Worth keeping tabs on this one – New York, via its next gubernatorial candidate, Andrew Cuomo, filed an antitrust action against Intel.  From NY Times:

The lawsuit charges that Intel violated state and federal laws by abusing its dominant position in the chip market to keep its main rival, Advanced Micro Devices, at bay. Intel has faced similar lawsuits in Asia and Europe, and in May the European Commission fined the company a record $1.45 billion for antitrust violations.

These cases have largely revolved around deals Intel had struck with computer makers and retailers that, regulators said, pressured them into picking the company’s microprocessors — which serve as the central chip inside personal computers and servers — instead of competing products from A.M.D.

Speaking of Intel, am I alone in finding their latest ad campaign pompous?  The USB’s co-inventor walks into a room to wild adoration: “Your rock stars aren’t like our rock stars.”  A guy makes – a + and giggles: “Your jokes aren’t like our jokes.”  And then, a bunch of efficient hummers alertly offer the Intel jingle.

Compare the theme to several other recent ad campaigns.  Bank of America shows a bunch of folks (an attempt at a sort-of visual quilt of American workers) walking forward to suggest that we, collectively, are moving past the financial pits.  Mac-guy is supposed to represent everyman – or, hip everyman – excluding only the red staple holders of America.  PC (Microsoft) celebrates over-achievers and they are a bit neo-geeky, but the commercials includes the audience as a potential member of the “I’m a PC (and saving the world with smart-_____ )” club.

So Intel took a new turn with such explicit elitism.  It makes some sense – we want elite technicians making our microchips.  But, the ads leave a sour note.  They are almost funny, and could have kept the same theme.  I think their failure is the Our ___ are not like your ___.   That’s just off-putting and mean.

The latest set of teaching company I’ve been listening to is U Penn Professor Alan Charles Kors on Voltaire.  I’m really glad I picked this one – it was a fairly random, thus serendipitous, pick.

Kors describes Voltaire as an elusive thinker.  Voltaire admitted as much: “The secret to being boring is to reveal everything.”  The take-away impression I have of Voltaire’s method, via Kors’s lectures, is of questioning rather than pronouncing.  Voltaire’s approach reminds me of that which Plato ascribed to Socrates, more gadfly than know-it-all.

Although Candide is all I remember reading, the little philosophical tale is rightly picked by high-school curricula-crafters as a glimpse to the prolific author.  I read it maybe 15 years ago – and I remember it having fun with the idea that we live in the best of possible worlds; and I remember really liking Candide’s closing charge to “cultivate our garden,” stemming from the advice he got that doing so “keeps away three great evils: boredom, vice, and need.”  Luckily, I still have my copy of Voltaire’s little philosphical tales – looks like I paid $0.45 for it, used, at the Bookshop in Chapel Hill.  But that questioning of (or, poking at) Pangloss’s rigidly held view that this is the best of possible worlds – and the fairly limp non-conclusion – is, from what I understand, fully Voltairian.

Candide resulted partly from Voltaire’s anguish at the horrific 1755 earthquake in Lisbon, and the clash that disasters (and human-generated pain) have with Leibnizian Optimism – that this is the best of all possible worlds (God alone is perfect; in creating the world, God had at its disposal all possible worlds; because God is benevolent, God could logically only have created the best of all potential worlds).  Voltaire seems to have consistently adhered to a notion of what we now call intelligent design.  So, it is not surprising he would see some logic in Optimism.  But, the 1755 quake, and generally the problem of bad things happening, were ultimately irredeemable for Voltaire.  He could not stomach the optimist reply to Lisbon – Jean-Jacques Rousseau wrote that the earthquake was a helpful gesture from God towards simpler, agrarian living.  People are not supposed to love in cramped cities; earthquakes don’t cause such harm in pastoral societies.  Against that thinking, Voltaire wrote Candide.  The comfort that we can find against pain and tragedy is to till our earthly garden and cultivate our human bonds.

In any event, let me bring this around to something.

We’re long interested in the Constitutional founding here on OR, and I’m wondering how Voltaire fits in the mix.  John Adams mentions him a few times in letters to Jefferson as “the greatest literary character” of the 18th century, and he (Adams; Jefferson’s letters don’t outright mention Voltaire) mentions reading Voltaire’s works.  But I don’t find Adams  relying on Voltaire directly to make philosophical conclusions.  Would they have felt like heirs to Voltaire?; rivaling thinkers?; did they think Voltaire affected their political philosophy?  I constantly thought of Jefferson while listening to Kors’s lectures.  I think Jefferson has some of Voltaire’s eagerness to question; and to put on an aegis of open-minded query; to argue a point without full self-awareness / self-criticism; but, to have the propensity to come around to a fairly opposite view in another time.

I’m interested in Voltaire’s time in England, and subsequent Letters on England.  This ties back to the Founders question – Voltaire praises the legal and normative English setting, favorably comparing the pluralistic (religiously) society to France.  Around the same time, Blackstone summarized the English common law in his Commentaries.  And about a decade later, the U.S. declared independence and, after another decade, framed the Constitution.  Had the Founders read Letters on England while contemplating how to create a legal structure that would foster the society the Voltaire praised?

What I’m particularly interested in, for purposes of the Voltaire-Blackstone-to Jefferson line of thinking mentioned above, is Voltaire’s thinking on natural law.  Blackstone’s Commentaries, from what I understand, adopt the notion that history consisted of a progression of improvement to the present.  Natural law helped determine the common law.  Natural law is potentially what Jefferson relied upon when pronouncing self-evident truths; at least, Jeremy Bentham thought so when ridiculing the Declaration.  Elusive Voltaire wrote an entry on Natural Law in his Philosophical Dictionary.   He seems to criticize (with Bentham?) the notion that there can be self-evident “just and un-just.”  It will be good to dig in a bit more into this, and the intellectual backdrop to the founding.

There is something to Voltaire’s style – his way of thinking – that resonates in the system of law that we created, with due credit to English common law.  I wonder if there was a bit of anti-aristocratic sentiment that flowed through to the Founders; the same type of sentiment that precludes most politicians, even today, from running in the character of an aristocrat.  Bush’s brush clearing, indeed, is only an update to Franklin’s coonskin cap.

Jesuits schooled Voltaire in a style that focused on forming strong arguments that predicted points of opposition (much like a legal brief).  Voltaire’s writing (early on, I think it was drama) got him into some aristocratic circles.  But, he was not aristocratic, and was not defended by aristocrats when he got into a snaffoo with an actual aristocrat.  So, Voltaire took an exile to England.  I have to imagine that his experience with aristocracy in France shaded his opinion of England.  I wonder if he always had a chip on his shoulder.  From the lectures, I know Voltaire writes about pluralistic religious society in England; I’m not sure what else he covers.

For now, we’ll close with this line from that entry in the Philosophical Dictionary:

“You are right, there is a natural law; but it is still more natural to many people to forget it.”

The Open Congress blog has had a few posts on movement on legislation that would address holes in the antitrust laws through which insurance companies happily pass.  The most recent, I think, is this one on Sen. Reid’s appearance in a Senate Judiciary Committee hearing:

Since 1945, the McCarran-Ferguson Act has given the states the authority to regulate insurance companies rather than the federal government. The law also stipulates that if the companies are regulated by the states, they won’t be susceptible to federal anti-trust laws that ban anti-competitive, monopolistic practices like price fixing, bid rigging and dividing up markets amongst themselves.

In a rare appearance as a witness in a Senate Judiciary Committee hearing on the issue, Reid said that repealing the companies’ anti-trust exemptions is “something that should have been done a long time ago”

Any time those that shape society through policy task themselves to adjust the relevant laws — and those that have something to gain, lose, or nothing better to do make the endeavor a National Issue — it is worthwhile to wonder what is the problem that spurs the statutory readjusting; and, is that problem solvable with law.

The late health care policy debate has so far served as good theater for  legal sausage-making, partisan strategy, political PR, and so forth.  It has also, for a few, fostered discussion on those fundamental questions that ought be initially figured out, like: (1) what are the most basic problems in the Nation’s health care and (2) is policy-making the appropriate response?

(1)

I figure that a fundamental problem with health care is that the industry is a false market.  For the patient, the falsity of the market is in the information gap; and is akin to that other false market, the car mechanic.  There is no pure market where one party is always over the barrel, but that is precisely the case in visits to the doctor and mechanic.

NPR’s Planet Money has a good podcast on the issue,  featuring a debate between David Goldhill and Richard Kirsch on the nature of the health care market.  Goldhill recently penned a column in The Atlantic arguing, basically, that:

A more consumer-centered health-care system would not rely on a single form of financing for health-care purchases; it would make use of different sorts of financing for different elements of care—with routine care funded largely out of our incomes; major, predictable expenses (including much end-of-life care) funded by savings and credit; and massive, unpredictable expenses funded by insurance.

His point is that a more direct market, where patients see the benefits or problems with what they pay for.  To this extent, Goldhill’s argument reminds me of an old gripe I had with corporate expense accounts and the market for restaurants and hotels that I might wanted to have visited.  It seemed to me that that prices are inflated for restaurants that cater to corporate credit cards, because the folks tossing down those cards are not making a quality for price determination.  Whenever it is someone else’s money, there is not a market.

But, argued Kirsch, health care isn’t like other markets – you don’t want people to be cheap because early (sometimes seemingly unnecessary treatment) will often save money down the road.  Also, “shopping” a market only works beneficially when consumers have good information.

But, argued Goldhill, in a real consumer marketplace, not every consumer needs good information.  Some education consumers shop, and their decisions benefit the entire consumer base.

(by the way, also read this)

Both acknowledge that the current healthcare industry is not a market.  But, what to do?

(2)

A false-market problem is not necessarily solved by truing the market.  Indeed, in this case, the real problem in the false market is that the industry too often acts like a real market, most regrettably in television commercials for drugs.

If pressed to choose, I would rather doctors be more dictatorial and patients less consumerish.  The doctors are the experts; most patients that are over the barrel wouldn’t know how to get down on there own.

The market needs truing in other areas.  I suppose drug companies have an economic right to announce their new chemicals to a curious public that can then go “ask their doctor” about so and so; but, those companies better not sweeten the doctors’ propensities to prescribe with anything other than information.  And, I’d rather see individually chosen insurance rather than through employers.

Anyway, I started this post to link to that Planet Money podcast and the Atlantic articles – so take that from this at least.

so a regulatory lawyer and a first amendment scholar walk into a bar…

read up on the intersection of speech and regulatory law.  the post discusses ‘off-label use’ of prescription drugs and the FDA’s regulations on how doctors and drug companies can talk about those uses.

Eventually we will get to Federalist 77. When we do, we ought come back to this point and counterpoint from Seth Tillman and Jeremy Bailey.

On first glance of F77, Hamilton seems to be urging the Senate’s role in decommissioning executive appointees.  That’s a bit of a puzzle, as a student of Hamilton’s wouldn’t presume him to make such a case.  Tillman urges a re-reading, focusing on the word “displace,” and the contemporary meanings of the term.  That Hamilton argues for the Senate’s advisory role in displacing an appointee is not so strange if that word means “replacing.”

Bailey responds with support of the standing notion that Hamilton really did argue for limits on executive removal powers.

That said, we’ll likely hold our blogging tongues until we reach that conundrum.

A book review, in the University of Chicago Law Review, of James Whitman’s The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial. Professor Gallanis wrote the review, and looks into Whitman’s answer to the question, from where did the notion arise that we release a defendant upon a reasonable doubt of his guilt.

couple recent items out of North Carolina to kep an eye on:

- Agencies can have lobbying scandals too.  Verizon (contract holder for agency telecom services) wined, dined, and sent DMV contract officers to Hurricanes games.

- Budget shuffling within the governors office becomes, unless the Supreme Court has other ideas, a good deal more difficult.

interesting post at baseline scenario on Nudge, the book we discussed a while back giving some insight into our prolific regulatory gatekeeper, Professor Sunstein.  Worth a read, if you’re interested in the latest on psychoanalysis, economics, and rulemaking.

(the linked post refers to the book’s co-author, Richard Thaler)

Hamilton continues the national army argument with F25.  Perhaps it is his romantic attachment to arms (see, below, the last lines of his letter, at age 15, to his buddy Ned), but he really brings out the gems when arguing for the army, beginning with some projections on the lack of a national army.

As some states, facing threats in greater proportion, would ramp up defenses; other states might ramp up simply not to be outdone by their neighbors.  I imagined a cold war of muskets and canons among the early American states while reading Hamilton’s column:

The States, to whose lot it might fall to support the necessary establishments, would be as little able as willing, for a considerable time to come, to bear the burden of competent provisions. The security of all would thus be subjected to the parsimony, improvidence, or inability of a part. If the resources of such part becoming more abundant and extensive, its provisions should be proportionally enlarged, the other States would quickly take the alarm at seeing the whole military force of the Union in the hands of two or three of its members, and those probably amongst the most powerful. They would each choose to have some counterpoise, and pretenses could easily be contrived. In this situation, military establishments, nourished by mutual jealousy, would be apt to swell beyond their natural or proper size; and being at the separate disposal of the members, they would be engines for the abridgment or demolition of the national authority.

On the notion that a national army is preferable to several state forces, the following is exemplary of Hamilton’s rhetoric of what would seem common sense (I’m reminded of Lincoln, here).  Isn’t it better to have an army against which we are guarded?

As far as an army may be considered as a dangerous weapon of power, it had better be in those hands of which the people are most likely to be jealous than in those of which they are least likely to be jealous. For it is a truth, which the experience of ages has attested, that the people are always most in danger when the means of injuring their rights are in the possession of those of whom they entertain the least suspicion.

Apparently the anti-feds argued that we should perhaps only allow a standing army in time of conflict; or to not allow the Nation to raise an army during peace.  To the former, Hamilton figures it will always be possible to plead conflict (Hamilton: “Indian hostilities, instigated by Spain or Britain, would always be at hand.” He’s probably right – think of post-WWII defense-spending rhetoric.)  To the latter, Hamilton wonders why America ought to be the only nation “incapacitated by its Constitution to prepare for defense.”

I was interested to read the following bit about a standing army as opposed to the militia.  Still a novice in American history, I didn’t know much about the revolutionary-period militias.  I reckoned they were what made up our army.  Nope.

I’m about through with another Modern Scholar lecture series – this one is Joseph Ellis’ lectures on “founding brothers,” riffing from his well-regarded book.  Just this morning, I listened to Ellis’ lecture on the war.  One of his takeaway points was that we didn’t need to win, we just needed the British lose (the lecture also analogizes the strategic character of the Revolutionary War to that of Vietnam); and the British lost because they didn’t realize soon enough what they needed to go after.  Rather than seize any geographical spot, they needed to destroy the revolutionary army.  And, perhaps because Howe didn’t pursue Washington across New Jersey, the British lost their chance to really crush the American army.

Ellis urges that it is a myth (and was an early developed myth) that rag-tag militias won the war.  The specifics of military history and strategic lessons aside, it was interesting to learn that there was a politics to the militia/army distinction; and to whom the credit for winning belonged.  Connecting the dots, it makes sense: the army was national, the militias were state-mustered.  I suppose I should have been a bit more on top of that history after Heller.

In any event, Ellis argues that Washington and Hamilton certainly embraced the conclusion that the army, not the militia, won the war (by not getting crushed; thus, by existing).

Which all makes this fit right in:

Here I expect we shall be told that the militia of the country is its natural bulwark, and would be at all times equal to the national defense. This doctrine, in substance, had like to have lost us our independence. It cost millions to the United States that might have been saved. The facts which, from our own experience, forbid a reliance of this kind, are too recent to permit us to be the dupes of such a suggestion. The steady operations of war against a regular and disciplined army can only be successfully conducted by a force of the same kind.

Finally, Hamilton argues that it does not matter what we put down as rules.  Pointing to Shays’ Rebellion, he figures that the states will produce armed forces regardless of processes dictated by law: “how unequal parchment provisions are to a struggle with public necessity.”

Perhaps I’m feeling easily moved, but Hamilton seems to have really put out some solid rhetoric with F25.

…I’m confident, Ned that my Youth excludes me from any hopes of immediate Perferment, nor do I desire it, but I mean to prepare the way for futurity, I’m no Philosopher you see and may be justly said to Build Castles in the Air, my Folly makes me ashamed and beg youll conceal it, yet Neddy we have seen such schemes successful when the Projector is Constant. I shall Conclude saying I wish there was a war.

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