Counsel Ken Starr.

The subpoenas were very broad — they asked for things like “any and all documents reflecting, referring, or relating to any direct or indirect sources of money or other things of value received by or provided to” Hubbell.

The Court found that because of how the questions were framed, identifying documents in response to them was “the functional equivalent of the preparation of an answer to either a detailed written interrogatory or a series of oral questions at a discovery deposition.”

Put another way, rather than simply physically turning over documents, Hubbell had to use “the contents of his own mind” to select documents responsive to the government’s broad fishing questions. That made his response testimonial, and thus protected by the Fifth Amendment.

Agency and Trust in a Digital Democracy

Last week I was on a panel about ‘Democracy and the Digital Commons’ at Suffolk University.  At the start of the panel, each of us gave a 5-10 minute talk to help frame the discussion.  While there’s no transcript of the panel itself, here are my notes for the intro.  (Quick context: each of us tied our talk to the Boston Marathon bombing and in particular Reddit’s response to it.)

The internet was supposed to bring about a new world, a better world in which everyone had a voice. With the rise of blogging and social media, the machinery of publishing was being democratized. And more democracy is always good, right?

Well, not necessarily. Democracy has its flaws and its dangers, just like any other system of governance. As Winston Churchill said, “Democracy is the worst form of government, except all the other ones that have been tried.”

I want to focus on one particular long-understood flaw of democracy, which is this: in a democratic system, every voice counts equally, even though some may be much better educated on a given topic.

We can view what happened after the marathon bombing through this lens. Reddit led a crowdsourced manhunt – another way of saying that is that they led a democratized manhunt. Anyone, regardless of their experience with intelligence investigations, could contribute to the discussion. It’s not surprising, then, that the investigation went awry – that the crowd failed to consider how misidentifying suspects could harm innocent people, or how a public manhunt might influence the behaviors of the perpetrators. The vast majority of the people participating had no training or experience in the matter, so why would they know?

Here’s a question for the room. A loved one of yours has been mysteriously murdered, and you have to choose who investigates, one or the other – the local police, or a community of people on Reddit. Which do you choose?

Now I want you to imagine that the prime suspect is a local police officer. Who you want to investigate – the local police, or a community of people on Reddit?

Here we have a great tension. It’s better and more effective to delegate power to those with the expertise to use it. But it’s only better and more effective when the experts act fairly and in the best interests of those who’ve delegated power to them. And there’s no way to be 100% sure that they’ll act in your best interests. This is called the Principal-Agent Problem.

We can see the Principal-Agent Problem at work with the issue of misinformation more broadly. Techno-Utopians have championed social media as a way to make every user a publisher. But there’s a real value to the training that journalists get. There are cultural standards they internalize and then enact, including things like verification processes, disclosing conflict of interest, and refusal to plagiarize or fabricate quotes.

I for one am relieved to be able to delegate this work to journalists at ProPublica or the New York Times or the Boston Globe. I may not agree with what they chose to report on or the opinions in their editorials but I trust that they’ll follow journalistic norms. I trust them to act on my behalf, my news-gathering agents. But not everyone does. There’s been a concerted effort for decades, which has risen to a fever pitch over the last few years, to portray them as biased, as liars, even, lately, as traitors deserving of violence.

If we stop viewing journalists as our “news-gathering agents”, who replaces them? We’ve got to trust someone to gather our news, because I sure am not capable of doing it all for myself. So who do we trust instead?

One response is, “We’ll trust those in power, we’ll trust the President”, which, no matter what party you belong to should give you pause.

Another, more optimistic response, is to say, “The crowd! We’ll trust the crowd.” In other words, screw agents – let’s all be principals.

But what does the crowd give us? It gives us clickbait passed around every corner of Facebook. It gives us waves of abuse and harassment on Twitter. It gives us lies that spread faster than truth.

It turns out this result is not very satisfying! So there are calls for someone to exercise power and try to fix these problems. People ask Facebook to stop the spread of misinformation. They ask Twitter to stop abuse on their platform. And in doing so, they’re asking the tech platforms to act as their agents.

The tech platforms are hesitant to do this, I think rightly. “Who are we to determine which journalists are legitimate and which are not?” Facebook asks. “Who are we to determine what’s rudeness and what’s abuse?” Twitter asks.

But if not them, then who? They’ve designed their platforms as a meeting ground of millions of principals rather than a place where people can delegate responsibility to agents. The platforms don’t empower people to address these problems, so the only solution is to go behind the platforms. And behind these scenes, of course, these companies are profoundly non-democratic.

And so you end up with a site like Twitter, where many users feel coerced into letting Twitter act as an agent on their behalf despite having no mechanisms to hold it accountable. So Twitter has power its users don’t want to grant it, and that Twitter itself doesn’t want to use, but that must be used for the commons to remain remotely functional.

So how do we move forward? I have three main ideas.

First, I think we need to change how we design our digital platforms. Web applications are governance systems made of electricity and silicon rather than ink and parchment. When you ban a person from your website, it’s not that different from asking the sheriff to walk that no good rascal to the edge of town. And if we view web platforms as systems of governance then we can see just how naive and inadequate sites like Twitter or Facebook or Reddit are. The use of the phrase “upvoting” and “downvoting” on Reddit seems almost insulting. Users aren’t upvoting a person to represent them in a specific situation or downvoting a proposed policy they don’t want to see adopted. Or over on Twitter – people have been using external tools like shared blocklists for years to try to establish some semblance of collective control that the platform itself refuses to grant them.

Specifically, I think we need to design systems that encourage us to delegate power to those we trust – voluntarily, and revocably. Because we need agents that we can trust to act on our behalf, but we also need ways to withdraw power from those we no longer trust. If we can do this on our platforms, we won’t have to beg for intervention from the people behind the platforms.

Second, we need to nourish existing systems of trust and adapt them to online spaces. A lot of tech industry rhetoric has centered around replacing trust, for instance blockchain is supposed to be trust-free. But humans will always have to trust each other, and we’ve developed some pretty good cultural norms and social systems to facilitate that trust. We shouldn’t just throw them away.

Which brings me to my third point. Our legal system has a solution for the Principal Agent Problem. It doesn’t always work, but it does help a lot of the time. This solution is the concept of fiduciary duty. This is what requires Doctors to act in the best interest of their patients, lawyers to act in the best interests of their clients, and bankers to act in the best interests of their customers. Why not require platforms to act in the best interests of their users?

Nothing we do is going to permanently solve the Principal Agent Problem. There will always be some amount of misinformation and abuse in our digital commons. But that’s not an excuse to turn away from the issue. By thinking carefully and compassionately about these problems we can improve our approach to them.

Power, Judgment, and Love

Back in high school and college, I had friends who offered to do tarot readings for me.  I always turned them down.  “What a dumb idea,” I’d think.  “How could a deck of cards predict your future!”

Then a few years ago, my friend Zandra made the offer differently.  “I use tarot cards to help my brain think about problems in a new way.  Want to try?”  I was still a little dubious, but I agreed to give it a shot, and I’m so glad I did.

Humans are a storytelling animal.  We use symbols and associations to shape our thoughts, actions, values, hopes.  We do this constantly, albeit largely unconsciously.  A tarot reading is just a way of making this storytelling process explicit and therefore manipulable.

All of this is a preface to a specific set of cards I’d like to talk about:

Three cards from the Tarot: The Devil, Judgment, and the Lovers

I’ve drawn these cards together in a few different readings, and come to associate them with a set of ideas and concepts that are very important to me.  These associations are echoed and enforced by the visual similarities in the cards.  Let’s take them left to right.

The Devil

A surface reading of this card might suggest that the Devil is an ominous figure who has enslaved the people beneath him and keeps them trapped against their will.  But I don’t see these figures as slaves.  The christian Devil is a seducer.  The figures have somehow chosen to be there.

But why would someone chose to give up power?  Or rather, why would someone chose to believe they have no power?

In On Killing: The Psychological Cost of Learning to Kill in War and Society David Grossman described a study published by Richard Gabriel in his book, No More Heroes.  A thesis by Janine Wannacott explains it this way:

Gabriel showed that during both world wars, prisoners of war did not suffer psychiatric casualties from artillery attack, but their enemy guards did (1987). The guards were in a position of responsibility, while the prisoners were not. Grossman cites this (1996) and explained that the prisoners had no control over their situation; their living or dying was up to the guards. The guards, meanwhile, were crushed under the burden of responsibility of their own, their companions’, and their prisoners’ lives.

Responsibility can be tremendously stressful. Responsibility for matters of life and death, in murky, uncertain circumstances, can be almost too much to bear.  Put down your burdens, the Devil seduces us.  There’s nothing you can do.  You’re powerless to change this.  You have no responsibility.

In her poem Return, Carolyn Forche stands in a supermarket recounting to a friend her experiences as a human rights activist in El Salvador and explaining how helpless they make her feel.  The friend replies:

Your problem is not your life as it is
in America, not that your hands, as you
tell me, are tied to do something. It is
that you were born to an island of greed
and grace where you have this sense
of yourself as apart from others. It is
not your right to feel powerless. Better
people than you were powerless.

It’s a complicated poem.  I used that last line – better people than you were powerless – to shame myself for years.  We’ll come back to that feeling of shame in a bit.  But for now, I want to focus on the line right before it: it is not your right to feel powerless.

It is not our right to feel powerless because we are not powerless.  The devil lies when he tells us we have no power and therefore no responsibility.  He has seduced us into wearing his chains, but we always have the power to take them off.

So… how do we take them off?

Judgment

This card shows the angel Gabriel waking the dead with his trumpet.  It is time for them to be judged by God.

I just talked about how we imagine we are powerless before the devil.  We also imagine that we are powerless before God.  But unlike with the Devil, we don’t feel bad about it.  It’s humble and good to submit to God’s judgment, right?

If we define “submitting to God’s judgment” as something we do after death I have no criticism of it.  I’m not gonna tell you how to live your best afterlife. But submitting to God here and now too often means submitting to the church’s will, or your local priest’s will, or your parents’ will.  More generally, it means submitting to a set of predetermined rules and values without questioning them.  This can be as tempting for secular people as for the religious.

The power of judgment is our greatest responsibility, because it is the power from which all other powers flow.  After all, we cannot act until we have judged that we should act.  Some people try to avoid responsibility by pretending they have no independent power of judgment.  They say, “I was just following orders”.  Courts have rightly rejected this defense and that’s because it elides the truth: that choosing to follow orders is itself an independent judgment.

We cannot lose or forgo our ability to judge.  But what is judgment?

Some people conceive of it as the simple application of rules to a situation.  Perhaps they imagine a judge, faced with a defendant, who classifies their crime as Crime A according to the criteria in Law B.  But this is not how the judicial system works at all.  Law is messy, ambiguous, full of contradictions and conflicting precedents, constrained by precise language yet liberated by the inherent imprecision of language.  A judge doesn’t color by numbers, she paints.  No wonder attempts to automate judicial decisions have been, by and large, a horrific mistake.

Jeremy Bentham said: “The power of the lawyer is in the uncertainty of the law.”  Without uncertainty there would be no need for judgment.  There would be no need for responsibility, no opportunity for power, no occasion for free will.

Another way of approaching all this is to say that good judgment requires negative capability.  Judgment only occurs in situations of uncertainty and therefore tolerating uncertainty helps us make decisions calmly and compassionately instead of fearfully.  Unfortunately, tolerating uncertainty is hard.

During the Manafort trial, the jury asked Judge Ellis to define reasonable doubt for them.  But it is not actually possible to define reasonable doubt, at least not in the way the jurors were likely hoping:

“The truth is that no one has yet invented or discovered a mode of measurement for the intensity of human belief.” — John Henry Wigmore, Evidence in Trials at Common Law

Most federal and state courts adhere to the “reasonable doubt” standard, but judges have been loathe to define it further. In a 2011 case, the U.S. Court of Appeals for the First Circuit denied an appeal that was based on a trial court’s refusal to impose a definition.

“The term reasonable doubt itself has a self-evident meaning comprehensible to the lay juror,” the appeals court ruled. “Most efforts at clarification result in further obfuscation of the concept.”

The jurors were looking for more rules to help them make their decision. They wanted to submit to God’s will – or in this case, the state’s.  Understandable, but past a certain point no rules are available.  You cannot lay down your burden.  You must judge for yourself.

The Lovers

The Lovers card, visually, is a combination of the Devil and Judgment.  As with the Devil, two humans stand beneath a powerful winged creature, on the left a woman with symbols of fruit and growth, on the right a man with symbols of fire.  As with Judgment, the winged creature is a wreath-crowned angel.  The presence of the angel in a bright blue sky creates an atmosphere of hopefulness.

If the Devil is what tempts us to deny our power of judgment, the Lovers are what helps us to accept and bear the weight of it.

If you look on the right side of the Lovers, behind the naked man, you see the a burning tree which evokes the burning bush through which God spoke to Moses and asked him to take up a great responsibility.  If you look on the left side of The Lovers, behind the naked woman, you see a fruit tree with a serpent which evokes the Tree of the Knowledge of Good and Evil.  The knowledge of Good and Evil is what allows us to judge our own actions as good or evil, so you could also call this the Tree of the Power and Responsibility to Judge.  And with the power and responsibility to judge, the Lovers lose paradise.  They must not only recognize that suffering exists, but that they themselves might be a cause of it.

Thank God they’re not alone.

Love gives us strength to judge and to face the consequences of our judgment.  It eases suffering, repairs relationships, fixes broken systems.  Love pushes us to seek the happiness of our beloved, even if we’re angry with them.  When a loved one judges wrong and hurts us, we want to forgive them, but we require that they acknowledge the hurt and make steps to heal it – first, because this is a sign that they love us too, and second, because the acceptance of responsibility for judgment is a sign of growth, and we want our loved ones to flourish.

The Lovers don’t represent only romantic partnerships.  They represent friendships as well, and familial relationships, the connections of colleagues and neighbors and community-members to each other.  They can represent the relationship of a fan and a celebrity, two candidates running against each other, the people of one nation and the people of another.  The Lovers represent any human connection.  They can even represent our connection to ourselves.

I said before that Carolyn Forche’s poem made me feel ashamed of myself.  I knew about the existence of good and evil from a young age; I have a collection of books about genocide that I began building in high school.  How could I have even this glimpse of the suffering in the world and not dedicate my life to eradicating it?

But the Lovers remind me to forgive: to forgive others for harming me, and to forgive myself for harming others.  This is not an unconditional forgiveness.  It pushes me to work to repair the harm, but in the spirit of growth and healing, not the spirit of shame and punishment.

This philosophical approach to forgiveness is one of many reasons why I dislike our prison system.  How does punishment teach responsibility, judgment, or love?  By taking away an incarcerated person’s choices we decrease their sense of responsibility and deprive them of the opportunity to practice their judgment.  By separating them from their community and support network we impair their ability to love and be loved.

When I was 13 I made a very bad judgment and physically harmed a classmate I was fighting with.  My ‘punishment’ was court-mandated community service.  I was never once separated from the people who loved me and pushed me to do better.  I volunteered at a shelter and saw the suffering caused by physical violence, which helped me see the consequences of my own actions.  I learned the power of judgment and the strength of love, and I emerged a better person.  Everyone should be given this chance, especially children, but so many aren’t.

Look, I’m not trying to be sentimental here.  Love isn’t all we need.  It doesn’t fix every problem or repair every harm.  But it can give us the strength to navigate a world full of suffering and the courage to shoulder the awesome responsibility of personal judgment.  So, when we’re given the choice – and we are given the choice so much more often than it seems – when we’re given the choice, I try to choose love.

I’ve yet to regret that.

Liberty is a gift from mankind

I’ve been drawn to libertarian ideology my whole life but have never really embraced it, aside from a one week stint after reading Atlas Shrugged my freshman year of high school. I liked the book enough that I immediately started re-reading it so I could better understand it. And when I did I realized: there are no children in the story. There’s also no loving parents with Alzheimer’s, no aunts with cancer, no friends who need a place to crash for a couple months while they try to figure out what the hell they’re doing with their lives. In all the thousand plus pages of the book, there’s a great paucity of human relationships. It’s just heroes loving other heroes and fighting villains.

(If any of you have read Atlas Shrugged, you might be thinking, “But Eddie Willers!” Eddie Willers just proves my point. Sure he’s a lifelong friend and colleague of Dagny’s who she genuinely seems to like, but she leaves him to die without a second thought. Millie Bush is another non-exception exception. Yes, she’s an eight year old kid, and so technically the book does have a child in it, but literally all she does is get punched in the face by a heroic factory worker. Atlas Shrugged: Punch Children and Let Your Friends Die.)

Anyway, this post is not meant to be a review of Atlas Shrugged. But I think the flaws of Atlas Shrugged are of a piece with the flaws of libertarianism as a whole. It views liberty as a naturally occurring right which must be protected from all threats, most notably the government but also other organizations and individuals. A lot of libertarians do just focus on the government, either because it’s intellectually easier or because their libertarianism is a Trojan horse for small-scale authoritarianism, but my issue is not just the categorization of who is a threat to liberty. It’s the central conception of liberty as a gift from god or nature which must be protected from other men.

This conception is extremely popular.  You can find it in the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

I believe that liberty is not given to men, it is created by men.  If liberty is “the ability to do as one pleases”, then how do we gain those abilities?  How do we even learn what pleases us?  I am at liberty to write this blog post, and yes that is partly due to the freedoms of speech and press granted protected by the US Constitution, but it’s also due to years of public education and the mentorship of family members, not to mention the labor and community resources that went into building WordPress, the internet, and computers in general.  Without them, I would not have the liberty to write this blog post.  In fact, I cannot think of a single liberty I possess which was not in some way facilitated by people known or unknown to me.  Even the most basic liberties such as bodily autonomy are in some ways created.  If I’m attacked, how do I defend myself?  With weapons created by and purchased from other people, with skills taught by self defense experts, with moves seen on TV.

If liberty can be created as well as destroyed, then libertarians have an obligation to support liberty creation along with liberty protection.  To care only for one half of the matter is to let liberty languish.  A person recently released from prison has regained some liberty from the state in a very meaningful way, but they also need liberty in the form of the ability to earn money legally.  Otherwise they are likely to end up back in prison.

So why are there no children in Atlas Shrugged?  Because a child is a perfect rebuke to the conception of liberty as a natural gift under threat.  A newborn has no liberty – it cannot even hold its head up!  It takes years for children to develop even a basic bodily autonomy: my niece is three and I am still always mindful of the ways I might need to intervene to protect her from herself.  As she gets older the threats change, and she will be trusted more and more to act on behalf of herself, but it is a long process.  And the ability to set her own boundaries and act on behalf of herself is itself a skill and knowledge/value set created through gifts of wisdom and care, role-modeling and expectation-setting.

We’re all children at heart.  We may have learned enough skills to get by but we all struggle both to protect our liberties and to expand them, to enforce our boundaries and to broaden our horizons.

It’s a lifelong process.  And any political movement that fails to respect both halves of that process is not one I care to be a part of.

The burden of doubt

We often talk about giving people the benefit of the doubt, but seldom talk about its opposite, to the point that no agreed upon phrase for it exists.  The best I could come up with is the “burden of doubt”, which largely applies to courtroom settings.  Even with the help of judicial documents, the phrase is not very popular.

And yet we give people the burden of doubt just as often as we give people the benefit of it.  When I am in a bad mood and a stranger cuts me off, I give them the burden of my doubt as to whether they intended it.  When I am feeling happy and lucky it is easy to give them the benefit of the doubt instead.

It might be better for the world if I could always give the benefit of the doubt to people, but at least fluctuations based on my mood aren’t particularly unfair.  Of course our decisions in these matters are also influenced by things like race, gender, and other kinds of in-group/out-group status.  Racism and sexism are sometimes viciously overt but more often they take the form of giving the benefit of the doubt to men and/or to white people, and the burden of the doubt to women and/or people of color.  For instance, when a black woman complains about the way a match is being refereed.  She acts in a similar way to many white men, but they are given the benefit of the doubt while she is given the burden of it.

 

Our world is filled with uncertainty.  We are constantly deciding whether or not to give people or groups of people the benefit or the burden of the doubt.  But it’s not enough to make these decisions in isolation.  We must look for patterns in how we distribute the weight.

The constitution of knowledge is cross-disciplinary

This old tweet has recently been making the rounds and sparked up some discussion among my Facebook friends:

As someone with a background in both science and the humanities, I am continually exhausted by the antagonism between them.  In any given argument I usually side with humanities advocates, because STEM workers are way more likely to be dismissive dicks.  But this critique really misses the mark.

All disciplines ought to teach about how knowledge is constituted in their domain.  That’s as true for biology and math and computer science as it is for history and philosophy and art.

It’s true that some of the disciplines most likely to discuss knowledge constitution are in the humanities.  Philosophy has epistemology, for instance, and there are subfields of history and sociology focused on knowledge constitution.  But in STEM we have statistics, and subfields of psychology and computer science concerned with what is knowable and how we know it.

Regardless, I don’t agree that we can or should assign ‘knowledge constitution’ to specific fields.  All knowledge is actively constructed and we ought to be teaching people about that process even as we’re teaching the current results of the process.  Which is, I think, what Neil Degrasse Tyson is getting at.

 

A summary of David Ciepley’s “Beyond Public and Private: Toward a Political Theory of the Corporation”

I recently read David Ciepley’s “Beyond Public and Private: Toward a Political Theory of the Corporation”.  I recommend reading it yourself, but here’s my best attempt to summarize it in my own words.

Historically, we used to think of corporations as institutions that existed by the authorization of the state and for the public benefit – although the public often did not benefit in practice (*coughs* British East India Company).  In the 19th century, especially in the United States, we began to view corporations instead as part of the private sphere.  This has led to incoherent legal and political results.  Ciepley argues that, rather than viewing corporations as public or private, they ought to be considered as part of their own distinct sphere.

The first corporations were created in the image of constitutional republics, such as Dutch East India Company, whose governing board held a proportional balance of representatives from each of the Dutch provinces.  Several American States such as Massachusetts and Virginia were originally chartered as corporations.  Despite this history, there are some key distinctions.  While republics are “by, of, and for the governed”, those most subject to corporate action (workers, and secondarily customers and contractors) are not represented in its governance.

There are three main spheres of rights that make a corporation a corporation, and it’s important to note that these are all governance rights, not business rights.  After all, there are many corporations that are not businesses, and many businesses that are not corporations.  The three rights are: 1) the right to own property, make contracts, and sue and by sued, as a unitary entity, which Ciepley calls ‘contractual individuality’; 2) the right to centralized management of their property; and 3) the right to establish and enforce rules within their jurisdiction beyond the laws of the land.  Ciepley only talks about the first and third rights.

Right #1: Contractual Individuality

All corporations are granted contractual individuality by the government.  Business corporations additionally are granted by the government the right to use a joint-stock mechanism – that is, to sell shares.  The three key elements of contractual individuality are asset lock-in, entity shielding, and limited liability.

‘Asset lock-in’ refers to how investors in companies cannot directly withdraw their funds.  In a business partnership, a partner leaving the business withdraws their assets.  An investor in a corporation cannot withdraw their assets, only sell their shares to another investor.  This gives corporations an enviable stability, allowing them to specialize their assets and therefore increase their productivity.

‘Entity shielding’ means that the corporation’s assets are protected by creditors going after shareholders.  A creditor may take a shareholder’s shares, but cannot take assets from the company.  ‘Limited liability’, conversely, means that shareholders’ assets are protected by creditors going after the corporation.  Limited liability makes corporations attractive to small and/or passive investors.  Together entity shielding and limited liability are what make the trading of shares possible.  Share trading in turn is what makes investment attractive in the first place, because it allows investors to get their money back when they want – they do not have to wait until the company is dissolved.

Some people like to conceive of corporations as like fancy partnerships (a legal theory we’ll return to later) but this is incorrect.  Asset lock-in and limited liability can be approximated by partnerships, although with significant shortfalls (for instance, assets cannot be locked-in indefinitely and limited liability cannot protect against tort claims).  However partnerships cannot approximate entity shielding. To do so would require every shareholder to contract with every one of his creditors, from their bank to their plumber, against their laying claim to corporate assets.  This would be wildly impractical even if shareholders were willing to do it, but they would have an incentive not to, to allow the corporation’s credit to back up their own.

Contractual individuality means that corporations rely on the government for certain key privileges in way that other businesses do not – privileges which are foundational to their functioning and which allow them dominate the market through preferential accumulation and specialization of capital, as compared to private business.

Asset lock-in, entity shielding, and limited liability also mean that shareholders do not own a corporation.  So who owns a corporation?  No one: the corporation owns itself.  It is therefore neither publicly owned nor privately owned but corporately owned.

One of the central rationales of private property is that the owners bear the consequences of use or misuse of their property, and are therefore incentivized to use it well.  Because shareholders are alienated from corporate property, and in particular because limited liability means they bear fewer consequences, they are not well incentivized.

Neoliberal reforms which attempt to tie corporate management to shareholders have therefore only made things worse.  Shareholders more than anyone else are incentivized to take risks with a corporation.  Tying management to shareholders thus increases financial and legal risk-taking.  Shareholder also tend to be more interested in short-term gains than other associates of a corporation.  Over the last forty or so years, as these shareholder-focused reforms have been made, the average amount of time a stock is held has dropped from eight years to four months.

Right #3: Establishment and enforcement of rules

Management authority within an organization is widely assumed to derive from shareholders, who as “owners” of the corporation elect the board of directors.  But as Ciepley as shown, neither shareholders nor anyone else owns a company.  Where does management authority derive from, then?

It comes from the state, as specified in the corporate charter.  The corporate charter establishes the board of directors and then authorizes it to issue stock to shareholders – hardly the order of events you’d expect if the board’s authority derives from the shareholders.  Indeed, some corporations never issue stock at all, and some corporations issue nonvoting stock.  The current popular system of boards elected by shareholders is merely one possible way a charter can delegate control.

Ciepley refers to corporations as “franchise governments”: run on private initiative, but receiving their form and purpose from the state.  This is easy to see with municipal corporations (New York City is the largest municipal corporation in the US) but harder to see with business corporations, since we tend to view commerce as a private matter.  The increasing identification of corporations with business corporations, the increasing commercialization of the public sphere, and the elimination of the requirement that corporations be for the public benefit all go hand in hand.

(Ciepley doesn’t delve too deeply into the judicial history behind these trends but does cite a number of key court cases, starting with Dartmouth vs Woodward (1819) where the Supreme Court ruled that corporations were independent of the state and did not have to prove they were acting in the public interest.  According to Wikipedia, the eloquence of Daniel Webster’s oratory was thought to have been a deciding factor in the case.  Thanks, Daniel Webster.)

Implications of Ciepley’s theory of corporations

Ciepley argues for a return to the older view of corporations: that they are an artificial entity created by government, whose enjoyment of special legal rights requires them to act in the public benefit.

He also notes that during the mid-twentieth century, the Supreme Court began requiring that states and towns observe the core provisions of the Bill of Rights.  If municipal corporations are required to respect these rights, shouldn’t business corporations also be required?

Two alternative legal theories of corporations have dominated judicial arguments, the theory of “corporation as partnership” and the theory of “corporation as real person”.  The theory of “corporations as partnership” argues that corporations are voluntary associations of individuals and therefore the constitutional rights of the individuals extend to the corporation.  But a foundational element of the corporation is the alienation of shareholders from their property.  So why would their property rights apply?  And more generally, why should corporate partners enjoy rights such as limited liability that no other individual or group enjoys?

The theory of corporations as real person answers this question by claiming that corporations are a special, emergent entity distinct from the state.  But while some corporations may predate their current government, as do some medieval towns and as did Dartmouth College (the Dartmouth in Dartmouth vs Woodward), all corporations derive their status from the government, whereas real people have rights inalienable by their government.

Despite the flaws in these theories, they have been used to grant corporations a vast number of legal rights, for instance in Citizens United.  Lawyers for Citizens United argued both the “corporation as partnership” and “corporation as real person” perspective, even though the theories are contradictory.  If corporations are partnerships are reducible to their members, why should it get extra rights?  If corporations have emergent properties distinct from their members, why should it claim their constitutional rights?

Conclusion

There’s actually nothing worth summarizing in the conclusion, but I felt bad just stopping abruptly.

tl;dr: corporations are not private concerns, shareholders do not own them, we should go back to requiring corporations act in the public benefit, there’s no rights-based reason for shareholders to have any influence on the governance of a corporation, the rights granted to corporations based on these conceptually incoherent theories are bad for the economy, bad for society, and really rather unfair to actual private businesses, and someone should rewrite The Devil and Daniel Webster to be about Darmouth vs Woodward

Tolerating Uncertainty

The business of thinking is like the veil of Penelope: it undoes every morning what it had finished the night before.

Hannah Arendt, Responsibility and Judgment, p. 166

I’m an anxious sort of person.

That’s a glib way of saying that I have an anxiety disorder.  I’m afraid a lot of the time.  I have practical fears, like heights and driving and cardiovascular disease.  I have existential fears, like global warming and the descent of American society into fascism.  And I have social fears, like public speaking and calling people on the phone and putting myself out there when I want something or someone.

Every single person feels anxiety sometimes.  What makes it a disorder is that it interferes with your life.  My disorder is not a bad one – anxiety is ever-present in my life but I largely work around it.  I hate flying and driving, for instance.  If I could take the train everywhere I would, but I can’t, so I fly and I drive and my nervous system freaks out but I’m okay.  Sometimes I wake up in the morning and I’m just anxious for no damn reason, and it lasts all day, or all week, and there’s nothing I can do.  And that’s hard but it’s also reassuring in its own way.  It’s a reminder that anxiety often can’t be reasoned with.  At a certain point, all you can do is acknowledge what’s happening.  “My nervous system is freaking out, but I’m okay.”

What I’m trying to say here is that my relationship to anxiety is very personal. I think that’s true for most people. You can reason about fear but there’s a part of it that’s inescapably embodied. And uncertainty exacerbates fear.  I’d rather get a single painful shock I knew was coming than sit around waiting for a shock that might come.  It’s less terrifying to ask out a person you know will say no than someone who might say no.  So my relationship to uncertainty is very personal too.  To tolerate uncertainty is not just an intellectual choice or an emotional choice, but a physical choice.

The Romantic poet John Keats in 1817 coined the term negative capability:

[At once it struck me what quality went to form a Man of Achievement, especially in Literature, and which Shakespeare possessed so enormously—I mean Negative Capability, that is, when a man is capable of being in uncertainties, mysteries, doubts, without any irritable reaching after fact and reason—Coleridge, for instance, would let go by a fine isolated verisimilitude caught from the Penetralium of mystery, from being incapable of remaining content with half-knowledge.

Part of why negative capability is so rare and difficult to cultivate is because uncertainty provokes for so many of us a physical fear.  So we try to escape the fear by leaving the situation, or reasoning ourselves out of it, or blaming something else for the fear, or trying to grit our way through it.  Negative capability is the decision to sit with that fear, to say, “I’m afraid, but I’m okay”.  And when you approach uncertainty with that kind of acceptance, it lets you view the world – and the uncertain issue or object – in a different way.

This way of approaching the world is not something Keats invented, of course.  From Hannah Arendt:

It is in [thinking’s] nature to undo, unfreeze as it were, what language, the medium of thinking, has frozen into thought – words (concepts, sentences, definitions, doctrines), whose “weaknesses” and inflexibility Plato denounces so splendidly in the Seventh Letter.  The consequence of this peculiarity is that thinking inevitably has a destructive, undermining effect on all established criteria, values, measurements for good and evil, in short on those customs and rules of conduct we treat of in morals and ethics.  These frozen thoughts, Socrates seems to say, come so handy you can use them in your sleep; but if the wind of thinking, which I shall now arouse in you, has roused you from your sleep and made you fully awake and alive, then you will see that you have nothing in your hand but perplexities, and the most we can do with them is share them with each other.

Hannah Arendt, Responsibility and Judgment, p. 177

In other words, Socrates sought to build a community of people with negative capability, people who could hold perplexities in their hands.

(Brief aside: I can’t help bringing up one of my favorite characters, Chidi Anagonye, again.  Chidi is a moral philosopher with severe anxiety and essentially zero negative capability, who I think would benefit enormously from having Socrates as a mentor.  Maybe I will write fanfiction about this.)

Negative capability is vital in so many endeavors:

It’s vital in scientific research, since you must tolerate uncertainty about how the world works and whether the hypotheses and theories you’re relying on are true.

It’s vital in technological innovation, since you must tolerate uncertainty about whether your inventions will work and what impact they’ll have on the world.

It’s vital in political coalition-building, since you must tolerate uncertainty about how to compromise and whose perspectives to favor.

And of course it’s vital in philosophy and art, as Socrates and John Keats would agree.

Some people argue that an inability to tolerate uncertainty predisposes people to authoritarianism and fascism.  Others link it to conservatism:

[R]ather than make an unvarnished demand for freedom to oppress he is more apt to present himself as the defender of certain values. It is not in his own name that he is fighting, but rather in the name of civilization, of institutions, of monuments, and of virtues which realize objectively the situation which he intends to maintain; he declares that all these things are beautiful and good in themselves; he defends a past which has assumed the icy dignity of being against an uncertain future whose values have not yet been won; this is what is well expressed by the label “conservative.”

Simone de Beauvoir, The Ethics of Ambiguity, p. 39.

There has not been very much research on the links between uncertainty tolerance and authoritarianism or conservatism.  There has not been much research on uncertainty tolerance as a whole.

These are, fittingly, subjects for which we must tolerate a great deal of uncertainty.  So let us do as Socrates would do, and share our perplexities with each other.

Quick decisions

Last week I went to a rally to protest a series of raids by ICE in my city. The rally turned into an unplanned march through the streets, and I had to make two quick decisions: first, whether to join the march, and second, whether to remain in the street when the police started to give warnings.

When the march started and I had to decide whether or not to join, I had the following thoughts:

  • Shit, are we going to get arrested for this?
  • There’s several hundred of us, they probably won’t arrest us.
  • But it’s illegal, so we *could* be arrested. What would happen if I did?
  • I just got arrested for civil disobedience a few weeks ago, would there be extra consequences because of that?
  • Maybe, but there’d be *less* consequences because I’m white and a woman and a citizen and all my family are citizens.
  • And they’re probably not going to arrest people anyway.
  • Okay, let’s do this.

We marched for about thirty minutes, to the location where the raids had taken place, and then we stayed in the street. At one point, the police started to give warnings, and the leaders of the protest told anyone who didn’t want to risk arrest to move to the sidewalk.

  • Okay, they really might arrest us.
  • There are still a lot of us though. And the more of us stay in the street the less likely they are to arrest any of us.  And I’m still way less vulnerable than a lot of the people here.
  • But I haven’t even told anyone I might be arrested. I have no plan for this.
  • There will be other times to risk arrest later, when I’ve had a chance to research and plan. It’s not selfish to want to be prepared.

So I got up on the sidewalk. A lot of people stayed in the street, and no one ended up getting arrested.

I do feel a little bad that I didn’t stay in the street and risk arrest, but I think it was a reasonable decision. The context changed, and my actions changed, but my values stayed the same, and I stayed consistent with them.

There’s no one set of rules that can govern all of our decisions. There’s no “right choice”, only choices that are better or worse than others, and often you don’t even know what’s better or what’s worse until everything’s over.

One of my favorite fictional characters is Chidi Anagonye from The Good Place. Chidi has severe anxiety about making morally good decisions and I identify with him so much. I mean, my job used to be to stick people inside of magnets and give them moral dilemmas, of course I identify with Chidi. But his approach to morality is unhealthy. He’s obsessed with making the right decision, when the right decision doesn’t exist. His desire to be good actually makes him do less good.

I’m not always going to make the best decision, but I can be thoughtful about the decisions I do make. There will always be room to criticize, but I can learn from self-reflection and from the feedback of others without thinking that a better person would have done something different.