An Interesting Line of Argument

Ramesh Ponnuru, frequent conservative talking head and a man whose views I tend to really respect, if often disagree with, takes on Elizabeth Warren and her supporters in a pair of articles from Bloomberg over the last few days.

He’s taking issue with a study that Warren has been using to support one of her latest talking points. Warren has been saying that the study (here) suggests that decisions of the Supreme Court of the United States have been trending pro-business, and that (again, citing the study) that the currently seated Supreme Court is the most pro-corporate one in fifty years.

Ponnuru’s rejection of these points rests on a number of rebuttals. Several have to do with methodology.

The first, perhaps least salient point, is that this study equally weights the cases studied. Because of this, extremely narrow rulings are placed alongside very broad ones; Ponnuru states this as “If a business suffers a momentous defeat in one case and wins a small victory in another, it’s treated as winning half the time.”

This is fine: it’s easy to see that winning a $10 case and losing a $2 million one is, on balance, a bad deal for a business. Still, I’m not sure that this matters over the course of fifty years. I don’t have access to all the data, but I’d guess that the law of averages would indicate that the cases don’t tend to fit this pattern. It could be problematic that they could, but many statisticians discount biases on the probability that pressures in either direction tend to be a wash. As an example, self-reporting errors tend to be discounted because about as many people rate themselves too high as too low. For the purposes of this study, a business could also win a $2 million case and lose a $10 one.

The second, bigger point is that the study discounts wide rulings that affect businesses but don’t include businesses among the parties in court. This is certainly a point that should be explored, but I think it matters less than Ponnuru thinks it does, because wide rulings are frequently mixed bags – they change the game in big ways, and thus can be interpreted in multiple ways. They aren’t necessarily good or bad 0 they just are. Of course, there could be clearly pro- or anti-business rulings that don’t involve business litigants, but I’m not sure that this point invalidates the studies.

The last point is that the study ignores contextual changes in the last fifty years. Ponnuru offers a couple of hypotheticals: when Warren states that the Chamber of Commerce is winning a greater percentage of its cases, she doesn’t provide all the information. Ponnuru notes that if the Chamber of Commerce is becoming more selective in the kinds of cases it takes on, then the percentage of won cases will certainly rise. (He doesn’t seem to have evidence that this is or is not actually the case, only that the study ignores the possibility.) He also points out that if anti-business laws had been piling up for years and the Chamber only was succeeding in blocking a percentage of new ones from taking effect, then its percentage would rise while the actual business climate would still be turning anti-business.

These are fine, as far as alternative interpretations of the data go. They raise appropriate questions. But Ponnuru goes further: he stops just at the cusp of stating that alternate interpretations of data make data meaningless. (He does actually say that these alternate interpretations make this particular study meaningless.)

In effect, Ponnuru is arguing against the very act of studying changes over time, because contexts can change. Of course, studying data over time helps us see the changing contexts, which is part of the reason why we do it. If we could just throw out data because it might mean different things, then almost all studies would be meaningless. Today’s jobs data couldn’t be compared to last year’s . Changing contexts, you see.

Data have gaps, sure. Numbers can be used to support two different strains of cause-and-effect. But it’s very misleading to reject a study because of changing contexts – instead, it’s better to ask why data change over time. Presumably, it has its root in those changing context.

Ponnuru would be better served by merely saying: Look, we don’t know what these numbers say. They seem to point one way – toward pro-corporate policy – but could under these perfectly reasonable contexts say the opposite. We need more study to determine what contexts are changing.

As far as his comments on corporate backgrounds, well: I’ve got nothing to say there, except that it might matter a little if you’re driven by profit motive or not, even when private practices regularly take on non-corporate clients or do pro-bono work.


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