Self-Set Legal Liability

Today a big fraction of “constitutional law” issues are on our many awkward, incoherent, and inefficient collective choices regarding crime detection, punishment, co-liability, and freedoms of movement and privacy. My vouching proposal would instead privatize all of these choices, hopefully inducing more innovative, adaptive, and efficient versions. But it would not change how we decide what is a crime, how we judge particular accusations, or how we set priority levels for crime avoidance and detection.

In my vouching proposal, each kind of crime has a fine and a bounty. The fine sets how hard injurers and their vouchers will try to avoid causing the harm, while the bounty sets how hard bounty-hunters will work to detect who caused the harm if it happens. In this post, I’d like to consider further privatizing the choices of these two priority levels. I don’t have a fully worked out proposal here. I instead want more to frame the issues, and think aloud. Here goes.

Consider kinds of harms, like murder, rape, robbery, defamation, etc., where particular victims can be identified. We might want to let such victims set personal fine and bounty levels for each kind of harm that they might suffer, and to which others might contribute. If everyone were required to have an RFID tag that returns a pointer to a voucher, to prove that they are in fact vouched, then that pointer could also tell about that person’s personal fine and bounty levels, to help others better take those into account in their interactions.

For concreteness, consider the “harm” of being insulted. (I choose this example because it isn’t obvious whether this is in fact a harm that should be discouraged by law.) A potential victim of insults would seem to be well-placed to choose what fraction of the fine paid should go to pay for a bounty, as opposed to compensation to that victim. But setting a higher fine level would impose costs on others who might want to insult this victim. So we want the victim to pay a cost for raising their personal fine level. Ideally with the right cost, they’d set the level to match the actual harm they suffer from this event. Then others who faced this fine might make efficient choices regarding how hard to try to avoid insulting this victim.

Property taxes based on self-set property values can give property owners good incentives when those self-set values become legal property sales offers. Similarly, it seems to me that it might work to charge victims some fee in proportion to the insult fine levels that they set. Then the higher they set their insult fine, the more others will avoid insulting them, but the more they will have to pay in fees.

The key parameter here is the ratio of the personal annual fee paid to the personal fine level. This parameter may need to be set differently for each different kind of crime. How can we get such parameters near reasonable values?

For property taxes, it seems reasonable to add up all the expenses required to support property, such as the cost of roads, and set the property tax level so that the total tax revenue is near that sufficient to cover those property-supporting expenses. Similarly, my intuition is that the total amount of fees spent to set insult fine levels should be near the total amount of actual fees paid by those found guilty of insulting victims. My intuition is that these two numbers should be within a factor of ten of each other, and that setting them exactly equal wouldn’t be a terrible choice. (At least compared to our status quo.)

Now if these numbers are set to be similar, then the total amount of fees collected from victims would near the total fines paid by injurers, which would then be near the total amount of the premiums paid by voucher clients to their vouchers. Thus on average victim fees to set fine levels for hurting them could nearly pay for subsidies to on average cover all of the voucher premiums! So we needn’t worry about bankrupting injurers on average by forcing them to pay for vouchers.

Though, yes, those who seem to vouchers to have a much higher risk than average of hurting others would have to pay much higher premiums. (Those with lower than average risks might get cash rebates.) And that might well force such high risk clients to make big compromises via accepting unattractive co-liability, freedom, and punishment arrangements. Which we could think a just consequence of their risky inclinations, or we might feel sorry for some of them and subsidize their voucher premiums.

Yes, we might still worry about those who are too poor to afford large fines. Others would feel more free to insult them, or to cause them other harms. This is what efficiency requires, though again we could subsidize their fees if we felt sorry for them.

So far, I’ve focused on harms concentrated in particular victims; it makes sense for them to set personal fine levels. Other harms can be more diffuse, however, and harm a wider set of people together. For these, we’d want ways to help such groups to pay together to raise the fine levels regarding the harms that they might suffer together. But we have many promising “public goods mechanisms” for this purpose. And we still probably want to allow such fines to vary by group and context; setting a single level for all groups and contexts seems quite inefficient.

And that’s it, my out-loud thoughts on how to let people set personal priority levels regarding the harms that might befall them, in the context of my prior vouching proposal.