Yesterday I had an interesting experience. I watched a lawyer at work. It was David Carr. We were due to dine together but he had some work to finish with some people who were setting up a business. David was crafting a contract that the business would be using. It got complicated. What exactly is meant by this? If so-and-so fails to provide that, who exactly pays? The point was: not the people David was helping.
Afterwards I talked about this with David, and he said, yes, it’s the job of a lawyer to look ahead and try to see the pitfalls, and to clarify exactly who is obligated to do what in circumstances which nobody wants beforehand, but which may nevertheless crop up. Lawyers aren’t paid to take you to court. They’re paid to spare you the horror of ever having to go to court. What if? – What if? – What if? � they ask. What if the world price of marble doubles, and your Malaysian contractor simply can’t supply marble at the price he originally and in good faith promised, but upon which the winning design depends for its aesthetic and price superiority? What if there’s a hurricane and the factory is wrecked? What if the ship sinks? Who, then, is obligated to do what, and to pay for what?
This reminded me of my late father, who used to behave exactly like this if any of us were going on a journey of any complexity or expense. What if? � the train is late and you miss your connection. What if? � you get ill. What if? � the car breaks down. What if? � a meteorite from outer space lands nearby.
I made that last one up, because of course we used to tease my Dad about this habit of his. We all took a ruggedly entrepreneurial attitude to future hazards. Dad, we’ll worry about that if it happens, okay? We’ll climb over any barriers in our path as and when we get to them, but we won’t waste our energy worrying about what we can’t possibly hope to anticipate. It’s a holiday. Enjoy yourself. Well, he would reply, don’t come running to me if that meteorite hits!!! � blah, blah, blah, big family row, just when we were supposed to be having holiday fun.
My Dad, like David, was also a lawyer. But he was a litigator, or barrister as we call that here, and maybe because he therefore did the arguing, and later in his career the judging, when the waste matter had already hit the fan, rather than the duller commercial job of preventing the need for all that, I had never quite connected his pessimism with him being a lawyer. I had just thought that my Dad was simply a pessimist, and that the lawyer bit was coincidence.
But lawyers, I was reminded, after watching David at work yesterday are paid to be gloomy. They are paid to see bad things coming, and to concoct complicated documents to take care of everything beforehand. And although my Dad may not have spent his life writing such documents, he did spend his life looking at them, and noting which ones solved the problem he was trying to deal with, and which ones didn’t.
Like David, my Dad was a devotee of the precautionary principle, and my Dad was a moralist and David is a moralist, and I don’t just mean in their Sunday best pronouncements about World Affairs, but in their daily lives. You must (moral issue) look ahead, and see bad things coming, and have a plan ready. Letting bad stuff hit you when you aren’t ready but could and should (moral issue) have prepared for it is bad (moral issue). David yesterday, and my Dad always, was trying to do the right (moral issue) thing. Neither of them were just sneaky lawyers who wanted to tie people up in legal chewing gum for the mere sneaky sake of it, just for the profit and the pleasure of it. And I don’t believe that most other lawyers are any more deliberately wicked than David or my Dad.
It is widely noted that (a) legislatures and parliaments everywhere are crawling with lawyers, and that (b) laws and regulations of ever increasing volume and complexity are piling up like there’s no tomorrow, to the point where for millions of people there aren’t going to be any tomorrows of remotely the kind they were hoping for. What’s going on? What are all the lawyers doing wrong, and why? The usual answers are that lawyers are crooks, and that lawyers have a vested interest in all those laws piling up because then they get lovely well-paid jobs unscrambling the very mess that they themselves have created. Both these explanations depend on us believing that lawyers are, in general, morally worse than the rest of us, and maybe they are at that. Maybe mixing with all those criminals gives them ideas. Maybe the power they have over us because they understand quite large piles of this crap while the rest of us understand hardly any of it has gone to their heads, and they go bad because they find that they can. If they weren’t that to start with, they become, to quote the title of that Al Pacino/Keanu Reeves movie, Devil’s Advocates.
But I’m never satisfied with explanations of human catastrophe � and the legislative and regulatory pandemic that has swept across the world in the last few decades is a huge catastrophe � that depend only on mere wickedness. For something to get seriously bad, good people, for what they regard as good reasons, must help the bad people to intensify the mess.
And I think that it may be the desperately well-meaning pessimism and the passionately morals-drive precautionary nature of lawyers that is part of why they are now causing such havoc all over the world.
All that is required to turn the sort of lawyer who does the stuff I watched David doing yesterday into a major public enemy is a job in the public sector � it could be in as an elected politician, but being someone who just manufactures laws without actually passing them is quite sufficient � and an inability to understand as well as he might the difference between a contract, and a regulation or a law. That’s all it takes. All the lawyers need to do to perpetrate a huge catastrophe is to bring to the job of lawmaking the skill of contract writing, and the unexamined belief that future disaster can be averted if only you contrive the right document with the right things written on it and give it the force of law.
Is there a danger that toys will poison children? That a building might fall down? That a train might crash? That a newly invented or discovered biological process might escape from the laboratory and run amuck? That the weather might change for the worse in ten, fifty or a hundred years’ time? That young boys are spending too much time playing with their computer games consoles and are getting too fat? That young girls are still smoking too much?
Don’t just sit there waiting for disaster to strike, says the lawyer. Think about it beforehand. Take precautions beforehand, with the magic of paper, that can clarify, now, what needs to be done, now, thereby preventing catastrophe in the future. So what if most people don’t read it? The people directly instructed to behave themselves better, in such a way that catastrophe is averted � they’ll read it. That’s sufficient.
As you can see, this involves going beyond merely foreseeing disaster, to actually preventing it.
But isn’t that what you would do if you spent your whole life imagining future catastrophes and trying to fix it so that if catastrophe did strike your clients would at least keep their skins in one piece? Wouldn’t you, if you got a job where you were now expected to look at the bigger picture, then ask: well, can’t we contrive more and better paper that would actually prevent these disasters?
So the laws and the regulations pile up, and the people agitating for them and writing them and voting for them all truly believe that they are doing us all a favour. That’s what makes it all so dangerous. Bad people are relatively easy to stop. It’s the good people you have to really look out for, if only because they are so much more numerous, and so much more persuasive. (When did an old fashioned bank robber last even try to persuade you that robbing people is good?)
To put it another way, the lawyers have been promoted – and have promoted themselves – beyond their level of competence (foreseeing catastrophe for their clients) to their level of incompetence (preventing catastrophe for all of us). Their very success at the first job has filled them with misplaced confidence in their ability to do the second job also.
I don’t offer this way of thinking as the complete answer to the world’s woes. Clearly there are other people in the world in the grip of negativity about the future besides lawyers. Think of the environmental movement. They aren’t lawyers, hardly at all. And there are other things that cause bad things in the future other than being pessimistic about the future.
But lawyers equals pessimism equals the precautionary principle equals a different kind of misery that is even worse than you were worrying about strikes me as a powerful syndrome.
Not all lawyers, not even all pessimistic lawyers, conform to this pattern. Think of David himself, who has turned pessimism into a Samizdata art form. He has gone a stage further. Instead of being pessimistic about disaster, he has become pessimistic about all the precautions being taken against disaster. That’s his disaster, and I agree with him. Thus overwhelmed by a pessimism to make the average lawyer seem like Mary Poppins, he dazzles us with doom, delights us with disaster. He goes so far over the top with his forebodings that they are like Royal Ballet dance routines. Nevertheless, a lot of the time, he’s right.
Oh dear, now I’ve made myself gloomy. David, say something to cheer me up.
As a practicing lawyer who also engages in advocacy during the legislative process, I can add one fillip to Brian’s post.
It is much easier to attempt to foresee and provide for various contingencies in the context of a single private enterprise or single business relationship. The business of legislation, however, attempts to impose upon the entire society, for the indefinite future, a single blueprint for optimization of outcomes.
Even aside from our differences of opinion on what constitutes an optimal outcome, the near-infinite complexity of American society, and the speed with which change occurs, insures that the top-down blueprint is utterly inadequate, creates unintended consequences, and is generally a source of more trouble than it is worth.
In short, the skill of lawyering, which can be quite beneficial in the private sector, does not scale up to the public sector.
Now that is an interesting observation. As its base cause, it is probably due to the difference between the actions in a “free market” and actions in society at large. Which is probably not best described as “a free market”.
Ah first lets kill the lawyers!
I think that you have also overlooked some developments in the law itself; there are two types of contract – the long precautionary cover everything contract and the concise contract with built in flexibility. Ideally the former is used in transaction of great value or where flexibility is not a virtue, such as finance, while the latter is the ideal for low value business transactions. However, over time I think that the former has prevailed in most types of transaction – as a quick trip to the archives will show, contracts that were 10 pages long in 1950 are now more like 100 (at least!).
I’m sure technology –word processors et has played a part, as has the effects lengthening statute books. But since contracts drafted by lawyers were once short are now long, that suggests that the problem is not with lawyers themselves, but rather that lawyers just are reflecting in their work wider changes in society. I think you need to ask you dad what exactly is the cause of this change. Myself I put it down to the misunderstanding of risk in economics and the development of cowardly capitalism – but I don’t have a coherent thesis on this one yet!
The obvious example is the tale of the two constitutions, both drafted with lawyerly input. The old US one, brief flexible and functional, the new EU one precautionary, puffy and prattling.
It is widely noted that (a) legislatures and parliaments everywhere are crawling with lawyers, and that (b) laws and regulations of ever increasing volume and complexity are piling up like there’s no tomorrow […]
True, but you are suggesting that (b) because of (a). I submit that (a) because of (b) is a bit more likely, if there is direct cause and effect going on. Once you are making law on a large scale you are going to end up using a lot of lawyers in the process.
I wonder are lawyers any good at programming? Because thats exactly what “us” programmers do (predict mistakes and error paths).
Of course computer code has got shorter over the years and less complex, so you can see we have been much more successful.
Giles quotes Shakespeare, who wrote, “first….let’s kill all the lawyers.”
I get a good laugh from comments like Giles’s, because it reveals total ignorance of the context of the quote.
Here’s the “Rest of the Story” on the quote.
The quote is from Henry VI, Part II. It was spoken by a thoroughly evil character, Dick the Butcher. Dick was an anarchist and co-conspirator in Jack Cade’s rebellion. The rebels knew that for the rebellion to succeed, the anarchists would have to kill those who enforced the laws; hence, Dick’s bright idea, “first thing we do, let’s kill all the lawyers.”
In other words, what Dick is saying is, “For anarchy to prevail, we’ll have to kill the lawyers, the guardians of freedom, first.”
I.e., although Giles (among others; I’ve read the quote a hundred times on conservative boards, written by posters who think they are saying something wise, witty, and anti-lawyer) throw the quote out as an insult, it is actually quite the opposite; it is an accolade, because it reflects society’s recognition that the law and those who are sworn to uphold it are direct obstacles to those who would take away our liberties.
Giles, lame. LOL.
Brian writes, “So the laws and the regulations pile up,”
Yeah, it’s all the fault of lawyers. It wouldn’t have anything to do with the fact that life, and technology, and commerce have gotten just a TINY bit more complex in the year 2003 than they were 50 years ago, in 1953, would it?
Brian also writes, “Don’t just sit there waiting for disaster to strike, says the lawyer. Think about it beforehand.”
And the problem with trying to see very real dangers in advance and prevent them from happening is…? Okay, you have to put up with a warning label that, to you seems dumb. That hurts you exactly how?
Maybe someone should have thought of seat belts before the 1960s. Airbags before the 1980s. Running more tests on that new wonder drug Thalidomide BEFORE it was prescribed for expectant moms. Your problem with that sort of thinking is…?
According to Brian, thinking about bad things that can happen and trying to prevent them is itself bad. Better to walk into disaster with your eyes firmly shut. Otherwise, you end up with too many regulations.
Rob Read posits the following:
Of course computer code has got shorter over the years and less complex, so you can see we have been much more successful.
to which, MB responds:
BWAHAHAHAHAHAHAHAHAHA !!
MB has done coding for well over 25 years; shorter and less complex it ain’t !!
Brian,
Although unlikely to cheer you up, I endorse the view of R.C. Dean.
It is the task of lawyers in the private sector tp protect their clients interests which necessarily entails taking steps to try and ensure that disaster does not befall them. People who gripe about the pettyfogging nature of lawyers are inevitably the same people who scream for compensation when their own lawyers ‘let them down’ by failing to either foresee or adequately prepare for some adverse turn of events.
Lawyers who work in the public sector (or lawyers who become legislators) tend to regard the whole of society as their client and, therefore, work under an assumption that it is their duty to protect everyone from every unfortunate eventuality. Hence the mushrooming of the Regulatory State which I agree is a very bad thing.
However, I think there is a valid wider discussion here about the modern ‘risk-aversion’ culture together with a settled belief that disaster can be averted not by the application of common sense but by the enactment of appropriate legislation (which tends to crowd out common sense). This is coupled by a wilful refusal to accept that some accidents cannot be avoided regardless of the number of precautions taken or laws passed. There was once a legal recognition of ‘Acts of God’ the application of which would unacceptable today.
The standard (almost scriptable) response to any sort of tragedy or accident now is a) something must be done and b) this must never be allowed to happen again. Are laywers to blame for this state of affairs or are they merely moving in response? There’s a whole Phd in this.
Well, I’ll probably get myself kicked to death for saying this, but I put much of the blame for our risk-averse culture on the rise of women in government and business. It’s the politics of you’re-gonna-put-your-eye-out-with-that-thing!
S. Weasel: To quote a line from “Day By Day”:
Die well, my young friend.
Waiting for the fireworks.
RJ – I think you’re missing the point – I was taught that the line was included by shakespeare because of its populist appeal, i.e. cue applause from the audience, and thats why its repeated ad nauseam when discussions of lawyers come up.
And in the present case, I think there’s something appealing in the idea that over legislation is caused by lawyers. I disagree, I think that lawyers are just providing the service that their clients, the state, the public or what ever demands. And right now they demand nanny legislation and get it – whether that’s because of women in public service, the decline of the private sector as a moral force, the misunderstanding of risk or whatever I dont know. But I doubt its all down to the rise of lawyers in the public sector.
In my case, excessive warning labels and the culture of “oh my gosh, what if” does, in fact, take quite a bit out of my day. Of course, I work at Disneyland, and so not only do I see every warning label (for example, the 12 prominent labels in each and every boat in the Pirates of the Caribbean — two per row) as having cost money that could just as well have gone to my income, or to the income of a WDI Imagineer, or to the funding for Space Mountain, or whatever — I also have to spend an increasingly large portion of my day telling people not to do this, that, or another thing (sitting on railings, running, walking on the left-hand side of the walkway, stopping and blocking traffic, hovering near doorways, crossing the yellow safety line). Yes, most of the things they do are stupid, and yes, the warning labels are advising them against dangerous things — but for heaven’s sake, aren’t there better ways to invest our energy?
I agree there’s an interesting difference between lawyers who serve individual clients and those who serve the “public interest”, because individuals do exist but the “public” does not exist. Therefore all attempts to improve individual behavior by imposing the same rules on everyone are bound to fail. And all attempts to improve individual lots by making uniform regulations for everyone are bound to not just fail but boomerang.
I can’t let this thread pass without mentioning Virginia Postrel’s _The Future and Its Enemies_ (http://www.dynamist.com/tfaie/index.html), one thread of which is to argue that rather than explicitly anticipate and plan for all possible contingencies, another strategy is resilience (having the resources and flexibility to adapt to adversity once it occurs), and a mixed approach is likely to work better than a pure precautionary approach.
“Maybe someone should have thought of seat belts before the 1960s. Airbags before the 1980s. Running more tests on that new wonder drug Thalidomide BEFORE it was prescribed for expectant moms. Your problem with that sort of thinking is…?”
Airbags are a nice example of why the “precaution at all costs” sort of thinking is ultimately futile.
Mandate comes down that all new cars must have airbags. Then, we find that airbags actually increase the danger to small people sitting near them.
Solution? Drop the mandate…. hahahahahaha, only kidding … of course, the proper solution is to have all the small people sit in the backseat. (Damn, where’d all those minivans and SUV’s come from. We must need a new mandate….)
And my problem with forbidding people from buying medicine before the powers that be have looked at them for several years and finally blessed is is that (a) some people need that medicine NOW and damn the risks, because doing nothing is far more dangerous for them and (b) the faster the new medicines come out, the faster that even newer medicines can incorporate their insights and build on them. Repeat as necessary until we have an anti-aging drug, hopefully in our lifetimes. It’s worth letting some people take some risk in order to achieve that. Don’t like the risk? Don’t buy the newest drugs until they’ve been around and proven themselves for a while. Problem solved.
A couple of comments…
There is an apparent increase in cases where people leave a baby in the back seat of a car while shopping, and then either the kid expires from heat or the parent is arrested for child abuse.
I suggest that the air bags forced the kid into the back seat, where said kid, if asleep, might be forgotten, leading to another hazard of air bags.
There is also a principle of government (really of large bureaucracies, but government is mostly composed of same), that applies: Laws of Bureaucracy.
RJGator writes in favour of “Running more tests on that new wonder drug Thalidomide BEFORE it was prescribed for expectant moms.” and asks what the problem with that is.
My problem is that by delaying approval of Beta Blockers for ten years the American FDA caused at least FIFTY THOUSAND Americans to die of heart attacks who could have had years more of life. That, by the way, is a low estimate – type in some relevant key words in Google and you will find estimates of up to one hundred thousand men and women killed to keep them safe. For comparison the Vietnam War killed about fifty thousand Americans.
As Milton Friedman said, a bureacrat in an organisation can make two possible errors. The first is to wrongly approve a drug that turns out to be dangerous. Do that, and he will be crucified. The other error is to wrongly withold approval of a drug that turns out to be safe – or relatively safe, since all drugs will harm some people. If he does that, the people who die unecessarily will probably never even know. Which error do you think is more likely to be made?
BTW Thalidomide is now the drug of choice for healing the symptoms of leprosy.
The code metaphor for law seems to work pretty well for me.
From my experience (and that of others), as a body of code evolves over time, it becomes inflexible and spaghetti. Often, this is the result of fixing a specific problem in a specific case. Every so often, one or more pieces (often in tandem) needs to be ripped up and re-coded.
Legal codes are huge bodies of code on which very little garbage collection has been performed.
R J Gator is, I’m relieved to see, getting a good gang banging from the likes of Sarah and Natalie.
As Natalie’s especially eloquent comment illustrates, the central folly of the “better safe than sorry” position is the assumption that the “safe” bit really is guaranteed to be safe. In reality, it is almost guaranteed not to be, for someone, and maybe for thousands.
As for Gator’s claim that:
“According to Brian, thinking about bad things that can happen and trying to prevent them is itself bad. Better to walk into disaster with your eyes firmly shut. Otherwise, you end up with too many regulations.”
This is an absurd misrepresentation of my original post. I described the precautions David was taking on behalf of his clients without the slightest suggestion that these precautions were wrong, or even foolish. They were not.
I described the precautions that lawyers take on behalf of their clients as their “level of competence”.
My objecton to precautionary law making is that such laws are routinely harmful, not that individuals taking their own precautions and trying to prevent disaster for themselves is foolish. Gator ignores this rather obvious distinction.
He should take the precaution of reading posts carefully before denouncing them.
The fact is, that if you do something that actively harms someone else, you bear some moral culpability for that harm. However, if through inaction someone comes to harm when you could have done something to help them, then you also bear some moral culpability for that harm. When both action or inaction have side effects, then the only morally justifiable position to take is one where you decide whether to act on a case by case basis, depending on the potential risks and benefits of that particular case. That is, you muddle through. The extreme precautionary case (I must not act if there is any potential hard, regardless of the potential benefits of acting) is as I see it not morally tenable. However, we seem to be moving more and more to it.
Ken writes about airbags:
Airbags are a nice example of why the “precaution at all costs” sort of thinking is ultimately futile.
Mandate comes down that all new cars must have airbags. Then, we find that airbags actually increase the danger to small people sitting near them.
Solution? Drop the mandate…. hahahahahaha, only kidding … of course, the proper solution is to have all the small people sit in the backseat. (Damn, where’d all those minivans and SUV’s come from. We must need a new mandate….)
The solution is worse than this, I’m afraid. Consider a product like cigarettes, some of the users of which get cancer. They had a free choice to use or not use the product, yet when some of the users get cancer, the solution is to sue the product manufacturer, and anybody who brings up the personal responsibility argument is laughed out of the court of public opinion.
Society is going down the same road with respect to food. Look at the suits against McDonald’s, and groups like Michael Jacobson’s Center for Science in the Government Interest. And if you suggest that food choices are lifestyle choices and subject to personal responsibility, the chattering classes will look at you as though you’ve got six heads.
But look at airbags. You really don’t have much choice not to use them. If you drive a car, government regulations force you to use them. But here in the States, there’s been a campaign not just to get drivers to put little people in the back seat, but worse, to demonise any driver who doesn’t put little people in the back seat.
This comes up every now and then with my mother, since she often watches the network news when I have dinner at her house. Every time the news brings up the subject of airbags, I mention that the problem could quite easily be solved if people had the freedom (heck, I should use the word “right”) to choose to buy a car without passenger-side airbags. My mother never fails to answer instinctively something to the effect of, “Well, if people would just put their children in the back seat….” (For what it’s worth, my mother has also bought into the class-warfare arguments the chattering classes have against the SUV.)
The only reason airbags aren’t treated like any other dangerous product is because Big Government is mandating their use.
Lawyers are not trying to look out for my long term interests in making health care more expensive, making tobacco companies go broke (putting thousands of people out of work possibly), or denying me the food I desire. No, lawyers are doing all these altruistic things to enrich themselves at the expense of all of us. And interesting I’m a client in a couple of class action suits I was never told I was a part of by my attorneys. I won’t get any money, however, figures. I’m sure their are some decent honest attorneys out there, but, the other 95% is giving them a rotten persona. I would suggest that they cease being political big money, and I mean BIG money, donors in politics, they start policing their own better, they begin to favor a loser pays policy, shut down plea mills, and stop creating law, when they are in positions to do so to enrich themselves and their peers. That would be a great start.
You know that old saying, “Everyone hates a lawyer till someone needs one.” Well I hate them even when I need them.
I’m paraphrasing Dire Straits here from “Telegraph Road.” It goes something like…
“here come the teachers, then come the schools, then come the lawyers, then come the rules.”
the near-infinite complexity of American society
Aaarrggghh! This hurts. There is no such thing as “near-infinite”. Any finite quantity is much much closer to zero than to infinity, so is “near zero” when considered against the infinite.
I guess you mean “mindbogglingly large”, or “humungously vast”, or similar.
Another meaningless expression that seems to be creeping into the language is “X is exponentially greater than Y”. This is impossible. A rate of increase, or an expansion process, may be exponential (eg. acceleration rate, compound interest process) – meaning some quantity is doubling every fixed time interval.
Phew that’s better out than in.
Thank-you for listening…
</rant>
mathgeek,
If you are just counting things then, yes, “near-infinite” is nonsensical. If there’s something more complicated going on then approximations to infinity can be useful.
For example: If you want to sum an convergent series, 10 or 20 terms is usually quite good enough for all practical purposes, and often you will get away with infinity = 5.
If, as in the quoted phrase, you are worried about the point when things become impossible to understand completely from first principles, then 5 could even be a bit high. The problem might as well be infinite once you reach a certain size of system. Equally, it is not unreasonable to describe a set of social facts as infinitely complex when one could not even in principle ascertain them in quantifiable time.
I’d be cautious (though not condemnatory) about that phrase too, but for different reasons. First, in economic theory infinity is often a simplifying assumption which should be kept tightly under control. Second, I’m not sure what counts as “American” society and whether it is especially complex.
Brian
I have been banging on about this for ages,most recently in my comment on David Carr’s piece”A thousand lawyers at the bottom of the ocean ” on 11 April .I think your comment that “the lawyers have been promoted beyond their level of competence to their level of incompetence” sums it up pretty succinctly.
It is pretty depressing though that ,judging by the comments on your piece, realisation is dawning only very slowly.
Brian,
I am not a lawyer but work with lawyers as a very necessary part of my work in banking.
I agree that that if the downside-oriented mindset of a lawyer when applied to a state environment can be destructive. However it is not necessarily destructive in the case of private enterprise. A good investor (eg. a provider of bank finance where there is usually no upside) needs to map the downside as far as possible to define the whole risk. If asked for an opinion on potential liabilities on a project, a good lawyer, given his own potential professional liability, will need to think of all conceivable downsides. Once defined some of those exposures can be risk managed in various ways, including buying insurance or changing contract clauses.
Paul
“Second, I’m not sure what counts as “American” society and whether it is especially complex.”
I’m looking at this from the point of view of a lawyer advising clients on regulatory compliance. By “American society” I mean that sprawling mass of economic and other interactions that the regulations are meant to apply to. By complex, I mean that this sprawling mass is made up of a very large number of distinct and non-identical transactions and situations that do not fit quietly under any organizational scheme and are rapidly evolving.
There is a certain Heisenbergian element to this sprawling mass, in that the attempt to regulate it will change it. The sprawling mass is, really, incomprehensible without applying a set of heavy-duty abstractions that will always (think Godel here) be incomplete and misleading, and the sprawling mass will always outrun and outthink any regulator. My use of the term “near-infinite” was an attempt to catch this sense of the gap between the real world and the 9-point leaded type of regulations.
Sarah says, with respect to warning labels, that her employer (Disney) should do without them, which would give it more money to pay her. In saying that, Sarah assumes, given the ability to save a few dollars, Disney would hand the money over to its employees, rather than increasing guest satisfaction, paying greater dividends to investors, etc.
Sarah, here’s a tip: don’t invest in anything but U.S. Savings Bonds; you don’t have the financial head for anything that requires more knowledge.
x__________
Ken seems to take the position (he is sort of unclear) that because auto air bags can harm small children, there should not be auto air bags. The problem with small children is solved by moving small children to the back seat. I have two, a 13-month-old and a 5-year-old; the back seat is where they stay. This isn’t rocket science, Ken.
One rhetorical question: if you were in a severe frontal collision, would you rather have air bags, or not? Beyond that, Ken’s position is so absurd as to be worth no further comment.
x__________
Natalie’s position seems to be, the FDA should not run drug tests, because drug tests slow down the ability of pharmaceutical companies to bring useful drugs to the marketplace. Good thinkin’ Natalie.
Natalie, I did some regulatory law for a medical device manufacturer trying to get FDA approval. I started out with the same assumption as yours: the FDA is the Bad Guy, slowing down the process. After working for a year with this client, all I could conclude was, “Thank GOD for the FDA.” Without it, Thalidomide, DST, and the other pharmaecutical disasters would seem like a mild cold.
x__________
Yeah, Brian, I’m taking a real beating here. Like a pinata. I’m reeling. (Rolling eyes).
See Programming and the Law.
RJGator:
Tell that to somebody who’s suffered leg injuries as a result of airbag deployment.
Mathgeek wrote:
Aaarrggghh! This hurts. There is no such thing as “near-infinite”. Any finite quantity is much much closer to zero than to infinity, so is “near zero” when considered against the infinite. I guess you mean “mindbogglingly large”, or “humungously vast”, or similar.
I bet you also hate “ten times smaller” when the writer really means “one-tenth as large as”. If two things were the same size, would you really say one is “one time smaller” than the other?
“Ken seems to take the position (he is sort of unclear) that because auto air bags can harm small children, there should not be auto air bags. ”
What the hell are you talking about?
For those with reading comprehension problems, let me state it as plainly as I possibly can: Requiring everyone to use a “safety” device that benefits some passengers and endangers others is a really bad idea. Allowing people to use the safety device in situations where it actually provides some protection is a good idea.
“The problem with small children is solved by moving small children to the back seat.”
It could also be solved by turning off the damned airbag, or not even installing one. By what logic is that solution unacceptable?
” I have two, a 13-month-old and a 5-year-old; the back seat is where they stay.”
Good for you. Suppose you’ve got another kid or two, and no room in the backseat to put them all. Do you think it’s right that you should have to shell out big bucks for a vehicle with an extra backseat just so that a government-mandated “safety” device won’t hurt them?
“One rhetorical question: if you were in a severe frontal collision, would you rather have air bags, or not?”
I would rather have airbags, and I would rather that any small passengers did not.
“After working for a year with this client, all I could conclude was, “Thank GOD for the FDA.” Without it, Thalidomide, DST, and the other pharmaecutical disasters would seem like a mild cold.”
Those “disasters” would have to be mighty catastrophic to balance the death toll resulting from delays in vital drug approval. And that cost will keep growing over time, as the difference between the drugs we have and the drugs we would have had keep mounting. At the point where an anti-aging drug would have been developed (which I think has already passed), the cost of FDA reguation far outstrips any possible “disaster” resulting from all the buggy drugs that could possibly be taken.
But we don’t get to see that cost directly, so guys like you can get away with saying that the FDA protects us.
RJGator writes –
“Ken seems to take the position (he is sort of unclear) that because auto air bags can harm small children, there should not be auto air bags.”
No he doesn’t. His position is perfectly clear – he thinks people should be free to *choose* whether to have airbags or not, based on *their* assessment (not yours or the government’s) of whether they are better off with or without them.
“The problem with small children is solved by moving small children to the back seat. I have two, a 13-month-old and a 5-year-old; the back seat is where they stay.”
So what, who cares what your preferred solution is? That provides no grounds whatsoever for forcibly interfering with other people’s preferred solution. It is completely irrelevant whether the government mandated airbags help you, or anyone else, since if they were not compulsory, people could *still fit them anyway*. Whereas other people might suffer from having compulsory airbags – such as people with 2 seater cars, or more than 2/3 kids, or people who don’t like the extra weight and cost of airbags (ever tried getting one in a 500kg sports car?), or just people who like living dangerously.
“One rhetorical question: if you were in a severe frontal collision, would you rather have air bags, or not?”
I would rather avoid the accident by driving more defensively, rather than having a safety feature of dubious merit that increases people’s sense of invulnerability on the roads, thus leading them to drive closer to vehicles in front and increasing the chance of a crash, then suing for their stupidity and ignorance of basic driving skills thus increasing my insurance premiums.
“I started out with the same assumption as yours: the FDA is the Bad Guy, slowing down the process. After working for a year with this client, all I could conclude was, “Thank GOD for the FDA.” Without it, Thalidomide, DST, and the other pharmaecutical disasters would seem like a mild cold.”
Since the existence of the FDA either prohibits or crowds out the existence of a private body to check drug-standards, how on earth do you know what would happen if it did not exist? You present no proof whatsoever to support your assertion that a private voluntary (or consumer funded) safety-standards body would be worse than the FDA. In contrast, both the theory and practical experience of the economics of government regulatory bodies shows that they are invariably far less efficient than their private sector counterparts. So your concern about the products that would get out would be more than adequately met by a free market solution, *and* the 10 year delays causing tens of thousands of deaths would not occur.
Ted says that airbags should be prohibited because they can cause leg injuries.
[Accepting that dubious assertion for the sake of argument], Yeah, Ted, but they can and do, every day of the week, all across America, prevent people from going face first into a steering wheel, through a windshield, etc.
But wise ol’ Ted, he’d throw out the baby with the bath water.
I had a serious leg injury (jumping a Chinook in full combat gear at low altitude). Serious, but still pretty minor compared to the young lady I know who has plastic surgery every six months or so to piece by piece repair her face after a steering wheel crushed it (in a car with no airbag, pedants).
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Cobden says, “I would rather avoid the accident by driving more defensively.”
Look, everyone, Cobden has solved the problem! Everyone: just drive more defensively.
Thanks, Cobden. No more auto accidents now, Cobden has saved the day!
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Ken says, “guys like you can get away with saying that the FDA protects us.”
Here’s another rhetorical question, Ken: you pretty well bombed the last one, so I’ll give you a do-over:
That injection the doctor is about to give you (or that pill you are about to take):
1) Would you rather that the medication about to be injected (or swallowed) be FDA approved; or
2) Would you rather rely on the honor and tender mercies of the drug manufacturer to set standards for what it will and will not sell?
In answering, remember that even the most reputable ones have been caught fudging tests. In answering, extra points for you if you can factor the honor of major companies like Arthur Andersen, Enron, WorldCom, Global Crossings, etc., etc., etc. into a rational answer.
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Ken also explains his previous post: he simply believes airbags should be optional.
The flaw in Ken’s position is that the use of seat belts is pretty optional (yes, pedants, I know they are mandated, but your chances of getting caught if you don’t use them are pretty slim). The majority of drivers did not (and still do not) use them. So the government mandated a system that doesn’t rely on the user. Is public safety, particularly when it has to do with goods distributed in interstate commerce, a legitimate government concern? Of course.
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Your group flaw here is that y’all take an absolutist position: every precaution should be perfect, or it should not exist at all.
E.g., Ted is deeply concerned (just a sec–let me stop laughing) Ted is deeply concerned that airbags cause leg injuries (?), so there shouldn’t be airbags. Natalie and Ken are deeply concerned that in blocking unsafe drugs, the FDA inevitably slows the progress to market of other drugs, so the FDA shouldn’t be in the approval process.
In a perfect world, there would never be accidents, and if there were, safety devices would work perfectly 100% of the time without ever mussing your hair. In a perfect world, drug companies would produce only 100% safe products, and if there were an FDA, it would only test unsafe drugs while rubber-stamping approval of safe ones.
Y’all need to lose the absolutism, and accept that until we live in a perfect world, some measure of regulation is necessary to prevent great harm. The regulation we have to live with may not be perfect, and we should always try to improve it, but “improving” it does not mean eliminating it simply because it is imperfect.
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And folks, when it comes to bashing attorneys (which is where this thread started), remember that the regulations requiring FDA approval for drugs, requiring airbags, etc., help prevent injury. By helping prevent injury, they REDUCE THE NEED FOR ATTORNEYS. So if you want to lawyer-bash, y’all should be making MY arguments.
LOL.
RJGator
“In a perfect world, there would never be accidents, and if there were, safety devices would work perfectly 100% of the time without ever mussing your hair. In a perfect world, drug companies would produce only 100% safe products”
Such a world would not be perfect. To the contrary, it would be disastrous since the cost of achieving 100% safety would be infinite. The real question is what the “right” level of safety is. Is it 99%, 90%, 80%, which?.
Of course you can’t answer that question without definining what “right” means in the first place, and there are only two possible meanings.
First, it can mean what a Government regulator thinks is right – this seems to be your answer
Second, it can mean what the people who buy the products in question have demonstrated they prefer (aka the market) – our answer.
Our answer means that people will be free to choose the level of risk they are willing to take, and to trade that risk off against price or anything else they choose. Your answer deprives people of that freedom.
So what practical or theoretical reason do you have for believing that your answer is nevertheless better?
Well I didn’t really want to get into an off-topic argument about semantics.
But there is an issue with ‘words’ and ‘meaning’ that I believe is fundamental
to the Anglosphere vs. EU/Francosphere worldviews.
(This covers the difference between meaningful statements and poncy rhetoric, and the
practical implications flowing from this.)
I hope to post about it somewhere more appropriate.
As a quick musing, thinking about Lawyers & Meaning: is the job of a lawyer to use a
command of language to achieve meaningful unambiguous statements, or is it to
pull the wool over a jury’s eyes in his client’s favour by using his command of
flowery rhetoric?
Or both clarification and obfuscation, as the situation demands?
If you are just counting things then, yes, “near-infinite” is nonsensical.
If there’s something more complicated going on then approximations to infinity can be useful.
Not just counting, add Pi to a counting number for example.
Changing the word “near” to “approximate”
or other synonym doesn’t change the fact (unless you are a politician or marketeer).
For example: If you want to sum an convergent series, 10 or 20 terms
is usually quite good enough for all practical purposes, and often you will
get away with infinity = 5.
Sure a convergent series may approach its limit quickly or slowly.
So what?
You never get infinity = 5; you may consider the sum after 5 terms to be accurate enough
but if you wanted infinite accuracy you’d need infinite terms.
Equally, it is not unreasonable to describe a set of social facts as infinitely
complex
No problem with X being infinite.
There is a problem with “near-infinite”.
in economic theory infinity is often a simplifying assumption which should be kept
tightly under control.
Sure we can work with infinity, that says nothing about some mythical place called
“near-infinity”.
The infinity-cancelling in the theories of Quantum Electro-Dynamics do this
and deliver the right answer (ie. the same finite answer that Nature delivers),
providing we ignore the so-called “runaway” solutions.
Just how this cookbook works is a mystery, unless Nature really does commune with
the infinite before delivering Her answer.
Let’s get real about bigness and infinity…
The smallest length of time that has any meaning is the Planck Time, approximately
a 10^43th of a second.
The universe is less than 15 billion years old, ie. much less than 10^61 Planck Times old.
There are reckoned to be something like 10^81 atoms in the universe.
What is the number of material events that either have happened or potentially could
ever have happened in our universe?
Let’s be generous and say it’s 10^144; that’s quite a lot.
There comes a point where numbers are purely abstract and have no physical interpretation.
A Googol is ten to the power of a hundred (10^100),
a Googolplex is ten to the power of a Googol,
but these are mere chickenfeed compared to most numbers.
If you want to get serious about big numbers you could invoke
Graham’s Number.
(Don’t try this at home, kiddies, I’m a trained mathematician working
under controlled conditions.)
This is so large that there are not enough atoms in the universe even to
express it in conventional exponent notation so we need to define a new notation just to
write it down.
Yudkowsky says
of this number “[it’s] far beyond my ability to grasp … far larger than most
people’s conception of infinity … all theologians should face a number like that
so they can properly appreciate what they invoke by talking about the ‘infinite’
intelligence of God”.
Offer me a Graham, I’ll raise you a Graham to the power of a Graham, Graham times over.
Call this “Dave”.
You raise me a Dave to the power of a Dave, Dave times over.
We could carry on in this vein all night, in fact we could carry on until the sun burns out,
and we still wouldn’t even have scratched the surface of Infinity.
That’s how unapproachably big Infinity is.
I bet you also hate “ten times smaller” when the writer really means “one-tenth as large as”.
Agreed that’s ugly. But we can easily pick up the writer’s meaning in spite of the
poor expression. Similarly we may be able to discern a meaning from “I didn’t do nothing”
by judgement on whether a speaker obscurely means “I did something” or is incompetently
trying to mean “I did nothing”.
Far worse was something I read on this blog: “X is increasingly constant”.
‘Increasing’ things obviously vary, albeit only in one direction;
and the whole point of ‘constant’ things is that they don’t vary.
The writer wants us to believe in a “varyingly non-varying” thing.
(Perhaps he also has “square circles” at the bottom of his garden!)
There just wasn’t time to work on this and try to discern the meaning,
and probably would have been wasted effort since I suspect the writer doesn’t know what he
means anyway.
Aside: note that “constantly increasing” is fine – the thing varies and never ceases to vary.
Cydonia asks what the “right” level of risk may be: “First, it can mean what a Government regulator thinks is right – this seems to be your answer. Second, it can mean what the people who buy the products in question have demonstrated they prefer (aka the market) – our answer.”
Cydonia’s commentary is beyond absurd. The people have stated what level of risk they are willing to assume: the level that (to use the FDA example) the FDA deems appropriate. The people, through the legislature, created the FDA; the people, through the Executive, maintain the FDA.
Letting the market decide, sans regulation? You would be hard-pressed to find a rational person who would say, “I don’t believe the FDA should regulate pharmaceuticals; it should be left to the free market.”
And you wouldn’t have it any other way.