Search Results for: blackmail

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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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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Liability Insurance For All

The world’s first modern limited liability law was enacted by the state of New York in 1811. In England … investors in such companies carried unlimited liability until the Limited Liability Act of 1855. There was a degree of public and legislative distaste for a limitation of liability, with fears that it would cause a drop in standards of probity. … Limited liability has been justified as promoting investment and capital formation by reassuring risk averse investors. … Others argue that while some limited liability is beneficial, the privilege ought not to extend to liability in tort for environmental disasters or personal injury. (more)

General Liability Insurance: Every business, even if home-based, needs to have liability insurance. The policy provides both defense and damages if you, your employees or your products or services cause or are alleged to have caused Bodily Injury or Property Damage to a third party. (more)

If a court finds you guilty and demands that you pay, you are on the hook to pay everything you’ve got. Same for most small businesses. But investors in big firms instead get to play “heads I win, tails we flip again”. If the firm does well they can win cash, but if the firm behaves badly, the court can only take what they’ve put into the firm. That is, the court can extract money that is in the firm, but can’t push further to get more from investors. This usually doesn’t sit well those inclined toward suspicion of big firms; why subsidize big for-profit firms relative to other forms of social organization?

The usual argument for limited liability is that without it investors would be reluctant to invest. Which makes sense and plausibly explains the initial introduction of limited liability. But that happened before the rise of the modern insurance industry. Now that insurance is easy, the obvious solution is liability insurance. Then in case of a court demanding a large payment, the insurance company pays, and the investors are insulated. Small businesses today typically buy such insurance as a matter of good practice, and many contracts with other businesses require them to have it.

Today we require auto accident liability insurance for car drivers. And recently some have proposed requiring gun owners to have liability insurance regarding their gun use. Insurers would then discourage risky people from owning guns, and help others reduce their risk. But many gun owners see this as a back hand way to tax guns; why should guns be singled out relative to lots of other risky products?

Yes, if we require liability insurance for some products and organizations but not others, we are implicitly subsidizing and taxing some relative to others. The obvious simple solution is to require everyone to get liability insurance for everything. The insurance could stand ready to pay the 99th percentile amount demanded of that sort of person or organization. Then we aren’t favoring any particular activity or organization type. And then some new interesting reforms become possible.

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Why Weakly Enforced Rules?

While some argue that we should change our laws to open our borders, it is more common for pro-immigrant folks to argue for weaker enforcement of anti-immigration laws. They want fewer government agencies to be authorized to help enforcement, fewer resources to go into finding violators, and weaker punishment of violators. Similar things happen regarding prostitution and adultery; many complain about enforcement of such laws, and yet don’t support eliminating them.

The recently celebrated “criminal justice reform” didn’t make fewer things illegal, or substitute more efficient forms of punishment (eg torture, exile) for less efficient prison. It mainly just reduces jail sentence durations. When I probed supporters, they confirmed they didn’t want fewer things illegal or more efficient enforcement.

The policing reforms that many want are not to substitute more cost-effective enforcers such as bounty hunters, or stronger punishments against police misconduct, but to instead just have police do less: pull over fewer drivers, investigate fewer suspects, etc.

When I claim that stronger norm enforcement is a big advantage of legalized blackmail, many people say that’s exactly the problem; they want less enforcement of common norms. For example, Scott Sumner:

Great literature and great films often turn people violating society’s norms into sympathetic characters, especially when they are ground down by “the machine”. I suspect that the almost universal public opposition to legalizing blackmail reflects society’s view (subconscious to be sure) that enforcing these norms (especially for non-criminal activities) requires a “light touch”, and that turning shaming into an highly profitable industry will do more harm than good. It will turn society into a mean, backstabbing culture. The people hurt most will be sensitive good people who made a mistake, not callous gang members who don’t care if others think they are evil.

On the surface, all of these positions seems puzzling to me; if a norm or law isn’t worth enforcing well, why not eliminate it? Some possible explanations:

  1. People like the symbolism of being against things they don’t really want to stop. It is more about wanting to look like the sort of person who doesn’t fully approve of such things.
  2. Having more rules that are only weakly enforced allows the usual systems more ways to arbitrarily punish some folks via selective enforcement. You might like this if you share such system’s tastes re who to arbitrarily punish. Or if you want to signal submission to authorities who want to use such power.
  3. If these things were actually legal and licit, people might sometimes publicly suggest that you are engaging in them. But if they are illicit or illegal, there’s a norm against accusing someone of doing them without substantial evidence. So if you want to discourage others from lightly accusing you of such things, you may want those activities to be officially disapproved, even if you don’t actually want to discourage them.
  4. We mainly want these norms and laws to help us deal with some disliked “criminal class” out there, a class that we don’t actually interact with much. So when we see real cases in our familiar word, they seem like they are not in that class, and thus we don’t want our norms or laws to apply to them. We only want less enforcement for folks in our world.
  5. What else?

Added 26Feb: I clearly didn’t communicate well in this post, as many commenters and this responding post saw me as arguing that all punishment, conditional on being caught and convicted, should either be zero or max extreme (eg death). Yes of course it is often reasonable to use intermediate punishments.

But enforcement also includes a chance of being caught, not just a degree of punishment, and there are issues of the cost-effectiveness of the processes to catch and punish people. There are many who want less punishment if caught, and less chance of catching, for most all offenses, and don’t want more cost effective catching or punishment, for fear that this might lead to more catching or punishing. To me, this seems hard to explain via just thinking that we’ve overestimated the optimal punishment level for some particular offenses.

Added 3Mar: A striking example is how in WWI recruits were supposed to be age 19 or older, but it was easy to lie and get in at younger ages, and most everyone knew of someone who had done this. We tsk tsk about child soldiers elsewhere, but don’t seem much ashamed of our own.

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Enforce Common Norms On Elites

In my experience, elites tend to differ in how they adhere to social norms: their behavior is more context-dependent. Ordinary people use relatively simple strategies of being generally nice, tough, silly, serious, etc., strategies that depend on relatively few context variables. That is, they are mostly nice or tough overall. In contrast, elite behavior is far more sensitive to context. Elites are often very nice to some people, and quite mean to others, in ways that can surprise and seem strange to ordinary people.

The obvious explanation is that context-dependence is gives higher payoffs when one has the intelligence, experience, and social training to execute this strategy well. When you can tell which norms will tend to be enforced how when and by whom, then you can adhere strongly to the norms most likely to be enforced, and neglect the others. And skirt right up to the edge of enforcement boundaries. For weakly enforced norms, your power as an elite gives you more ways to threaten retaliation against those who might try to enforce them on you. And for norms that your elite associates are not particularly eager to enforce, you are more likely to be given the benefit of the doubt, and also second and third chances even when you are clearly caught.

One especially important human norm says that we should each do things to promote a general good when doing so is cheap/easy, relative to the gains to others. Applied to our systems, this norm says that we should all do cheap/easy things to make the systems that we share more effective and beneficial to all. This is a weakly enforced norm that elite associates are not particularly eager to enforce.

And so elites do typically neglect this system-improving norm more. Ordinary people look at a broken system, talk a bit out how it might be improved, and even make a few weak moves in such directions. But ordinary people know that elites are in a far better position to make such moves, and they tend to presume that elites are doing what they can. So if nothing is happening, probably nothing can be done. Which often isn’t remotely close to true, given that elites usually see the system-improving norm as one they can safely neglect.

Oh elites tend to be fine with getting out in front of a popular movement for change, if that will help them personally. They’ll even take credit and pretend to have started such a movement, pushing aside the non-elites who actually did. And they are also fine with taking the initiative to propose system changes that are likely to personally benefit themselves and their allies. But otherwise elites give only lip service to the norm that says to make mild efforts to seek good system changes.

This is one of the reasons that I favor making blackmail legal. That is, while one might have laws like libel against making false claims, and laws against privacy invasions such as posting nude picts or stealing your passwords, if you are going to allow people to tell true negative info that they gain through legitimate means, then you should also let them threaten to not tell this info in trade for compensation.

Legalized blackmail of this sort would have only modest effects on ordinary people, who don’t have much money, and who others aren’t that interested in hearing about. But it would have much stronger effects on elites; elites would be found out much more readily when they broke common social norms. They’d be punished for such violations either by the info going public, or by their having to pay blackmail to keep them quiet. Either way, they’d learn to adhere much more strongly to common norms.

Yes, this would cause harm in some areas where popular norms are dysfunctional. Such as norms to never give in to terrorists, or to never consider costs when deciding whether to save lives. Elites would have to push harder to get the public to accept norm changes in such areas, or they’d have to follow dysfunctional norms. But elites would also be pushed to adhere better to the key norm of working to improve systems when that is cheap and easy. Which could be a big win.

Yes trying to improve systems can hurt when proposed improvements are evaluated via naive public impressions on what behavior works well. But efforts to improve via making new small scale trials that are scaled up only when smaller versions work well, that’s much harder to screw up. We need a lot more of that.

Norms aren’t norms if most people don’t support them, via at least not disputing the claim that society is better off when they are enforced. If so, most people must say they expect society to be better off when we find more cost-effective ways to enforced current norms. Such as legalizing blackmail. This doesn’t necessarily result in our choosing to enforce norms more strictly, though this may often be the result. Yes, better norm enforcement can be bad when norms are bad. But in that case it seems better to persuade people to change norms, rather than throwing monkey-wrenches into the gears of norm enforcement.

So let’s hold our elites more accountable to our norms, listen to them when they suggest that we change norms, and especially enforce the norm of working to improve systems. Legalized blackmail could help with getting elites to adhere more closely to common norms.

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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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My Stossel Clip

My five minute pro-blackmail segment appeared on the Stossel show Thursday:

 

I gave a simple version of my gossip-plus argument. Alas they cut the part where I made it personal, telling John Stossel that, with legal blackmail, be would personally have to be more careful. A moment of delicious silence followed.

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Defenses of Hypocrisy

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

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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Rah Efficient IP

On this blog I’ve long favored economic efficiency.

Economic efficiency is our best wide general analysis tool for finding win-win deals that get people what they want. That isn’t everything, but it is a lot. (more)

On this efficiency basis, I’ve defended many controversial policies, such as blackmail or polygamy. But oddly, I seem to elicit the most opposition by defending the mere possibility of efficient intellectual property! A widely held position and one embodied in law today. If you recall, I argued:

Before barbed wire, it make less sense to farm, or to enforce property rights in land against roaming animals. But after barbed wire, farming and land property rights made a lot more sense. … I’m happy to admit that today intellectual property (IP) is not obviously a good idea. Such property can create large “anti-commons” transaction and enforcement costs … Today, it is often better to rely on other social incentives to innovate. … [But] just as farmers developed barbed-wire, someday I expect IP advocates will develop better forms of intellectual property, and better technologies for marking, sharing, and enforcing such property. Using such innovations, I expect we will allow more and stronger intellectual property. … Which, like barbed-wire, will mostly be a good thing. (more)

Brad Delong responded:

Robin Hanson appears to think that people have the right to send killer robots off to hunt down people who use their ideas without paying. Me? I think this is an example of how thinking too much about property rights can madden the mind. (more)

(Scott Sumner says this “mischaracterizes” me; I agree.)

Matt Yglesias responded:

Robin Hanson is apparently the kind of libertarian who believes in government-created monopolies over the use of ideas: … Are we sad that Isaac Newton was unable to patent a method for calculating instantaneous rates of change? Does Hanson think he should be paying royalties to Michael Spence every time he writes about signaling? … The idea that a person, having shared his ideas with the world, now has the right to call the cops and have people arrested for taking inspiration from the idea without paying for a license in advance seems odd. Which is exactly why historically government regulation of idea-copying has been the exception rather than the rule. (more)

Yes IP’s high costs now make us use it sparingly. But as such costs fall, my guess is that efficient economic institutions will eventually include more ways for users to pay creators of innovations. I make no claims, however, about the exact forms such property and payments will take.

To reduce transaction costs, property rights may expire after a time, and both “usage” and “authorship” may be evaluated at large crude granularities, rather than “every time he writes about [Spence-style] signaling.” There may be random auditing of innovation usage, and folks may buy access to large bundles owned together by those who worked on related innovations. I don’t know if paying for access will be done before or after usage. I also don’t know if such property will be enforced by government monopoly or private law – perhaps people will voluntarily opt into property rights regimes.

What I do know is that enormous value is at stake in getting good innovation incentives and access, value that can probably be increased by better property rights. Economies show a weak a long-term tendency to adopt more efficient institutions, and that tendency is mostly a very good thing.

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