Tag Archives: Law

My Poll, Explained

So many have continued to ask me the same questions about my recent twitter poll, that I thought I’d try to put all my answers in one place. This topic isn’t that fundamentally interesting, so most you you may want to skip this post.

Recently, Christine Blasey Ford publicly accused US Supreme Court nominee Brett Kavanaugh of a sexual assault. This accusation will have important political consequences, however it is resolved. Congress and the US public are now put in the position of having to evaluate the believability of this accusation, and thus must consider which clues might indicate if the accusation is correct or incorrect.

Immediately after the accusation, many said that the timing of the accusation seemed to them suspicious, occurring exactly when it would most benefit Democrats seeking to derail any nomination until after the election, when they may control the Senate. And it occurred to me that a Bayesian analysis might illuminate this issue. If T = the actual timing, A = accurate accusation, W = wrong accusation, then how much this timing consideration pushes us toward final beliefs is given by the likelihood ratio p(T|W)/p(T|A). A ratio above one pushes against believing the accusation, while a ratio below one pushes for it.

The term P(T|A) seemed to me the most interesting term, and it occurred to me to ask what people thought about it via a Twitter poll. (If there was continued interest, I could ask another question about the other term.) Twitter polls are much cheaper and easier for me to do than other polls. I’ve done dozens of them so far, and rarely has anyone objected. Such polls only allow four options, and you don’t have many characters to explain your question. So I used those characters mainly to make clear a few key aspects of the accusation’s timing:

Many claimed that my wording was misleading because it didn’t include other relevant info that might support the accusation. Like who else the accuser is said to have told when, and what pressures she is said to have faced when to go public. They didn’t complain about my not including info that might lean the other way, such as low detail on the claimed event and a lack of supporting witnesses. But a short tweet just can’t include much relevant info; I barely had enough characters to explain key accusation timing facts.

It is certainly possible that my respondents suffered from cognitive biases, such as assuming too direct a path between accuser feelings and a final accusation. To answer my poll question well, they should have considered many possible complex paths by which an accuser says something to others, who then tell others people, some of which then chose when to bring pressure back on that accuser to make a public accusation. But that’s just the nature of any poll; respondents may well not think carefully enough before answering.

For the purposes of a Twitter poll, I needed to divide the range from 0% to 100% into four bins.
I had high uncertainty about where poll answers would lie, and for the purpose of Bayes rule it is factors that matter most. So I choose three ranges of roughly a factor of 4 to 5, and a leftover bin encompassing an infinite factor. If anything, my choice was biased against answers in the infinite factor bin.

I really didn’t know which way poll answers would go. If most answers were high fractions, that would tend to support the accusation, while if most answers were low fractions, that would tend to question the accusation. Many accused me of posting the poll in order to deny the accusation, but for that to work I would have needed a good guess on the poll answers. Which I didn’t have.

My personal estimate would be somewhere in the top two ranges, and that plausibly biased me to pick bins toward such estimates.  As two-thirds of my poll answers were in the lowest bin I offered, that suggests that I should have offered an even wider range of factors. Some claimed that I biased the results by not putting more bins above 20%. But that fraction is still below the usual four-bin target fraction of 25% per bin.

It is certainly plausible that my pool of poll respondents are not representative of the larger US or world population. And many called it is irresponsible and unscientific to run an unrepresentative poll, especially if one doesn’t carefully show which wordings matter how via A/B testing. But few complain about the thousands of other Twitter polls run every day, or of my dozens of others. And the obvious easy way to show that my pool or wordings matter is to show different answers with another poll where those vary. Yet almost no one even tried that.

Also, people don’t complain about others asking questions in simple public conversations, even though those can be seen as N=1 examples of unrepresentative polls without A/B testing on wordings. It is hard to see how asking thousands of people the same question via a Twitter poll is less informative than just asking one person that same question.

Many people said it is just rude to ask a poll question that insinuates that rape accusations might be wrong, especially when we’ve just seen someone going through all the pain of making one. They say that doing so is pro-rape and discourages the reporting of real rapes, and that this must have been my goal in making this poll. But consider an analogy with discussing gun control just after a shooting. Some say this is rude then to discuss anything but sympathy for victims, but others say this is exactly a good time to discuss gun control. I say that when we must evaluate a specific rape accusation is exactly a good time to think about what clues might indicate in what direction on whether this is an accurate or wrong accusation.

Others say that it is reasonable to conclude that I’m against their side if I didn’t explicitly signal within my poll text  that I’m on their side. That’s just the sort of signaling game equilibrium we are in. And so they are justified in denouncing me for being on the wrong side. But it seems a quite burdensome standard to hold on polls, which already have too few characters to allow an adequate explanation of a question, and it seems obvious that the vast majority of Twitter polls today are not in fact being held to this standard.

Added 24Sep: I thought the poll interesting enough to ask, relative to its costs to me, but I didn’t intend to give it much weight. It was all the negative comments that made it a bigger deal.

Note that, at least in my Twitter world, we see a big difference in attitudes between vocal folks who tweet and those who merely answer polls. That later “silent majority” is more skeptical of the accusation.

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Radical Markets

In 1997, I got my Ph.D. in social science from Caltech. The topic that drew me into grad school, and much of what I studied, was mechanism and institution design: how to redesign social practices and institutions. Economists and related scholars know a lot about this, much of which is useful for reforming many areas of life. Alas, the world shows little interest in these reforms, and I’ve offered our book The Elephant in the Brain: Hidden Motives in Everyday Life, as a partial explanation: most reforms are designed to give us more of what we say we want, and at some level we know we really want something else. While social design scholars would do better to work more on satisfying hidden motives, there’s still much useful in what they’ve already learned.

Oddly, most people who say they are interested in radical social change don’t study this literature much, and people in this area don’t much consider radical change. Which seems a shame; these tools are a good foundation for such efforts, and the topic of radical change has long attracted wide interest. I’ve tried to apply these tools to consider big change, such as with my futarchy proposal.

I’m pleased to report that two experts in social design have a new book, Radical Markets: Uprooting Capitalism and Democracy for a Just Society:

The book reveals bold new ways to organize markets for the good of everyone. It shows how the emancipatory force of genuinely open, free, and competitive markets can reawaken the dormant nineteenth-century spirit of liberal reform and lead to greater equality, prosperity, and cooperation. … Only by radically expanding the scope of markets can we reduce inequality, restore robust economic growth, and resolve political conflicts. But to do that, we must replace our most sacred institutions with truly free and open competition—Radical Markets shows how.

While I applaud the ambition of the book, and hope to see more like it, the five big proposals of the book vary widely in quality. They put their best feet forward, and it goes downhill from there. Continue reading "Radical Markets" »

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Between Property and Liability

Last October I posted on Eric Posner and Glen Weyl’s proposal to generalize self-assessed property taxes. For many items, such as land and buildings, you’d pay an annual tax that is a standard percentage of your self-set sale-offer price for the item. This would avoid administrative property valuations, discourage people from sitting on stuff they don’t use, and make it much easier to assemble property into large units. Eminent domain would no longer be needed. They have a new book, Radical Markets, coming out in a few weeks, that I will review soon.

Some libertarian types disapprove on the grounds that this weakens property rights. Which it can, relative to a simple absolute property right. But simple property and liability have long been two quite different, and extreme, solutions to legal problems. Neither one is always best. In this post I want to point out that this alternate approach can be used not only to change traditional property to be more like liability, it can also be used to change traditional liability to be more like property. It is an interesting intermediate form between traditional property and liability. One I expect libertarian types to look on more favorably when applied to liability.

Today if someone smashes their car into yours, you can sue them for damages. But even if you convince the court that the event happened and that the party you sued was at fault, the amount of the damages will be set by a court’s judgement. They will mostly look at your demonstrable financial costs, and mostly ignore your value of leisure time, disability, pain, etc. You can’t do much to convince them that you suffer a higher cost from such events than others do.

To apply self-assessment to liability, we’d ask each person to estimate a function that outputs their loss in dollars, and takes as input different scenarios of events that could hurt them. The function would say how much they suffer in each scenario. (The function might interpolate between a set of concrete scenarios which the person rated.) We’d convolve this function with an official distribution over how often such events happen, and a tax rate function, to find each person’s total tax. This is like paying a tax for each property item you hold, but is instead adding up a tax for each possible scenario where you might be hurt.

Then if someone actually hurts you in some event, you could sue for the amount of damages your function declares for that event. Once the court was persuaded that the event happened and that the person you sued was at fault, the court could mostly just believe your estimate of harm, instead of trying to estimate it themselves. In this way the court could cheaply and accurately account for losses of limbs, time, pain, etc. As you’d set the damage levels yourself, this approach makes traditional liability more like property.

Added 15Apr: A reminder: this doesn’t have to produce any net tax revenue. It could just take from those who declare larger than average values of harms done to them, and rebate to those who declare lower than average values.

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Privately Enforced & Punished Crime

I’ve been teaching law & economics for many years now, and have slowly settled on the package legal reforms for which I most strongly want to argue. I have chosen a package that seems big enough to inspire excitement and encompass synergies, and yet small enough to allow a compelling analysis of its net benefits.

My proposal is regarding how to detect, prosecute, and punish criminal law. It is not about non-criminal law, and it is not a proposal to change how we decide what acts are crimes, when to be persuaded by a particular crime accusation, how hard to work to discourage each criminal act, nor how hard to work to catch each criminal act. To start, I hold constant how we do these other things. Continue reading "Privately Enforced & Punished Crime" »

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Exclusion As A Substitute For Norms, Law, & Governance

Hell may not be other people, but worry sure is. That is, what we worry most about is what other people might do to us. People at the office, near our home, at the store, on the street, and even at church.

To reduce our worries, we can rely on norms, law, and governance. That is, to discourage bad behavior, we can encourage stronger informal social rules, we can adopt more formal legal rules, and we can do more with complex governance mechanisms.

In addition, we can rely on a simple and robust ancient solution: exclusion. That is, we can limit who is allowed with the circles we travel. We can use exclusion to limit who lives in our apartment complex, who shows up at the parties we attend, and who works in a cubicle near us.

Now the modern world tends to say that it disapproves of exclusion. The bad ancient world did much gossiping about what types of people could be trusted how, and then it relied a lot on the resulting shared judgements within their norms, law, and governance. We today have instead been trying to expunge such judgments from our formal systems; they are supposed to treat everyone equally without much reference to the groups to which they belong.

In addition, we’ve become more wary of using harsh punishments, like torture, death, or exile.  And we are more wary of using corruptible quick and dirty evaluations within our norms, law, and governance. For example, we have raised our standards for shunning neighbors, pulling over drivers, convicting folks at court, and approving large bold governance changes. And people today seem less willing to help the law via reports and testimony. Oh we may be more willing to apply norms to people we read about on social media; but we apply them less to the people we meet around us.

As a result of these trends, many people perceive that we have on net weakened the power of our systems of norms, law, and governance to constrain bad behavior. In response, I think they’ve naturally increased their reliance on exclusion. They look more carefully at who they allow into their schools, firms, apartments, and nations. And they are less willing to give a marginal person the benefit of the doubt.

Since we don’t want to look like we are excluding on the basis of simple group affiliations, we instead try to rely on a more intuitive and informal aggregation of many weak clues. We try to get a feel for how much we like them or feel comfortable with them overall. But that need not result in more mixing.

For example, colleges that admit people just on GPA and test scores can be more open to lower class students than colleges that require applicants to have adopted the right set of extracurricular actives, and to have hit on the right themes in their essays. Lower class people can find it is easier to get good grades and scores than to track the new fashions in activities and essays.

Similarly, Tyler Cowen makes the point somewhere that when firms had simple and clear rules on dress and behavior, someone with a low class background could more easily pass as high class; they just had to follow the rules. Today, without such simple rules, people rely more on many subtle clues of clothes, conversation topics, travel locations, favorite music and movies, and so on. Someone with a lower class background finds it harder to adopt all these patterns, and so is more obviously outed and rejected as not one of us.

The point seems to apply more generally. The net effect of our today relying less on norms, law, and governance, and avoiding simple group labels in exclusion, is that we rely more on exclusion based on an intuitive feel that someone is like us.

This may be a cause of our increasing class and political polarization, at home and work. Feeling less protected by norms, law, and governance, and shy of using simple group identifiers, we are more and more surrounding ourselves with others who feel comfortably like us. We can tell ourselves that we aren’t excluding Joe or Sue because they are Republicans, or don’t have a college degree. Its just that those sort of people tend to give off dozens of other off-putting signs that they are just not people like us.

We would call it an outrage if society as a whole excluded them explicitly and formally because of a few simple signs. Only ignorant and rude societies do that. But we feel quite comfortable excluding them from our little part of the world based on our just not feeling comfortable with them. Hey, as anyone knows, in our part of the world it is just really important to have the right people.

Consider this another weak argument for relying more on stronger norms, law, and governance. That could let us rely less on exclusion locally. And mix up a bit more.

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Yay Stability Rents

Six years ago I posted on the idea of using combinatorial auctions as a substitute for zoning. Since then, news on how badly zoning has been messing up our economy has only gotten worse. I included the zoning combo auction idea in my book The Age of Em, I’ve continued to think about the idea, and last week I talked about it to several LA-based experts in combinatorial auctions.

I’ve been pondering one key design problem, and the solution I’ve been playing with is similar to a solution that also seems to help with patents. I asked Alex Tabarrok, whose office is next door, if he knew of any general discussion of such things, and he pointed me to a long (110 page) 2016 paper called “Property is another name for monopoly” by Eric Posner and Glen Weyl. (See also this technical paper.) And that turned out to be a relatively general argument for using the specific mechanism that I was considering using in zoning combo auctions, get this, as a new standard kind of property right for most everything! Looking for web discussion, I find a few critical responses, and one excellent 2014 Interfuildity post on the basic idea. In this post I’ll go over the basic idea and some of its issues, including two that Posner and Weyl didn’t consider. Continue reading "Yay Stability Rents" »

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Careful Who You Call ‘Racist’

Imagine that you manage a restaurant, and suddenly during the evening shift a middle-aged woman stands up, points to another diner, and yells “Murderer!” She loudly appeals to everyone to help her restrain and punish this supposed murderer. (Think Catelyn seizing Tyrion in GoT.) When other diners are shy, she demands that you expel this murderer from your restaurant. She says that in a civilized society it is every good person’s duty to oppose murder, and explains her belief that her husband went to an early grave because this older man, her boss, worked him too hard. Sure her husband could have quit his job instead, but he just wasn’t that sort of person.

Will you expel this customer as requested? Probably not. Yes there is a plausible meaning of the word “murder” that applies, but the accused must satisfy a narrower meaning for such an appeal to move you. In this post I will suggest that we take a similar restricted attitude toward “racism” in politics. Let me explain.

Humans have many ways to persuade one another. We can make deals, or we can appeal to self-interest, mutual reciprocity, or shared loyalties. In addition, we can appeal to shared moral/social norms. This last sort of appeal draws on our unique human capacity to enforce what Boehm calls a “reverse dominance hierarchy.” Foragers coordinated to express norms, to monitor for violations, to agree on who is guilty, and then to punish those violators. Such norms covered only a limited range of behaviors, those worth the trouble of invoking this expensive, corruptible, and error-prone mechanism.

With farming and civilization we have introduced law. With law, we added a formal specialized process to support a subset of our especially shared, important, clear, and enforceable norms. Foragers would entertain most any argument against most anyone that most any behavior was a norm violation. For example, a band could declare a disliked forager guilty of using sorcery, even if no concrete physical evidence were offered. But farmer law usually limited accusations to clearly expressed pre-existing law, and limited the kinds of evidence that could be offered.

For example, multiple witnesses were often required, and instead of relying on median public opinion a special judge or jury looked into more detail to make a decision. Negligence levels are made extra forgiving due to the chance of honest mistakes. To be a good candidate for enforcement by farmer law, a norm needed especially wide support, and to be especially clear and easy to prove even by those unfamiliar with the details of a particular person’s habits and life. And the norm needed to be important enough to be worth paying the extra costs of legal enforcement, including a substantial expected level of error and corruption.

In the last few centuries governments have mostly taken over the “criminal” area of law, where it is now they who investigate and prosecute accusations, and punish the guilty. Because such governments can be more corruptible, error-prone, and inefficient, the criminal law process is only applied to an especially important subset of law. And even more restrictions are placed on government law, such as juries, statutes of limitations, prison as punishment, proportionate punishment, and a “beyond a reasonable doubt” standard of proof. To avoid costs of error and enforcement, we often try to catch fewer violators and punish them more strongly to compensate.

Today, many kinds of political arguments are offered for and against people, organizations, and policies. While many arguments appeal to self-interest and shared loyalties, others demand priority because of norm violations. The claim is that whatever other different interests we may have and pursue, it is essential that we set those aside to coordinate to punish key norm violations. And since many of these norms are, for various reasons, not enforced by formal law, we depend on other good people and organizations to respond to such moral calls to action.

And this all makes sense so far. But in the last half century in the West, preferences against “racism” have risen to at least near the level of moral norms. (We have related feelings on “sexism” and other “isms” but in this post I’ll focus on racism for concreteness.) Whatever else we may disagree on, we are told, we must coordinate to oppose racists, boycotting their businesses and drumming them out of public office. Which could make sense if enough of us agree strongly enough to make this a priority, and if we share an effective way to collectively identify such violations.

One problem, however, is that our commonly used concepts of “racism” seem more appropriate to ordinary conversation and persuasion than to usefully enforceable strong norms and law. Some favor concepts where most everyone is at least a bit racist, and others concepts based on hard-to-observe dispositions. But while such concepts may be useful in ordinary conversation or academic analysis, they are poorly suited for enforcing strong norms and law.

For example, many today claim that Trump is clearly racist, and invoke a shared norm against racism in their appeal for everyone to oppose Trump. No good person, they suggest, should cooperate in any way with Trump or his supporters. A good person can’t treat this as politics as usual, not when a norm violator stands among us unpunished! It is even hinted that people with positions of influence in important institutions, such as in media, academia, journalism, law, and governance, should deviate from their usual practice of following institutional norms of political neutrality, and instead tip the scales against Trump supporters, now that everything is at stake.

But as Scott Alexander recently tried to argue, the evidence offered for Trump racism doesn’t yet seem sufficient to hold up in a legal court, not at least if that court used a “racism” concept of the sort law prefers. If your concept of “racist” applies to a third of the population, or requires a subjective summing up of everything you’ve ever heard about the accused, it just won’t do for law.

Yes, people are trying Trump in a court of public opinion, not in a court of law. But my whole point here is that there is a continuum of cases, and we should hold a higher more-restrictive more-law-like standard for enforcing strong norms than we should in ordinary conversation and persuasion. Higher standards are also needed for larger more varied communities, when there are stronger possibilities of bias and corruption, and when the enforcing audience pays less attention to its job. So we should be a lot more careful with who we call “racist” than who we call “hot” or “smart”, for example. For those later judgements, which are not the basis of calls to enforcement of shared strong norms, it is more okay to just use your judgement based on everything you’ve heard.

Now I haven’t studied Trump or his supposed racism in much detail. So maybe in fact if you look carefully enough there is enough evidence to convict, even with the sort of simple clear-cut definition of “racism” that would make sense and be useful in law. But this appeal to norm enforcement should and will fail if that evidence can’t be made clear and visible enough to the typical audience member to whom this appeal is targeted. We must convict together or not at all; informal norm enforcement requires a strong consensus among its participants.

Maybe it is time to enshrine our anti-racism norm more formally in law. Then we could gain the benefits of law and avoid the many costs of informal mob enforcement of our anti-racism norms. I really don’t know. But I have a stronger opinion that if you are going to appeal to our sense of a strong shared norm against something like racism, you owe it to us all to hold yourself to a high standard of a clear important and visible violation of a nearly-law-appropriate concept. Because that is how law and norm enforcement need to work.

Yes we are limited in our ability to enforce norms and laws, and this limits our ability to encourage good behavior. And it may gall you to see bad behavior go unpunished due to these limitations. But wishes don’t make horses, and these costs are real. So until we can lower such costs, please do be careful who you call a “racist.”

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Social Design Debt

Technical debt .. reflects the extra development work that arises when code that is easy to implement in the short run is used instead of applying the best overall solution. (more)

In the design of complex systems, we have long observed a robust phenomenon: when people only consider local costs and benefits when making design changes, they miss the many costs that changes impose elsewhere. Such costs accumulate, and reducing them requires periodic redesign that considers larger scales of interactions. These sort of costs are naturally limited when systems frequently die to be replaced to other systems started recently from scratch. But long lasting complex systems can accumulate large costs of this sort.

For example, in contrast to most nations, apparently the US has *two federal agencies responsible for collecting economic data. Their authorizing legislation has been interpreted to mean that they can’t share details of this data with each other. A more accurate and consistent picture could be drawn about the economy from the data if such integration were allowed, but its not. Everyone in these agencies knows about this problem, but no one has bothered to try to change the authorizing legislation for a more rational outcome. New nations know to avoid this problem, but in old nations like the U.S. such problems just accumulate.

This seems to me an important and neglected issue for our longest lived social systems, such as in law and governance. In The Rise and Decline of Nations (1982), Mancur Olson famously argued that nations tend to decline via accumulating organized interest groups who lobby for changes in their local interest, and veto larger changes to more efficient arrangements. This seems a closely related point, but not quite the same point.

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Against DWIM Meta-Law

Smart capable personal assistants can be very useful. You give them vague and inconsistent instructions, and they “do what I mean” (DWIM), fixing your mistakes. If you empower them to control your interactions, you need less fear mistakes messing up your interactions.

But one thing a DWIM personal assistant can’t help you so much with is your choice of assistants. If assistants were empowered to use DWIM on your choice to fire them, they might tend to decide you didn’t really mean to fire them. So if you are to have an effective choice of assistants, and thus effective competition among potential assistants, then those same assistants can’t protect you much from possible mistakes in your meta-choices regarding assistants. They can protect you from other choices, but not that choice.

The same applies to letting people choose what city or nation to live in. When people live in a nation then that national government can use regulation to protect them from making many mistakes. For example, it can limit their legally available options of products, services, and contracts. But if people are to have an effective choice to change governments by changing regions, then such governments can’t use regulation much to protect people from mistakes regarding region choice. After all, a government authorized to declare your plan to move away from it to be a mistake can stop you from rejecting it.

Similarly we can elect politicians who pass laws to protect us from many mistakes. But if we are to have an effective choice of politicians to represent us, then they can’t protect us much from bad choices of politicians to represent us. We can’t let our current elected leaders much regulate who we can elect to replace them, if we are to be able to actually replace them.

I’ve long been intrigued by the idea of private law, wherein people can stay in the same place but contract with different legal systems, which then set the rules regarding their legal interactions with others. Such rules might in effect change the laws of tort, crime, marriage, etc. that people live under. And so such competition between private laws might push the law to evolve toward more efficient laws.

One of the things that legal systems tend to do is to protect people from mistakes. For example, contract law won’t enforce contracts it sees as mistakes, and it fills in contract holes it sees resulting from laziness. Law is often DWIM law. Which can be great when you trust your law to choose well. But if one is to have an effective choice of private law, and real competition for that role, then one’s current law shouldn’t be able to overrule one’s choice of a new law. Instead, one’s choice of a private legal system, like one’s choice of nation, needs to be a simple clear choice where one is not much protected from mistakes.

Today we don’t in fact have such private law, because our standard legal system won’t enforce contracts we sign that declare our intent to use different legal systems. To achieve private law, we’d need to change this key feature of our standard legal system.

Your choice to change nations, either for temporary travel or for permanent moves, can be a big mistake. It might result from temporary mood fluctuations, or from misunderstandings about the old nation or the new. Nevertheless we have little regulation of such choices. Instead individuals are mostly fully exposes to their possible mistakes. For example, while Europe is heavily regulated in general, European teens today can decide to go join ISIS, even when many others greatly regret such choices. We disapprove of nations that prevent people from leaving because that cuts competition between nations to serve people.

Similarly, if we want completion between legal systems without forcing people to move, we’ll have to change our law to accept our not protecting people from bad choices of legal systems. There will have to be a simple clear act by which one chooses a law, a choice not much subject to legal review and reversal. We’d want to encourage people to take such choices seriously, but then to accept the choices they make. Freedom of choice requires a freedom to make mistakes. For big choices, those can be big mistakes.

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Why I Lean Libertarian

Imagine that one person, or a small group, wants to do something, like watch pornography, do uncertified medical procedures, have gay sex, worship Satan, shoot guns, drink raw milk, etc. Imagine further that many other people outside that small group don’t want them to do this. They instead want the government to make a law prohibiting similar groups from doing similar things.

In this prototypical situation, libertarians tend to say “let them do it” while others say “have the government make them stop.” If we take a cost-benefit perspective here, then the key question here is whether this small group gains more from their activity (or an added increment of it) than others lose (including losing via their “altruistic” concern for the small group). Since this small group would choose to do it if allowed, we can presume they expect to gain something. And if others complain and try to make them stop (or cut back), we can presume they expect to lose. So we are trying to estimate the relative magnitude of these two effects.

I see three considerations that, all else equal, lean this choice in the libertarian direction.

  •  Law & Government Are Costly – It will take real resources to create and enforce a law to ban this activity. We’ll have to negotiate the wording of this law, and then tell people about it. People will complain about violations, and then we’ll have to adjudicate those complaints, and punish violators. We’ll make mistakes in which laws to create, who to punish, and how to manage the whole process. More rules will discourage innovation, and invite more lobbying. All of which is costly.
  • Local Coordination Might Work – If people do something that hurts those around them more, often those nearby others can coordinate to discourage them via contract and freedom of association. If playing your music loud bothers folks in the apartment next door, your common landlord can set rules to limit your music volume. And kick you out if you don’t follow his rules. The more ways that smaller organizations could plausibly solve a problem, the less likely we need central government to get involved.
  • Lawsuits Might Work – Legal systems have well-established processes whereby some people can sue others, claiming that the actions of those others have hurt them. Suit losers must pay, discouraging the activity. Yes, people harmed can need to coordinate to sue together, and yes legal systems tend to demand relatively concrete evidence of real harm, and that the accused caused that harm. It might be hard to figure out who to accuse, the accused might not have enough money to pay, and the legal process might be too expensive to make it worth bothering. But again, the more situations where the law could plausibly solve the problem, the less likely that we need extra government involvement.

Again, each of these considerations leans the conclusion in a libertarian direction, all else equal. Yes, they can collectively be overcome by strong enough other considerations that lean the other way. For example, I’ll grant that for the case of air pollution, we plausibly have strong enough evidence of large harms on outsiders, harms insufficiently discouraged by local coordination and lawsuits. So yes in this case central government might be an attractive solution, if it can act cheaply and efficiently enough.

But the main point here is that the three considerations above justify a libertarian default that must be overcome by specific arguments to the contrary. If outsiders complain about an activity, but aren’t willing to buy less of it via contract, or to sue for less of it in court, maybe they aren’t really being hurt that much. There is an asymmetry here: if we don’t ban an activity and might get too much, contract & law could reduce it a lot, but if we ban an activity and might get too little, contract & law can’t increase it much.

Yes, other persuasive contrary considerations might be found, including considerations not based on the net harm of the disputed actions. But the less you think you know about these other considerations, the more your choice will be influenced by these three basic considerations, all of which seem to me pretty solid.

While I have said before that I am not a libertarian according to common strict definitions, I still usually tend to lean libertarian, because in fact arguments based on further considerations often seem to me pretty weak. While one can often make clever arguments, it is often hard to have much confidence in them; the world seems just too complex. And so I often have to fall back on simple defaults. Which, as I’ve argued above, are libertarian.

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