Tag Archives: Law

Thomas More on How to Corrupt Law

From More’s famous book Utopia, a description of three standard ways to corrupt the law:

“But what, if I should sort with another kind of ministers, whose chief contrivances and consultations were by what art the prince’s treasures might be increased? …

A third offers some old musty laws that have been antiquated by a long disuse (and which, as they had been forgotten by all the subjects, so they had also been broken by them), and proposes the levying the penalties of these laws, that, as it would bring in a vast treasure, so there might be a very good pretence for it, since it would look like the executing a law and the doing of justice.

A fourth proposes the prohibiting of many things under severe penalties, especially such as were against the interest of the people, and then the dispensing with these prohibitions, upon great compositions, to those who might find their advantage in breaking them. This would serve two ends, both of them acceptable to many; for as those whose avarice led them to transgress would be severely fined, so the selling licences dear would look as if a prince were tender of his people, and would not easily, or at low rates, dispense with anything that might be against the public good.

Another proposes that the judges must be made sure, that they may declare always in favour of the prerogative; that they must be often sent for to court, that the king may hear them argue those points in which he is concerned; since, how unjust soever any of his pretensions may be, yet still some one or other of them, either out of contradiction to others, or the pride of singularity, or to make their court, would find out some pretence or other to give the king a fair colour to carry the point. For if the judges but differ in opinion, the clearest thing in the world is made by that means disputable, and truth being once brought in question, the king may then take advantage to expound the law for his own profit; while the judges that stand out will be brought over, either through fear or modesty; and they being thus gained, all of them may be sent to the Bench to give sentence boldly as the king would have it; for fair pretences will never be wanting when sentence is to be given in the prince’s favour. It will either be said that equity lies of his side, or some words in the law will be found sounding that way, or some forced sense will be put on them; and, when all other things fail, the king’s undoubted prerogative will be pretended, as that which is above all law, and to which a religious judge ought to have a special regard.

Thus all consent to that maxim of Crassus, that a prince cannot have treasure enough.

That is, you can gain more fine revenue by newly enforcing old long-ignored laws, by adding many more laws to prohibit more things, and by using discretion to let people pay you to excuse them in particular cases. Also, the more than you can get judges to be selected from, trained in, and socialize within social world that you dominate, the more you can get judges to rule in our favored directions.

Our law seems to have been corrupted in all these ways, among others.

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On Our Own

I didn’t expect this result, and it seems so terribly sad. Perhaps the saddest thing I have ever heard.

While other animals have feelings on fairness, and inclinations to retaliate against unfairness done directly to them, as far as I know only humans having norms requiring generic third parties help fix such complaints. So while other animals assume that they will only get as much justice as they (and their immediate allies) can force the world to give them, we humans are led to see our larger society as responsible for creating a justice world around us, and even led to expect that it will in fact typically provide such justice.

It must then be a crushing blow to realize that this is just not so. Even for pretty big injustices, most all of us see ourselves as better off to just suffer them, instead of publicly complaining about them, the vast majority of the time. Our larger societies do not in fact provide much justice; the justice we get is in fact mostly whatever we (and our immediate allies) can force the world to give us. In terms of justice, human societies today only produce a minor correction to the basic animal situation. That is, we are on our own. Our friends and family may help, but the rest of the world will not.

Oh, some of us probably do mostly get justice from the world. The rich, the pretty, the popular, the well-connected. When they complain, enough people care, and actually do something. For them, maybe it makes sense to complain about most big injustices. But not for the vast majority of us.

Was it ever any different in human history? I suspect not, alas. Maybe, someday in the future, the human thirst for justice will lead us to create societies that actually do stop most injustice, so that people who are are treated unjustly will usually think it worth their bother to publicly complain. So that such injustices are stopped. That is, someday, we may find a way to slake our thirst for justice. But so far, we remain incurably thirsty. That is the human condition.

Added 9a 12June: Some claimed that my poll wording was oft misinterpreted, and some claimed that restricting to “bothers you a lot” did not sufficiently distinguish minor from major injustices. So I did three more polls like the above, reworded a bit to avoid the misinterpretation, and distinguishing three levels of injustice: would have paid <$100, $100-10K, and >$10K to avoid them.

Looking at median of lognormal fits to % of cases where complaining is a net win, I find 7.1% for “bothers you a lot”, 1.9% for <$100, 4.1% for $100-$10K, and 7.7% for >$10K injustices. Thus the threshold for “bothers you a lot” seems to be near $10K, and while we do find it in our interest to complain more often for larger injustices, cases where complaining wins remain rare exceptions even for large injustices. Even then, we are mostly on our own.

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Philosopher Kings in Blue?

When things go wrong in our lives, we are often tempted to invoke governments to fix them. So we add more systems wherein governments do things, and we make more laws to influence what other people do. However, in the messy process of translating our general purposes into particular system and rules, we often allow various groups to control important details, and turn them more to their purposes. We also get random outcomes due to randomness in which political factions happen have more control when we turn our attention to changing each particular system or rule. In addition, we often leave out details because we are hypocritical, and unwilling to fully admit our real purposes. For example, we often want to appear to oppose things more than we do, like say drug use, prostitution, or adultery.

The net effect of these many messy processes is that our government systems and rules are poorly integrated, clumsy, and vague. We don’t bother to work out many details, and we don’t decide how to make key tradeoffs between different systems and rules. For such elaboration, the public and their politicians often punt to judges and government agencies. And for details where agencies don’t set policies, they punt to individual civil servants.

To influence these agencies and their civil servants, we set bosses who can give them orders, and perhaps promote or fire them. Bosses who have other bosses all the way up to the politicians we elect. But we are afraid of new politicians taking too much hidden control over these agencies, say by firing everyone and hiring all their friends. So we often limit politicians’ powers to direct and fire civil servants. This gives agencies and civil servants more discretion, to do what they choose.

Of course in any one social equilibrium, an individual civil servant may not feel they have great discretion. But that doesn’t contradict the claim that collectively they have a lot. That is, there can be many possible government equilibria consistent with the overall government rules and larger political and social worlds. Some of this government discretion may be captured by the schools and other systems that train people to become civil servants.

To enforce rules on both civil servants, and on ordinary people, we threaten to punish people for violating rules. The civil servants we put in charge of this enforcement process are “police” (in which I include prosecutors, judges, and other civil servants with rule-enforcing discretion). And to help police in these roles, we give them various budgets and powers.

The above description so far is pretty generic, applying nearly as well to a quite minimal state as to a strong “police state”, wherein police have strong powers to punish most anyone they choose. Where any one state sits on this spectrum is determined by many factors, including (1) police monetary budgets, (2) police direct powers to invade spaces, demand info, etc., (3) police negotiating powers regarding court proceedings, and (4) the frequency and severity of rules that people frequently violate.

While once upon a time (say two centuries ago) the U.S. system looked more like a minimal state, today it looks more like a police state. Maybe not as bad a police state as the old Soviet Union, but still, a police state. This transformation is detailed in William Stuntz’ excellent book The Collapse of American Criminal Justice. Some key changes:

  1. We’ve added a lot more laws, so many that we don’t understand most, and regularly violate many.
  2. We’ve cut the use of juries and also many legal defenses, which previously helped evade guilty verdicts.
  3. Rise of big cities means county-set laws are set by folks different from those suffer, cause most crime.
  4. States, who set prison budgets but don’t control conviction rates, greatly increased prison budgets.
  5. Legal trial complexity & cost has risen greatly, and is now beyond what most can afford.
  6. Plea bargaining is now allowed, which strongly pushes people to plead guilty, even when they aren’t.
  7. The new doctrine of qualified immunity protects government officials from many lawsuits.
  8. Most complaints about police have long been investigated by the same agency that employs them.
  9. The rise in civil servant unions, especially police unions.
  10. Surveillance, tracking, and info collection has in many ways become much cheaper.

(Some of these changes resulted from courts seeking to encourage big moral movements, such as those against slavery, alcohol, drugs, prostitution, polygamy, and gambling.)

The net effect of all this is that police can, if they so choose, target most anyone for punishment. That is, for most any target, police can relatively cheaply find a rule the target violated, pressure others to testify against the target, and then finally pressure the target to plead guilty. And police collectively have a lot of discretion in how they use this power. (The rich and politically well-connected may of course be able to discourage such use of power against themselves.)

Of course, the fact that police are powerful hardly implies that they use such powers badly. It remains quite possible that, like the proverbial super-hero, they use their super-powers for good. Many people have long claimed that the best form of government is one run by good-hearted but unconstrained philosopher kings.

This is the context in which I’d like you to consider current complaints about police mistreatment of detainees. Police must make difficult and context-dependent tradeoffs between how carefully to avoid hurting detainees, and how aggressively to discourage them from defiance or escape.

These are the sort of areas where, in our system, local civil servants and their agencies have great discretion, and where the basic nature of our government and legal systems makes it hard to pull back such discretion. I’m not saying that nothing can be done; things can and should be done. But I’m pretty sure that the sort of modest changes being now considered (more training, more record keeping, “requiring” body cams, etc.) can’t greatly change what is in essence a police state. (In contrast, changing to a bounty system might do a lot more.)

Look, imagine that while interacting with police you started to insult them and call them terrible ugly names. In many places, this is probably perfectly legal. However, you’d be rightly reluctant to do this, as you’d know they have a many ways to retaliate. If their local people and culture are inclined to retaliate, and to build a “blue wall of silence” around it, there is little most people can do to protect themselves.

This is why you can’t really count on laws that say you have the right to film police, etc. We basically live in a police state, and in such a state its hard for mere rules to greatly change police behavior. We may well be gaining some benefits from such a police state, but being able to exert detailed control over police and how they use their great discretion is just not one of them.

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Max Policing Is Disproportionate

NYT: Minneapolis Police Use Force Against Black People at 7 Times the Rate of Whites … most use of force happens in areas where more black people live. Although crime rates are higher in those areas, black people are also subject to police force more often than white people in some mostly white and wealthy neighborhoods, though the total number of episodes in those areas is small. (More)

Star Slate Codex: When restricted to index crimes, dozens of individual-level studies have shown that a simple direct influence of race on pretrial release, plea bargaining, conviction, sentence length, and the death penalty among adults is small to nonexistent once legally relevant variables (e.g. prior record) are controlled.

in 62% of studies, police are not searching blacks disproportionately to the amount of crimes committed or presumed “indicators of suspiciousness”. In 38% of studies, they are. … there are two possible hypotheses here: either police are biased, or black people actually commit these crimes at higher rates than other groups. The second hypothesis has been strongly supported by crime victimization surveys,

Blacks appear to be arrested for drug use at a rate four times that of whites. Adjusting for known confounds reduces their rate to twice that of whites. However, other theorized confounders could mean that the real relative risk is anywhere between two and parity. … the people shot by police are less black than the people shooting police or the violent shooters police are presumably worried about. … 24% of blacks charged with drug dealing are acquitted, compared to only 14% of whites. … There seems to be a strong racial bias in capital punishment and a moderate racial bias in sentence length and decision to jail. (More)

The race and policing literature usually asks if the relative rates of stopping, arrest, conviction, sentences, etc. are disproportionate to race, after controlling for relevant factors like crime rates. I know this not just from the above Star Slate Codex review, but also because I’ve supervised many related research papers while teach grad law & economics.

In that context, the NYT article is crazy biased, as it just reports raw race correlations without controlling for anything. Surely NYT crime reporters know better; they should have at least noted relative black/white crime rates in Minneapolis.

The point of my post here, however, is just to point out that we shouldn’t expect proportionate stops, arrests, etc. in the context of policing designed to max crime reduction.

Imagine you are a police charged with cutting crime in your area. Or more realistically, as you don’t control courts or prosecution, you seek to max the number of crimes you charge that are convicted, weighted by their severity (perhaps proxied by sentence severity). Given this goal, you survey a world of possible and reported crimes, and for each one you estimate the chances that a crime happened there, and if so your chance of finding enough evidence to achieve a conviction. In such a situation, your efforts are often disproportionate.

For example, consider two possible murders, one with 10 and the other with 100 plausible suspects. If you put more effort into investigating that first murder, then each suspect there will get a disproportionate fraction of your attention, relative to their chance of guilt.

As another example, imagine a stream of cars passes you, and you pick which of them to stop. You put each car into a class with which you associate a prior rate of success in finding evidence of crime, weighted by crime importance. As you have limited time, you will limit yourself to stopping the car classes with the highest prior rate of success. This can result in a disproportionate relation between the rate of crime and stopping.

Policing that maxes crime detection and prosecution will not in general effect all people, groups, and situations in linear proportion to their rate or chances of committing crimes, perhaps weighted by severity. It will instead focus on the people, groups, and situations with the very highest rates of crime, and lowest costs of finding and collecting sufficient evidence of those crimes. And often that will produce rates of arrest, etc. that are disproportionate to crime rates.

We do know of one situation where maximizing police effort is proportionate to crime rates: when the chance to find sufficient evidence of crime uncovered goes as the logarithm of police effort re each possible crime. This is when every time you double your effort into a possible crime, say putting in two hours instead of one, you increase your chance of finding sufficient evidence on that crime by the same small amount (say 0.1%).

But while there may be situations where this applies, logarithmic dependence hardly seems a general feature of policing. For example, we we know that it fails at the high end, as the chance of conviction can’t exceed 100%. And it fails at the low end when there are fixed costs to start any investigation whatsoever.

We thus expect disproportionate crime-fighting efforts aimed at groups with higher crime rates, and especially at groups with the highest crime rates for identifiable subgroups. The variance, not just the average, matters a lot; the high tails of these distributions should dominate.

People who are poor, unskilled, and impulsive, and who mix more closely with other such folks, are likely to put in less effort, end less expertise, into hiding their crimes. As a result, police effort is likely to detect such crimes more easily. So police who are tasked with finding crimes are likely to focus their efforts more on these people. If you think that is a problem, an obvious solution would be to prioritize policing of the rich, skilled, and self-controlled. If police seek to max fines or sentence severity, why then increase the fines or sentences of such convictions.

But before you do that, ask yourself honestly: are the crimes of the rich actually more socially harmful? It makes more sense to me to just make punishments proportional to our best estimates of their social harm, regardless of who does the crime. And it makes sense to have punishments compensate for lower probabilities of conviction, to maintain the same expected punishment for someone who commits a crime.

But otherwise, if the poor are actually causing more harm, or making it easier to catch their crimes, well it makes sense to me to pursue those crimes more. Even disproportionately.

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2 Lockdown Cost-Benefit Analyses

Back on Mar. 21 I complained that I hadn’t seen any cost-benefit analyses of the lockdown policies that had just been applied where I live. Some have been posted since, but I’ve finally bothered to make my own. Here are two.

ANALYSIS #1: One the one side are costs of economic disruption. Let us estimate that a typical strong lockdown cuts ~1/3 of income of econ/social value gained per unit time. (It would be more due to harm from time needed to recover afterward, and to due to for stress and mental health harms.) If one adds 9 weeks of lockdown, perhaps on and off spread out over a longer period, that’s a total of 3 week’s income lost.

On the other side are losses due to infection. I estimate an average infection fatality rate (IFR) of 0.5%, and half as much additional harm to those who don’t die, due to other infection harms. (E.g., 3% have severe symptoms, and 40% of those get 20% disabled.) I estimate that eventually half would get infected, and assume the recovered are immune. Because most victims are old, the average number of life years lost seems to be about 12. But time discounting, quality-of-life adjustment, and the fact that they are poorer, sicker, and wouldn’t live as long as others their age, together arguably cuts that figure by 1/3. And a standard health-econ estimate is that a life-year is worth about twice annual income. Multiply these together and you get an expected loss of 3 week’s income..

As these equal the same amount, it seems a convenient reference point for analysis. Thus, if we believed these estimates, we should be indifferent between doing nothing and a policy of spending 9 added weeks of lockdown (beyond the perhaps 4-8 weeks that might happen without government rules) to prevent all deaths, perhaps because a vaccine would come by then. Or, if death rates would actually be double this estimate due to an overloaded medical system, we should be indifferent between doing nothing and spending 9 added weeks of lockdown to avoid that overloading. Or we should be indifferent between doing nothing and 4 added weeks of lockdown which somehow cuts the above estimated death rate in half.

Unfortunately, the usual “aspirational” estimate for a time till vaccine is far longer, or over 18 months. And a doubling of death rates seems a high estimate for medical system overload effects, perhaps valid sometimes but not usually. It seems hard to use that to argue for longer lockdown periods when medical systems are not nearly overwhelmed. Especially in places like the US with far more medical capacity.

During the 1918 flu epidemic, duration variations around the typical one month lockdown had no noticeable effect on overall deaths. In the US lately we’ve also so far seen no correlation between earlier lockdowns and deaths. And people consistently overestimate the value of medical treatment. Also, as death rates for patients on the oft-celebrated ventilators is 85%, they can’t cut deaths by more than 15%.

We’ve had about 6 weeks of lockdown so far where I live. A short added lockdown seems likely to just delay deaths by a few months, not to cut them much, while a long one seems likely to do more damage than could possibly be saved by cutting deaths.

Of course you don’t have to agree with my reference estimates above. But ask yourself how you’d change them, and what indifferences your new estimates imply. Yes, there are places in the world that seem to have done the right sort of lockdown early enough in the process to get big gains, at least so far. But if your place didn’t start that early nor is doing that right sort of lockdown, can you really expect similar benefits now?

ANALYSIS #2: Consider the related question: how much should we pay to prevent crime?

Assume a simple power-law (= constant elasticity) relation between the cost H of the harm resulting directly from the crimes committed, and the cost P of efforts to prevent crime:

H = k*Pa,  or  dln/ dlnP = –a ,

where a is the (positive) elasticity of harm H with respect to prevention P. To minimize total loss L = H + P, you set P = (k*a)1/(1+a), at which point we have a nice simple expression for the cost ratio, namely P/H = a.

So, when you do it right, the more effective is prevention at stopping harm, then the larger is the fraction of total loss due to prevention. If 1% more prevention effort cuts 1% of crime, you should lose about the same amounts from harm and prevention. If 1% more prevention cuts 2% of crime, then you should lose twice as much in prevention as you do in harm. And if it takes 2% more prevention effort to cut 1% of crime, you should lose about twice as much in harm as you do in prevention.

This model roughly fits two facts about US crime spending: the elasticity is less than one, and most loss comes from the crimes themselves, rather than prevention efforts. Typical estimates of elasticity are around 0.3 (ranging 0.1-0.7). US governments spend $280B a year on police, courts, and jails, and private security spends <$34B. Estimates of the total costs of crime range $690-3410B.

Now consider Covid19 prevention efforts. In this poll respondents said 3.44 to 1 that more harm will come from econ disruption than from direct health harms. And in this poll, 56% say that more than twice the loss will come from econ disruption. For that to be optimal in this constant elasticity model, a 10% increase in lockdown, say adding 12 days to a 4 month lockdown, must cut total eventual deaths (and other illness harm) by over 20%. That seems very hard to achieve, and in this poll 42% said they expect us to see too much econ disruption, while only 29% thought we’d see too little.

(More on Analysis #2 in the next post.)

In this post I’ve outlined two simple analyses of lockdown tradeoffs. Both suggest that we are at serious risk of doing too much lockdown.

10am: On reflection, I changed my estimate of the lockdown from 25% to 27% of income, and my estimate of non-death harm from as-much-as to half-as-much-as the death harm. So my reference added shutdown duration is now 4 months instead of 6.

12pm: Even if recovery gave immunity for only a limited period, then as long as you were considering lockdown durations less than that period, the above calculation still applies, but now it applies to each such period. For example, if immunity only lasts a year, then these are annual costs, not eventual costs. And that’s only if infection chances are independent each period. If, more likely, it is the same people who at more at risk each year, then in later years gains from lockdowns decline.

29Apr, 3am: We are now at 73 comments, and so far all of them are about analysis #1, and none about analysis #2. Also, tweet on #1 got 18 retweets, tweet on #2 got none.

29Apr, 1pm: In two more polls. over half estimate a 10% increase in lockdown duration gives <5% decrease in deaths, for both world and US. Instead of the >20% that would be required to justify allowing twice the damage of lockdowns as health harms.

28May:  I’ve updated the numbers a bit.

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Vouch For Pandemic Passports

Car pollution is an externality. Via pollution, the behavior of some hurts others, an effect that injurers may not take into account unless encouraged to by norm, contract, liability, or regulation. However, as the pollution from one vehicle mixes with that from many others, liability is poorly suited to discourage this; it is too hard to identify which cars hurt you, and there are too many of them. It seems to work better use regulations regarding car design and maintenance to limit the pollution emitted per mile driven, and to tax those miles driven.

Assault is also an externality; you can hurt someone by punching them. But in contrast to pollution, regulation is poorly suited to assault. We could require everyone to wear boxing globes and headgear, and we might ban insults and alcohol consumption, or perhaps even all socializing. But such regulations would go too far in restricting useful behavior. It works better to just hold liable those who punch others, via tort or criminal law. Yes, to discourage assault in this way, we must hold (or at least threaten to hold) expensive trials for each assault. But that still seems far cheaper than regulatory solutions.

These two examples illustrate a well-known tradeoff in choosing between (strict) liability and regulation. On the one hand, making people pay damages when they hurt others encourages them to take such harms into account, while also letting their behavior flexibly adapt to other context. On the other hand, regulation lets us avoid expensive court trials that require victims to prove who hurt who when where and how much. Though regulation induces more uniform behavior that is less well adapted to circumstances, it works acceptably well in many cases, like auto pollution, even if less well in others, like assault. (The mixed solution of negligence liability is discussed below.)

In our current pandemic, the main externality is infection, whereby one person exposes another to the virus. Conventional public health wisdom says to discourage infection via regulation: tell everyone when to get tested and isolated, and make them tell you who they met when and where. Tell them who can leave home when and for what reasons, and what they must wear out there. However, as we are all now experiencing first hand, not only are such changes to our usual behaviors quite expensive, such rules can also induce far from optimal behavior.

Recent pandemic rules have banned bike riding, but not cars or long walks. You can take only one exercise trip per day, but there’s no limit on how long. Members of a big home can all meet in their yard together, but members of two small adjacent homes may not meet in one of their yards. You can’t go meet distant friends, even if they only ever meet you. All parks are closed regardless of how densely people would be in there. The same rules were set in dense cities and in sparse rural areas. Alcohol store workers are deemed critical, even though alcohol can be mailed, but not auto repair, which cannot be mailed. Six feet is declared the safe distance, regardless of how long we stay near, if we wear masks, if we are outdoors, or which way the air is moving. Workplaces are closed regardless of the number of workers, how closely they interact, or how many other contacts each of them have. The same rules apply to all regardless of age or other illness. You may have to wear a mask, but it doesn’t have to be a good one.

Imagine that we instead used legal (strict) liability to make as many of us as possible expect to suffer personally and directly from infecting others, and to suffer more-so the worse their symptoms. In this scenario, such people would try to take all these factors and more into account in choosing their actions. For actions that risk infecting others, they would consider not only on how important such acts are to them, but also on how likely they are personally to be infected now, how vulnerable each other person they come near might be to suffering from an infection, how vigorously their activity moves the air near them, where such air currents are likely to go, how well different kinds of masks hinder infected air, and so on. If allowed, they might even choose variolation.

Of course, for the purpose of protecting ourselves from getting infected by others, we already have substantial incentives to attend to such factors. The problem is that simple regulations don’t give us good incentives to attend to these factors for the purpose of preventing us from infecting others. With regulations, we have incentives to follow the letter of the law, but not its spirit. So we don’t do enough in some ways, and yet do too much in others. But if liability could make us care about infecting others as well as ourselves, then it might simultaneously reduce both infections and the economic and social disruptions caused by lockdowns. With strong and clear enough liability incentives, we wouldn’t need regulations; we could just let people choose when and how to work, shop, travel, etc.

But is it feasible to use liability to discourage infections? Yes, if we can satisfy two conditions: (1) most people are actually able to pay for damages if they are successfully sued for infecting others, and (2) enough of those who infect others are actually and successfully sued, and so made to pay.

On the first condition, ensuring that people can pay damages if they are found guilty, it is sufficient to require people who mix with others to buy infection liability insurance, similar to how we now require car drivers to get accident liability insurance. That is, to get a “pandemic passport” to excuse you from a strong lockdown, you must get an insurance company to guarantee that you will pay damages if you are shown to have infected someone. In a sense they “vouch” for you, and so are your “voucher”. The more types of voucher-client contract terms we are willing to enforce, the more levers vouchers gain to reduce risks.

The premiums for such insurance will be low if you can convince a voucher that you have already recovered from the virus, and so are relatively immune, or that you will leave your lockdown only rarely, to safe destinations. Otherwise, a voucher may require you to install an app on your phone to track your movements, or they may spot check your claims that you have sufficient supply of good masks that you use reliably when you leave home.

Okay, but what about the second condition, that enough infectors are actually made to pay? For this we need enough data to be collected on both sides, the infector and the infected, so that one can frequently enough match the two, to conclude that this person likely infected that one at this location at this time.

Now, we don’t need to be always absolutely sure of who infected who. In ordinary civil trials, the standard is a “preponderance of the evidence”; courts need only be 51% or more sure to convict the defendant. And sometimes we add on extra “punitive” damages, up to four ties as large as basic damages, often to compensate for a lower chance of catching offenders. So if we can find evidence to convince a court at the 51% or better standard for only one fifth of offenders, but we can add four times punitive damages, then offenders who do not know if they will be caught still expect to on average to pay near the basic damage amount.

Okay, but we still need to collect enough info to see who infected who at least one fifth of the time. Is this feasible? Well it is clearly quite feasible early in a pandemic, when few have been infected. Early on, if the times and places, i.e., space-time path, consistent with you being infected then and there overlap with the space-time path when someone else was likely infectious, then it was most likely their fault. This is the “contact trace” process usually recommended by public health workers early in a pandemic.

The problem gets harder later in a pandemic, when your infected path may overlap with the infectious paths of many others. Here it might be possible to use info on which virus strain you and they had to narrow the field. But even so there may still be several consistent candidates. In this case it seems reasonable to divide the liability over all of them, perhaps in proportion to the size of the path overlap. For the purpose of creating incentives to avoid infecting others, it isn’t that important to know later who exactly infected who when.

But yes, we still need info on who was infected and infectious where and when, perhaps supplemented by data on who had what virus strains. How can we get this info? People who might get infected have incentives to collect info on their path, to help them sue if infected. But people who might infect others would seem to want to erase such info, to keep them from being sued. I’ve recently outlined a more general approach to induce the collection of info sufficiently likely to be useful in later lawsuits. But for this essay, I’ll just propose that collecting key info be another condition required to get a pandemic passport, with violations punished by fines also guaranteed by your voucher.

Let me also note that yes, legal liability doesn’t work to discourage harms if typical harms get so small that people wouldn’t bother to sue to recover damages. In this case we could use a random lottery approach to dramatically lower the average cost of suing.

So let’s put this all together. You must stay at home, locked down, unless you get a “pandemic passport”, in which case you can go where you want when, to meet anyone. To get such a passport, you must get someone to vouch for you. They guarantee that you will pay should someone successfully sue you for infecting them, if you agree to their terms of premiums, behavior, monitoring, punishment, and co-liability. Defendants who pay damages may have to pay extra, to compensate for most infectors not getting caught in this way. When several infector candidates are consistent with the data, they can divide the damages. And for low damage levels, a random lottery approach can lower court costs.

To get and keep a passport, your voucher also guarantees that you will collect info that can help others to show that you infected them, but which can also help you to sue others if they infect you, and win you bounties via showing that others did not collect required info. For example, perhaps you must track your movements in space and time, regularly record some symptoms like body temperature, and also save regular spit samples. This info is available to be subpoenaed by those who can show sufficient reason to suspect that you infected them. Such info seems sufficient to catch enough infectors.

And by catching a sufficient fraction of infectors who then actually pay on average for the harms that they cause by infecting, (strict) legal liability can give sufficient incentives to individuals to avoid infecting others. If so, we don’t need crude lockdown regulations telling people what to do when and how; individuals can instead more flexibly adapt to details of their context in deciding when and where to work, shop, travel etc. Yes, voucher rules would not let them do such things as freely as they would in the absence of a pandemic. But behavior would be more free and impose lower economic costs than under crude regulations which similarly suppress the pandemic spread.

Note that today the most common form of legal liability is actually negligence, which we can see as a mixed form between simple regulation and simple strict liability. With negligence, the court judges if your behavior has been consistent with good behavior standards, which are essentially behavior regulations. But you are only punished for violating these regulations in situations where your behavior contributed to the harm of a particular person. Today courts tend to limit strict liability to cases where courts find it hard to define or observe good behavior details, such as using explosives, keeping a pet tiger, or making complex product design choices. As courts find it harder to define and observe good behavior in a new pandemic, strict liability seems better suited to this case.

Note also that none of this requires employers to be liable for their infected employees. Someone who is sued for infecting others may turn around and blame their employer for pushing them into situations that cause them to infect others. Employer-employee contract could usefully address such issues.

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Why Does Govt Do Stuff?

Looking across the many different activities and sectors of society, how well can we predict where governments get more vs. less involved?

Though this is an oft discussed topic, I can’t recall seeing an overall theory summary. So I thought I’d write one up. Here are some big relevant factors, and areas they may explain. Most are tentative; you may well convince me to move/change/add them.

Control – Whomever runs the government prefers to control areas that can be used to prevent and resist opposition and rivals.
Predicts more: religion, military, police, law, news, schools, disaster response, electricity, energy, banking.

Scale – If supplying a product or service has strong economies of scale, network, or coordination, it can be cheaper to use one integrated organization, who if private may demand excessive prices and thereby threaten control.
Predicts more: military, “roads” (including air, boat travel support), social media, money, language, electricity, telecom, water, sewer, trash, parks, fire, software, fashion, prestige
Predicts less: housing, food, medicine, art, entertainment, news, police, jail.

Innovation – As governments seem less able to encourage or accommodate effective innovation, governments tend to be less involved in rapidly evolving sectors.
Predicts more: roads, water, sewer, track, parks.
Predicts less: military hardware, vehicles, tech/computers, entertainment, social networks.

Variety – Governments tend to encourage and be better at relatively standardized products and services, done with fewer versions, more the same for everyone everywhere at all times.
Predicts more: war, medicine, schools, disaster response, roads.
Predicts less: housing, food, entertainment, romance, parenting, friendship, humor.

Norms – Norms are shared, and we like to enforce them together, officially.
Predicts more: religion, law, war, romance, parenting, medicine, drugs, gambling, slavery, language, manners, sports.

Show Unity – As we want to show that we are together, and care about each other, we like to do the things we to do to show such care together in a unified way.
Predicts more: religion, poverty/unemployment/health insurance, school, medicine, fire, parks, housing, food, disaster response, trash/sewer, coverage expansion subsidies.

Show Off – We want to impress outsiders with our tastes, abilities.
Predicts more: research, schools, high art, high sport, roads, parks, shared space architecture, trash/sewer.
Predicts less: low art/entertainment, low sport, gossip.

Hypocrisy – When we profess some motives, but others are stronger, the opacity and slack of government agencies, and better ability to suppress critiques, makes them better able to hide such differences.
Predicts more: medicine, drugs, gambling, schools, police, jail, courts, romance, zoning, building codes, war, banking.
Predicts less: water, sewers, electricity.

If we could collect even crude stats on how often or far govt is involved in each area, and crudely rate each area-factor combo for how strongly that factor applies to that area, we could do a more formal analysis of which of factors predict better where.

Note that scale is the strongest factor suggesting that govt does more when more govt helps more. Innovation and variety suggest that also when those factors are the cause of govt involvement, but much less so if those features are the result. While norms are on average valuable, it is much less clear when govt support improves them. Most signaling likely helps each society that does it, but is done too much for the good of the world overall.

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Subpoena Futures

A subpoena … is a writ issued by a government agency, most often a court, to compel testimony by a witness or production of evidence under a penalty for failure. … party being subpoenaed has the right to object to the issuance of the subpoena, if it is for an improper purpose, such as subpoenaing records that have no relevance to the proceedings, or subpoenaing persons who would have no evidence to present, or subpoenaing records or testimony that is confidential or privileged. (More)

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. (More)

Exceptions are quite limited: self-incrimination, illegally-obtained info, and privileges of spouses, priests, doctors, diplomats, and lawyers. The remarkable fact is that the law has little general respect for privacy. Unless you can invoke one of these specific privileges, you must publicly report to the court any info that it thinks sufficiently relevant to a current court case. You simply have no general right to or expectation of privacy re stuff a court wants to know. Courts don’t even compensate you for your costs to collect evidence or appear to testify.

And yet. Consider what I wrote March 5:

The straightforward legal remedy for [pandemic] externalities is to let people sue others for infecting them. In the past this remedy has seemed inadequate for two reasons:

1. It has often been expensive and hard to learn and prove who infected who, and
2. … most folks just can’t pay large legal debts.
The vouching system directly solves (2), … And the key to (1) is ensuring that the right info is collected and saved.

First, consider some new rules that would limit people’s freedoms in some ways. Imagine people were required to keep an RFID tag (or visible QR code) on their person when not at home, and also to save a sample of their spit or skin once a week? Then phones could remember a history of the tags of people near that phone, and lawsuits could subpoena to get surveillance records of possible infection events, and to see if spit/skin samples on nearby dates contain a particular pathogen, and its genetic code if present. We might also adopt a gambled lawsuit system to make it easier to sue for small harms. (More)

Here, to help law deal with pandemics, I was tempted to propose specific rules re info that people must collect and preserve. Yet if courts can get any info they think relevant, why is there ever a problem with courts lacking info to deal with key harms, such as pandemic infection?

The answer is that current law allows a huge exception to its subpoena power. Courts can force you to reveal info that you have already collected, on paper, a computer, in your head, or in your physical objects. But you usually have no obligation to collect and save info now that the court might want later. As a result, many people and orgs go out of their way to not save incriminating info. For example, firms do key discussions verbally, not recorded, rather than via email. Thus you have no obligation to save spit samples or detailed records of where your phone goes, to help with future pandemic infection lawsuits.

This seems a huge and inconsistent loophole. I could understand if the law wanted to respect a more general right to privacy. Then the court might weigh the value of some info in helping court cases against the social harm from forcing its publication via a subpoena. As a result, it might sometimes block a subpoena even when the info collected would be relevant to a court case.

But I can’t see a reason to eagerly insist on access to info that seems relevant to a court case, and yet put no effort into inducing people to collect and preserve such info beforehand. So I propose that we create a legal process by which legal judgements are made on, if collected and saved, how likely some info would be to be subpoenaed, and how valuable it would be in that case.

When info would be valuable enough if collected and saved, then the court should require this. I don’t have a strong opinion on who exactly should bring a suit asking that such info be saved, or who should represent the many who would have to save that info. But one obvious system that occurs to me is to just have courts usually make ex post estimates of info value by the end of each court case, and then use “subpoena futures” prediction markets to make an estimate of that value ahead of time. (And make it legal and cheap to start such markets.)

So, if a subpoena futures market on a type of info estimates its expected court value to be above a standard threshold, then by law that info must be collected and saved. These prediction markets needn’t be huge in number, if they could estimate the average value of such info collect over a large group, which would then justify requiring that entire group collect the info. Such as everyone in an area who might infect others with a pandemic. If some subgroup wanted to claim that such info wasn’t less valuable regarding them, and so they should be excused, why they’d have to create different prediction markets to justify their different estimates.

For example, when a pandemic appears, if those who might infect others are likely vouched, then those who might be infected would want to require that first group to collect and save info that could be used later to prove who infected who. So they’d create prediction markets on the likely court value of spit samples and phone location records, and use market estimates to get courts to require the collection of that info.

Compared to my prior suggestion of just having the law directly require that such info be collected, this subpoena futures approach seems more flexible and general. What other harms that we do each other could be better addressed by lawsuits if we could require that relevant info be collected and saved?

(Btw, courts need not estimate info value in money terms. They might instead express the value of each piece of info in terms of its multiple of a “min info unit”, i.e., the value of info where they’d be just on the border of allowing it to be subpoenaed for a particular case.)

Added 7a: As mentioned in this comment, we now have this related legal concept:

Spoliation of evidence is the intentional, reckless, or negligent withholding, hiding, altering, fabricating, or destroying of evidence relevant to a legal proceeding …The spoliation inference is a negative evidentiary inference that a finder of fact can draw from a party’s destruction of a document or thing that is relevant to an ongoing or reasonably foreseeable civil or criminal proceeding.

My proposal can be seen as expanding this concept to allow a much weaker standard of “foreseeable”. And instead of allowing a presumption at trial, we just require the evidence to actually be collected.

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How Many Judges?

“Wow, that was sure a long slow legal process we just went through to get X punished for Y. Surely many such cases are never punished, because this process is just too hard.”

“I’ve heard that in some places it is much simpler and faster. If you have a complaint, you call over the local police officer, and he or she soon looks into it, and then makes a decision, usually that day. Fast and easy, no need for lawyers, courts, etc. Doesn’t that sound better?”

“No, that sounds terrible! What if that local police is corrupt, or biased, or stupid? Our checks and balances help correct for such problems.”

“Well in our system, after a slow expensive complex process, judges usually make the final decision. So what stops judges from being as corrupt, biased, or stupid as police?”

“Well there are a lot fewer judges than police, so we can focus our attention on a smaller number of them. For example, we can send in people undercover to try to bribe them, and arrest those who accept bribes.”

“But we almost never actually do that with judges. And we could also do that with police.”

“With judges we have an appeals system, where appeals judges fix other judges’ mistakes. And the process is public, so anyone can point to problems.”

“We could do an appeals system with police too – if there’s a complaint, call nearby police to see if they want to come make a quick appeals decision. And that process could be public.”

“We elect judges, or those who appoint them. That holds them accountable to citizens.”

“So why can’t we elect police, or those who appoint them?”

“Judges are more prestigious than police. They are picked for being the lawyers who are most respected by other lawyers.”

“Our actual police are also the most respected among people who apply to police academy.”

“Yeah but overall lawyers are more prestigious than police. They go to college, know big words, make more money.”

“And that makes them less corruptible or biased, and more just?”

“Well elites are more eager to conform, and are better able to conform, so either they will almost all be corrupt and biased or almost none will be.”

“Not sure I feel better about that. And aren’t they better at knowing how to tell when they can get away with things, so that they will be better at finding the loopholes where we are not checking, to be more corrupt and biased there? And doesn’t their conformity better help them coordinate to get away with stuff together?”

“Look, humans have long chosen to be ruled by prestigious elites, its our nature. So it must work somehow. We pick prestigious lawyers to run law, prestigious doctors to run medicine, and prestigious academics to run teaching and research. And those work well, right?”

“Okay, if it is better to be ruled by a smaller group of more prestigious people, making judges better than police, why isn’t it even better to be ruled by one most prestigious of all dictator? Who appoints and fires police or judges as they want?”

“No no, that’s terrible too! That’s too much concentration of power. This dictator could rule with impunity, because even if some of us know of his/her corruption or bias, we’ll be afraid to say so in public. He/she could crush us for our opposition.”

“But can’t judges crush us for opposing them?”

“No, that never happens. When have you ever heard of judges crushing opponents?”

“In a dictatorship, would you actually hear of the dictator crushing opponents?”

“I’m sure I would. And dictators don’t tend to be the most prestigious; they tend to be brutal thugs.”

“But won’t everyone say they are prestigious, out of fear of retaliation? And if it is better to spread out a dictator’s power, among many judges, why isn’t it even better to spread out that power among even more police?”

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Vouching Fights Pandemics

As I’ve pitched vouching as a general solution to both law and medicine, the looming coronavirus pandemic offers a good and challenging concrete test; how well could vouching handle that?

If you recall, under a law vouching system, each person is required to get a voucher who stands ready to cover them for any large legal liability, including fines as punishment for crimes. Under a medical vouching system, each person gets a voucher to pay for all their medical treatments, and also to pay large amounts to a third party when that person becomes disabled, in pain, or dead. Voucher-client contracts can specific physical punishments like torture or jail, co-liability with associates, and limits on freedoms, such as re travel, privacy, or risky behaviors. 

Regarding a looming pandemic, your voucher would know that it must pay for your medical treatment, your lost salary if you stop working, and large fines if you die or get hurt. So it would offer large premium discounts to gain powers to limit your travel and contacts, and to penetrate your privacy enough to see what contagion risks you might incur. And it would have good incentives to make risky medical choices expertly, such as if to try an experimental treatment, or to accept early deliberate exposure. 

When you live with others who you might infect, or who might infect you, you’d probably also be offered premium discounts to let the same voucher cover all of you together. But there would remain key externalities, i.e., risks of infecting or being infected by others who are not covered by the same voucher.

The straightforward legal remedy for such externalities is to let people sue others for infecting them. In the past this remedy has seemed inadequate for two reasons: 

  1. It has often been expensive and hard to learn and prove who infected who, and
  2. Ever since we stopped holding family members liable for each other, and selling debtors into slavery, most folks just can’t pay large legal debts.

The vouching system directly solves (2), as everyone has a voucher who can pay lots. And the key to (1) is ensuring that the right info is collected and saved.

First, consider some new rules that would limit people’s freedoms in some ways. Imagine people were required to keep an RFID tag (or visible QR code) on their person when not at home, and also to save a sample of their spit or skin once a week? Then phones could remember a history of the tags of people near that phone, and lawsuits could subpoena to get surveillance records of possible infection events, and to see if spit/skin samples on nearby dates contain a particular pathogen, and its genetic code if present. We might also adopt a gambled lawsuit system to make it easier to sue for small harms.

Together these changes could make it feasible to, when you discovered you had been infected, sue those who likely infected you. First, your voucher could collaborate with vouchers of others who were infected nearby in space and time, by a pathogen with a similar code. By combining their tag records and local surveillance records, this group of vouchers could collect a set of candidates of who might plausibly have infected you when and where. 

(Yes, collaboration gains from voucher groups might give vouchers more market power, but not too much, as this can work okay even when there are many competing voucher groups.)

You could then sue all these possible infectors via gambled lawsuits. For the winning lawsuits, your voucher could subpoena their split/skin to see if their pathogen codes match the code of the pathogen that infected you. When a match was found, a lawsuit could proceed, unless they settled out of court. Sharing verdict and settlement info with collaborating vouchers could make it easier for them to figure out who to sue.  

Okay, yes, there is the issue of who would agree to keep RFID tags and sufficient spit/skin samples, if this weren’t required by law. I’ve proposed that the amount awarded in a lawsuit be corrected for how the chances of catching someone varies with the freedoms they keep. Such chances would be estimated by prediction markets. The lower the estimated chance of catching a particular harm for a given set of freedoms, then the higher would be the award amount if they are caught. 

So if, given the choice, some people choose not to use RFID tags or keep spit/skin samples, they may be harder to catch, but they would pay more when they do. (Which is part of why most might choose less privacy.) As a result, clients and their vouchers will know that on average they will pay for the full cost of infecting others. Which could be huge amounts if they infect many others with deadly pathogens. Which would push vouchers to work to ensure that their clients take sufficient care to avoid that. 

And that’s my concept. During the early stages of a pandemic, a system of law/med vouchers would have incentives to try the sort of aggressive case tracing that public health professionals now try. And if such professionals existed, they could collaborate with vouchers. Once the pandemic escaped containment, this vouching system would encourage people to isolate themselves to avoid infecting others, and to avoid being infected. Their freedoms of travel and privacy would become more limited, more like the limits that an aggressive government might impose. 

But exceptions would be allowed when other costs loomed larger, just as economic efficiency demands. Compared to a centralized aggressive government, a voucher system could much more easily and flexibly take into account individual differences in inclinations, vulnerability, and preferences. The choice of freedoms would be made more practical and local, and less symbol.

With vouchers and lawsuits for infections working well to get people to internalize the infection externalities, pandemics might be limited and contained at nearly the level that a cost-benefit analysis would suggest. 

Added 07Mar: Early in a pandemic it is easier to trace who infected you, and it would make sense to let you sue someone who infected you not only for the damages you suffered, but also for the damages you had to pay others who you infected. This could create very large incentives to contain pandemics early.

Later in a pandemic people sued might reasonably argue that they should only have to pay for the harm from someone being infected earlier than they would otherwise have been, which might be no harm at all during a period before the peak when medical resources are becoming spread increasingly thin.

Added 10Mar: If later in an infection it becomes too hard to trace who infected who, even with the above reforms, then it might make sense to have more general crime-law-based rules limiting social contact. Vouching can also do well at enforcing such rules.

Added 20Apr: See my more flexible and general approach to requiring that info be collected and saved. Also, if cases are common where you can narrow an infection down to 1 of 5 sources, but can’t prove which one, it makes sense to make them each pay 20% of the damages. This way we don’t need to be >50% confident of each particular infection link.

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