Tag Archives: Law

We Ban Lies, To Officials

By Robin Hanson · September 23, 2011 10:00 pm · Comments (16)

When I posted before on not seeing why lies should be legal, many complained that laws against lies are impractical. But in fact, it has long been illegal to lie to government officials:

Did you know that it is a crime to tell a lie to the federal government? Even if your lie is oral and not under oath? Even if you have received no warnings of any kind? Even if you are not trying to cheat the government out of money? Even if the government is not actually misled by your falsehood? Well it is.

Title 18, United States Code, Section 1001 makes it a crime to: 1) knowingly and willfully; 2) make any materially false, fictitious or fraudulent statement or representation; 3) in any matter within the jurisdiction of the executive, legislative or judicial branch of the United States. Your lie does not even have to be made directly to an employee of the national government as long as it is “within the jurisdiction” of the ever expanding federal bureaucracy. Though the falsehood must be “material” this requirement is met if the statement has the “natural tendency to influence or [is] capable of influencing, the decision of the decisionmaking body to which it is addressed.” United States v. Gaudin , 515 U.S. 506, 510 (1995). (In other words, it is not necessary to show that your particular lie ever really influenced anyone.) Although you must know that your statement is false at the time you make it in order to be guilty of this crime, you do not have to know that lying to the government is a crime or even that the matter you are lying about is “within the jurisdiction” of a government agency. United States v. Yermian , 468 U.S. 63, 69 (1984). …

Some [Assistant United States Attorneys] specifically send agents out to conduct interviews knowing that a witness will either tell the truth and help build a case against someone else or lie and subject himself to a Section 1001 charge . … You will probably not be shown any of the pertinent documents before the interview begins. You could easily make factual mistakes during your interview. … Your mistakes can easily be interpreted as intentional falsehoods under Section 1001. …

Tell the agent that you have an attorney and that “my attorney will be in contact with you.” … If you are not in custody, your total silence, especially in the face of an accusation, can very possibly be used against you as an adoptive admission under the Federal Rules of Evidence. Your invocation of counsel, however, cannot be used against you at trial. (more)

This law may or may not be a good idea, but surely it is feasible.

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Let Us Give To Future

By Robin Hanson · September 19, 2011 6:30 pm · Comments (23)

18 months ago I wondered:

Franklin … [left] £1000 each to Philadelphia and Boston in his will to be invested for 200 years. … by 1990 the funds had grown to 2.3, 5M$. … Why has Franklin’s example inspired no copy-cats?

Thanks to Gwern, I now know of several copy-cats, mostly failures (quotes below). This confirms that many are willing to donate to distant future folks, but are prevented by law, largely from fears that donor funds will eventually dominate the economy. Alas, as these are the likely consequences of allowing donations to the distant future:

1) The fraction of world income saved would increase, relative to consuming not-donated resources immediately. This effect starts small but increases with time, until savings become a large fraction of world income, after which diminishing returns kicks in.

2) While funds are in saving mode, world consumption would be smaller at first, relative to immediately consuming donor resources, but then after a while it would be higher, though it might eventually fall to zero difference. When such funds switch from saving to paying out, or when thieves steal from them, the consumption of thieves and specified beneficiaries would rise.

3) As investment became a large fraction of world income, interest rates would fall, and the market would take a longer term view of the future consequences of current actions.

4) Some would change their behavior in order to qualify for benefits, according to the conditions specified by the original donors and the agents they authorize to later interpret them.

These changes seem good overall, especially if, as I estimate, the future will have many folks in need. Not only would donors actually get to do what they want with their resources, but policy-makers usually lament that savings rates are too low, and interest rates too high, leading us to neglect distant future consequences of our actions. The added consumption given to future folk is mostly stuff that would not exist if not for their donations, so it is hard to begrudge them giving to whom they wish. Our evolved instincts to resist domination makes less sense here, as “dominating” donors are long dead, influencing the world only via largely-altruistic explicit visible instructions.

Note that once physical, if not economic, immortality is feasible (i.e., paying enough lets you survive indefinitely), then original donors can stay around to manage their growing funds. Those promised quotes:

Continue reading "Let Us Give To Future" »

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Inbred Law Schools

By Robin Hanson · September 6, 2011 4:30 pm · Comments (12)

Top law schools are much more likely to employ graduates of top ranked law schools than elite law firms, and the difference exists at both the junior and senior levels. We find no evidence that the graduates of top 5 law schools outperform grads of less prestigious schools in publications or citations. In the absence of a profit motive, academic hiring appears more likely to indulge a preference for pedigree, and by implication, this may explain other scholarly prejudices in the academy. (more)

Relative to law firms, law schools care more about the prestige of a lawyer’s school. Which makes sense if law schools sell credentialed impressiveness more than an increased ability to do real legal work.

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Rah Self-Incrimination

By Robin Hanson · August 30, 2011 12:00 pm · Comments (18)

The more I think about law, the more I see arbitrary historical accidents enshrined into unquestioned dogma. Consider: we require people to answer questions by police or courts investigating crimes, without privacy excuses and without compensation for lost time. We apparently estimate the value of investigating crime to outweigh such costs. Except, we exempt criminal suspects from answering questions! (We also exempt folks statusfully related to suspects.) Yet if anyone should give up time and privacy to help investigate a crime, it is the suspects.

Here is one account of this history of this rule:

The right was created in reaction to the excesses of the Courts of Star Chamber and High Commission … 1487-1641. These courts utilized the inquisitorial method of truth-seeking … sufficient “proof” came from browbeating confessions out of the accused. These courts required the accused to answer any question put to him, without advance notice of his accusers, the charges against him, or the evidence amassed. … By the 18th century, English law provided that neither confessions coerced during the trial nor pretrial confessions obtained through torture could be used. …. The U.S. Supreme Court has expanded the Fifth Amendment to apply … to “any other proceeding, civil or criminal, formal or informal, where his answers might incriminate him in future criminal proceedings.” (more)

Somehow, many think this history shows that today a right not to self-incriminate keeps police from torturing confessions out of suspects. But to prevent torture, we should just have rules against torture. A further rule against self-incrimination can’t prevent torture for the simple reason that we let people waive their right not to self-incriminate. If police can force confessions via undetected torture, then police can also use undetected torture to force people to waive their right against self-incrimination!

The following video argues that if suspects must answer police questions, then police can find enough mistakes in what most anyone says to make them seem guilty:

The detective in this video also says that if he follows most anyone long enough he can catch them breaking a law. But if true these seem grounds for raising standards of proof at trial, and for disclosing at trial the amount of questioning or following done.

We don’t want to protect people from being framed by the police merely by making police work generically harder. For example, requiring police to always hop on one foot, or to constantly sing the national anthem, would surely make it harder for police to frame folks, but simply by making it harder for them to do anything! The rule against self-incrimination seems yet another arbitrary handicap, making police work harder overall, without discouraging bad policing more than good policing.

Rather than giving arbitrary handicaps, we’d do better to just reduce the size of the police force and budget, and to restrict police in ways that more directly distinguishes good from bad policing. Having suspects answer police questions does not so distinguish, being just as much a part of good as bad policing.

For more academic critiques, see here, here and here.

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Blackmail Enforces Law

By Robin Hanson · August 12, 2011 9:00 am · Comments (15)

A year ago, I pushed private bounty-based law enforcement:

For each type of crime, we’d set a bounty amount to be paid to anyone who successfully convinced a court that a particular in-custody person had committed that sort of crime. We’d have to decide what investigative powers to grant bounty hunters, what regulations to impose on them, and what plea-bargains to allow. We’d also have to set rules on when to detain suspects, and how to prevent double jeopardy. (Options below.) We might want especially solid anti-trust regulations.

Since I’ve talked about blackmail lately, I should mention that legalizing blackmail would create an especially cheap and flexible system of private law enforcement. If an associate of a criminal discovered evidence of their crime, this associate could via blackmail extract close to the cash equivalent of the punishment to the criminal. While this might modestly lower the level of punishment of a caught criminal, it should greatly increase the probability of punishment, leading to more expected punishment of crime. And relative to public police, blackmailers should have much lower costs to investigate crime and implement punishment.

The main academic complaints (e.g., here, here) against blackmail as private enforcement of law are complaints against the very idea of private enforcement of law. It would be just terrible, they say, if criminals got punished without everyone being officially informed. Law enforcers in general face temptations to obtain evidence illegally, and to treat the rich and poor differently, and they face possible violent retaliation from criminals – and we all just know, they say, that public police better deal with these problems. Some also fear that adding private enforcement onto an optimal public enforcement would create too much deterrence, not realizing that one could compensate by reducing public penalties and enforcement.

One unmentioned possible cost of blackmail is a weakening of the bonds that tie people together. You’ll be less open to people who could blackmail you. This is a cost of all law enforcement – you will, for example, be less open with someone who could testify against you in court. For this reason (supposedly), the law today privileges certain relationships, such as spouses, doctors, clergy, reporters, and researchers, against having to testify in court. Reasoning similarly, one could prohibit blackmail within specific relationships.

But as such privileges make it harder to protect the rest of us from their law breaking, it seems to me that they should have to pay us to gain this privilege, unless it is clear that their relation produces more than enough compensating benefits to us. One way to pay would be by sharing some responsibility for their crimes.

The distortion that I’d worry about most is that blackmail as private law enforcement creates an added incentive to associate with potential criminals and ne’er-do-wells, in order to later blackmail them. The cost of this distortion probably doesn’t outweigh the benefits of much cheaper enforcement, however.

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Defenses of Hypocrisy

By Robin Hanson · August 10, 2011 12:15 pm · Comments (6)

Excerpt from Guarding Life’s Dark Secrets:

I describe, chiefly for the nineteenth century, a complicated network of doctrines that seemed to be designed to protect reputation and that operated chiefly for the benefit of respectable men and women. … I call this network of doctrines the Victorian compromise. … Some … legal institutions … act to protect the reputation of people who are not innocent —people who are the victims, not of lies, but of the bitter truth. …

Take, for example, the crime of blackmail. … Who is the victim here? It is a man who has committed a crime or who has done some scandalous or awful act, one that would blacken his reputation if the news got out. Yet the law defines him as a victim. …

Take the old law about breach of promise. If a man promises to marry a woman and then backs out, she can sue him for damages. In many cases her real complaint is that she had sexual intercourse on the strength of his promise. … Here too the woman, like the blackmail “victim,” is hardly innocent. She violated nineteenth-century norms. She was guilty of fornication, which in many states was actually a crime. But despite her sins and transgressions, the law gave her this remedy. …

The living law of prostitution is yet another example … Prostitutes themselves were mostly social pariahs. … Yet, curiously enough, prostitution itself for much of our history was not actually illegal. Prostitutes were jailed as vagrants, and brothel keepers could be prosecuted, but buying and selling sex itself was not clearly labeled a crime. What this meant is that customers of prostitutes were immune from prosecution. … A screen of silence, and even some aspects of the formal law, shielded the men and protected their privacy and their reputations. …

The Victorian compromise … put enormous emphasis on surface behavior. The official rules remained in place, sometimes expressed in quite general or absolute terms; meanwhile, the law in action was quite different. There is a kind of double standard. No real attempt is made to enforce the official rules with vigor. They remain slogans or a kind of facade; or they are enforced selectively, according to norms and rules that are never made explicit. …

The Victorian compromise should not be dismissed as mere hypocrisy. The living law had a curious double standard, but this had a purpose, at least implicitly. … The laws relating to prostitution were like laws against speeding today. Nobody really thinks speed limits are totally effective. Everybody violates them from time to time. Enforcement is a sometime thing. But the laws, at existing levels of enforcement, are not useless or hypocritical. Arguably, they keep the amount of speeding under control. If you took off the lid entirely, who knows how fast and how recklessly some drivers might drive on the roads. (more; HT Peter Twieg)

Hypocrisy is rarely “mere.” Yes hypocritical acts are usually integrated into a complex equilibrium of mutually adapted behaviors, so that changing any one act alone tends to make things worse. But that hardly justifies hypocrisy – other matching changes are usually possible. For example, I’m told that in Australia they enforce speed limit laws pretty strictly. Speed limits are higher, and it all works out. By comparison, hypocritical speed limits in the U.S. mainly give police more discretion in whom to harass. This might be on net a good thing, but that sure isn’t obvious.

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Why I’m Not Libertarian

By Robin Hanson · August 9, 2011 11:40 am · Comments (66)

Over lunch yesterday, Bryan Caplan explained to me some finer points of standard libertarian legal philosophy. Here is my current understanding (errors mine of course):

Libertarians believe: Each human is endowed with property in his or her own body, and can obtain property in other physical objects, including land, via certain “making” processes. People can trade such property rights via explicit contracts. It is not morally permitted to violate property rights as determined by current contracts, except to defend or retaliate against other violations. Contract violations can happen via “fraud” (= lies) that create deviations between a contract’s words and deeds. (If a contract specifies damages for breach, it is not immoral to breach if you pay the specified damages.) There is more to morality, and within these constraints people should use their property to achieve such other morality.

I’m an economist who appreciates the economic analysis of law. I know how very useful property and contract can be in achieving economic efficiency. But the most efficient forms of property and contract are not obviously only these libertarian ones. For example, many sorts of non-physical property are probably efficient, beyond those that can easily be created via local contracts. It is probably sometimes efficient to initially allocate property in other ways than via the usual “making.” It is probably efficient to endow parents with partial ownership of their children. And it is probably efficient to enforce non-explicit contracts, such as among very large groups.

Yes most libertarians bite these bullets and say the libertarian choices are the moral ones, even if inefficient. But I just don’t find very compelling the morality of this urge to make most everyone worse off on average in order to follow certain traditional rules.

I especially get stuck on the claim that law should limit its attention to “physical,” not info, property and harms. (That’s in quotes because info is completely physical; in fact, there may be nothing physical that isn’t info.)  That is, physical rights are said to be pre-existing, but any info rights must be explicitly constructed by contract. Yet people can hurt each other “non-physically” via info in so many ways.

Many libertarians seem to feel they have discharged most of their info moral obligations if there is a reasonable interpretation of their words which has them telling no clear lies. As someone who spend most of my early economist years specializing in the economics of info, this seems spectacularly inadequate. I wonder if, as kids, libertarians tended to be witty weaklings – losing most fair physical fights, but winning most fair verbal sparring. Perhaps such kids prefer everyone to embrace the slogan “Sticks and stones may break my bones but words will never hurt me,” because then the people they hurt via words can’t complain, because they can’t even admit they were hurt.

Now as a matter of practice, libertarians and I tend to agree in many policy disputes. Their support of property and contract often promotes economically efficient outcomes. And for that, I salute them. I even say sometimes that I “lean libertarian.” But I cannot embrace the above strict concept of libertarian morality.

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Real Policing

By Robin Hanson · August 8, 2011 2:15 pm · Comments (13)

A columnist wary of police discretion in enforcing a teen curfew:

The County Council is considering an ill-conceived curfew for kids under 18 after a flash-mob gang fight … At the jam-packed hearing, Montgomery officers assured curfew skeptics and opponents that they weren’t out to lock up the kids coming home late from jobs or Harry Potter premieres. … So, how exactly do they plan on telling the good kids from the bad ones? I’m pretty sure most kids will forget their government-issued, GOOD KID ID badge every time they go out. A government-imposed curfew opens the door to harassment and profiling when what we need is policing of criminals and parenting of kids. (more)

A police officer responds:

Today’s Montgomery County police are part of one of the first generations of Americans to have grown up “color blind,” or for that matter, blind to all bias. ….

We are able to tell the bad kids based on their behavior. It’s the kids who come to hang out but never spend a dime at area businesses. The ones dropping the “F-bomb” so loud that you cringe when you’re walking by with your family. The ones who comment on the appearance of your daughters, walking behind them and taunting with comments so crude it would make a sailor blush. The ones who end up staying late, wanting to fistfight kids from other neighborhoods because of some street name or boundary line that is important only in their minds. The ones who follow you as you walk out of Silver Spring into the adjoining neighborhoods, snatching your iPhone and running to the Metro to get home. (more)

This exchange nicely illustrates the conflict between the ideals we want law to embody, of police just enforcing a clearly specified “law,” and the real messy peace-keeping tasks police actually perform. This police officer clearly expects to use lots of discretion in deciding who to harass. While it is not officially illegal to shop without buying, or to use swear words, or to care about neighborhood lines, he’d use those as indicators about whom to harass. He’d probably on average mostly harass kids that locals dislike, though he’d also probably act on personal biases and preferences. And I’ll bet that among police, the only unusual thing about his attitude is that he published it. Police must give lip-service to being “unbiased,” and local citizens will pretend along with them, if that’s what it takes to keep the peace.

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Blackmail Is Gossip+

By Robin Hanson · August 8, 2011 8:20 am · Comments (13)

Sticks and stones may my bones, but words will never hurt me. Old saying, that few believe.

A perverse man stirs up dissension, and a gossip separates close friends. (Proverbs 16:28)

They were filled with all manner of unrighteousness, evil, covetousness, malice. They are full of envy, murder, strife, deceit, maliciousness. They are gossips, slanderers, haters of God, insolent, haughty, boastful, … (Romans 1:29,30)

Law, first and foremost, keeps the peace. Sometimes people have big complaints about others, complaints so big that they are tempted to do something big about them. In such cases it can be very nice to have a law step in and declare who is right. If many accept the law’s resolution, peace may be preserved.

Gossip is dangerous. This has long been known, as the bible quotes above indicate. People can be greatly harmed by others talking about them, so sometimes gossip leads to very big complaints. Through most of the history of formal law, dangerous gossip was dealt with simply: law banned saying bad things about others. Of course this rule wasn’t always or even usually enforced – it was expensive to make a legal complaint. And there were various conditions and exceptions. But the basic idea was simple: keep people from hurting each other.

Our modern Western world thinks differently. We idealize conversation, and letting people say what they think. So we no longer have law punish people for saying bad things about each other, especially true things. We instead tell folks to tough it, that true mean words don’t excuse violent retaliation. Sometimes we see people hurt others greatly, out of malice, and we refuse to stop them. We sacrifice such victims on the altar of our respect for conversation.

Of course there are good things to say about gossip. By freely sharing info, we might aggregate it, and all learn the sum of what we all know. For example, we might learn to identify people who are mean or uncooperative, helping us to avoid them, and giving them stronger incentives to cooperate. While such social pressure to please aren’t always good, they seem good on average.

Blackmail is basically a threat of gossip; “if you don’t pay, I’ll gossip.” So almost all the things people don’t like about blackmail are things they don’t like about gossip. Someone could, out of selfish motives, say something that hurts someone else. If you don’t like this scenario, it is mainly something you don’t like about a freedom to gossip.

Yes, in addition to harmful gossip, blackmail can also involve money, and a threat. But money-inspired threats happen anytime parties haggle over a price, and few folks get worked up over that. If people are free to buy or not buy, and to sell or not sell, why not let them make threats about the price they’ll accept? Similarly, if people are free to gossip or not gossip as they prefer, why not let them haggle over the price of their gossip?

Yes, some prices are seen by many as unfair or immoral. Many don’t think the price of water or gas should rise in a crisis, and think the cash price of sex, babies, and organs should always be zero. But the arguments folks give for those cases don’t apply well to gossip — why exactly should the cash price of gossip always be zero?

Now a world that allows blackmail about gossip, i.e., haggling over the price of gossip, isn’t exactly the same as a world with only gossip. Legal blackmail should increase the incentives to discover embarrassing info, and thus the expected penalties from embarrassing actions. But these are mostly just stronger versions of the effects of gossip without blackmail, and they are effects we think we mostly like about gossip.

If we don’t want to discourage certain embarrassing actions, then why allow gossip about them? We could extend our privacy laws, and declare some topics off limits to casual conversation. But for topics where we do want conversation, because it is on average good to discourage people from doing embarrassing things, why not also allow blackmail?

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Blackmail History

By Robin Hanson · August 7, 2011 10:20 am · Comments (3)

The most common way academics study regulation is to seek models under which such regulation could be efficient (or moral), and to seek empirical data on details of current local regulatory practice to distinguish such models. But this standard approach tends to neglect both models where people personally gain by supporting inefficient (or immoral) regulation, and the patterns of such regulations across diverse cultures, times, and topics. Some other day I’ll elaborate on this general point. Today I’ll apply my own advice to blackmail, and consider the history of blackmail law.

Some say that we ban blackmail today in order to encourage more gossip. Others say blackmail law is driven mainly by elites wanting to protect themselves. Relevant to both of these theories is the fact that both blackmail and negative gossip were illegal in ancient Rome. (Details below.) But only regarding elites. Unless you had a special privilege, it was illegal to say something embarrassing about an elite. It wasn’t until the last few centuries that law has allowed gossip that says bad true things about elites, and then to compensate we greatly increased blackmail penalties. So at least regarding the pre-modern era, the elite protection theory gets a boost, while the gossip support theory looks weak. This data also helps one understand how the ancients could affirm such high moral standards – few were allowed to point out elite hypocrisy.

Foragers relied heavily on gossip – “leaders” and “legal guilt and punishment” were determined almost entirely by informal uncontrolled gossip. Farmer elites tried to crush gossip as a social force competing with their edicts, though gossip stayed stronger among elites. In the modern world we have returned more to forager values, and so we more empower and rely on gossip, though usually within limits. We allow juries to decide legal trials, though we limit outside gossip influence on jurors. Via democracy, public opinion now picks top leaders, and mass media is recently getting comfortable saying bad things about leaders’ personal lives. Via a celebrity and media culture, gossip chooses many other elites. And we also allow freer speech, including saying embarrassing things about elites.

Forager values seem less enamored of money, since a money-based relation is often framed as a kind of domination, and for foragers domination is illicit. So while the modern world more embraces decentralized conversation, we seem to often be wary of letting base money and commerce influence conversation, which we idealize. For example, there is today widespread wariness of paid advertising, open campaign finance, and of for profit firms controlling schools and media, and publishing research. While this wariness doesn’t usually lead to prohibitions of money interacting with gossip, it makes people more willing to accept such prohibitions.

Blackmail can be framed as a base thing, money, polluting both our idealized conversation, and our idealized private lives. Distaste for pollution of high things by low, together with strong elite distate for blackmail, which mostly targets them, seems enough to explain why blackmail remains illegal.

Some quotes on blackmail law history: Continue reading "Blackmail History" »

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