Tag Archives: Law

Ancestor Worship is Efficient

Maybe not “worship” exactly, but at least great respect and deference.  By “efficient” I mean that it increases economists’ standard “cost-benefit” concept of welfare.  That is: as usually estimated, the benefits of deferring greatly to distant ancestors far outweigh its costs.  And while this does suggest that we should defer more to ancestors, it also shows just how much distorted prices can break economists’ favorite tools.

The economic welfare of a proposed change is the benefits minus the costs of that change, translated into cash terms, though of course changes don’t have to actually be cash transactions.  When available, market prices are commonly accepted as estimates of the benefits and costs of things gained and lost.  Economic welfare is a powerful heuristic for finding win-win deals: in many kinds of situations, the strategy of consistently making the changes that increase economic welfare tends to be usefully close to an actual win-win deal that gives most everyone more of what they want.

The efficient ancestor worship problem arises from two key facts:

  1. Economic welfare cares not about giving people experiences but about satisfying their preferences, i.e., giving them what they want.  And even long dead people still have (or “had” if you prefer) preferences that we could now better satisfy.  If we do something a dead person would have wanted, that counts as a benefit.
  2. At standard market interest rates, the magic of compound interest quickly gives astronomical priority to the preferences of folks who lived long ago.  For example, in historical records near risk-free interest rates (e.g., land rents over prices) consistently exceeded 9%/yr from 3000BC to 1350AD, for a total factor of over 10162.

Together, these facts suggest we would increase economic welfare if we spent less than 10162 dollars today to do anything for which a 3000BC ancestor would have been willing to pay a dollar (equivalent in their currency).

Clearly we would quickly bankrupt ourselves if we tried to implement such “efficient” changes, and doing so would not be remotely close to a win-win deal with our ancestors.  What goes wrong here?

Our contract law system refuses to enforce many win-win deals between distant generations.  Many folks would be willing to create trusts that accumulated funds long after their death and then paid distant descendants (perhaps indirectly) to do things like remember their ancestor’s name, pray to his gods, etc.  Unless stolen, such funds would eventually come to dominate the world economy and dramatically lower interest rates.  With lower interest rates, economic efficiency would count the preferences of distant ancestors as far less valuable, and as a bonus businesses and governments would have far stronger incentives to attend to the interests of distant future folks, such as via global warming policies.

But we in fact refused to enforce a great many such long term deals.  For example:

The rule against perpetuities at common law … prevents a person from putting qualifications and criteria in his will that will continue to control or affect the distribution of assets long after he has died, a concept often referred to as control by the “dead hand.”

Our unthinkingly repugnance at being controlled by the dead, and our eagerness to grab their resources, prevents us from enforcing long-term win-win deals.  This refusal to enforce deals increases interest rates, which distorts all our trade-offs across time, bringing economic welfare estimates into stark conflict with intuitive moral judgments about time trades (as in global warming), which then encourages people to turn to non-economic frameworks for policy analysis.

When policy distorts prices, it distorts calculation of economic welfare, which encourages people to ignore economic welfare when choosing policy, which reduces their reluctance to intervene to further distort prices, which leads to a sad spiral of increasing confusion.  Please, let’s enforce long-term win-win deals!

Added: A fascinating alternate history might start from a year 1300 English legal precedent enabling flexible growing long term trusts.  By 1800 early trusts grew a billion-fold, and trusts dominate the economy.  What else changed?!

Motivated Legal Bias

The probability of being sentenced to death is much greater if a defendant kills a white or Hispanic victim who is married with a clean criminal record and a college degree, as opposed to a black or Asian victim who is single with a prior criminal record and no college degree. …

“Irrelevant social facts also shape the ultimate state sanction” Phillips says. “In the capital of capital punishment, death is more apt to be sought and imposed on behalf of high status victims. Some victims matter more than others.”

Phillips research is based on 504 death penalty cases that occurred in Harris County, Texas between 1992 and 1999.  Drawing on the same data, Phillips’s previous research demonstrated that black defendants were more likely to be sentenced to death than white defendants in Houston. The racial disparities revealed in the prior paper become even more acute after accounting for victim social status – black defendants were more apt to be sentenced to death despite being less apt to kill high status victims.

More here (HT naz). I expect such patterns to be found in most legal jurisdictions, not just Harris County Texas.  You will find it hard to find any lawyer, judge, or law professor who will go on the record saying these are officially accepted as legitimate considerations in legal sentencing.  Most will say the law “tries” to ignore such considerations.  And yet such patterns have long existed, have long been widely known to exist.

These are motivated biases, not just random accidents of a system trying to be fair but failing to because of limited human mental capacity.  These errors are far more likely to persist than the opposite error.  If the opposite errors were suddenly to become common, enormous concern would be expressed, great resources would be spent, and we’d be willing to consider large institutional changes to eliminate them.

The place such errors enter is of course via “judgment.”  We recoil in horror at the thought of a simple legal system where judges or juries could make any decision they wanted in each case they considered.  But we also recoil at the thought of a legal system with explicit rules which had to be followed exactly in each case.  We instead prefer a legal system with lots of specific rules, where in the end “reasonable” people are allowed to exercise “judgment” about how to “interpret” the rules.   It sure looks like what we want is the appearance of constraining ourselves to follow rules, combined with the practice of arbitrary choice.

Mysticism’s Function

For our ancestors, mysticism functioned mainly to offer “higher” and stronger motives and excuses to do what they had more practical reasons to do.  In war:

Anthropologists universally reported one “spiritual” factor as being among the most prominent causes of warfare among hunter-gatherers, as well as among primitive agriculturalists.  This was fears and accusations of sorcery. … Accusations of sorcery … do not appear randomly.  They generally arise and are directed against people whom the victim of the alleged sorcery feels have reasons to want to harm him. … Chagnon’s account … of sorcery among the Yanomamo:

No two villages that are within comfortable walking distance from each other can maintain such a [neutral] relationship indefinitely: They must become allies, or hostility is likely to develop. … A death in one of the villages will be attributed to the malevolent hekura sent by shamans in the other village, and raids will eventually take place between them. …

Trespassing was often regarded in hunter-gatherer societies as an offense against a group’s sanctified territory.  In other cases, an act of sacrilege against the clan’s totem was regarded as an insult to the clan itself. … The Dugum Dani … who fought for pigs, women, and land … [also felt] they had to placate their ghosts who became angry with them if a killing … was not avenged. … Similarly, the Gebusi of Lowland New Guinea had the highest homicide rates recorded anywhere. The reason given for the killings was retribution for sorcery, but … there remains a striking correlation in Gebusi society between homicidal sorcery attribution and lack of reciprocity in sister exchange marriage …. Gebusi sorcery attribution is about unresolved and even unacknowledged improprieties in the balance of marital exchange.

In “peace”:

During the witch trials in Europe the accused were precisely those persons who had somehow aroused the suspicion that they were envious and hence desirous of harming others.  Gradually, however, the envious man himself became the accuser, the accused being people who were good-liooking, virtuous, proud and rich. … This double role played by envy in witchcraft is again apparent among primitive peoples.  The outsider, the cripple, anyone at all handicapped, is suspected. ….

Of 222 cases of accusation of [Navaho] witchcraft … 184 involved adult males, 131 of these being of great age.  All the females  accused were also very old.  The Navaho are usually so afraid of the sorcery of old people that they do their best to propitiate them with lavish hospitality and the like, even though the person concerned may be extremely unpleasant. … [They are] suspicious of all persons in extreme positions – the very rich, the very poor, the influential singer, the extremely old. …

The Zuni Indians share with the Hopi a distaste for competitive behavior and open aggression, and sacrifice individuality to the collective.  Bu this does not eliminate envy.  Both very poor and particular rich Zuni can be suspected of witchcraft.  The constant accusation of witchcraft serves to maintain social conformity. … A deceived husband or a jilted lover is described in Zuni legend … as a man to whom it is intolerable that he alone should be unhappy. …

If an old [Comanche] man failed to adapt himself with good grace to the role of peaceable old age, he was suspected of envious magic.  He might even be killed by the relatives of someone who suspected him of being a witch.

Can’t bring yourself to slaughter a nearby village, or a long-time associate?  Mysticism can help you believe they already attacked you first, and that the stakes are so much higher than your personal gain.

We similarly self-deceive today to give ourselves higher and stronger excuses to do what baser motives require.  Beware: if you won’t accept and act on your baser motives, your subconscious may well get you to achieve similar ends via self-deceptive delusions.  For a better chance at believing the truth, accept your ignoble desires.

Should Lies Be Free?

A few weeks ago I wrote:

The usual rationale for “free speech,” which seems persuasive, is that in the long run we as a society learn more via an open competition for the best ideas, where anyone can try to persuade us as best they can, and listeners are free to choose what to hear.

This week we hear:

The federal courts are wrestling with a question … Does the First Amendment right to free speech protect people who lie about being war heroes?  At issue is the Stolen Valor Act, a three-year-old federal law that makes it a crime punishable by up to a year in jail to lie about receiving a U.S. military medal. …

Lawyers … [are] saying the First Amendment protects almost all speech that doesn’t hurt someone else. Neither man has been accused by prosecutors of seeking financial gain for himself.  Jonathan Turley … said the Stolen Valor Act raises constitutional questions because it bans bragging or exaggerating about yourself.  “Half the pickup lines in bars across the country could be criminalized under that concept,” he said. …

Lawyers challenging the act say that lying about getting a medal doesn’t fit any of the categories of speech that the U.S. Supreme Court has said can be banned: lewd, obscene, profane, libelous or an imminent danger to others, such as yelling “fire” in a crowded theater.

For some kinds of lawsuits, it makes sense to limit attention to financial harms, because other harms are harder to estimate; deterrence via compensating for financial harms is good enough.  But it is crazy to pretend that non-financial harms don’t exist. Of course it hurts other folks if they believe you have medals that you don’t.  And the basic rationale for free speech, finding truth via open competition, hardly endorses straight lies!

Yes, I can sort of see the point of allowing some social contexts in which people accept that it is ok to lie about certain topics; maybe folks there are more interested in seeing how well and creatively you lie, and don’t really care much about the truth on those topics.  But it seems to me ok to require some explicit opting in there; I’m fine with a default to legally punish liars.  Unless your audience agreed that certain lies are ok, they aren’t ok.

I’ll admit most people seem to disagree, preferring no legal penalty for non-financial-harm lies.  I suspect this is analogous to disinterest in objective risk estimates:

Well-connected managers already know they prefer estimates by officials who respond to social pressure, over hard-to-manipulate market estimates, even if the later are more accurate.  Of course less well-connected managers should prefer the opposite, but who wants to signal their bad connections by endorsing independent markets?

Those who can more easily lie, and detect lies, want lies to be allowed, while the less lie-capable should want lies to be punished.  But who wants to publicly signal they are bad at lying or at detecting lies?

Not Guilty By Reading

[In England] after 1170, … as part of the Compromise of Avranches, Henry … agreed that the secular courts, with few exceptions (high treason being one of them), had no jurisdiction over the clergy. … Defendants demonstrated their clerical status by reading from the Bible. This opened the door to literate lay defendants’ also claiming the benefit of clergy. In 1351 … the benefit of clergy was officially extended to all who could read. …

The Biblical passage traditionally used … [was the first verse of] Psalm 51 [which] …. became known as the neck verse, because knowing it could save one’s neck by transferring one’s case from a secular court, where hanging was a likely sentence, to an ecclesiastical court, … [where] if the defendant swore an oath to his own innocence and found twelve compurgators to swear likewise … he was acquitted. … By the 15th century, most convictions in these courts led to a sentence of penance. …

Henry VII decreed that non-clergymen should be allowed to plead the benefit of clergy only once … [and] were branded on the thumb, and the brand disqualified them from pleading the benefit of clergy in the future. (In 1547, the privilege of claiming benefit of clergy more than once was extended to peers [i.e., Nobleman] of the realm, even illiterate ones.)

In 1512, Henry VIII further restricted the benefit of clergy by making certain offences “unclergyable” offenses; … This restriction was condemned by Pope Leo X … [and led] to Henry VIII splitting the Church of England from the Roman Catholic Church in 1532.  In 1575, a statute of Elizabeth I … the benefit of clergy … it did not nullify the conviction, but rather changed the sentence for first-time offenders from probable hanging to branding and up to a year’s incarceration.

More here.  The English literate classes had quite a conspiracy going to help themselves at the expense of others!  HT Greg Clark.

Added 11a: From stats Clark showed in a talk, it seems most folks people did not invoke this benefit.  This was not a benefit given to all.

Come The Em Rev

China on Friday unveiled a shake-up of the way land is seized for redevelopment. … Land seizures over the past decade have been central to the rapid modernization of hundreds of Chinese cities, which in turn has been one of the main drivers of the nation’s economic growth. But they also have been the source of often-violent conflicts, especially in the past year, as huge volumes of stimulus funds have gone into building projects.  Post

Rich stable nations, comfortable and safe on top of the global game, feel little inclination to consider big disruptive changes.  The price they pay for internal peace is the steady accumulation of Olsonian veto groups, who can block big changes.  Stable inflexible institutions seem acceptable when change is slow and life seem good enough.

This frustrates rich-nation would-be-rebels like me who see our business, legal, political, etc. institutions as far from optimal.  Such rebels want to explore big changes, but must either: 1) accept only tinkering around the edges, 2) move to a place more willing to make changes, or 3) wait for crises where larger changes might fly.

So what crises loom?  In the US we can expect the long foreseen budget “train wreck” within a decade or two.  This must be addressed by huge tax increases, spending decreases, or both.  Foresighted politicians are positioning their blame and solutions for that crisis.  Since we spend so much on military and medical benefits, I’ve wondered if we’ll consider “Med is a waste, cut it way back” or “Let the world defend itself, cut our military.” Alas, neither seems likely.

In two to five decades, the US will probably start to take seriously global competition from big fast growing nations like China or India.  The US might then consider adopting policies credited with growing those nations fast, though national pride may block that.  Foresighted advocates will position their credit and solutions for that crisis.

But if you lust after huge institutional change in long-rich nations, if you long to say “come the revolution,” you might wait three to fifteen decades for the “em rev“, the whole brain emulation revolution.  The em rev is my best guess for the next “singularity” scale change, like the farming or industrial revolutions, each of which sped world growth rates by more than a factor of a hundred, within less than a previous doubling time.  We now double in fifteen years, so within a few years an em-econ could double monthly! Continue Reading "Come The Em Rev" »

Legal Delusions

At most times and places in history, state authorities have had pretty wide discretion to help or hurt folks.  People knew to submit to authorities, and to accept occasional arbitrary applications of authority power.  Thankfully, such applications were limited by the fact that authorities were distracted trying to keep their power via keeping the peace, meeting revenue targets, etc.,

Today folks proudly bask in a glow of higher status by believing that they have more control over their government.  They believe democracy puts them in charge, and that a “rule of law” drastically discourages arbitrary applications of authority power.  They are deluded:

Over the past three decades, it has become routine in the United States for state, local, and federal governments to seize the property of people who were never even charged with, much less convicted of, a crime. …  [An] Act of 1984 … included an earmarking provision that gave forfeiture proceeds back to local law enforcement agencies that helped in a federal forfeiture.” …

The government had only to show probable cause to believe that it was connected to drug activity, or the same standard cops use to obtain search warrants. The state was allowed to use hearsay evidence—meaning a federal agent could testify that a drug informant told him a car or home was used in a drug transaction—but property owners were barred from using hearsay, and couldn’t even cross-examine some of the government’s witnesses. Informants, while being protected from scrutiny, … could receive as much as one-quarter of the bounty, up to $50,000 per case. …

Justice Department’s forfeiture fund … as of 2008 assets had increased to $3.1 billion. … Almost half of surveyed police departments with more than 100 law enforcement personnel said forfeiture proceeds were “necessary as a budget supplement” for department operations. …

Less than 20 percent of federal seizures involved property whose owners were ever prosecuted. … More than 80 percent of federal seizures are never challenged in court. … In many cases the property was worth less than the legal costs of trying to get it back. … Forfeiture defendants can’t be provided with a court-appointed attorney. …

To even get a day in court, owners were forced to post a bond equal to 10 percent of the value of their seized property.  The average DEA property seizure in 1998 was worth about $25,000. In 2000 a Justice Department source told the PBS series Frontline that this figure was also the cutoff under which most forfeiture attorneys advised clients that their cases wouldn’t be worth pursuing. …

In 2000, Congress … raised the federal government’s burden of proof in forfeiture cases. … Problem was, the 1984 law had already spawned dozens of imitators on the state level.

Articles about this stuff have appeared periodically for decades.  Clearly such news has not sparked an irate revolution of concerned citizens demanding the return of their supposed rule of law.  As long as we don’t hear about stuff being arbitrarily taken from someone we know, we can keep believing we are better than those ancients – we still live under a rule of law for those who really matter – people like us.

Free Hearing, Not Speech

Control is a key status marker; all else equal those who give orders are above those who take orders.  This seems to be the main reason for democracy’s popularity, not that it makes better decisions but that it raises citizen status, by appearing to put citizens in control.

Consider also that we call it “free speech,” not “free hearing.”  The usual rationale for “free speech,” which seems persuasive, is that in the long run we as a society learn more via an open competition for the best ideas, where anyone can try to persuade us as best they can, and listeners are free to choose what to hear.  Yet that concept would best be called “free hearing” – a freedom to hear and evaluate any case presented, based on any criteria you like (including cost).  It is not a right to make others listen to you.

“Free hearing” would apply not just to hearing from adult citizens in good standing, but also to hearing from children, convicts, corporations, robots, foreigners, or demons.  We wouldn’t argue if corporations have a right to speak, but rather if we have a right to hear what corporations have to say.

But in fact we have “free speech,” a right only enjoyed by adult citizens in good standing, a right we jealously guard, wondering if corporations etc. “deserve” it.  This right seems more a status marker, like the right to vote, than a way to promote idea competition — that whole competition story seems more an ex post rationalization than the real cause for our concern.  Which is why support for “free speech” is often paper thin, fluctuating with the status of proposed speakers.

Torture Kids Instead

Juvenile detention is not intended to be punitive. Rather, juveniles held in secure custody usually receive care consistent with the doctrine of parens patriae, i.e., the state as parent.

That is wikipedia.  The US state is a horrible parent; 12% of its “detained” kids are sexually abused each year, versus 4% of adult prisoners.  0.3% of US non-prisoners report rape each year, versus a world median of ~0.05%.

12 percent of incarcerated juveniles … had been raped or sexually abused in the past year by fellow inmates or prison staff. … At 13 detention facilities, nearly one out of three juveniles said they had been victims of some type of sexual abuse. … Other federal studies … suggest that 60,500 adults are victims of rape or sexual misconduct in prisons each year. … the study reflecting that juveniles may be abused at three times the [4%] rate of adults.

More here and here:

  • 91% of youth in these facilities were male; 9% were female. …
  • 10.8% of males and 4.7% of females reported sexual activity with facility staff.
  • 9.1% of females and 2.0% of males reported unwanted sexual activity with other youth.

The US leads the world in its fraction in jail or prison; it has 0.7% vs a world median of ~0.1%.

US folk often express pride that their nation tortures and executes criminals less than other “medieval” nations.  But, honestly, torture and execution look pretty good to me when compared with our actual prisons; I might rather be branded with an iron, or hang in a stockade for a few days, than suffer at large chance of rape.  Branding or stockades seem less cruel than rape in pretty much any book.

Compared to prison, punishments like torture, exile, and execution are not only much cheaper (the US spends $68B/yr on prisons), but they can also be monitored more easily, letting citizens better see just how much punishment is actually being imposed.  And alas, I suspect that is the real problem.  With prison, citizens can more easily pretend that they have the prisons they wished for, rather than the prisons they actually have.

Added 6:30p: This also seems a sad example of empire bias.  We assume prison rape is the sort of thing a large organization should be able to control, so we presume modest “reform” is sufficient.  It’s not.

Added 9Jan: Stunning stat:

95 percent of the youth making such [sex abuse] allegations said they were victimized by female staff.

Fragile Free Speech

Under the [Irish] law, which went into effect Friday, a person can be found guilty of blasphemy if “he or she publishes or utters matter that is grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion.”  The penalty is a fine of up to 25,000 euros, or more than $35,000. … Nugent, who estimates that there are a quarter-million atheists in Ireland, said the new law is “silly” and “literally medieval.”

More here.  Such free speech limits have a straightforward efficiency rationale – the gains of the few who enjoy saying outrageous things are plausibly outweighed by the harm to the many who are outraged.  The best consequential argument against these limits is the long run innovation gains from free speech; outrageous speakers sometimes change our minds, to our great benefit.  But this innovation rationale for reduced regulation applies pretty well to most regulation; regulation usually hinders innovation.  So why don’t we apply the same argument as eagerly there?

Our cultural heritage is that “modern” nations had freer speech while “medieval” ones did not, so of course nations now prefer freer speech to gain status.  We make up rationales as required to get the high status policies we want.  If in the future a low-free-speech nation becomes higher status, nations will instead copy that policy, and make up reasons as needed for that.