When I got into law school, I sought an intelligible, formal inner world, where enumerable arguments faced off against enumerable counterarguments, and outcomes were binary. I focused on what I thought was 'pure law' and had a slight sense of disdain for the 'interdisciplinary,' wanting to avoid the messy, concrete world where the substantive merits of decisions mattered.  Ceteris paribus, I said, and waved away reality. Reality was speckled with governments with pesky little policies based on economic cost-benefit analyses and endless, annoying externalities. Instead, I clutched the Hohfeldian matrix like so many pearls. I had some knowledge of procedure, a natural sense for statutory interpretation, and access to the law reports; the world was my oyster. This kind of rigid, formal analysis made me more inclined to 'certainty' in legal opinion, but it also meant that I spent little time thinking about the real world.  In fact, I tried to spend as little time thinking about the real world as possible. 

Over the course of a month last year, I went through two conversions which negated most of what I had done up till this point. 

First, I was converted to legal realism. I always thought that the law is a human exercise, governed by incentives, dependent on the people who administered it. But I was finally taking this view to its logical conclusion and treating the law as a human exercise when I wrote and thought about it. It wasn't enough for me to discuss statutes and caselaw; it became necessary to think about systems and how they affected the people who make up the legal structure.

Second, and relatedly, I developed a more concrete concern for the real world and the people in it. This was partly due to reading about the effective altruism movement. It was also because I had acquired a remarkable group of internet friends who were deeply engaged with the real world and how to think about it, and how to change it. 

I ended up deciding that I wanted to work in public policy. I was lucky to pull this off. Now, I assist some wonderful researchers at a think tank, and I work on issues of public health, pharmaceutical regulation, and patient rights. 

My old work revolved around competence in theorising about texts and arguments. My new work, public policy, has a simpler mandate: figure out what is true about the world, identify ways in which the status quo is suboptimal, come up with a vision of the world that is as close to optimal as I can imagine, modify that vision while taking into account the art of the possible, and find and push the lever that can actualize that vision. This is easy. It just happens to be impossible. 

The universe, clearly, has an interesting sense of humour. I started out wanting to avoid intractability and messiness. I am now performing what is plausibly the messiest role in the world: trying to help make decisions under uncertainty, to be implemented at scale, in an infinitely complex system.

At the moment, I am remarkably bad at this. This is not so disheartening, given that I'm twenty-two years old and I've only really been doing this for a little while.

I started with a major handicap: I went to law school.

Legal analysis

Lawyers reason about ordinary things in a formal way.

Legal analysis relies on authorities. It is our principal tool for the simplification of complex situations. For example, you might say 'this law is unconstitutional, because the Supreme Court has held an identical law unconstitutional before under similar circumstances.' You can authoritatively say, 'on this issue, the argument is over, at least for the moment.' Whether you are right or wrong depends upon whether your view is consistent with past authorities. To the uninitiated, this is abstract and arcane. But it is in fact a shortcut made possible by formalism.

Legal analysis is limited. The legal lens simplifies things, constraining the set of possibilities as well as the mode of analysis. You are helpfully limited to reasoning about documents and texts. There is only an enumerable set of bodies that can hold a law unconstitutional, an enumerable set of reasons they may provide, and an enumerable set of documents you can read to discover those reasons.

Legal analysis prioritizes completeness. If you are a lawyer, you care about completeness because the outcomes are binary. The case can be decided in favour of X view or Y view. You can read almost all the cases, make sure none of the cases you rely on have been overruled, and make sure they apply squarely to the facts. Completeness is possible, and approximation is impossible --- one document can render a thousand others inoperative.  Because completeness is possible, a failure to execute this narrow reasoning properly is humiliating; an unforced error.

Legal analysis is somewhat insulated from risk. In most circumstances, lawyers are unconstrained by outcomes. They are accountable only for failure to execute the reasoning properly and produce a cogent legal opinion, not for what happens to society as a result of that opinion. This is not a regrettable bug, but a valued feature of legal analysis, codified in maxims like fiat justitia, ruat caelum, i.e., do justice and let the skies fall.

Decision-making under uncertainty

Think about governance now. Adopt a more executive stance. You are running a business or governing a country. Perhaps you are advising someone who is, or trying to intelligently criticise and comment on someone who is. You will immediately discover that a lot of things are different about your work.

First, completeness is impossible; approximation is your lot. With each project, a researcher is confronted with fundamental problems about the lens through which they see the world. The number of ways you can increase economic growth or design a securities regulation are not enumerable; because the conceptions of the good are infinite. You can't tick boxes off a checklist and decide 'this is the best way to solve air pollution in Delhi' or 'this is the ideal way to hold doctors accountable' because there is no predefined consensus about who should bear the costs of these decisions, who should receive the benefits, and what a good outcome looks like. The best you can get is an indication that, on balance, the arrows point in what you think is the right direction. 

Second, like in most fields in life, you are judged on whether your decisions produced good outcomes. You are asked to recommend a course of action for entire societies; falling skies are prohibited by definition. A sound methodology and a thorough literature review does not insulate you from criticism on the grounds that your recommendation was stupid. You are using live ammunition and your eight-step checklist does not really prevent you from shooting yourself in the foot. 

Some differences are about agency

Remember, the legal process was everything to me; it was my lens, my mental model, my framework. I loved disputes and legal analysis more than life itself. I spent most of my long evening walks in eleventh grade listening to good lawyers answer elaborate hypotheticals at the US Supreme Court. And now I was out here trying to figure out if a draft Bill that governed the pharmaceutical industry was any good.

In theory, I had much more agency as a result of being free from this formal process. I was confronted with fundamental problems of the good. My work is infinitely flexible. I'm pretty much free (within reason) to choose which data to look at and what to read, pick the form and the function of my answers, and target them to further my vision of 'the good.'

I balked. I did all sorts of things that were attempts to give up agency and responsibility. I deferred (wisely) to smart people I was working with who knew far more than me. I wasn't churlish about it; for the first time in my life, I was grateful that I wasn't making decisions. But it wasn't simply the rational thing to do, it was also an emotional response. I really wanted to surrender my newfound agency. I wanted to be told what to do, what to think, what to feel. I wanted to be accountable for the process and not the results; accountable for doing the due diligence, not for getting it right. I was optimising for maximal coverage of the literature, minimising the possibility for embarrassment.

If I wanted to surrender agency, why did I pick a high-powered, type-A profession like law? There's no contradiction here. Formal legal reasoning is just another thing to which you surrender your agency. It's safe, comforting, limiting. If operating within a system, with its traditions, its cultural norms, and its built-in heuristics is your permanent objective, then you don't really exercise much agency in the first place; you don't really go through the exercise of deciding how you feel about something. You just substitute yourself with the rigours of the process.

Slowly, reality began creeping in. The most obvious way this manifested itself was in how difficult I found it to arrive at a view. What did I think about the Bill? Someone asked me, at some point, 'let me know what you think about it', which I interpreted as 'comb through it for obvious, indefensible mistakes,' but which slowly became apparent meant 'what do you think about it?'

Who was I to know anything? I was a competent reader of the legal ticker tape, a fastidious peon of implementation detail. Who was I to say what the law should say, and what it shouldn't? I just knew what a court would say about a law, and perhaps, if the court could say nothing, what excuse did I have to speak? The sheer body of work available and the absence of a defined process to parse it inevitably meant that my initial view is likely wrong (or atleast suboptimal). The limbic fear of embarrassment and humiliation that you acquire in law school (citing an overruled case, failing to notice a material fact) began to creep into my whole mechanism of decision about the merits of policies.

Forming opinions: a guide

People doing difficult things must move as if they have the confidence of an epistemic blessing. For one, they have to be convinced that they want to do difficult things. There are many easy things they could do, and if they are not convinced of the manifest importance of their chosen course of action, they will dwindle, dawdle, lose hope. Once they come to a difficult problem, they need to formulate a view. They need to be able to make statements like 'this department of the government should be abolished' or 'this is a billion-dollar market' or 'this law is bad, it should be repealed' for reasons more concrete than 'a judge thinks so.' They need to be able to have a sense that something is not right in the world, and a drive to fix it. 

In order to make decisions, it is important, vital even, to be comfortable having opinions (often wrong ones) on things that matter. You can start with a working hypothesis, a belief that is your best approximation of the world based on what you know. This is often referred to as 'strong beliefs, loosely held,' a notion coined by Paul Saffo:

"Allow your intuition to guide you to a conclusion, no matter how imperfect --- this is the 'strong opinion' part. Then --and this is the 'weakly held' part-- prove yourself wrong. Engage in creative doubt. Look for information that doesn't fit, or indicators that pointing in an entirely different direction. Eventually your intuition will kick in and a new hypothesis will emerge out of the rubble, ready to be ruthlessly torn apart once again. You will be surprised by how quickly the sequence of faulty forecasts will deliver you to a useful result."

Opinions themselves cannot cause harm, and so it is not a failure to hold the 'wrong' opinion if it is the best account you can provide, at that moment, of the world as you know it. You must disavow ideological purity, commitments to processes, and focus on what works. And this is difficult to do, as Judah explains in 'Form is Fake':

An unhealthy obsession with good form is what happens when reality's surprising amount of detail meets lazy choices. At the heart of which lies the desire for an optimal solution that is both simple and universally prescriptive. One of the features of cocktail party ideas is this disposition towards simple, often meta-level, solutions. "Why don't they just do the right thing?" 

Well, maybe it's because the "right thing" is almost meaningless.

. . .

[Think about] the mistaken assumption that an agent operating without X is obviously incompetent. Instead of seeing the absence of X as a sign that X might be unnecessary, it's seen as negligence on the part of the involved parties. 

This is ultimately limiting on a societal-level, and makes it much harder for anyone to achieve legitimacy outside of established practices. It's why interviewing practices are stuck in a bad place with almost nobody willing to do it better, why dress codes still matter so much, and the reason academic papers has a monopoly on intellectual authority. Attempting to ignore the accepted set of best practices is deemed too unprofessional for any sane person to risk.

In a way, this essay is a way to give myself permission to reject perceived expertise. I'm picking sides. I'm with the people who care about making the right calls, instead of just ticking all the right boxes. I want to own my decisions and my views, as opposed to sitting with my indecision. It's not exactly necessary to do this in public, but I think it's a good start. I will write more essays that contain views; and I will write more op-eds, if I feel sure of something. I haven't quite overcome my limbic fear of being seen as incompetent, someone who gets things wrong. But atleast I will be someone who cares, above all pretense, about getting things right in a useful way.

'But baby, you know me
I don’t read a damn thing
Don’t read a damn thing.’

~ Work Out, Rainbow Kitten Surprise

Here’s a truth I’m comfortable with: I am from a less ardent tradition; my mother’s side of the family. I was stuck in a long car ride with my grandfather once — he used to be a history professor and is a sonorous, effective orator and writer — and I asked if he’d ever thought about singing when he was younger. He laughed, shook his head, and said he would give up his powers of oration, his talent for stories, his ability to write op-eds in minutes and not hours; give it all up for the the ability to sing. I knew immediately that he didn’t mean it — he was laughing at the suggestion.

There’s a long tradition of people writing about their obsessions with their favourite bands, from that guitar nerd who won’t shut up about John Mayer to the freshly obsessed rock band girl who jumps on the counter for AC/DC.

It’s almost as if twenty-somethings feel that life is somewhat incomplete without tastes that are rare, precious, and overlooked. We feel the need to conspiratorially share niche tastes in warm corners of pubs, crave the false sense of uniqueness that surfaces as we let someone visit our secret possessions (‘I think you’ll love this band’). We also require that others have their own possessions, and that they define themselves on demand. To fail to do so is to become a cultural freeloader; someone who lacks taste.

Until recently, I used to evade such a self-definition (‘I listen to all sorts of stuff’). I’d never heard music where I felt spoken-to, personally addressed. I would have been slightly disappointed if I had, because I vainly internalised my lack of preferences as proof of my distance from cultural cliches, from consensual agreements about the types of guy and their specific tastes.

I’m rarely obsessed with a piece of music in the way that I know many people are. There are brief moments when music becomes truly awe-inspiring, the tension reaches a crescendo, and there is something obviously impressive going on. But these moments are only experiences to me, like go-kart racing or paragliding. They don’t occupy my imagination after the fact; this is aphantasia, but for music. Instead, I have literary earworms: sentences, quotes, rhythms of phrase that I cannot get out of my head. I’m configured differently, satisfied with my literary inheritance of books and bedtime stories. I am memetically receptive to text, not sound or image.

Here’s a truth I’m uneasy about: transition and cultural shock have convinced me that I will never fit in, never acquire group identity. And since I did not have a group identity, I needed to acquire a personal narrative. We are the stories we tell about ourselves and mine was missing a lot of parts. I was short of answers to elementary questions (‘what kind of music do you like?’) and void of somewhat rudimentary personal opinions (‘what do you think about this shirt?’). It takes time to find out who you really are, and what you really think. My failings in this department have sometimes made me feel inferior and self-conscious.

I first listened to Rainbow Kitten Surprise when my best friend sent it to me during the pandemic. We were in a depressive euphoria of undoing our pasts; in therapy by decomposition. We went for runs every morning, arguing about which playlist we’d listen to. One day, he sent me It’s Called: Freefall. The song is a conversation between the Devil and the lead singer, Melo, who complains (charmingly, refreshingly) about fickle friends, about their predicament, about their existence — only to be met with a stolid but impatient Lucifer who will not take any more of their bullshit. There’s no intro, just a hint of the drums that cover barely four syllables before Melo’s exquisitely rakish voice arrives, asking ‘do you like cigarettes, dominos, rum?’ The devil answers, disappointingly, “only sundown, Sundays, Christmas,” with the Moloch-like gravity of an exasperated archangel. But I will not digress; this is only the first song, not the most important.

Self-hatred and self-disgust are repeated themes with RKS. First Class is probably one of the saddest tracks in the discography of a band that makes a performance out of melancholy and melancholic rebellion. To call it a “what could have been” to your ex-lover seems to understate things a little, leaving metaphors on the table. The song has four verses, each line starting with the anchoring ‘Say’ as in, ‘Say we’ll get married on a porch in Vegas.’ It’s left up to us whether Melo is pleading with a receding lover (i.e. ‘Tell me we’ll get married…’) or whether Melo is doing something altogether different and more impressive: conjuring possible futures, castles in the air, and confessing her insecurities by wondering if any of those futures are quite enough. But regardless, the effect is the same: one of unattractive desperation and self-absorption. ‘Am I enough for you?’ Melo asks, pleadingly.

American Hero’s narrator brings this into sharper focus; she is more plainly pathetic, more elaborately egotistic. ‘Real talk: do you read fuck-up in my walk? Do you see fuck-up on my face? Do I mean anything at all?’ For a person utterly lacking in self esteem, filled with disdain for the present moment and their present selves, what possible future could be enough? Love is poisoned at the root by self hatred. She goes on, desperately: 'I would do anything to hear you say / There goes an American hero, darling / Call the press and tell ‘em all / “He’s got a front-page picture face with all of the amenities”.’ She does not know the first thing about how to love unselfishly, and so does not believe that anyone else loves unselfishly either. RKS’s characters walk the earth possessed by the desperate desire to be someone else.

My absolutely favourite song is called Cold Love, and I invariably listen to the live version, recorded in Athens, Georgia:

'I’m just a page unwritten on the pavement
You needed 'til you left
But I’m more than a need or a thing you believe
That you leave unsaid

Just before the seeker hits 2:55, the tension rises to a crescendo, the reverb is on, and there is something impressive going on. Their music understands that feelings are not susceptible to distillation, cannot be reduced like red wine. Self-hatred and doubt are not unidimensional, they are not without context, not wholly absent of meaning, not without their attractions.

My case, here, is not that RKS is special or unique in some way. For all I know, the Chainsmokers have deep psychological truth nestled in their songwriting and Maroon 5 is a lost offshoot of an ancient band of travelling bards. For all I know, RKS could be entirely without technical merit, unimpressive except for their writing.

That doesn’t matter so much to me anymore. Identity, like love, is about a moment where you give up on calculation or analysis or judgment. Of course, you could always do better, meet someone else, find better music. But part of deciding who you are is to trade optionality for acceptance, finding value merely in the fact that the feeling is yours, and no one else’s.

I guess I have a favourite band now; a little slice of false uniqueness just for me. When I listen to Cold Love, I feel like existence has been clarified in some simple way. This is my name, this is my favourite band; like a missing piece jammed into the jigsaw of my smalltalk. I like the way it makes me feel when I pick a side.

I.

I'm worried that I've begun to care less about my writing. I first noticed it when I didn't look forward to sharing a new essay anymore. I was hiding them in shoddy tweets, hoping no one I respected would notice that I had written something new. The second time I noticed it was yesterday. I was reading Sasha Chapin:

An amateur fear-driven writer gets up, begins writing something scary, and then becomes petrified, imagining all of the people who will disapprove of them---so they close the document and feel bad. A professional fear-driven writer gets up, eats a large plate of tortilla chips, and, in a fog of carbohydrates, forgets what they were going to write. Or, through a feat of literary ingenuity, they tweak the scary thing into something cute and anodyne that will offend nobody.

I have become a professional fear-driven person. Every week, I mutter a promise to myself; write something serious, write something long, not these link roundups that might as well be tweet threads. I went through months of promising myself to write something I can be proud of, before inevitably capitulating with 'oh well, something new and inane has happened in the Supreme Court this week, I guess I'll write about that. 

This is worse than bad writing. This is dishonest writing, driven by fear.

Fear and sloth are things acquired in a period of unambition, like cobwebs or overgrown nails, and they become clear from the questions you ask people who are trying to give you feedback on your drafts. 'What do you think of the *analysis *in this piece?' knowing that you've neglected the prose. 'How do you feel about the rhythm in this paragraph?' while remembering that it is the only part of the piece you've really edited. And you will wave off spelling errors and grammatical mistakes as if your busy schedule makes proofreading impossible.

This happens when writing becomes a chore, something to do in the middle of other busy, important work, which involves writing too; writing which I had stopped caring about. This is partly because turgid, workmanlike, bureaucratic prose is easy to do. I had too many drafts pending, and could hardly afford to stare at any one page for too long. I was never in danger of running out of writing I didn't care about, and which were all due yesterday.

Aspiring literary novelists in a consulting firm or a law practice quickly learn that their objective is to be competent at their work. And competence is defined by the interests of the client. [There is nothing intrinsically wrong with this, and you should care about your clients, even at the expense of your blessed prose style. But if you want to protect the part of you that cares about sentence structure, you should be mindful of what pleases your soul.]

Slowly, they begin to atrophy the muscle that enabled the painstaking process of careful editing; abandoning the ambitions they had for their drafts. Quickly, professionals learn to prize structure, chronology, and formulaic repetition. They overlook the basic integrity and euphony of a well-written sentence and write drafts to please their superiors. They learn that the prose style itself is so undervalued that they can afford not to care about it. They neglect style; forgetting that style is morality, is decorum, is truth.

II.

Like many bad things, this comes from a desire to be nice to people. The instinct to be sociable is strong, but the instinct to be sociable is also inimical to incentivizing ambitious prose. There were times when I was far worse at writing but still cared desperately about it. During this period, I asked people for writing advice all the time, and usually got the kind of lazy recommendations that come from a likeable desire not to hurt my feelings. And now, socialized further, I too give people advice that doesn't help them.

And I don't blame myself. When I'm asked to edit a draft or give someone advice, I can't possibly tell them what I'm actually thinking. No, I will turn the page and tell them that they could spend more time editing, but that it's generally fine. I will leave some helpful comments in the margins; I don't mean them. Writers will be loath to tell you what's wrong with you --- they will be reluctant to criticise or nitpick because they consider it bad form; because they are polite and don't know you well enough, and because they want you to like them.

If I could, I would tell them what I have heard a few times from precious, rare people who cared enough not to let me throw my education into a listicle. No, I would say, your errors are not easily corrected. I would like to be able to take a few hours, pour them a drink before I clinically break down the erratum, and show them the faults in their personality that make them misplace commas, use the wrong phrase, sloppily structure a paragraph. No, old friend, your mistakes cannot be fixed like bad form, except in the sense that you are lifting something too heavy, and you could not manage good form if you tried.

If you haven't given anyone harsh criticism before, it's useful to follow it up with some sort of rousing call to action. Tell them softly: 'You need practice, and while you should have started a long time ago, it's alright. You care about this, and to be terrible at this hurts you, but you care enough to do it anyway. You care enough to face the limits of your own competence and push against them every day. That's quite enough.'

Since 1930, Wisconsin’s constitution has allowed the Governor to veto appropriations bills “in whole or in part”: a phrase the Wisconsin Supreme Court has interpreted to mean that the Governor can strike out individual words in a manner that produces strange results:

…Gov. Tony Evers struck a hyphen and “20” to change the end date for a $325 per-student spending increase from 2025 to 2425.

To quote a friend, “that’s so goofy hahahaha.”

While constitutional amendments in 1990 and 2008 have constrained this power to prohibit the striking and stringing together of individual letters within words and the creating of a new sentence by combining parts of two or more words across sentences, the Governor can still create policies never intended by the Legislature through a creative cobbling together of words within a sentence.

Here is the paper by Alyssa Reloy (2020) in the Wisconsin Law Review, charmingly titled “The Cheese Stands Alone” (link).

h/t: Judah

Readings

Oft Mistaken or The Most Agentic Young Man on The Internet Offers You Regular Writing. Judah has decided, seemingly in the middle of the night, to launch a new section of his newsletter that I will never fail to read. Few people in their early twenties can pitch me with ‘I need to practice my writing skills, how about you sign up to read the results.’ Generally, I would be wary of anyone telling me to read reams of foolscap filled with the musings of people in their early twenties. But then, if you read me, I am asking you to trust me, and therefore, to go read this post.

Bridget Fahey. I’ve been thoroughly obsessed with recent papers by Bridget Fahey on federalism. This includes Data Federalism in the Harvard Law Review and Federalism by Contract in the Yale Law Journal. Here’s an excerpt from Data Federalism:

We have largely neglected to theorize the reality that as the technologies of governance evolve, so too do the forms of power our governments give and get from one another. As data has become a significant source of power for governments, it has also become a source of intergovernmental currency, inducement, leverage, and coercion. Intergovernmental data markets thus show that the division of governmental power in our federalist system is doubly dynamic: Not only is the distribution of governmental power always changing, but so too are the forms of power governments use and exchange. This insight challenges and complicates federalism theory in multiple respects, suggesting that it is time to renew conversations about power and federalism.

Pew, Religion in India: Tolerance and Segregation (2021). Between late 2019 and early 2020, Pew conducted “nearly 30,000 face-to-face interviews of adults conducted in 17 languages” and asked them questions about religious freedom, diversity, pluralism, caste, national identity, practices, beliefs, clothing, and food. My favourite lollapalooza is the following image, from page seventeen, and I have adjusted some priors accordingly:

The Caravan. I’ve been reading some cover features from older issues of Caravan Magazine, and they are fantastically entertaining. I particularly like the profiles, and I’ll recommend: The Argumentative Indian about Kapil Sibal; and Talk of the Town, about Arun Jaitley.

OMB Circular A-4 (Regulatory Analysis). Peer reviewers for this draft included Cass Sunstein, so that tells you enough. “This Circular provides the Office of Management and Budget’s (OMB’s) guidance to Federal agencies on the development of regulatory analysis.” Here’s page three:

You will find that you cannot conduct a good regulatory analysis according to a formula. Conducting high-quality analysis requires competent professional judgment. Different regulations may call for different emphases in the analysis, depending on the nature and complexity of the regulatory issues and the sensitivity of the benefit and cost estimates to the key assumptions.

Here’s an update from nihalsahu.net, my personal website where I write longer essays that someone has yet to convince me to just post on my Substack.

Religious Freedom, Reform, and Secularism. This is an essay on ‘Indian secularism’, in a neat little 2.5k word vignette, that discusses the constitutional history and the practices of the Indian states. Here’s an excerpt:

And then Independence happened and the brand new Indian state was composed of territories taken from the Nizams of Hyderabad, the Maharaja of Kashmir, the Travancore royal family, and other rulers of princely states, all of which funded and owned large religious institutions, primarily temples. And the new Indian state slid comfortably into their shoes. You see, when you have a state machinery, and a new government takes over, you still need the machinery. We took over the civil service and the railways from the British, and we took over the funding of, and the ability to regulate religious institutions too. To offer one of many examples, this is why the Constitution (since the 1956 Amendment) contains Article 290A, which mandates funding to the tune of tens of lakhs from the consolidated funds of Tamil Nadu and Kerala to their temple boards. This is the Indian state honouring the commitments they took over from the Maharajas.

As Tyler Cowen would say: self-recommending!

I’m going to be honest — this has been a pretty bad week for my reading habit. I think I’m coming down with the flu, and so I have retreated into familiar comforts, like eCourts, Patrick Mckenzie, Sasha Chapin, and Scott Alexander.

In-group bias in the Indian judiciary: Evidence from 5 million criminal cases.

Abstract: We study judicial in-group bias in Indian criminal courts using a newly collected dataset on over 5 million criminal case records from 2010–2018. After detecting gender and religious identity using a neural-net classifier applied to judge and defendant names, we exploit quasi-random assignment of cases to judges to examine whether defendant outcomes are affected by assignment to a judge with a similar identity. In the aggregate, we estimate tight zero effects of in-group bias based on shared gender, religion, and last name (a proxy for caste). We do find limited in-group bias in some (but not all) settings where identity is salient – in particular, we find a small religious in-group bias during Ramadan, and we find shared-name in-group bias when judge and defendant match on a rare last name.

The story of VaccinateCA. I’ve been putting this off for a long time, but I finally read Patrick McKenzie’s doorstopper of an essay. It’s about twenty eight thousand words which, when double-spaced, is about 108 pages. The story it tells is more than a little bit inspiring, if familiar and horrifying at the same time.

We have a titanic gap in state capacity: The largest and most well-resourced organizations in the world did not conceive of, approve, and immediately execute an obvious and largely successful operational plan that nonspecialists were able to draw up on Discord in a matter of hours.

Also, here’s another excerpt, apropos of nothing:

There were parts of the VaccinateCA model that took advantage of relatively unique features of US healthcare infrastructure, like widespread distribution of privately operated pharmacies that had been turned by the government into a primary distribution channel for the vaccine. We didn’t think we’d be able to take advantage of that in most nations. We would instead be back to understanding virtually nothing about relevant healthcare infrastructure while facing even more disadvantages than we had faced on Day 1.

We also benefited from another major strength of America: You cannot get arrested, jailed, or shot for publishing true facts, even if those facts happen to embarrass people in positions of power. Many funders wanted us to expand the model to a particular nation. In early talks with contacts there in civil society, it was explained repeatedly and at length that a local team that embarrassed the government’s vaccination rollout would be arrested and beaten by people carrying guns. This made it ethically challenging to take charitable donations and try to recruit that team.

Stranded on the Space Mountains of Self-Loathing. I will not say anything further about this piece except that it was an interesting experience for me to read it.

It’s Bad On Purpose To Make You Click. Clearly, this Scott Alexander poem is one of the best things on the internet right now. I’m sure most of you have already read it. Here’s my favourite part:

No actual person believes it
It isn’t a national trend
Some loony in Maine with a turd for a brain
Said some idiot thing, the end
Some intern from Williams or Amherst
Wrote all of it up, real slick
And now it’s the front page of WaPo

But it’s bad on purpose to make you click.

In this essay, we discuss Article 25 of the Indian Constitution and focus particularly on clause 25(2)(b), which we will call the reform clause, which allows the Indian state to enact social reforms in ways that contradict sincerely held religious beliefs. We also discuss the question of whether the reform clause and the right to religious freedom can coexist.

I must start by noting that we will almost completely refrain from discussing the Court, which has a truly incredible role in this area of the law. The Court deserves a separate essay about different types of religious disputes and how courts deal with them, as well as discuss criticisms of the essential religious practices test.

Disclaimer: I am not an expert in this field. I have written an eight thousand word journal article for the Indian Law Review named 'Inessential Practices: charting a non-normative future for Indian religion jurisprudence' (co-authored with Sheerene Mohammed; If you are unable to find a copy online, please feel free to email me.) I will necessarily simplify and omit important discussions in the course of this essay, for readability and brevity. My more detailed views can be found in the journal article.

Disclaimer the second: This is intended to be a descriptive account, and except where I say otherwise, I don't offer opinions. As always, these views are mine and not those of my employer. For errors, if any, mea culpa, mea culpa, mea maxima culpa.

The right to religious freedom

There is legislation, and then there are super legislations (constitutions) that restrict what legislation can do. In democracies, constitutional rights restrict even a powerful parliamentary majority from running roughshod over certain fundamental rights. In the Constitution of India, Part III contains the 'fundamental rights'.

A common right in liberal democracies is the right to religious freedom. In the Indian constitution, this right is found in Article 25. It says, subject to public order, morality, health, and other fundamental rights, that all persons have the right to believe in and the freedom to profess, practice, and propagate their religion [Article 25(1)]. And that's just the beginning, Article 26 gives religious denominations 'or any section thereof' the right to 'manage their own affairs in matters of religion.'

Let's just look at the exceptions to Article 25 for a moment. According to the constitutional text, the only grounds on which your right to freedom of religion can be limited are public order, morality, health, and other fundamental rights. You can make a speech propagating your religion, and that's fine, but if your speech contains a call to overthrow the state and establish a theocracy, you can bet the state will have a problem with that because it literally destroys public order. You can practise your religion, but if your hypothetical religion involves watching pornography, then the state will waltz in to defend conventional morality. Your religion might prescribe consuming the bark of a tree that happens to be carcinogenic, but that doesn't stop the state from banning the sale of carcinogenic bark on grounds of health. And now, your religion might require that you prevent your children from getting an education at all, but the state will pop back in and be like, hmm, we have this thing called Article 21A, which prescribes universal and compulsory education, and we're going to have to seriously object to your religious practice on the grounds that it violates your kid's fundamental rights. 

The reform clause

There are actually two more exceptions in the text of the Constitution, found in clause (2) of Article 25. First, the right to religious freedom doesn't prohibit the state from 'regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice.' Let's say you're conducting a religious ritual, for which you require an open flame. That doesn't mean that the state doesn't have the ability to require you to abide by fire safety regulations or to make you pay taxes for the lamps and the matches. Those are 'secular' and 'financial' activities that just happen to be 'associated' with religious practice. 

Second, the right doesn't prevent the State from 'providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.' In this essay, we will call this the 'reform' clause and spend the rest of this essay talking about it. We will seriously discuss how a purportedly secular state gets into the business of 'throwing open Hindu religious institutions of a public character to all classes and sections of Hindus.' 

We'll get into the 'Hindu' question in a moment, but let's just start by trying to make sense of what it means to have a document where one sentence talks about protecting religious freedom and the next sentence starts by letting the state change the rules for entry into a religious institution.

The truth is that the Indian state has always been pretty close to religion, which plays a "thick" role in public life. Since the ancient kingships to the present day, states in the Indian subcontinent have played an large role in funding and regulating religious institutions. Hindu rulers built and supervised temples. The Mughal theologian had control over vast patronage in the form of grants, which were often given to temples. And when the East India Company came in, they followed in the footsteps of the princes they had displaced, acting as a direct patron and administrator of religious institutions. Many, many religious institutions in India would not be maintained if the money did not come out of state funds. [Note: these are explanations, not justifications]

And then Independence happened and the brand new Indian state was composed of territories taken from the Nizams of Hyderabad, the Maharaja of Kashmir, the Travancore royal family, and other rulers of princely states, all of which funded and owned large religious institutions, primarily temples. And the new Indian state slid comfortably into their shoes. You see, when you have state machinery, and a new government takes over, you still need the machinery. We took over the civil service and the railways from the British, and we took over the funding of, and the ability to regulate religious institutions too. To offer one of many examples, this is why the Constitution (since the 1956 Amendment) contains Article 290A, which mandates funding to the tune of tens of lakhs from the consolidated funds of Tamil Nadu and Kerala to their temple boards. This is the Indian state honouring the commitments they took over from the Maharajas. 

But when the Constituent Assembly was debating, continuity wasn't the only thing on their mind. Caste is omnipresent in Indian society, and its influence was pervasive, and persons of lower castes were often denied entry into temples. Opening temples up to all sections of Hindu society was a key objective for social reformers.  And the Indian state, as Nehru and many in the founding generation envisioned it, was an egalitarian, reformist state that wished to 'cure social evils.

Independence, they thought, should usher in a world where characteristics like 'caste', 'gender', or 'religion' did not govern the state's relationship with its citizens. It should not matter to the courts or to officials whether your name was Mohammed or Mahesh. Nor should it matter whether you were upper caste or a Dalit. This formal equality, as Mahajan (2008) points out, would have been impressive to start with. But they were still more ambitious and wished to eliminate discriminatory practices that existed in society at large, even if they were not perpetuated by the state.

But religious freedom stands in the way. You cannot both protect the right of persons to practice their religion freely and try to reform their religious practices in the process. But infused with the can-do spirit that only kicking the British out can give you, the Constituent Assembly decided to give it the old college try.

As Vineeth Krishna neatly documents on the CAD blog, from which I will paraphrase heavily now, the reform clause was not actually part of earlier drafts of the Constitution. It was added after concerns were expressed, by Amrit Kaur, a member of the sub-committee for Fundamental Rights (and later, India's first health minister), who felt that

'the clause is defective in as much as it might invalidate legislation against anti-social customs which have the sanction of religion.'

And so she wrote, with Hansa Mehta (another member of the Committee), to B.N. Rau (the constitutional advisor) to say:

"...As we are are all aware there are several customs practised in the name of religion eg., pardha, child marriage, polygamy, unequal laws of inheritance, prevention of inter-caste marriages, dedication of girls to temples. We are naturally anxious that no clause in fundamental rights shall make impossible future legislation for the purpose of wiping out these evils..."

And they won, and so the reform clause became part of the Constitution. 

State control

Within two decades of the Constitution, many progressive parties came to power (especially in South Indian states). These were parties like the Dravida Munnetra Kazhagam (DMK) in Tamil Nadu and the Communist Party in Kerala. They believed in aggressive social reform on issues of caste and religious superstition, and temples were a chief arena in which that reform was to take place. And so, they began to legislate for social equality, and one of the key objects to be reformed and democratised was the Hindu temple.

Hindu institutions experience state control in a deep and pervasive way that is not comparable to other religions. Sure, there is some reform (see Triple Talaq) but as Acevedo puts it, the state  "does not relate to Muslims and Christians in any way that could be considered parallel or analogous to the depth of government involvement with Hindu temples, mutts (i.e., monasteries), and charitable institutions." In Temples, Courts, and Dynamic Equilibrium, Acevedo provides a fantastic account of the state control of temples in South Indian states in particular. I recommend you read the whole thing, but the summary is that public temples in Kerala are governed by three 'distinct yet overlapping systems.'

First, you have five statutory boards overseeing "the daily operations of over 1,700 temples ranging in size from roadside altars to regional pilgrimage centers." The members of these statutory boards are chosen by 'Hindu members of the state legislature and state cabinet.' Second, there is an actual 'Minister for Devaswom Affairs' in the state cabinet which oversees a state-wide Devaswom department. Third, there's the Kerala High Court, which has a 'temple bench', which sits twice a week "to hear matters for all public temples in the state." Acevedo also explains how a powerful judge, K.S. Paripoornan, made reforms which ensured that the High Court today "considers matters that range from the exceedingly minute (approving a replacement chauffeur for the TDB's president) to the administrative (determining whether local police can lease office space within temple grounds) to the quasi-religious (assessing the relative monetary share, from devotee offerings, of a junior priest who also performs the duties of a senior priest) to [...] the validity of religious beliefs."

Secularism

If you haven't noticed yet, there is an amazing bit of "cognitive dissonance" (as Deepa Das Acevedo puts it)  happening here. How can a document which is supposed to protect religious freedom also provide the state with a set of tools for reforming religious practices? Acevedo categorizes the academic answers into broadly two camps. One approach (and Acevedo cites Pratap Bhanu Mehta for this) says "it's acceptable for the Indian Constitution to grant the state singular authority over Hinduism, but less appropriate for the state to exercise such authority over other religions. This is because Hindus dominate India's population and parliament, and so Hindus (who lack an ecclesiastical structure comparable to many Christian communities) are essentially using political institutions to govern and limit themselves." 

Another approach tries to redefine 'secularism' itself. In the United States, 'secularism' implies a wall of separation between church and state. This is a strict separation. Meanwhile, "Indian secularism" describes only a  'principled distance' or a 'celebratory neutrality.'

But as Acevedo would argue, a flexible wall that leaks like a sieve is not really a wall at all. Indeed, she has convincingly argued (in my opinion) that we can't get out of this dissonance by calling it 'Indian secularism'. We may celebrate religious diversity, we might not establish a state religion, and there might be formal equality between religious groups. But if words are to mean anything, we cannot call a system of state-funded religious institutions 'secular.' 

Instead, Acevedo would try to reconcile two things: "that the Indian state protects religious freedom and that it actively seeks to regulate and reform religion." She says we can do this "if we let go of the idea that the purpose of constitutional law is to construct and maintain one particular theory of the state." She goes on to argue that "the Indian Constitution encourages a dynamic equilibrium between these two visions [militant, acquiescent] of state--society relations."

For whatever it's worth, I think Acevedo is correct and that she offers the fullest account of the relationship between religion and the state in India. She sees no contradiction in Article 25's central promise of religious freedom being followed by the reform clause. This is how the framers set it up. The Indian constitution, she has argued, was never intended to be secular in the traditional sense of the word. That's a feature, not a bug.

The Chief Justice of India has many levers of power.

First, they have a bully pulpit. They can make speeches at universities and bar associations to signal attitudes to judges and lawyers.

Second, they are the master of the roster, which means that they have final control over the constitution of benches of the Supreme Court. They decide which judges get which cases.

Third, they run the Collegium, which makes (theoretically binding) recommendations for the appointment of other judges. This power is heavily qualified, in practice, by the fact that the Executive can delay, and generally defeat the Chief Justice by refusing to make the appointments. The judicial branch, as Hamilton said, has neither sword nor purse, neither force nor will, but merely judgment.

Fourth, they are the CEO of the Supreme Court's processes. They can make technological innovations and improve procedure.

Fifth, they are a judge of the Supreme Court. They can decide cases and write great judgments if they are so inclined.

Tradeoffs, Tradeoffs, Tradeoffs

CJIs have many priorities. Their legacies are defined by:

1. Their general popularity at the time they leave office;

2. Their contributions to the development of the law;

3. Their ability to maintain the independence of the judiciary and keep a patchwork simulation of the rule of law going;

1. Their administrative efforts, which are primarily directed towards two complementary goals, which are (a) the appointment of judges to fill the many vacancies in India's judiciary and (b) reducing the gargantuan number of pending cases before the Supreme Court and the High Courts.

(3) and (4) are somewhat contradictory. To appoint more judges, the Chief Justice needs the assistance of the executive. And when the Chief Justice writes judgments expanding the rights of citizens and constraining the powers of the state, the Executive is naturally annoyed.

And so the Chief Justice must make compromises. These compromises are not unusual. There are structural contradictions at the heart of the role, and it makes it difficult to be both a popular and an effective Chief Justice.

[This Chief Justice is not entirely exceptional in additional levers at the time he took office. While this is the first time both a father and a son have run the judicial branch, there are many examples of people related to each other in the Supreme Court. CJI M.H. Kania (1991-92) was the nephew of CJI H.J. Kania, the first Chief Justice of India. The late Justice K.K. Matthew is the father of Justice K.M Joseph, both of the Supreme Court. Chief Justice PN Bhagwati was the son of Justice Bhagwati, a former Supreme Court judge.]

Here's some advice, roughly divided into three parts:

• Do the right things

• You have to actually do them

• There are also other things

Do the right things

Sam Altman's advice on focus is foundationally, incredibly good because it's so often overlooked.

"Almost everyone I've ever met would be well-served by spending more time thinking about what to focus on. It is much more important to work on the right thing than it is to work many hours. Most people waste most of their time on stuff that doesn't matter."

In one of my early internships, I worked for a bit with a team that spent months working on a deliverable that didn't serve the client's interests one bit and had nothing to do with the client's requirements. If you had set every single document in the OneDrive folder on fire, nothing would have changed. Someone high up had suggested that the deliverable was a good idea but figuring out why it wasn't a good idea required that you stare at a wall for four hours and really think about what the client's objectives were. Very few people stare at walls for four hours. Staring at walls (or at client requirements) and thinking very hard about what to do is an immense advantage.

The reason most people don't do this is either (a) because they spend their time moving from document to document and completing tasks instead of exercising some autonomy; (b) they feel like it would be precocious and like, bad form, to tell someone that you've read the client requirements and that they haven't. This means that you will progress down a path of pig-headed path dependency that should eventually lead to someone, somewhere losing the mandate of heaven.

Don't do this. Think very hard about each project and each action. Document those thoughts relentlessly. And if possible, ask people when you don't understand why you're doing something. It's entirely possible they're making it up. In fact, they're probably all making it up, except for the select few who join the cult of "I care enough to stare at a wall".

You have to actually do them

I am one of those people who finds it difficult to work unless I've really decided to. And I find it incredibly difficult to make progress on something unless I've really invested effort into understanding it. This makes distractions and really, anything that prevents focused work anathema.

For the wrong things (i.e. stuff that you have decided are stupid and unnecessary, but that you have to actually do), I recommend working as late as practicable and using panic to get things done.

Treat your brain like a dog you just got (Jerry Seinfeld)

Jerry Seinfeld's advice, as a general rule, is pretty great. I recommend this conversation with Tim Ferriss, as well as this one with Bob Roth on transcendental meditation. Here are a few excerpts, edited for readability:

"It's like you've got to treat your brain like a dog you just got. The mind is infinite in wisdom. The brain is a stupid, little dog that is easily trained. Do not confuse the mind with the brain. The brain is so easy to master. You just have to confine it. You confine it. And it's done through repetition and systematization." - Jerry Seinfeld

Create a work session

She's struggling, "I can't write. I keep putting it off." So I explain to her my basic system, which you already talked about at the top of the show, which is, if you're going to write, make yourself a writing session. What's the writing session? I'm going to work on this problem. Well, how long are you going to work on it? Don't just sit down with an open-ended, "I'm going to work on this problem." That's a ridiculous torture to put on a human being's head.

"When is the workout over?" "It's going to be an hour." "Okay." Or "You can't take that? Let's do 30 minutes." "Okay, great." Now we're getting somewhere. "I can do 30."

Block distractions (see benkuhn, patio11)

No notifications, browsing, or comms in the morning. I've begun waking up in the morning, going through a quick morning routine, and not using my phone or turning on any notifications for about two to three hours. This means no email, no calls, no Slack, no browsing the internet, and no binge-rereading patio11 posts. No communication with the outside world of any kind. I start by doing some writing or finishing up a pressing deliverable. I try my best not to do research either because I'm very prone to rabbit holes.

I use ColdTurkey to block distracting websites ever since the moment I realized that I was able to do the Cmd+T, twitter dot com, keyboard-shortcut for new tweet routine from muscle memory in under three seconds. And that I was doing it many, many times every hour. I figured out that I was doing it many times an hour with RescueTime.

Oh, and this is far more effective than deleting Instagram or Twitter in a fit of self-restraint. There are no fits of self-restraint. There is self-restraint, and then there are fits and whims and fancies. Uninstall your social apps if you make a considered, reasoned decision to leave because you no longer obtain value from the platforms. Otherwise, it doesn't matter when you use them as long as you don't use them during a focused work session.

While you're at it, get rid of your fancy note-taking apps. You probably don't need them. Use Apple Notes/Google Keep + Docs or something else that's not a hassle and is well-integrated into your general ecosystem.

There Are Also Other Things

There are various other things you can do, such as exercise, eating healthy, and sleeping that are very useful to happiness, longevity, and just general existence. I will update this post if/when I start doing them.

Matt Levine read classics at Harvard and then he taught high school Latin for a year. He then went to Yale Law School, and then went to Wachtell to be an M&A lawyer. He then quit Wachtell and went to Goldman Sachs to be an investment banker. And then he quit Goldman and became a finance blogger, first at Dealbreaker and now at Bloomberg. He writes a wonderful newsletter called Money Stuff.

So, I don't actually want to talk about how nice Matt Levine's writing is. 

[Actually, I do. Levine is good partly because he understands, like other great long-form internet bloggers (See SlateStarCodex), that people don't have an attention span problem. Sure, in some concrete 'I check Twitter thirty times a minute' sense, people have an attention span problem. But there isn't an "audience for long-form content" that has suddenly disappeared. Clearly, what has disappeared is an audience for content that doesn't entertain the reader. If you can write about derivatives with enough style, people will read you. If you're funny, people will read you. Money Stuff arrives every day and is several thousand words long. It's pretty easy to read.]

Back to the main point, the key feature of Matt Levine is a general refusal to be reflexively judgmental about people's intentions. It's a willingness to examine motivations with a charitable (and somewhat skeptical) lens.

Look at this all-time hit from a great piece for DealBreaker about nepotism at JPMorgan Chase:

It is pleasant to imagine that investment banking is the sort of business for which only a few people are qualified via innate intelligence and rigorous training, but fundamentally it - like a lot of businesses - is about convincing people to pay you money. Doing that with spreadsheets and PowerPoint is - well, one, it's not that difficult, lots of people are qualified to do it, probably including the Stanford-educated scions in this Times article - but, two, it's a distinctly second-best approach. Maybe seventh-best. The best way to convince people to pay you money is to, like, go to them and be all "hey, dad, could we have some money?" But also playing golf with them, or being a former NFL quarterback, or just general handshakefulness and bonhomie are probably more effective than spreadsheets. Qualified!

Now, this is hard to categorise, as a mood. This is not exactly warm to the idea of nepotism --- it just happens to see it as a natural consequence of societal and human structures in a way that doesn't come across as cynical. Reading this, I'm not entirely sure that Levine thinks that innate intelligence and rigorous training are that much better than "general handshakefulness and bonhomie." In fact, I don't think he spends a lot of time aspiring to a world where things don't run on handshakefulness. Handshakefulness makes the world go round. Or, to put it in, like, a fancier phrase, 'trust is the coin of the realm'

Let's dig deeper. Here's Levine from a conversation about debt markets hosted by the U. Penn Law Review:

I come to this from the perspective that the world is interesting. When I started as a writer, I had just been an investment banker, and this is 2011. And the world that we lived in was basically everyone, all of financial media, being like, the one thing to take away from this article is that banks are evil. And I was like, 'I'm not evil! I just worked at a bank!' And in particular --- I worked on complicate derivatives, and often, you would read news coverage and they were like 'this bank did a complicated derivative, and the goal of this complicated derivative was to hose its clients and steal their money.' And I was like, 'No, I do complicated derivatives, and the goal of these derivatives, is to evade taxes for the client!'

And I'm like, one, that's arguably a less evil story. And two, it's a more interesting story. If I could get the reporters in a room and sit them down and be like 'It's actually much more scandalous than you think, but it's more interesting! So, that is sort of like the mindset that I came to it with, which was just like "it's not as evil as you think, but it's interesting"

And I think that's sort of like carried through ever since, where my goal is to like --- so often you read stories about financial things and like the implicit point is that the people doing these things are evil and I'm like, 'they didn't get up in the morning and be like "let's do some evil," right?' They had some reason for doing this transaction. Like, let's figure out what the reason was and just describe it in neutral terms, because, that's what they're thinking, and if you understand what they're thinking, you understand more about the world than if you're just like "AH! Those banksters are evil!"

Formulating the Levine question

The Lucas question is "Is there some action a government of India could take that would lead the Indian economy to grow like Indonesia's or Egypt's?"

The analogous Levine question:

"If there is some action a government of India can take that would lead the Indian economy to grow faster, why don't Indian policymakers take that action? Surely, they want the Indian economy to grow faster."

But more generally, the Levine question is "Why do people do the things that they do?" And consequently, the Levine commandment should be "thou shalt not ascribe motivation without understanding the structural incentives that gird the action."

The next time you see some action by a policymaker, or a corporation, or an individual that seems easy to characterize as "neoliberal scum", "evil banksters", "anti-national protestors", "apathetic bureaucrats", or "a symptom of the savagery that is late capitalism," maybe consider that those people did not wake up in the morning with the intention of doing evil. Sure, evil exists in the world. But there's far less of it than you think, and it's not always where you expect it to be found.

Chinmay wrote a while ago about why it’s difficult to get cabs in Bangalore using aggregator apps like Uber or Ola. He thinks that the problem started with the Aggregator Guidelines issued by the Central Government.

(Let us, for a moment, not be nitpicky about the fact that Chinmay was talking about Bangalore, and that Karnataka’s legislation, the Karnataka On-Demand Transportation Technology Aggregator Rules, 2016, predates the Central Government guidelines.)

The Guidelines impose price controls on aggregator apps and allow for dynamic/surge pricing only up to 1.5x or 0.5x of the base fare. This corrupts the market mechanism, puts cabs out of business, and makes things worse for customers.

Chinmay offered a sweet solution: Huber should let customers offer “tips” in advance of the ride being accepted by a driver. This re-establishes a market and sidesteps the price control. Whether this will work depends on the definition of “fare” in the guidelines. If a tip is part of the fare, then Chinmay’s solution would be illegal. If it isn’t, he has successfully helped a corporation evade government regulation - this is the bread and butter of in-house legal advisors. Congratulations!

Not being a law person, Chinmay showed me the draft and asked me whether his solution was legal. I answered, as all good law people do, with “it depends.” And when he asked me what it depends on, I realised how many possible answers I could give him.

I tried to be honest with him instead:

Chinmay: Is a tip a fare?
Nihal: (in deep thought) ehhhhhhhhh
Chinmay:  How can the answer be “ehhh.” Surely, words have meaning, and legal provisions constrain various state actors, including the judges.
Nihal: Not necessarily. The meaning of the word depends on various factors, like who your lawyer is, who you are, what entrenched interests want the word to mean in this particular context, and what the judge had for breakfast that morning. As for this in particular, I’m not sure if the guidelines are even definitely mandatory yet. They are sort of mandatory.
Chinmay:  “sort of mandatory”? Wait, what is law? Isn’t there a big book called the law?
Nihal: Okay, you’ve just given me an idea for an essay. See you in a few hours.

This essay is for non-law people. But it is also for law students who are yet to come into contact with the law as it is practised.

Tldr; Santa isn’t real, judges are people, the law is not a big book in the sky.

Huber, a cab-aggregator company, has been persuaded by their immensely creative consultant, Chinmay, to adopt this approach. Huber’s executives are jumping with joy, as is Chinmay. A market has been re-established, price controls have been beaten, the law has been foiled. Even if Huber does get sued, Chinmay theorises, the risks are manageable and the litigation can be carried out for a long time. Chinmay knows, for instance, that Indian judges are statistically less likely to impose very large punitive fines.

The regulators might not notice for a while before the news articles pile up, and a public ruckus begins. Instead of enforcing the law as written, the licensing authority has some discretion as to whether to take Huber to task. Let’s assume the regulator ignores the issue altogether. Chinmay sits around, smugly satisfied at having beaten the price control.

Chinmay does not, however, anticipate Murphy’s law of disputes: if you have a public-facing service and can get sued, you will get sued. Even if the licensing authority does nothing, some association of consumers (who do not understand the unit economics of catching a cab) will complain that they have to tip people in advance, and claim that Huber is breaking the law. This Association of Consumers, a public-spirited organisation, will move the High Court of Karnataka using a public interest writ petition.

Roughly, they will argue that the tip is part of the fare. And more importantly, they will argue that even if the tip isn’t technically part of the fare, it has become so necessary to the process of actually getting a ride accepted that it might as well be part of the fare. Underhanded hypertechnical behavior such as this, the Association of Consumers will say, is an attempt to defeat the price control, and so will fail.

For illustrative purposes, and to really show you what this kind of argument looks like, I called lawyers I know and argued Chinmay’s somewhat dubious case with them.

Nihal: Now, since we don’t want to be too specific about Karnataka’s laws, and because I currently cannot be bothered to find the relevant notification right now, let’s assume that the Central Government Guidelines apply.

Lawyer: You’re being lazy, but alright.

Nihal: I don’t care, I have a bet to win. Now, is a ‘tip’ part of the fare?

Lawyer: Okay, read me the definition of ‘fare’.

Nihal: Under the Motor Vehicle Aggregator Guidelines, ‘fare’ means the ‘total charges debited by the Aggregator to the Rider pursuant to the latter booking a ride through the Aggregator’s App and completion of such ride.’

Lawyer: Let’s break this down. So there are a couple of components here, if you’re going to read this very clinically. You have to ask: (1) is it part of total charges; (2) is it debited by the Aggregator; (3) is it debited from the Rider?; (4) is it pursuant to the Rider booking a ride through the Aggregator’s app; (5) is it pursuant to the completion of the ride?

Nihal: You’re sparing me a lot of nuance and detail on the interpretation of texts and keeping this simple, right? I don’t like being patronised.

Lawyer: I thought you wanted people to read your newsletter.

Nihal:Fair enough. So, we can agree that components (1-4) are met here, but I disagree about (5). It’s not pursuant to the completion of the ride, but merely pursuant to the acceptance of the ride. Also, what if I agree on the app to pay the tip before the ride, in cash, to the driver? What if I agree to some arrangement that circumvents this altogether?

Lawyer: Nihal, you don’t need to steelman Chinmay’s case for him, you know? You know fully well that in both these cases, the most likely outcomes are as follows: (1) the regulator/state-government will issue a circular clarifying that this is illegal; or (2) if it goes to court before the regulator decides to close your loophole, the judge will take a long look at your weird hypertechnical argument before deciding that you are clearly trying to defeat the intention of a legislation, which was to not allow price surges, implicitly or explicitly.

Nihal: Let me just try one more time. I’m not trying to defeat the price restriction. The aggregator company has no capacity to force me to pay more. They don’t even have to make it implicit that it’s functionally part of the fare.

Lawyer: There’s no need for this feature anyway if you’re going to call up every cabbie and offer him money. What you are doing with this feature is implicitly signalling that this is a necessary part of getting a cab in some fashion, which signals that it’s part of the fare.

Nihal: Chinmay would probably say the judge needs to understand the unit economics of a cab business.

Lawyer: Chinmay is going to take a short trip to judicial custody for being in contempt of court. On the other hand, Chinmay might also pull this off, given a good day, a sympathetic judge, and a weak petitioner.

Chinmay: Sooooooo, you’re telling me there’s a chance…

Nihal and Lawyer (sighing): economists. It’s unlikely, but yeah, there’s a chance. There’s always a chance that the judge will find someone else’s case stupider than yours. There’s always a chance.

You see, like Chinmay, I used to believe there was a book called the law. In fact, it would be extremely weird if you didn’t think there was a big book called the law. Surely, there must be, if so many of our cultural assumptions about disputes work around it. “That’s illegal,” one might say, or “this is a violation of my right to privacy” or “you can’t do that” These claims are just that, claims. Sometimes the correctness of those claims is clear, and at other times they are murky.

But why are they murky? Why does Chinmay have a chance? Why are there only ever odds? Why, after so long, do we not have certainty – a clear system of rules and commandments in a big book called the law?

Part of the reason is that words are slippery things and it takes time for human beings to come up with sentence structures that somewhat accurately model an expected reality, which can command action, which can act as law without resulting in fifteen rounds of litigation. Until then, we have judges who have some discretion to keep precocious and clever people from tricking everyone else.

Matt Levine, as always, put it so well in Money Stuff just yesterday:

…there are a lot of external constraints, constraints of laws and norms. If you find a flaw in a contract that says your counterparty has to pay you $50 million, she might say no. And you might go to court over it, and point to the language that says she has to pay you $50 million, and the judge might say “what, no, this is stupid, it can’t have meant that, get out of here.” The judge will refer to vague ideas — equity, the intent of the parties, the covenant of good faith and fair dealing — to reject your clever reading of the contract. And then you won’t get your $50 million. There is some amount of cleverness that is too clever.

…

At some very high level of generality, there are the explicit rules — the words of the contract, the mechanisms of the stock exchange, etc. — and then there is a background set of fairness norms. And if you find a way to make a ton of money with a too-clever reading of the explicit rules, the background fairness norms will kick into gear and you will get in trouble. Following the rules is good, but following the rules to absurd places is bad, perhaps a crime.

Now, this is all very bad for Chinmay, because vague and abstract principles like “the covenant of good faith” have corresponding equivalents in the interpretation of statues. But even those are really a thickly theorised veneer over “you are trying to be too smart by half, and the village elders disapprove of your precociousness.”

I remember being a first-year law student and being assigned a weirdly straightforward tax case at an internship. The client had challenged an income tax assessment and the case was pending before the Supreme Court. In the meanwhile, the income tax department had opened a new assessment about what was basically the same alleged tax-code violation.

I burnt the midnight oil, spent hours and hours poring over commentaries to try to find caselaw to the effect that you can’t sue someone twice for the same assessed income on new grounds when it’s basically under litigation. I was proud of the briefing note I drafted for the lawyer. Sadly, I couldn’t make it to the hearing, but I still remember the conversation that took place when he came back from court.

“So, how did it go?”

“We won, got the assessment quashed”

“On what grounds? I couldn’t find any caselaw really on this, and nothing the tax department did was like, prohibited by the text of the law.”

"Grounds? Caselaw? We didn’t get that far. I just explained that the tax department sued us twice for the same thing and Judge [Name] thought that was stupid."

This little exchange caused me to have a view quake - a clear nine on the Richter scale. My entire conception of lawyering had been turned on its head. I understood, immediately, and embarrassingly late, that there are practical evaluations in litigation, and that judges really are judges. Their fundamental function is resolving disputes, not theorising about texts. Lawyers have a side of them that is strategic, and strategy is a lot of what it means to be a good lawyer. And like good lawyers, judges should look beyond textual gymnastics. Instead, wisdom, justice, practicality, and a steady disposition are a lot of what it means to be a good judge.

As for Chinmay, which court he ends up in front of, what they think, and how they feel about cab aggregators and price controls is at least as important as the law in the statute book.

And anyway, who knows? He might get lucky and end up in front of a judge who has had trouble catching a cab in Bangalore.