Huh... Look At That

I little while ago, in response to all the hoo-hah about Obama's "empathy" comment, I wrote a brief post about empathy and constitutional law. My basic premise was (and remains) that empathy is an appropriate criterion for decision-making insofar as it doesn't increase the indeterminacy of the situation i.e. one should generally make recourse to empathy-based concerns only when the meaning of the law in question has already "run out".

I raised the example of Ledbetter v. Goodyear as a case with an "unfair" outcome which seemed to be pretty clearly dictated by the law under consideration. Lo and behold, here's Obama saying that Ledbetter was wrongly decided, specifically

That's the kind of case, where I want a judge not only to be applying the law in front of them, but also to understand that as a practical matter. A lot of times people have weak bargaining power.

Which is exactly what I'm getting on about. I mean, the quote above really sounds like Obama wants empathy to be given the same weight as the actual law itself. Gah... there are so many problems with that position, but they all basically boil down to "What is an `empathtic' outcome?". Empathy is in the eye of the beholder; it's impossible to know the answer to that question ahead of time. As a consequence, if you elevate empathy to the same status as the law itself, the legal system becomes more arbitrary.

I think Obama's shooting himself in the foot on this one, and I find it hard to believe that, being the smart chap that he is, he's not aware of the contradiction. Arbitrary legal systems have not traditionally been the friends of the downtrodden; it only takes a little while for the powerful to figure out how to leverage that arbitrariness at the expense of the powerless. A focus on empathy might see short-term gains for disempowered groups, but at the expense of everyone's long-term well-being.

A Brief Comment on Empathy and Constitutional Law

I tend to agree with Ed's assessment regarding the use of empathy in the judicial decision-making process. If the meaning of The Constitution/statute/whatever has "run out" then fairness is certainly a valid consideration to be weighed in rendering a final decision.

However, I also see the potential for considerations of fairness/empathy to cause problems. Call me old-fashioned (or even, <gasp>, a formalist), but I tend to put a lot of stock in determinacy. One of the important functions of "the law" is to reduce arbitrariness; in a quality legal system people should be relatively certain as to cause and effect.

Here's my concern... the focus on empathy will lead an increase in indeterminacy. Concerns over fairness won't be limited simply to situations where the meaning has run out, but will leak over into situations where the meaning is pretty clear. Ledbetter, I think, is an excellent example in this regard. Everyone is pretty much in agreement that it was a shitty outcome which offended many peoples' notions of fairness. At the same time, however, the statute which the court was called upon to interpret wasn't ambiguous; it specified the aforementioned shitty outcome. I don't mean to dwell on Ledbetter specifically, but rather hold it up as an example of the type of case where an immediate focus on empathy could do more harm than good in the long run.

How would Ledbetter have been decided in an environment more focused on empathy? Does Obama want a justice who would say that yes, the meaning of the statute is plain, but that plain meaning is overridden by concerns of fairness? Such reasoning, if put into effect, would have a pernicious effect in the long run. People would have less certainty regarding cause and effect and the law would become, to some degree, more arbitrary. Even if the purpose is allegedly beneficent that's an outcome that we should seek to avoid.

Using wget To Back Up a Blogger Blog

Update: After more twiddling it seems like the best incantation is

wget -rk -w 1 --random-wait -p -R '*\?*' -l 1

Specifying a recursion depth of 1 is sufficient to grab everything if you've got the archive widget on your page. More important, however, is the omission of the "-nc" switch. I'd assumed that this switch would prevent wget from downloading the same file multiple times in the same session. It does, but it also prevent wget from overwriting the file across multiple sessions, so you don't pick up any changes to the file. That, obviously, is undesirable behavior.

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Backing up a Blogger blog with wget would seem to be a fairly simple task, but when I tried the naive method:

wget -rk http://aleph-nought.blogspot.com

I ended up with a bloated directory structure containing large numbers of pages with minor variations. This seems to mostly happen on account of the archive widget; wget (understandably) doesn't grok that, regardless of where it's found, the archive widget points to the same content. After some mucking around I settled on the following which seems to represent a good compromise between backing up redundant content and missing things:

wget -rk -w 1 --random-wait -p -R '*\?*' -nc http://aleph-nought.blogspot.com

This works out as follows:

• -r: Recursive fetch.
• -k: Convert references for local viewing.
• -w 1: For politeness, set wait time to 1 second between fetches.
• --random-wait: Randomly vary the wait time; this helps keep wget from being blocked as a bot.
• -p: Fetch all material needed to render a page.
• -R '*\?*': This is the secret sauce; it prevents wget from saving any URL containing a '?', which seems to eliminate most of the redundancy caused by the archive widget without sacrificing important content. Note that wget will still crawl these links.
• -nc: Don't overwrite items which have already been downloaded.

Problems With "Equal Pay For Equal Work"

Seems like I'm spending an awful lot of time responding to Amanda Marcotte these days, but she keeps saying things which I feel the need to address. This time around it's an offhand comment about pay disparities between men and women:

Ginsburg often sounds like she’s howling at the winds in despair, as she should, because she’s sitting on a court that now thinks that women’s right to get paid the same as men for the same work is debatable, as is the notion that women are adult human beings who can make decisions about their own health without paternalistic male strangers telling them they’re too stupid to know what they’re doing.

Amanda is referring to Ginsburg's dissent in Ledbetter v. Goodyear, though the decision in that case didn't address a fundamental right to equal pay. Rather, it turned on the interpretation of an 180 day statute of limitations in the Civil Rights Act of 1964. The overall outcome of that case was pretty shitty all-in-all, but the ultimate blame for that rests with the people who drafted the Civil Rights Act. More importantly, the appropriate fix is to change the law, which Congress did shortly thereafter via the Lilly Ledbetter Fair Pay Act. The Supreme Court would have done more harm than good by trying to go beyond what seems to have been a pretty open-and-shut case of statutory interpretation.

More to the point, the whole notion of "equal pay for equal work" has some fundamental problems. If you assert that women should receive equal pay as men for doing the same work this position logically presupposes that all men doing the same job receive roughly equal compensation, but that presupposition is clearly false. For example, I'm an engineering manager in charge of a bunch of engineers, mostly male, many of whom do equivalent work. There are wide pay disparities within this group, the most extreme case of which involves a 50% difference in compensation.

What does it mean to call for pay equity in such a situation? If I've got men making $60k and $90k for doing the same job what should I pay a woman in a similar situation? I can pay her $60k, which is equitable in the sense that she has male colleagues making the same amount, but she'll still be making 50% less than other male colleagues. Or I can pay her $90k, which eliminates the complaints about bias against women, but if I adopt a rule which says that all women get paid at the top of the pay scale I open myself up to charges that I'm biased against men. What is the correct behavior in such a situation?

One answer is that we should eliminate the disparities altogether and just pay everyone the same thing, but then we're left with the problem of determining what constitutes a "fair wage"? There's no good answer to this particular problem; any attempt to set a fair wage becomes an exercise in arbitrariness. Ultimately a thing is worth what someone is willing to pay for it; wages are no different from anything else in this respect. And, lest I be accused of being unduly fixated on theory, a fixed wage rate is unworkable from a practical standpoint as well.

Suppose that I, as the employer, decide to split the difference and pay $75k. How do I compete with employers who have decided to pay people $85k? Can I hire someone who offers to do the job for $65k? And so on... the system breaks down so quickly its barely even worth considering.

It seems inevitable then that there will be pay disparities among men who do the same job. This is due, in part, to fluctuations in the labor market; labor is cheaper to purchase at some times than at others. This is also due to the fact that cash is only one form of compensation; people will require more or less pay for the same actual work due to the idiosyncrasies of their personalities. It follows from there that we should also expect pay disparities between men and women.