Tag Archives: Law

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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Require Legal Liability Insurance

The point of liability law is mainly to induce good behavior by having courts threaten to make related people pay cash later if a bad thing happens. The law tries to set who would pay how much to whom after what events in order to induce such people to take good care, so as to minimize the sum of the costs of bad things happening, care taken to avoid them, and the legal process itself.

One thing that limits the ability of law to make these choices well is the fact that most people have limited amounts of the kinds of assets that the legal system is willing to grab to settle a lawsuit. Like cash, stocks, and on. Some people are “judgement proof”, meaning they have none of these things. Most others have some assets, but substantially less than the law might want to make them pay in some situations.

Because most people have limited assets in this sense, those who bring lawsuits typically focus their attention on related parties with “deep pockets”, i.e., those who have far more assets. If such parties have any involvement at all in some bad event, lawsuits focus on blaming them and trying to make them pay.

This focus on deep pockets seems a clear failure of the system. Liability should instead be chosen based on the usual legal criteria of who could have most cheaply prevented the bad event, who could have reasonably foreseen the event in order to target their prevention efforts, and who did or did not take sufficient levels of care given such things.

If people had more assets that they could pay in the event they were held liable for a bad event, the law would have more options. It wouldn’t have to make them pay more, but it could do so if the situation seemed to warrant it.

One kind of solution is to allow the legal system to touch more kinds of assets. For example, in many ancient societies you could be sold into slavery to pay legal debts. Or your larger family clan might be held liable for your actions. While many places today have a homestead exemption that prevents some kinds of creditors from taking a primary home to cover debts, the law could have fewer such exceptions. However, many people feel uncomfortable with such approaches.

A different solution, one that should induce less of this discomfort, is to require people to buy general legal liability insurance. In many places today all drivers are required to buy insurance for auto accident liability up to stated amounts. The idea here is to just generalize that to all legal liability. We’d pick some minimum amount everyone should be ready to pay, say one million dollars. Then everyone would have to find an insurance company willing to cover them for that amount. If they were held liable by a court, they’d personally pay what they could out of their personal assets, and then the insurance firm would pay the rest.

Insurance firms would of course charge you different premiums, based on their estimates of how many assets you have and your likelihood of being held liable for bad events. To convince them you are a low risk, you could show them many things about yourself, and even let them continually monitor you in many ways.

Of course there is a cost to the insurance process, and there would remain some hidden info and actions which would produce some transfers between people who look alike to insurance firms, and make most people not quite as careful as they ideally would. But surely this should move care in the right direction, compared to a system where people get sued less because they don’t have enough money to pay.

Well yes, it is possible that the whole legal system is just making everyone pay too much across the board for all bad events. In which case making people able to pay more just makes things worse. But if we think this is the situation we should just cut back on the legal system, starting by making it harder to sue parties with deep pockets. Maybe we should limit all parties to a max liability of a few tens of thousands of dollars.

But if you don’t want to cut back on the liability of those with deep pockets, and if you accept that deep pocket folks aren’t actually as more responsible for bad events, surely not enough to explain how much more often they are sued, then you gotta think it would be good if other people could be held more liable than they are today.

So you should want to require general legal liability insurance. And then we’d all have to pay a bit more, but we’d all have fewer bad events. Which should be worth the trade, if the legal system is close to doing the right thing now with our limited abilities to pay.

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Bowing To Elites

Imagine that that you are a politically savvy forager in a band of size thirty, or a politically savvy farmer near a village of size thousand. You have some big decisions to make, including who to put in various roles, such as son-in-law, co-hunter, employer, renter, cobbler, or healer. Many people may see your choices. How should you decide?

Well first you meet potential candidates in person and see how much you intuitively respect them, get along with them, and can agree on relative status. It isn’t enough for you to have seen their handiwork, you want to make an ally out of these associates, and that won’t work without respect, chemistry, and peace. Second, you see what your closest allies think of candidates. You want to be allies together, so it is best if they also respect and get along with your new allies.

Third, if there is a strong leader in your world, you want to know what that leader thinks. Even if this leader says explicitly that you can do anything you like, they don’t care, if you get any hint whatsoever that they do care, you’ll look closely to infer their preferences. And you’ll avoid doing anything they’d dislike too much, unless your alliance is ready to mount an overt challenge.

Fourth, even if there is no strong leader, there may be a dominant coalition encompassing your band or town. This is a group of people who tend to support each other, get deference from others, and win in conflicts. We call these people “elites.” If your world has elites, you’ll want to treat their shared opinions like those of a strong leader. If elites would gossip disapproval of a choice, maybe you don’t want it.

What if someone sets up objective metrics to rate people in suitability for the roles you are choosing? Say an archery contest for picking hunters, or a cobbler contest to pick cobblers. Or public track records of how often healer patients die, or how long cobbler shoes last. Should you let it be known that such metrics weigh heavily in your choices?

You’ll first want to see what your elites or leader think of these metrics. If they are enthusiastic, then great, use them. And if elites strongly oppose, you’d best only use them when elites can’t see. But what if elites say, “Yeah you could use those metrics, but watch out because they can be misleading and make perverse incentives, and don’t forget that we elites have set up this whole other helpful process for rating people in such roles.”

Well in this case you should worry that elites are jealous of this alternative metric displacing their advice. They like the power and rents that come from advising on who to pick for what. So elites may undermine this metric, and punish those who use it.

When elites advise people on who to pick for what, they will favor candidates who seem loyal to elites, and punish those who seem disloyal, or who aren’t sufficiently deferential. But since most candidates are respectful enough, elites often pick those they think will actually do well in the role. All else equal, that will make them look good, and help their society. While their first priority is loyalty, looking good is often a close second.

Since humans evolved to be unconscious political savants, this is my basic model to explain the many puzzles I listed in my last post. When choosing lawyers, doctors, real estate agents, pundits, teachers, and more, elites put many obstacles in the way of objective metrics like track records, contests, or prediction markets. Elites instead suggest picking via personal impressions, personal recommendations, and school and institution prestige. We ordinary people mostly follow this elite advice. We don’t seek objective metrics, and instead use elite endorsements, such as the prestige of where someone went to school or now works. In general we favor those who elites say have the potential to do X, over those who actually did X.

This all pushes me to more favor two hypotheses:

  1. We choose people for roles mostly via evolved mental modules designed mainly to do well at coalition politics. The resulting system does often pick people roughly well for their roles, but more as a side than a direct effect.
  2. In our society, academia reigns as a high elite, especially on advice for who to put in what roles. When ordinary people see another institution framed as competing directly with academia, that other institution loses. Pretty much all prestigious institutions in our society are seen as allied with academia, not as competing with it. Even religions, often disapproved by academics, rely on academic seminary degrees, and strongly push kids to gain academic prestige.

We like to see ourselves as egalitarian, resisting any overt dominance by our supposed betters. But in fact, unconsciously, we have elites and we bow to them. We give lip service to rebelling against them, and they pretend to be beaten back. But in fact we constantly watch out for any actions of ours that might seem to threaten elites, and we avoid them like the plague. Which explains our instinctive aversion to objective metrics in people choice, when such metrics compete with elite advice.

Added 8am: I’m talking here about how we intuitively react to the possibility of elite disapproval; I’m not talking about how elites actually react. Also, our intuitive reluctance to embrace track records isn’t strong enough to prevent us from telling specific stories about our specific achievements. Stories are way too big in our lives for that. We already norms against bragging, and yet we still manage to make our selves look good in stories.

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