Tag Archives: Law

Nickname Court

For perhaps a millions years, humans did justice mainly via gossip: the rule was that when you saw a rule violated, you were to tell of it to others, talk together on what to do, and then do it.

Problem was, gossip has long been known to be unreliable. When you hear someone rely an accusation that another person did something terrible, there’s a social “rush to judgment” pressure to immediately agree, to show your disapproval of that terrible thing. Even though you haven’t heard all the relevant evidence, including what that accused person might say in their defense.

Forager bands fixed this vis group discussions. They’d all gather around a campfire, listen listen together to the accusations and any rebuttals, discuss it, and only decide together after everyone had their say. Alas, as social groups got larger this was no longer feasible. So near the dawn of civilization, we invented formal trials: we supported the judgment of a subset of us, who made sure to judge only after hearing all the evidence.

Today we still gossip on a great many topics where there are no formal trials, and on those topics we still suffer big problems with rushes to judgment. So we’d do well to try to find more excuses to make formal trial processes whose judgements we’d be tempted to support.

Note that this isn’t the same as just having some group recommend a judgement. We do that all the time via news editorial boards, expert commissions, interest groups endorsements, etc. The difference is that a formal trial is a public process, airing all relevant evidence, and its judges are not selected to already represent particular sides in familiar debates.

But how? We might declare a new kind of court housing a new kind of trial, but how can we get people to bother to participate as jurors, present evidence as advocates, and to see its ruling as “official” enough to feel pressured to support it?

Here’s my idea: nickname courts. Imagine that people are tempted to use a nickname for a certain person in a particular social context. Such as: the 2nd grade homeroom 3 of public school 117 wants to use the nickname “Stinky Stu” for young member Steward Williams. Perhaps on the basis of recent events wherein young Stu was said to be stinky.

Assume there’s no law against using such a nickname, but that students, parents, and teachers might feel there are relevant social norms against doing something so “rude”. Some of these authorities might even declare their own local rules regulating such nicknames. (Nicknames are going to exist no matter what rules; the best we can do is to better channel that instinct.) I propose that these authorities give substantial deference to a new kind of court, a nickname court.

Someone initiates the process by officially proposing a nickname for a person in a social context, and committing to argue in its favor. That person who is to be given this nickname is notified, and confirms that they will oppose this. Then a “random” jury drawn from this social context is impaneled, which in the example above would be members of this homeroom class. They come together, all present their arguments and evidence, and the jury decides. In the example above, these might all be 2nd grade members of this class, including Stu.

If the jury rules yes, then it becomes more acceptable for members of this community to use this nickname of Stinky Stu for this particular Stu. This ruling may or may not have any legal force, even within the official rules of the school. But people might feel more comfortable knowing that their actions had this “official” support.

If Stu later decided that things had changed enough, he might initiate a new case, arguing that the nickname should no longer apply. Others would be notified, and we’d see if anyone wanted to take the lead to oppose him, starting with whomever initiated that first case. If Stu wins, then it would no longer to be as acceptable to call him Stinky Stu, though it might be okay to call him, “Once-was Stinky Stu”.

This sort of approach could obviously be applied to social media. For example, someone might initiate a case to make it more okay to call Robert Random by the nickname “Racist Rob” on Twitter. As I’ve said before, many of us might prefer a formal process for such labels over the current internet mobs that greatly suffer from rushes to judgment.

I’d bet that kids could really get into nickname courts, and learn a lot about law in the process. And later in life they’d probably think more about how similar processes might apply to other topics. For example, I’d love to have Radical Reform Courts, which evaluate radical proposals for social reform. Today there’s way too much of a rush to judgement, wherein each person who hears of a proposal quickly imagines one potential problem, and then concludes that it can’t work. But I don’t yet know how to make anyone care enough about the ruling of such a court.

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Why Not RFID Tag Humans?

Today, across a wide range of contexts, we consistently have rules that say that if you have a thing out there in the world that can move around and do stuff, you need to give it a visible identifier so that folks near that thing can see that identifier, look it up in a registry, and find out who owns it. That identifier might be a visible tag or ID number, it might be an RFID that responds to radio signals with its ID, or it might be capable of more complex talk protocols. We have such rules for pets, cars, trucks, boats, planes, and most recently have added such rules for drones. Most phones and tablets and other devices that communicate electronically also have such identifiers. And few seem to object to more systematic collection of ID info, such as via tag readers.

The reasoning is simple and robust. When a thing gets lost, identifiers help us get it back to its owner. If a thing might bother or hurt someone around it, we want the owner to know that we can hold them responsible for such effects. Yes, there are costs to creating and maintaining IDs and registries (RFID tags today cost ~$0.15). Also, such IDs can empower those who are hostile to you and your things (including governments) to find them and you, and to hurt you both. But we have consistently seen these costs as worth the benefits, especially as device costs have fallen dramatically over the decades.

But when it comes to your personal body, public opinion seems to quite strongly opposed:

My 14 law&econ undergrads all agreed when I assigned this topic on their final exam today. People oppose requiring identifiers, and as face readers are now on the verge of making a new ID system, many want to legally ensure a right to wear masks to thwart it.

Yet the tradeoffs seem quite similar to me; it is just the scale of the stakes that rise. When we are talking about your body, as opposed to your car, pet, or drone, you can both do more to hurt others, and folks hostile to you might try to do more to you via knowing where you are. But if the ratio of these costs and benefits favor IDs in the other cases, I find it hard to see why that ratio would switch when we get to bodies.

Added 5Mar2020: The number you get from an RFID tag need not directly tell you the public name or location of the person behind it. You might instead need a subpoena to get that from the number.

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Why Not Also Punish False Praise?

I recently read on social media praise for someone I know, someone about whom I know some negative things. I realized that if I posted my negative comments, those would be held to much higher standards than are positive comments. I might be sued for defamation, and many would apply a social norm to me which demands that one defend negative comments with concrete supporting evidence. We don’t have such a norm regarding positive comments.

While the Romans allowed one to sue for damages when someone defamed you even by saying true things, we today only allow that when someone says false negative things, although at common law the burden of proof is on the person accused of defamation to prove their negative claim. The message is: don’t say negative things about others in public if you can’t prove them in court.

Presumably the reason we now allow suits for false defamation is that we see a net social harm there; others are liable to be misled, causing misallocations of resources and relations. In addition, resources may be wasted in back-and-forth defamation battles. But it seems to me that we should also expect similar social harms to result from false positive comments, not just false negative comments. So maybe we should consider having law discourage those as well.

With negative comments it is the defamer who pays the person defamed, even though it is the larger society who in fact suffers the net social harm. The person defamed is just a convenient party we give an incentive to sue. But defamation law would serve a similar social function if we turned it into a bounty, where anyone could sue and collect it. So an obvious option for false positive comments would be to make that into a bounty.

It seems counterproductive to expect the person who is falsely praised to sue someone for doing that. Their incentive can be weak, and if they win they gain twice, from the false claim and from the suit. So my proposal is: let anyone sue re a false positive claim, the first person to succeed gains a bounty amount equal to the court’s estimate of the false gain that resulted. Again put the burden of proof on the person who made the claim. So just as with defamation today, the bounty hunter would have to show some substantial net monetary equivalent gain to the person who was falsely praised, and that could be the amount awarded to that hunter.

Yes, in our world where false praise isn’t punished there’s a lot of it, which isn’t believed so much, and thus each instance causes less harm. But that would also be true if we didn’t allow suing for defamation; a lot more criticism would happen, which would be believed less. If this isn’t a reason to allow defamation, it isn’t a reason not to allow suits against false praise.

Of course, I don’t expect people to leap to implement my proposal. I offer it as a thought experiment, to help us think about *why* we don’t like this, even though its justification seems similarly strong to our usual justification for allowing false defamation lawsuits. Why is false praise seen as so much less harmful than false criticism?

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Rules of Public Evidence?

The United States is perhaps unique among the developed world in that under law, some hate speech is protected. (more)

The United States has a very complicated system of evidentiary rules; for example, John Wigmore’s celebrated treatise on it filled ten volumes. James Bradley Thayer reported in 1898 that even English lawyers were surprised by the complexity of American evidence law. (more)

The main rules of evidence in Sweden are: (i) the principle of free evidence, meaning that there are basically no provisions on what is permitted as evidence as long as it is relevant to the facts to be proven in the case; and (ii) the principle of free evaluation of evidence, meaning that the court evaluates all evidence at its discretion. (more)

On 2 December 1766 Sweden became the first country in the world to have freedom of the press written into the constitution. (more)

Many in the US are proud that the US has weaker limits on speech than do most other nations, especially regarding political speech. However, most in US are not aware that the US also has some of the strongest “rules of evidence” limits on speech in legal courts. These US rules are new; we didn’t have them centuries ago.

Yet the usual arguments used to argue for free political speech can also argue for free court speech, while the usual arguments supporting rules of evidence can also support similar limits on political speech. And the examples of other nations shows that there isn’t a strong world consensus that court limits make more sense than political speech limits. Sweden shows that one can allow free speech in both contexts, while many other nations show that one can also have strong limits in both contexts.

Here are some common rules of evidence limiting trial speech. These are rough guides; the law is quite complex with simple summaries rarely applying exactly.

  • A big clear separation is required between “news” and “editorials”, that is between supporting evidence (most of a trial) and arguments for conclusions (given in closing statements).
  • All witnesses must swear oaths to tell the truth, and are guilty of a crime if they lie.
  • Anyone may be required to testify, except the accused, spouses, docs, therapists, lawyers.
  • One must apply any burdens of proof separately to each element, not just to overall evidence.

All these kinds of evidence are not allowed:

  1. The opinion of a non-expert, unless it is reached unconsciously,
  2. Unauthenticated tangible evidence,
  3. Indirect circumstantial evidence,
  4. Data on similar prior convictions or behavior by the accused,
  5. Hearsay, i.e., what someone heard someone else say,
  6. Simple “naked” statistical evidence, based on relative counts rather than direct observations,
  7. Extrinsic evidence of the contents of a written contract,
  8. Evidence obtained via illegal acts, and
  9. Confessions obtained in an “unreliable” context.

If we wanted, we could eliminate these court rules, and just let everyone say anything relevant that they want in court, as happens now in Sweden.

Or, we might instead apply many of these rules to public political speech. For example, we could require evidence and argument to appear in separate places, we could ban opinions by non-experts, and ban arguments using hearsay or naked statistical evidence. We might even ban irrelevant distracting tangents.

Such rules would require some discretion to enforce, but not much more than judges already use now to apply such rules in courts. Any disputes about excess or misdirected discretion would be judged by those very same legal judges who now make those judgments in courtrooms. And as with most law, minor offenses, which bring small sanctions, may be mostly ignored by both state police and by private suits.

Even in the US, we already apply many limits to business speech. For example, alcohol firms can’t tell the public that most studies find health benefits from modest consumption, anti-discrimination laws limit the kinds of questions one can ask in a job interview, professional licensing limits who you can pay for advice, and some offers are banned by blackmail and wrongful interference with relations rules.

The business world still roughly functions with these rules, as do political worlds in other nations that have strong limits on political speech. And courts could still roughly function without rules of evidence, as happens now in Sweden. These are clearly choices we could make, not clearly forced on us by survival or even wealth considerations.

So what should we choose, more free speech at trials, less free political speech, or a continuation of our inconsistent approach? Here’s a Twitter poll on that:

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The Big Change In Blame

Law is our main system of official blame; it is how we officially blame people for things. So it is a pretty big deal that, over the last few centuries, changes to law have induced big changes in who officially blames who for most things that go wrong. These changes may be having big bad effects.

Long ago most everyone could use law to blame most everyone else. Even though people were poor, the legal process was simple enough for most to use it without needing a lawyer. (Many places actually banned lawyers.) Those found liable could often be sold into slavery to pay their legal debts, and their larger family clans could also be held responsible for their debts. So basically, people blamed people, with families as guarentors.

Over the last few centuries, the legal system has become far more complex and expensive, now requiring people to pay lawyers to sue. But at the same time we’ve made it harder to get people who are found liable to pay. We don’t sell them into slavery or make their families pay, and going bankrupt has become easier and less painful. So when ordinary people suffer a harm and look for someone to sue, their lawyers usually strongly advise that they focus on any deep pockets at all related to their harm.

The law, sympathetic to their plight, has found ways to blame the rich and big firms for most everything that goes wrong. For example, these are all real examples.

  • A rape in an abandoned building is blamed on the building owner.
  • Harassment in a stadium parking lot is blamed on the stadium owner.
  • A student harming another student in an off-campus apartment is blamed on the school.
  • A post-event bad-weather auto-accident is blamed on event host for not cancelling.
  • A harm from using a product bought from a 3rd party is blamed on its manufacturer.

As ordinary people aren’t suing each other much, the government steps in to discipline ordinary folks’ behavior, via regulation and crime law. So, while once people blamed people, law now trains people to blame the rich and big business, and to expect to be blamed by government. So it maybe isn’t so strange that in the recent US Democratic presidential debates, the main parties blamed are the rich and big business. And if ordinary people are seen as doing something wrong (as with guns), regulation or crime law is assumed to be the solution.

When bad things happen in government spaces, like roads, it gets harder to find a rich person or business to blame. So on the roads we have introduced a system of requiring liability insurance, to make sure there’s a big rich business to pay if something goes wrong. As a result, on the road people blame people. That seems a healthier situation to me, and my vouching proposal would try to apply that idea much more widely, to help us return to a world where more often people blame people, rather than people blaming business or government blaming people.

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Who Vouches For You?

A <600 word summary of my crime law proposal:

Who Vouches For You?: A Radical Crime Law Proposal

The legal system used by most ancient societies was simply A-sues-B-for-cash. But in the last few centuries, states added “crime law,” wherein the state investigates, sues, and imprisons “criminals.” These centrally-run one-size-fits-all bureaucratic systems don’t innovate well or adapt well to individual conditions. And even though most of your “constitutional rights” are regarding such systems, they still seem badly broken.

In the ancient world, a stranger who came to town was trusted more if a local “vouched” for them. We still use vouching today in bonded contractors, in open source software, in organized crime, and in requiring most everyone to get an insurer ready to pay if they cause a car accident. I propose requiring everyone to get an insurer to vouch for them regarding any crimes they might commit. If you are found guilty of a crime, your “voucher” pays the state a fine, and then pays to punish you according to your contract with them. This fine in part pays the private bounty-hunter who convinced the court of your guilt. Competing bounty-hunters obey law because they can’t maintain a blue-wall-of-silence.

To lower your voucher premiums, you might agree to (1) prison, torture, or exile, if caught, (2) prior limits on your freedom like curfews, ankle bracelets, and their reading your emails, and (3) co-liability wherein you and your buddies are all punished if any one of you is found guilty. In this system, the state still decides what behaviors are crimes and if any one accusation is true, and it sets fine and bounty levels regarding how hard to discourage and detect each kind of crime. But each person chooses their own “constitutional rights”, and vouchers acquire incentives and opportunity to innovate and adapt, by searching in a large space of ways to discourage crime.

Some key details:

  1. Judges and juries can retain discretion to consider case details when setting guilt or fines.
  2. If fines vary with wealth or income, then the rich don’t get a free pass to commit crimes.
  3. We could subsidize premiums, or offer a public option, to poor ex-cons for which we feel sorry.
  4. Other poor ex-cons might have to work for a while at isolated ships or mining or logging camps.
  5. Not being vouched is punished severely, not via a fine. Need violations to be rare, as with license plates today.
  6. Perhaps each person/building wears visible QR code or pingable RFID of voucher-client ID (VCID).
  7. It is enough to know VCID to charge with crime, no need to physically detain them.
  8. Key criteria for being a voucher is showing that will have enough money to pay fines.
  9. Vouchers are held to contracts for as long as it takes clients to find new vouchers.
  10. Contracts typically worse for clients over time if not renewed, to cover revealed-criminal scenarios.
  11. Contracts typically do not cover pre-existing crimes or plans, for which prior voucher pays.
  12. Clients can switch at will, though co-liability partners must all agree to switch at same time.
  13. First-to-file bounty hunter has right to prosecute first, though is crime to file with little evidence.
  14. Courts would remain skeptical of both sides’ evidence, with evidence faking being a big crime.
  15. Bounty-hunters access to evidence varies with contract-specified client privacy levels.
  16. Market estimates of fines given privacy levels set extra fine factors paid by clients with high levels.
  17. As immigrants & tourists must be vouched, it matters less if immigrants cause more crime.
  18. Parents must get vouchers for kids, so “majority” age could be when kids can afford it on own.
  19. These or related vouchers might pay for costs to assist folks suffering poverty or unemployment.
  20. May want solemn voucher signing ceremony, after passing test shows that understand contract.

Added: See also this talk video.

Added: See also vouching re pandemics.

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Beware Nggwal

Consider the fact that this was a long standing social equilibrium:

During an undetermined time period preceding European contact, a gargantuan, humanoid spirit-God conquered parts of the Sepik region of Papua New Guinea. … Nggwal was the tutelary spirit for a number of Sepik horticulturalist societies, where males of various patriclans were united in elaborate cult systems including initiation grades and ritual secrecy, devoted to following the whims of this commanding entity. …

a way of maintaining the authority of the older men over the women and children; it is a system directed against the women and children, … In some tribes, a woman who accidentally sees the [costumed spirit or the sacred paraphernalia] is killed. … it is often the responsibility of the women to provide for his subsistence … During the [secret] cult’s feasts, it is the senior members who claim the mantle of Nggwal while consuming the pork for themselves. …

During the proper ritual seasons, Ilahita Arapesh men would wear [ritual masks/costumes], and personify various spirits. … move about begging small gifts of food, salt, tobacco or betelnut. They cannot speak, but indicate their wishes with various conventional gestures, …
Despite the playful, Halloween-like aspects of this practice … 10% of the male masks portrayed [violent spirits] , and they were associated with the commission of ritually sanctioned murder. These murders committed by the violent spirits were always attributed to Nggwal.

The costumes of the violent spirits would gain specific insignia after committing each killing, … “Word goes out that Nggwal has “swallowed” another victim; the killer remains technically anonymous, even though most Nggwal members know, or have a strong inkling of, his identity.” … are universally feared, and nothing can vacate a hamlet so quickly as one of these spooks materializing out of the gloom of the surrounding jungle. … Nggwal benefits some people at the expense of others. Individuals of the highest initiation level within the Tambaran cult have increased status for themselves and their respective clans, and they have exclusive access to the pork of the secret feasts that is ostensibly consumed by Nggwal. The women and children are dominated severely by Nggwal and the other Tambaran cult spirits, and the young male initiates must endure severe dysphoric rituals to rise within the cult. (more)

So in these societies, top members of secret societies could, by wearing certain masks, literally get away with murder. These societies weren’t lawless; had these men committed murder without the masks, they would have been prosecuted and punished.

Apparently many societies have had such divisions between an official legal system that was supposed to fairly punish anyone for hurting others, along side less visible but quite real systems whereby some elites could far more easily get away with murder. Has this actually been the usual case in history?

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Our Prestige Obsession

Long ago our distant ancestors lived through both good times and bad. In bad times, they did their best to survive, while in good times they asked themselves, “What can I invest in now to help me in coming bad times?” The obvious answer was: good relations and reputations. So they had kids, worked to raise their personal status, and worked to collect and maintain good allies.

This has long been my favored explanation for why we now invest so much in medicine and education, and why those investment have risen so much over the last century. We subconsciously treat medicine as a way to show that we care about others, and to let others show they care about us. As we get richer, we devote a larger fraction of our resources to this plan, and to other ways of showing off.

I’d never thought about it until yesterday, but this theory also predicts that, as we get rich, we put an increasing priority on associating with prestigious doctors and teachers. In better times, we focus more on gaining prestige via closer associations with more prestigious people. So as we get rich, we not only spend more on medicine, we more want that spending to connect us to especially prestigious medical professionals.

This increasing-focus-on-prestige effect can also help us to understand some larger economic patterns. Over the last half century, rising wage inequality has been driven to a large extent by a limited number of unusual services, such as medicine, education, law, firm management, management consulting, and investment management. And these services tend to share a common pattern.

As a fraction of the economy, spending on these services has increased greatly over the last half century or so. The public face of each service tends to be key high status individuals, e.g., doctors, teachers, lawyers, managers, who are seen as driving key service choices for customers. Customers often interact directly with these faces, and develop personal relations with them. There are an increasing number of these key face individuals, their pay is high, and it has been rising faster than has average pay, contributing to rising wage inequality.

For each of these services, we see customers knowing and caring more about the prestige of key service faces, relative to their service track records. Customers seem surprisingly disinterested in big ways in which these services are inefficient and could be greatly improved, such as via tech. And these services tend to be more highly regulated.

For example, since 1960, the US has roughly doubled its number of doctors and nurses, and their pay has roughly tripled, a far larger increase than seen in median pay. As a result, the fraction of total income spent on medicine has risen greatly. Randomized trials comparing paramedics and nurse practitioners to general practice doctors find that they all produce similar results, even though doctors cost far more. While student health centers often save by having one doctor supervise many nurses who do most of the care, most people dislike this and insist on direct doctor care.

We see very little correlation between having more medicine and more health, suggesting that there is much excess care and inefficiency. Patients prefer expensive complex treatments, and are suspicious of simple cheap treatments. Patients tend to be more aware of and interested in their doctor’s prestigious schools and jobs than of their treatment track record. While medicine is highly regulated overall, the much less regulated world of animal medicine has seen spending rise a similar rate.

In education, since 1960 we’ve seen big rises in the number of students, the number of teachers and other workers per student, and in the wages of teachers relative to worker elsewhere. Teachers make relatively high wages. While most schools are government run, spending at private schools has risen at a similar rate to public schools. We see a strong push for more highly educated teachers, even though teachers with less schooling seem adequate for learning. Students don’t actually remember much of what they are taught, and most of what they do learn isn’t actually useful. Students seem to know and care more about the prestige of their teachers than about their track records at teaching. College students prefer worse teachers who have done more prestigious research.

In law, since 1960 we’ve similarly seen big increases in the number of court cases, the number of lawyers employed, and in lawyer incomes. While two centuries ago most people could go to court without a lawyer, law is now far more complex. Yet it is far from clear whether we are better off with our more complex and expensive legal system. Most customers know far more about the school and job prestige of the lawyers they consider than they do about such lawyers’ court track records.

Management consultants have greatly increased in number and wages. While it is often possible to predict what they would recommend at a lower cost, such consultants are often hired because their prestige can cow internal opponents to not resist proposed changes. Management consultants tend to hire new graduates from top schools to impress clients with their prestige.

People who manage investment funds have greatly increased in number and pay. Once their management fees are taken into account, they tend to give lower returns than simple index funds. Investors seem willing to accept such lower expected returns in trade for a chance to brag about their association should returns happen to be high. They enjoy associating with prestigious fund managers, and tend to insist that such managers take their phone calls, which credibly shows a closer than arms-length relation.

Managers in general have also increased in number and also in pay, relative to median pay. And a key function of managers may be to make firms seem more prestigious, not only to customers and investors, but also to employees. Employees are generally wary of submitting to the dominance of bosses, as such submission violates an ancient forager norm. But as admiring and following prestigious people is okay, prestigious bosses can induce more cooperative employees.

Taken together, these cases suggest that increasing wage inequality may be caused in part by an increased demand for associating with prestigious service faces. As we get rich, we become willing to spend a larger fraction of our income on showing off via medicine and schooling, and we put higher priority on connecting to more prestigious doctors, teachers, lawyers, managers, etc. This increasing demand is what pushes their wages high.

This demand for more prestigious service faces seems to not be driven by a higher productivity that more prestigious workers may be able to provide. Customers seem to pay far less attention to productivity than to prestige; they don’t ask for track records, and they seem to tolerate a great deal of inefficiency. This all suggests that it is prestige more directly that customers seek.

Note that my story is somewhat in conflict with the usual “skill-biased technical change” story, which says that tech changed to make higher-skilled workers more productive relative to lower-skilled workers.

Added 10June: Note that the so-called Baumol “cost disease”, wherein doing some tasks just takes a certain number of hours unaided by tech gains, can only explain spending increases proportional to overall wage increases, and that only if demand is very inelastic. It can’t explain how some wages rise faster than the average, nor big increases in quantity demanded even as prices increases.

Added 12Jun: This post inspired by reading & discussing Why Are the Prices So Damn High?

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Why Crime Discretion?

Our criminal law system gives discretion to many actors, in effect, pardon criminals, vary their punishment. Police officers and their bosses can choose not to arrest, or to charge with a lower crime, prosecutors and their bosses can choose not to prosecute, to prosecute for a lower crime, or to settle on a lower crime, judges and juries can choose not to convict and to make mild or severe sentences, and governors and presidents can pardon them, and prisons can parole them.

If you were the victim of a crime, you might be disturbed to see that so many people can in effect pardon the criminal who hurt you. Also, as these parties are paid far less to deal with that criminal than how much that criminal could suffer, you could reasonably be worried about bribes and other forms of bias and corruption. Even if you think there should be some discretion in the system, you might think that should be limited more, such as to only the judge. Why do we have so much discretion in our system?

To find out, I did this Twitter poll:

I also did two other polls, the same except “speeding” was replaced by “trespassing” and “in general”. In all three polls, by a roughly 3-1 ratio respondents thought that discretion would favor them personally. And in all cases, there is a substantial correlation between thinking that correlation benefits you and that it benefits society. However, for speeding, which is the case where they should have the most personal knowledge on the consequences of discretion, they were split evenly, about 1-1, on if discretion helps cut net social harm. And in the other two cases, where they personally know much less, they guessed about 3-2 that discretion cut net social harm.

To me, the obvious interpretation here is this: the main reason most people favor crime law discretion is that they expect to personally benefit from it. They are willing to presume that it benefits society in areas they don’t know much about, but they admit that it doesn’t in the areas they know best. This seems analogous to people estimating much higher accuracy for media reports in areas they don’t know about, compared to areas in which they’ve seen how media coverage compares to personal knowledge.

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Freedom Isn’t Free

The concept of a right to health has been enumerated in international agreements which include the Universal Declaration of Human Rights, International Covenant on Economic, Social and Cultural Rights, and the Convention on the Rights of Persons with Disabilities. … equitable dissemination of medical knowledge and its benefits; and government-provided social measures to ensure adequate health. …

Everyone has the right to … food, clothing, housing and medical care and necessary social services. … “responsibility [that] extends beyond the provision of essential health services to tackling the determinants of health such as, provision of adequate education, housing, food, and favourable working conditions” … right of everyone to the enjoyment of the highest attainable standard of physical and mental health … each individual holds an inherent right to the best feasible standard of health. (more)

We might want to say that people have a right to food. And in a place like the Soviet Union, where food was centrality produced and distributed, a right to food might be defined in terms of fixed numbers of particular items. So many loaves of bread, kilos of meat, and bottles of milk per week, for example. Such “rights” would be complex, vary by time and place, and result mostly from complex and changing tradeoffs, as well as politics.

While basic ethical principles might influence such rights, that influence may be hard to discern among so many other influences. If a right to food were enshrined in the text of a constitution, it would be hard for courts to have that text and a few abstract principles strongly determine if any given action is taken to violate that right or not. They might accumulate case law on how to make such decisions, but that would mostly be the court defining the right, not the constitution or abstract principles. The court might delegate many details to government agencies, in which case it would be those agencies deciding most details, not the constitution or abstract principles.

In contrast, in a market economy like ours, where individuals can more easily choose the particular foods that they want, it makes less sense to talk having about having rights to particular baskets of bread, meat, milk, etc. One could instead talk about a right to so many calories or grams of protein, but that might be hard to enforce. It could make more sense to talk about a right to a minimum food budget, and to having foods available to purchase at their real costs. (Such a budget might be set by market prices to get min calories, etc.) And it might be work even better to just focus on general redistribution systems expressed in terms of money, allowing each person to choose their own food priorities.

In a market-based economy where rights are implemented via food budgets or overall redistribution policies, outcomes would be influenced more by the constitution text and abstract principles, and by many individual choices, and less by the courts or government agencies.

Similarly, in a centrally-administered medical system, one could make a long list of the particular medical treatments to which each patient is entitled, if they were diagnosed with particular conditions. This long list of medical rights would be context-dependent and change frequently, and it wouldn’t have any clear relation to basic ethical principles or a constitutional text about a right to medicine. Such a list would mostly reflect many practical tradeoffs as well as politics. It seems quite hard to formally define and enforce any simple general “right to medicine” given all this complex variation and context dependence.

When medicine is allocated more by a competitive market, it can make more sense to try to ensure that people are free to buy medicine, medical insurance, and info on medical quality, all at prices that reflect the real costs of such things. One might try to define medical rights in terms of a minimum budget that each person has to buy medicine or medical insurance or info. Or one might focus on a more general system of redistribution expressed in terms of money, and let each person choose their medical priorities. In either of these last two scenarios, abstract principles and a constitutional text, together with individual choices, could have more influence on outcomes, relative to decisions by courts and government agencies.

In this last scenario, if you saw a case where you felt bad that someone who knew about a particular medical treatment didn’t buy that treatment, you might consider pushing to increase the priority of similar people in your more general system of redistribution. So that they could have more money to buy such treatments. If you gave such people more money, but they chose instead to spend that money on other things, you might accept that they have differing medical priorities from you, or you might try to push them to share your priorities. Either way, that dispute doesn’t really seem to be about a right to medicine.

If you are with me so far regarding food and medicine, then in the rest of this post I want to convince you to think similarly about many formal civil rights and liberties. At least regarding rights and liberties whose limits are set mainly by criminal law enforcement considerations. Today our constitutions and courts try to specify many complex related rights and liberties. I will argue that this complexity is to a large degree due to having a centralized government-run system of criminal law enforcement. This is analogous to the complexity we would have if the government ran the food system or the medical system, wherein rights to food or medicine would consist of long lists of the food you could get each week, or the medical treatments to which you were entitled.

I will suggest that we could instead switch to a much more private, open, and competitive system of criminal law enforcement. In such a system, individuals could buy the particular civil rights and liberties that they wanted. We could then work to ensure that people are free to buy these rights and liberties at prices that reflect their real costs, and that people have a minimum budget to purchase such things. Or we might just focus on a more general system of redistribution expressed in terms of money, and let each person use money to express their priorities for rights and liberties re criminal law enforcement. Let me explain.

Today, we have explicitly declared a great many rather specific rights and liberties on how we are to be treated by our systems of law enforcement. Of course your actual rights and liberties vary according to your exact legal jurisdiction, the legal text there, court interpretations in that jurisdiction, and how local law enforcement agencies actually implement court rulings in their actual policies.

You may have have rights to be silent, and to not talk to police, and exceptions to those rights, such as when you must identify yourself. You may have rights and obligations regarding when you may be detained or arrested, and who must give testimony regarding which kinds things about which kinds of associates, including themself. There are rules on when one must be allowed to consult a lawyer, and rules that require lawyers to be available free of charge. You may have have rights to keep some things private, to be safe from unreasonable searches and seizures, and there may be exceptions to these based on warrants and on which things are in “plain view” or result from “hot pursuit”. Other exceptions are based on extra powers given to police in certain situations.

You may have rights to assemble with others of your choice, and to travel freely, but these rights may have exceptions limiting where you can go where when, such as curfews and orders to stay away from some places or to stay close enough to other places. You may have a right to speedy trials. Regarding punishment, you may have rights to avoid disproportionate punishment, and cruel and unusual punishments. In prison, you may have rights to minimum qualities of food and medicine, to a lack of racial segregation, to accommodation of your disabilities, to a lack of crowding, and to some kinds of speech, contact with outsiders, and religious activities.

For all of these rights and liberties, you may have complex rights regarding who must monitor to check that they are actually being upheld, and who may sue whom claiming that they are not, and what they would win if they won. Many have claimed that in fact many important groups in our societies don’t actually have many of the rights and liberties that they are supposedly granted on paper. I’m inclined to believe many such claims, which is a big part of why I seek other approaches.

Much of this complexity results from the fact that, in order to enforce criminal law, officials sometimes need to detain, punish, and watch people, and they sometimes need to limit their travel, assemblies, and other activities. Officials sometimes need to collect info about some people from their things and from other people. These many complex rules about rights and liberties are often claimed to be designed to give everyone as many rights and liberties as feasible, while still allowing criminal law officials to do what needs doing to enforce criminal law in a reasonably cost-effective manner. Because the world is complex, these rules must be complex.

But imagine that we replaced our centralized government run system of criminal law enforcement with this:

Consider a fine-insured-bounty (FIB) crime law system. … All (but one) crime is punished officially by fines, everyone is fully insured to pay large fines, and bounty hunters detect and prosecute each crime. In a FIB system, we collectively decide the fine and bounty level for each crime, and manage a judicial system which decides individual cases.

If we set the fine level for each crime to be our best estimate of the social harm produced by one more crime event of that type (divided by the chance that it will be caught, plus enforcement costs), then the insurer-client pair would internalize that social harm, in which case we could leave that pair free to choose punishment types, costs, and levels, as well as (many aspects of) police and prosecutor monitoring and investigative powers. (more)

Within a FIB system, insurer-client pairs choose most details of punishment, including type, size, duration, etc. So within such a system, there’s little need to give people rights to avoid disproportionate, cruel, or unusual punishment. Anyone can choose to avoid any type of punishment, if they are willing to pay associated insurance premiums.

Similarly for monitoring to prevent crime. Insurers will want to promote and enable such monitoring, to avoid having to pay on behalf of clients. So insurers will offer lower premiums to clients who allow more monitoring. No need to guarantee any minimum or maximum monitoring; such levels are chosen by contract. For rights re how one interacts with police, it is possible to not give bounty hunters any more rights than ordinary people have. In which case we’d need no extra rights relative to police interactions.

Now it does seem plausible that the more rights that bounty hunters have to collect evidence, such as by searching places and compelling testimony, the higher the chance that any given crime could be caught, with the criminal’s insurer forced to pay a fine. But what if lowering this chance were the main external cost that resulted from letting a potential criminal choose to make it harder to collect evidence about them? In this case we could correct for this effect via fine amounts. The fine for each crime should depend on an estimate of the chance that crime would have been detected and successfully prosecuted. With decent (and perhaps conservative) estimates of how the chance of catching a crime depends on how open a criminal is to evidence collection, we could adjust fines for this effect, and thus allow insurer-client pairs to choose how open to be to bounty hunters seeking evidence. In which case we don’t need a right against “unreasonable” police searches.

So far I’ve argued that, in a FIB system, we don’t need formal rights and liberties regarding issues where we can just let insurer-client pairs choose, because they internalize the social harm of such choices. I’m not claiming that all civil rights and liberties are of this type, but many are. Creating a more private, open, competitive criminal law system could allow us to greatly simplify civil rights and liberties, and have the results depend a long more on constitutional text and general principles, and on individual choices, and depend less on courts and government agencies. Just as when we have private, open, competitive systems for food or medicine.

What if you felt bad when you saw someone choose fewer civil rights and liberties than you thought right or wise? You might try to persuade them to change their priorities, or you might try to increase the priority that you give to such people in your redistribution system that ensures minimum budgets to buy rights and liberties, or within your more general redistribution system. So that they could more easily afford to buy more rights and liberties if they wanted them. I think this would work better than trying to centrally legislate who exactly should have which particular rights and liberties, as that wouldn’t well take into account individual tastes, costs, and context.

Added 1June: Here’s a way to estimate “how the chance of catching a crime depends on how open a criminal is to evidence collection”. Have the statute of limitations be no shorter than N (=10?) years, and require everyone to keep good private electronic records of their activities for at least that long. Allow L (=4?) different privacy levels that everyone can choose among. Divide the polity into M (=1000?) regions, and every N years force one random region to have the lowest privacy level regarding its last N years of crimes. For each region and privacy level combination, have a prediction market estimating its crime rate (number of crimes weighted by fine level, divided by average-over-period fraction of residents at privacy level) conditional both on being randomly picked, and on not being so picked. That’s 2*L*M/N prices per year. The fine increase factor for each region and privacy level combination is given by a smoothed ratio of the estimated crime rates between the two conditions. Smoothing can take the whole set of prices and find a simpler model that fits them.

Added 5Aug: Here is pdf of slides for talk I gave.

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