Tag Archives: Law

On-Demand All-Topic Courts

There is not a natural alliance of contrarians. Instead, each contrarian group claims that it has been unfairly lumped in with the others. Sure, they say, most contrarians are wrong, but if you look carefully at our case, ours isn’t like those others; we happen to be right. So contrarian groups don’t like to associate with each other. Each group wants their associates to only associate with their contrarian claim, not with others.

But contrarians could usefully ally together to support institutions that better allow correct contrarians to prove their case to skeptical audiences. After all, while contrarians often elaborate their cases in great detail, typically few outsiders have much incentive to consider those details, leaving audiences to rely mainly on the raw fact that most others dismiss their case while ignoring their details. A process which doesn’t do much to distinguish correct from incorrect contrarians.

As many have noted, a general solution to this problem is on-demand all-topic courts. If you pay enough to such a court, and give it a claim, it will have high quality people give substantial but fair attention to the details of that claim. And if such a court also had a sufficient reputation for being neutral and canonical, then audiences might well listen to it in the exceptional cases where its verdicts supported particular contrarians. And the prospect of such vindication might cause contrarians to pay them.

For each case, such a court could collect three teams: pro and con advocates, and a jury. The pro argues for the claim, the con argues against it, and the jury listens and issues a verdict. If so, the main design questions re such a court are how to ensure sufficient neutrality and quality in these teams. As there is no such court yet, a new court in this space has a reasonable hope to become the canonical court in this space, if it can be seen as sufficiently neutral and qualified.

If we can trust the jury to be fair, qualified, and attentive, then the pro and con advocate teams don’t need to be fair; they just need an incentive and tendency to win. So I propose this process: (A) publicly offer most of the new-case fee as prize to the winning advocate, (B) advocate candidates declare their willingness to argue particular sides, (C) choose pro and con teams via decision markets estimating each candidate’s win chances, and (D) choose the jury via a status app.

The simple status app I outlined in my last post only offers general eliteness. So a status app variation capable of saying who is higher status re particular topics would be even more useful. We might also pay jurors in part in bets that a future randomly-created jury with a larger prize will agree with their verdict. (Perhaps we could even pick jurors using decision markets estimating such a future verdict agreement.)

We’d like to avoid imbalanced advocate incentives. If we create prediction markets on the various possible jury verdicts, then the court could bet in those markets to acquire assets ready to pay off advocates, and ensure that both sides have the same expected payoff, given the market prices just before the court process begins. With this, the two sides would have similarly strong incentives.

And that’s my proposal for an on-demand all-topics court, which could give correct contrarians a better shot at distinguishing themselves from other contrarians. Other than how to substitute for prediction markets if those are illegal, the main remaining ambiguity I see here is how to design and field a relevant status app; I discussed that in my last post.

Note that contrarians with only a small budget to fund a prize might want to use an audit lottery to create a small chance of a much larger prize. Then could might create prediction markets estimating jury verdicts conditional on such a large prize case happening. Such market prices might well suggest that their case is not as weak as many presume it to be.

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Clean Politician Bonds

Used to be, many ads appeared in local newspapers, which competed for attention via their local news coverage. This induced such papers to fund local investigative journalism, often looking for dirt on local politicians, which induced such politicians to avoid looking dirty. Which was good.

Alas, in the last few decades local ads have become disconnected from local news, contributing to a great fall in local investigative journalism, and likely a big rise in dirty politicians. But I see a simple fix:

If typical voters are anywhere this responsive to such a move, candidates would face strong incentives to offer such bonds. They’d ask their donors to give them money to create such bonds, or to more directly back such bonds. Which would fund more journalists to seek such dirt, again inducing politicians to avoid looking dirty. Which would again be good.

Here is a more detailed vision, in time order.

A) Groups of apparently-politically-neutral investigation-experts team with financial orgs to offer bond holding and judging services. Each such service J would declare the kinds of dirt topics T they feel qualified to judge, and the kinds of assets they can bond. For each such topic T, they declare an evaluation fee $E.

B) A politician P approaches such a service J, deposits asset $X of appropriate form, and chooses a topic set S. Judge J then creates a bond that pays $X to anyone who, by deadline D, proves dirt on P re any topic T in set S.  Politician P can now publicly announce the existence of this bond, to induce voter confidence.

C) Any investigator who thinks they have found dirt on P of such a type T in S can approach service J by deadline D, pay appropriate evaluation fee $E, and then present their evidence in support of this dirt claim. This induces J to evaluate this claim. If J decides that the claim is valid, this fact is announced, and the $X asset is transferred to this investigator.

D) If deadline D is passed, no investigator has been awarded the bond, and no investigator evaluation remains in progress, then the asset $X is returned to the politician or their backer.

Prediction markets on whether any investigator will ever win a particular bond could offer voters more refined confidence indicators on a candidate.

This system design should handle most cases, though I could imagine problematic cases in which an investigator’s evidence raises many suspicions, but doesn’t quite rise to the level of persuading the judges J. Then a subsequent investigator might collect more evidence, at which point the judges J are persuaded. Perhaps in this case the judges might split the asset $X across these investigators.

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Violent Offense Under Bounties & Vouchers

I recently talked to some smart high school students about the voucher and bounty crime reform scenario. They imagined bounty hunters spending most of their time in chases and gun fights, as in cowboy or Star Wars movies. So they were against the scenario, preferring such violence roles to be filled by government employees.

But in fact bounty hunters today spend almost no time in chases or fights. And that was true throughout history; bounty hunters have been widely used in Rome and England for thousands of years. (I’ll discuss that history more below.) Movies emphasize rare scenarios to create conflict and drama. The main job of most bounty hunters was to collect evidence, and then to sue in a court trial. As lawyers have always done to prepare for and engage in lawsuits.

Okay, you might ask, but in a world of vouchers and bounty hunters, sometimes there would be gun fight or car chases, right? So who would be authorized to participate in such activities, and what powers would they have or need? That is, who would do violence in this scenario?

First, many parties, maybe even everyone, could be allowed to stand ready to defend themselves violently. Okay, you might say, but won’t offensive violence also be needed sometimes? If so, who is authorized to do that?

Well, note that a person found to lack a voucher would need to be assigned one immediately. Perhaps a “public option” voucher who keeps clients temporarily in a detention center. And offensive force might be needed to move such a newly found client to such a detention center.

Actually, this isn’t a special case, as in general vouchers and their representatives would be the main parties authorized to use offensive force. After all, vouchers would often be authorized by their client contracts to physically punish their clients. And if a client seems to be about to hurt others, perhaps via force, their voucher is usually the party with the strongest interest in stopping them. As they have to pay for any resulting damages.

Thus voucher-client contracts will pretty much always authorize the voucher to use offensive force against their client, both to punish them, and to prevent clients from causing harm. And the rest of us don’t need to decide what kinds of force should be allowed there, if those two are the only parties effected by their choice.

However, what if a third party ends up getting hurt when a voucher uses offensive force on their client? In this case, either the voucher or their client is likely guilty of a crime, and the voucher is on the hook either way to pay damages. To avoid these losses, vouchers would likely make deals to help each other in such situations, and have their clients agree to such behavior in their voucher-client contracts. Thus in the general bounty-voucher scenario, most offensive violence would happen between parties who had agreed by contract beforehand on how violence is to be handled.

Vouchers who have made such voucher-voucher deals also seem well-placed to handle people discovered to be without a voucher. Thus a simple solution for this case might be to hold a fast auction to see which nearby voucher is willing to take on this person as a client at the lowest price. This voucher would then have the job of transferring this client to a public option detention center, after which that detention center would become the client’s official voucher. At least until that client could arrange for a new voucher.

Note that under this voucher-bounty system, as long as everyone has a voucher then there is no need for any other party besides a voucher to forcibly detain anyone, either to ensure that they appear in court or to ensure that they can be punished. As vouchers are fully liable for such failures, such tasks can be delegated to them.

As I said above, fights and chases have not actually been the main complaints about bounty hunters in history. The main complaint in the last few centuries, which led to cuts in their usage, seems to be that bounty hunters were typically for-profit agents, whereas many thought government employees could be better trusted to promote the general welfare.

Here are the other main complaints about bounty hunters that I find in this article on the history of their usage (called “qui tam”) in England. Bounty hunters have at times made false accusations, committed perjury, coerced witnesses, faked evidence, tempted people to commit crimes, threatened jurors who ruled against them, and enforced the letter of laws against the spirit of the law.

Bounty hunters have also at times filed their claims in distant expensive-to-travel-to courts, and detained the accused before delayed trials, and used the treat of such treatments to extort concessions. They have accepted private settlements (i.e., plea bargains and bribes) instead of going to court. And they have accepted payments from guilty folks to do a bad job at trial, when such efforts prevent future trials from being held on the same accusations.

However, the government employee police who replaced bounty hunters have also done all these things. Some assume that such employees will do such things less often than would bounty hunters. But I don’t know of evidence that supports this claim. And remember that government police can much more effectively maintain a “blue wall of silence” that prevents the reporting and prosecution of such things. Whereas bounty hunters will happily turn on each other, just as one can easily hire a lawyer today to sue another lawyer, or a P.I. to investigate another P.I.

Note that we can greatly cut the harm of private settlements via keeping the bounty and fine levels close to each other. And no one besides vouchers need to detain anyone.

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Who Should Be Our “Adults”?

Adult: “a mature, fully developed person. An adult has reached the age when they are legally responsible for their actions.”
“to attend to the ordinary tasks required of a responsible adult” “children should be accompanied by an adult” “responsibility, independent decision-making, and financial independence”

Mature: “fully grown physically” “developed mentally and emotionally and behave in a responsible way” “a lot of careful thought”

Responsible: “liable to be called to account” “able to answer for one’s conduct and obligations; trustworthy” “involving important duties, independent decision-making, or control over others.”

The usual concept of “adult” combines both a style in a role, “mature, responsible, independent”, and a description of who we let fill that role, “fully grown human”. In this post I want to reconsider who should fill that role.

The main role of an “adult” is to think carefully about what to do, and then do it reliably, with action choices that account well for their effects on others. That is, an adult has autonomy, self-control, and intelligence to make choices well and reliably, but also faces social incentives adequate to make them play well with others. Or at least play similarly well to the other available adults. Adults can be relied on to do the important things than need doing, and yet can be given great autonomy to decide what to do how and why.

A key subsidiary adult role is to manage “dependents” who are not up to filling this role. Such as children, animals, machines, the mentally ill, and the infirm. Not all adults need take this role, but those who do take this role must be adults. We match each such dependent to an adult “guardian”, allow that guardian to limit dependent behavior, and hold that guardian responsible for such behavior. In order to limit guardian mistreatment of dependents, sufficiently able dependents may be allowed to choose their guardians,

The prototype for this relation is that between human parents and their children. Parents limit their children, and are responsible for them to outsiders. Compared to their children, parents are more free to choose their actions and relations, are more held responsible for their actions, and are more trusted to do important things.

A common “libertarian” vision is to treat all fully grown humans as “adults” in this sense. But in fact such humans have usually not been full trusted, free, or responsible. Among foragers, the band as a whole, discussing together, was more of an “adult”, trusted to limit the behavior of band members. Later on, during the farmer/herder era, family clans were more the “adults”, held responsible for member behavior and able to limit those individuals. Larger nations and empires have also been treated by the world as “adults”, free to choose and to be destroyed. And at times such units have decided to limit the freedoms of particular family clans, treating them as less than fully adult.

Such higher level “adult” social units have at times treated particular fully grown humans as also “adult”, judging them to be sufficiently reliable and responsible to be treated in that way. But many other fully grown humans have been treated more as dependents. And the usual rule has been that such dependents must be associated with particular controlling adults who were more reliable and could be more held more responsible.

The industrial revolution was primarily driven by the rise of new larger orgs, such as for-profits, non-profits, and government agencies. (Science & tech were side effects of those new orgs.) And once such orgs became available, we soon came to treat them as the main “adults” of our world. Such orgs are arguably just smarter and more thoughtful and reliable than individual humans. They are now trusted to manage our most important activities, and are allowed to make deals and relations with each other quite freely, with almost no regulations.

Today we do not treat most fully grown humans as fully “adult”; we instead require each such human to pair up with a nation-state. Nation-states then limit the choices of their fully grown human members, and are held responsible by other nations-states for the actions of such members. We also usually support a norm that humans should be free to switch nations, if the new nation will take them. Nations don’t always play well with each other, but no other orgs at that level can force them to behave better.

However, I propose that we seriously consider instead treating smaller organizations (for-profits and non-profits) as the main responsible “adults” with which we pair each fully grown human. These smaller orgs are arguably on average even smarter, more thoughtful, and more reliable than are nations, they arguably play better with each other, and we are more willing and able to hold them strictly responsible.

Furthermore, these are the orgs that we actually trust to do most of our important activities. Competition between such orgs is what mainly ensures adaptation and innovation in our world, far more than does competition between nation-states. And allowing humans to choose between these as their adults gives them far more effective choice than when choosing between nations.

Today employers are in part treated as “adults” relative to their employees. And requiring each fully grown human to pair up with a sufficiently responsible firm is the essence of my “vouching” proposal for criminal law reform. The main formal requirement to be a voucher is having enough money to pay client fines, which makes such an org much easier to hold responsible for they and client actions. In addition, I expect most to be for-profit firms, and thus smarter and more reliable than are most fully-grown humans. With vouchers responsible for individual behavior, and able to regulate that behavior, we’d have less need for government regulation to limit individual behavior.

Compared to themselves, children see their parents taking on more important roles in the world, being held more responsible for their actions, being more careful in their choices, and being more free to choose as they like. While most children eventually grow into such roles, many are disappointed to learn that few fully grown humans are treated fully as ideal “adults”. In our world, that role is reserved for nation-states.

Some are so disappointed to learn this that they propose “libertarian” reforms to make fully grown humans be the “adults” of our world, mostly unregulated and strongly responsible for their actions. If you ask them why children should not also be treated this way, a few will bite that bullet, but most will point to children being less reliable, thoughtful, and knowledgable, and to our being less willing to hold them fully responsible for their actions.

But even though my intuitions pull libertarian, I have to admit that many fully grown humans also look this way, at least compared to our larger orgs. (Three recent movies, Nitram, Red Rocket, and Fourteen, brought this point home to me.) Such humans can also be pretty random, unreliable, and unthoughtful, and knowing this fact most people aren’t willing to hold them fully responsible for their actions, and are willing to authorize regulation instead to greatly limit their behavior.

However, even though we aren’t willing to treat most children as ideal “adults”, this doesn’t mean that nation-states must directly manage them. Instead we all understand that it probably works better to tie each young human to a fully grown human, who is more thoughtful than, and can be held more responsible than, that child.

So similarly, even if we also aren’t willing to treat most fully grown humans as ideal “adults”, this also doesn’t mean that they should be directly subject to limitations by nation-states. As we can instead tie each fully grown human to a larger voucher org, who we are in fact willing to treat as an ideal “adult”. Because such orgs are in fact more thoughtful, reliable, and able to be held responsible, and we are more willing to actually hold them strictly responsible.

To review, the concept “adult” has two parts, a social role that can be filled, and a description of who fills that role. The role is that of the thoughtful reliable responsible party, who can be trusted to do important things, who can be given great discretion re how to do them, and who can manage non-adults. In the context of small families, then compared to their children to a first approximation that adult role can be filled by fully grown parents.

However, in our larger society we do not in fact trust most fully grown humans to fully fill that role, as we have available to us more thoughtful, reliable, and responsible orgs. We have so far been putting nation-states into the ideal adult role.

But I argue that we’d do better to put smaller orgs in that role. That is, I propose to require each fully grown human to pair up with a “responsible adult” org, ready to pay for all they do wrong, and able to limit their behavior. To avoid mistreatment and allow adaptation to varying context, allow those fully grown humans the freedom to choose a mutually-agreeable adult, but require them to pick one.

If someone can find a voucher willing to back their being treated fully as an adult, well then I’m okay with that person being treated that way. But if no voucher is willing to back that stance, I don’t see why I should back it either. This may be as libertarian as I’m willing to go.

Added 11a: As Stefan Schubert notes, we can also see adult-dependent status in they ways that parties talk to each other. Complaining “kids” talk differently.

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Why We Blame Victims

A “hazard” model is common statistical model used to explain rare events. In such a model, the chance of a certain kind of event happening (e.g. death) goes as the product of rate contributions from various factors. (E.g., a factor each for age, gender, income, smoking, etc.) Each value of each factor then contributes a “hazard ratio”, a factor by which that value increases or decreases the event chance, relative to some standard value.

Let us postulate that most of us use a related product model to predict “crimes”, i.e., bad events that we blame on particular people:

B = C*E*V*N*R.

Here B is the how bad was an event, C is a factor contributed by a “criminal”, E is a factor contributed by other “enabler” people, V the factor contributed by the victim, N a factor contributed by nature, and R a randomness factor required to complete the model.

For example, the chance of a bad automobile accident may depend on how often and fast a reckless driver drives, and also on how often a victim driver drives. Nature adds to the chances with road conditions and bad weather, and in addition we need a big randomness factor to explain any given accident. After all, most reckless driving never results in a bad accident.

Each of these factors can be used to “blame” or “explain” the crime in two different ways. First, the person behind a factor might be blamed for setting their factor to a stably high level. Someone who consistently drives recklessly can be blamed for resulting auto accidents. Second, if these factor values vary from case to case, we might try to explain variations in B in terms of variations in these factors. In this sense we may explain accidents more in terms of the factors that vary the most.

If we accepted this general functional form above, we might tend to see most crimes as accidental, mainly the result of enablers, nature and randomness, with only a minor contribution from the “criminal”, and a similar contribution from the “victim”. Then we might not feel very inclined to punish the criminal. “These things happen”, we might say.

Thus to better motivate punishment, and to make our story easier to tell and remember, we might try to simplify it. We have to keep the victim in the story, else there’s no reason to punish. But we could drop or deemphasize the enabler, nature, and randomness terms, leaving

B = C*V.

Furthermore, we could postulate that C is consistently set to a high level. After all, if the criminal just occasionally fell into a foul destructive “mood”, we might see this as “temporary insanity”, worthy of only mild punishment. And we might look around them for what other context might have pushed them into such a mood, and blame that context.

So instead we postulate that this criminal consistently tries to do things that hurt others. And with that story, we can feel more free to blame and punish them. They are B-B-B-B-Bad, Bad to the bone, and need to be taught a lesson to set their C parameter consistently low instead of high.

The problem here is, we all still know that high values of B are rare things. Most of the time, nothing goes wrong. Murders and rapes are rare, after all. So there must be a lot of variation in B across cases. But if C doesn’t vary much to contribute to B variation, the only thing have left now within our simplified model to explain B variation is variation in V; victims must be varying across cases in how much they contribute to bad things happening.

And thus we can end up naturally “blaming the victim”. To help us justify our punishing “criminals”, we de-emphasize the contributions of enablers, nature, and randomness, and we suppress variation in criminal contributions. Which leaves victim variations as our only way to explain why bad things happen only rarely. It must be, we conclude, that in the rare cases where bad things happened, the victim did something substantially different to cause that. The rape victim dressed provocatively, the murder victim was insolent, or the cancellation victim talked on an sensitive subject while lacking proper progressive credentials.

Note that I’m not saying that victims do not often actually contribute a lot with substantial variations in their V factor. I’m instead suggesting that our simplification strategy to help us blame criminals backs us into a corner wherein consistency forces us to expect large V variations. Even when when such variations are not actually there.

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Re An Accused, Tell The Truth

Agnes Callard says we should not fight her cancellation:

Within the mob there is no justice and no argument and no reasoning, no space for inquiry or investigation. The only good move is not to play. … If I am being canceled I want my friends … to stand by, remain silent, and do nothing. If you care about me, let them eat me alive. … The expectation that one’s friends exhibit the “courage” to speak up one one’s behalf, the inclination to see the cancellation as a test of the friendship, which suddenly requires proofs of loyalty — these are the first step on the road to the friend purge.

Here is how it goes: a few of the cancelee’s friends meet the expectation to speak up in support, but those who remain silent — which is most of them — become suspect. New, publicly aligned friends are acquired to take their place. The beleaguered cancelee now feels she sees who her “real friends” are, but in fact she has no friends anymore. All she has are allies. First she turned her friends, and perhaps even her family members, into allies; and then she acquired more allies to fill the ranks of the purged friends. The end result is a united front, but what I would call real friendship has gone missing in the bargain. I do not want any of that. I want friends who feel free to disagree with me both publicly and privately.

If I were accused of a crime, I wouldn’t want my friends to protest outside the courthouse, at least at first; I’d want to give the legal system a chance. But if my associates were called on to testify about me, I’d want them to comply, and to tell the truth as they saw it. Not to say whatever would seem to “support” me, but just to tell the truth.

Humans have only had legal systems for the last ten thousand years or so. For a million years before that, we had mob justice, which worked better than no justice, even if not as well as legal justice. (if you doubt this, see no justice among non-human primates.) Today we still handle some kinds of accusations and punishments via mobs. I’d rather we handled them via law, but given that some accusations are handled by mobs, I’d still want to help mob justice to work as well as possible. Mob justice is in fact possible, and legitimate.

Under mob justice, there is no central authority to subpoena witnesses. So people must instead volunteer their relevant testimony. But such testimony still functions as in legal trials to appropriately influence mob jury verdicts. Thus if I were accused under mob justice (as has in fact happened to me in the past), I’d want my associates to offer testimony relevant to that accusation. Not loyal ally support, but to just tell the relevant truth.

For example, many recent mob justice accusations have been of the form that someone’s statement is a “dog whistle”, purposely done to express nefarious beliefs or allegiances. Thus intent is relevant here, and intent is something on which close associates are often especially qualified to testify. The mob jury can thus reasonably want to hear associates’ take. Given what you know about this person’s views and styles, how plausible is it that their statement was in fact intended to express the alleged beliefs or connections?

We humans are often far more willing to say positive than negative things about associates. But this can work out okay as we commonly infer negative things from the unwillingness to say positive things. For example, when asked for a recommendation re a previous worker, many employers are willing to say express honest positive opinions, but will decline to say anything if their opinion is negative.

I have at times had private contact with people who actually hold views that, at least in a technical sense, might reasonably be labeled as racist or sexist. So if I had to answer the question of whether an expression of theirs might plausibly express such views, my honest answer would have to be yes. But if I had the option, I’d try to instead just say nothing about the subject. But for most of my associates, I’d happily say that such an interpretation is quite implausible, given what I know about them.

In this sort of context, Callard’s request for silence from her friends would hinder mob justice, and make it more likely to go awry against her. The silence of her friends (among which I count myself) would likely, and reasonably, be taken by the mob jury as evidence against her. I get that she is willing to accept this cost, for the cause of preventing the friend purge process that she reasonably detests. But I will hold my friends to a higher standard: don’t just support me unconditionally, but instead tell relevant truths.

If you don’t know anything relevant to the accusation, then yes stay silent. But if you have testimony relevant to the accusations against me, then speak up. Politely, calmly, and with appropriate qualifiers and doubts, but truthfully. Please friends, enemies, and others, in any trial, done at court or before a mob, just tell the relevant truth.

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Lottery Lawsuits, For Small Harm Law

Twenty-five years ago I posted a short essay, on which I commented ten years later. Let me now elaborate on an improved variation of that same idea.

Imagine you came out from the grocery store to find a scratch on the side of your car door, a scratch that matches the position of the door on the car next to yours. You estimate they’ve done you $100 of damage. But in our world today this is where the story ends, as it would usually be crazy to spend thousands on a lawyer to sue them for such a small amount. So law today does little to discourage such harms. People can sloppily scratch car doors without fearing that they will have to pay damages.

Now imagine a better world. You take a few pictures of the two cars, including their license plate, and then use a phone app to upload all this and officially declare that they owe you $100 in damages. Using the license plate photo, the car owner is identified and notified, and is issued a “ticket” in that amount, like tickets are now issued for parking violations. If they accept your claim and pay that amount, then it goes to you, and the issue is closed. (Same if they offer you a smaller amount to settle, which you accept.) Unpaid tickets accumulate in the usual way, and the local government uses its usual methods to try to get people to pay them.

The ticket is also settled, and no longer counted as unpaid, if they refuse to accept your claims, but still deposit at least $100. And if they do this, then you must also deposit at least $100. (You each might want to deposit more than this $100 min to help with trial legal fees.)

Both of you also submit a chance, like one in a thousand, and then both of your deposits are converted into lottery claims at the smaller of the two chances. Claims which are then soon (i.e., in a few days) resolved (perhaps via collecting many similar legal cases.) So if the smallest submitted chance was one in a thousand, then 999 times out of a thousand, both of your deposits disappear, and you are both notified that the issue is now settled.

However, one time out of a thousand, you both win the lottery, and then each of your accounts now holds 1000 times what you deposited there. At which point you could also settle the suit.

But if you don’t settle, then your lawsuit goes to trial, and if the court rules that their car door scratch hurt you by $100, then they now owe you $100K, to be paid out of their account. However if the court rules against you, and also affirms their automatic countersuit, that your suit was frivolous, then you now owe them $100K, to be paid out of your account. Once each of you has paid what you owe, any remaining funds in your accounts are returned to you each in cash, tax-free.

In this better world, if they scratch your car, then they expect to pay $100 on average, and you expect to get that on average. But if you just frivolously sue someone for $100, without a plausible prospect of winning, then you expect to pay $100 on average, and they expect to gain that amount. And thus in this world the prospect of such lawsuits changes behavior, toward more optimal care, just as it usually does for large harms today. Law now works to discourage small as well as large harms.

Note that we might want to set some lower limit on allowed lottery chances, such as via a max limit on how much can appear in your account after winning. It also seems fine to let people sell their claims, and also to insure against these lottery risks, perhaps even by depositing money in other accounts to be won exactly when the main lottery is lost. And once notified, defendants should be required to save relevant info on a case until its lottery is resolved.

The key idea here is this: If I’m willing to suffer a lottery risk to sue you, you must also suffer the same lottery risk to defend yourself.

That is, if I claim that you hurt me and am willing to deposit an amount to cover your counter-claim that I’ve sued you frivolously, then I can force you to make (at least) the same size deposit, after which both of our deposits, and also our legal claims against each other, are converted into lottery claims. If we win this lottery, we do a trial the usual way, except now with larger stakes.

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Hidden Motives In Law

In our book The Elephant in the Brain, Hidden Motives in Everyday Life, Kevin Simler and I first review the reasons to expect humans to often have hidden motives, and then we describe our main hidden motives in each of ten areas of life. In each area, we start with the usual claimed motive, identify puzzles that don’t fit well with that story, and then describe another plausible motive that fits better.

We hoped to inspire others to apply our method to more areas of life, but we have so far largely failed there. So its past time for me to take up that task. And as law & economics is the class I teach most often, that’s a natural first place to start. So what are our motives regarding our official systems for dispute resolution?

Saying the word “justice” doesn’t help much; what does that mean? But the field of law and economics has a standard answer that looks reasonable: economic efficiency. Which in law translates to encouraging cost-benefit-optimal levels of commitment, reliance, care, and activity. And the substantial success of law and economics scholarship suggests that this is in fact an important motive in law. Furthermore, as most everyone can get behind it, this is plausibly our most overt motive regarding law. But we also see many puzzles in law not well explained by this approach. Which suggests to me three other motives.

Back in the forager era, before formal law, disputes were resolved by mobs. That is, the local band talked informally about accusations of norm violations, came to a consensus about what to do, and then implemented that themselves. As this mob justice system has many known failure modes, we probably added law as a partial replacement in order to cut such failures. Thus a plausible secondary motive in law is to try to minimize the common failings of mob justice, and to insulate the legal system from mob influence.

The main failure of mob justice is plausibly a rush to judgment; each person in a gossip network has local incentives to accept the stance of whomever first reports an accusation to them. And the most interested parties are far more likely than average to be the first source of the first report someone hears. In response, law seeks to make legal decision makers independent and disconnected from the disputants and their gossip network, and to make such decision markers listen to all the evidence before making their decision. The rule against hearsay evidence is also plausibly to limit the influence of gossip on trials.

Leaders of the legal system often express concerns about its perceived legitimacy, and this makes sense as a third motive of the legal system. And as the most common threat to such legitimacy is widespread criticism of particular legal decisions, many features of law can be understood as ways to avoid such criticism. For example, criticism is likely cut via having legal personnel, venues, and demeanors be maximally prestigious and deferential to legal authorities.

Also, the more complex are legal language and arguments, the harder it becomes for mobs to question them. The longer the delay before final legal decisions, the less passion will remain to challenge them. Finally, the more expensive is the legal process, the fewer rulings there will be to question. Our most official legal systems differ from all our other less official dispute resolutions systems in all of these ways. They are slower, more expensive, less understandable, and more prestigious.

The last hidden motive that I think I see is that each legal jurisdiction wants to look good to outsiders. So most every jurisdiction has laws against widely disapproved behaviors, such as adultery, prostitution, or drinking alcohol on the street, even though such laws are often quite weakly enforced. Most set high standards of proof and adopt the usual rules constraining what evidence can be presented at trial, even though there’s little evidence that these rules help on net.

Most jurisdictions pretend to enforce all laws equally on everyone, but actually give police differential priorities; some locations, suspects, and victims count a lot more than others. It would be quite feasible, and probably lot more efficient, to use a bounty hunting system to enforce laws, and most locals are well aware of these varying priorities. But that would require admitting such differential priorities to outsiders, via explicit differences in the bounties paid. So most jurisdictions prefer government employees, who can be more hypocritical.

Similarly, our usual form of criminal punishment, nice jail, is less efficient than all the other forms, including mean jail, exile, corporal punishment, and fines. Holding constant how averse a convict is to suffer each punishment, nice jail costs the most. Alas, the world has fallen into an equilibrium where any jurisdiction that allows any punishment other than nice jail is declared to be cruel and unjust. Even giving the convict the choice between such punishments is called unjust. So the strong desire to avoid such accusations pushes most jurisdictions into using the least efficient form of punishment.

In sum, I see four big motives in law: encouraging commitment and care, avoiding failings of mob justice, preserving system legitimacy via avoiding clear decisions, and hindering distant observers from accusing a jurisdiction of injustice, even if most locals are not fooled.

One can of course postulate many more possible motives, including diverting revenue and status to legal authorities, preserving and increasing existing inequalities, giving civil authorities more arbitrary powers, and empowering busybodies to meddle in the lives of others. But it isn’t clear to me that these add much more explanatory power, given the above motives.

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We Trust The Statusful

The ancient world heavily favored aristocrats for important social positions. Yes, they were probably on average more competent in many ways, but many have claimed that good family connections were favored more strongly than can be explained by this effect.

You might argue that aristocrats were just conspiring to favor themselves, but it seems that others also shared their preference. For example, many stories (e.g.) describe someone seeking an audience with a high official, out of a belief that higher officials must be less corrupt and more concerned with general welfare, relative to the lower ones. “If only the king would hear, he’d do something.”

It seems to me that humans have generally trusted higher status people more, and that we still do so today. For example, status is the main way we trust doctors, lawyers, CEOs, fund managers, and many other professionals (instead of track records or incentive contracts).

As another example, even though people say that they trust smaller orgs more than big ones, people say they trust those at the top of orgs more than those at the bottom. Yes, top people get more easily spread their messages blaming lower folks for problems, and can more easily repress lower folks who blame them. But it seems most people don’t correct for this, or don’t see it as a big correction.

Furthermore, consider our criminal law system. Whether and how much a possible criminal is accused or punished is influenced by many parties. First police, then prosecutors, then judges, then appellate judges, then executives who can pardon, and finally prison wardens and parole boards who influence prison duration and severity. All of these parties are either politicians, political appointees, or folks appointed directly or indirectly by such appointees, and thus should all have incentives to please such people.

Yet if you ask people who they trust to make choices in this system, they consistently prefer the higher status people. In some recent polls, I’ve found that they trust prosecutors more than police, trust judges more than prosecutors, trust judges more than prison wardens or parole boards, and trust executives whose pardons overrule judges. Furthermore, people only proposed recently to “defund” the lowest status among these groups, and one of the main proposals to make police more trustworthy is to require more years of education, i.e., to raise their status.

Some people say this is because the higher status groups have better incentives. But we have chosen the incentives that each of these parties to be what they are, and we could, if we wanted, give all these other groups the same incentives we now give the most trusted group, judges. The relative status of these groups seems to me a cleaner explanation.

I think we are suffering enormous losses from trusting based on status, instead of using other methods. But it seems very hard to displace our innate trust of the high status enough to get people to consider such alternatives. We don’t seek solutions when we don’t think we have a problem.

Added 6Apr: I failed above to mention that we are reluctant to ask for track records or incentives from our statusful suppliers in part because we see that as weakening the connection by which their status raises our status. We want it to look like we mutually trust each other, as that’s the kind of relation by which associates gain status from each other.

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From Norms to Law In War

Humans have long had norms against “starting” fights. Even so, those who start fights are often able to point to things that the other side did first to “really” start the fight. For example, Putin says that actions by the West forced his hand in Ukraine.

Within a nation, law is usually able to draw a clear enough line to decide who started a fight. But if you think about it, at the global level the world is not very clear on what counts as an “act of war”. Many have said the following are not acts of war: selling weapons, econ sanctions, cyberattacks, troop advisors, and even bombings.

You might agree that we haven’t written down an exact clear rule, yet still feel like that it seems pretty clear in most cases. But due to “automatic norms” this is usually less clear than we think. Me four years ago:

categorization of some of the options as norm violating is supposed to come to us fast, and with little thought or doubt. … we are supposed to be sure of which options to reject, without needing to consult with other people, and without needing to try to frame the choice in multiple ways, to see if the relevant norms are subject to framing effects. We are to presume that framing effects are unimportant, and that everyone agrees on the relevant norms and how they are to be applied. … “ignorance of the norms isn’t plausible; you must have known.” (more more more)

For war, this norm ambiguity is especially unfortunate, as it causes more war. What we should hope for instead is to deal with war less via vague informal norms, and more via formal law.

You might object that without a strong central world government, we can’t really have law; we can only have treaties enforced informally, by a threat of shame in the eyes of a world community. But actually, the world has long seen many different kind of legal systems, including legal systems that are stronger than informal norms, yet using powers short of a strong central government.

For example, in one classic legal system, courts issue rulings without having any further power to enforce their rulings. Their threat is just that if you don’t do what they say, they may officially label you an “outlaw”, after which anyone is free to harm you without fear of legal penalties.

Such a classic legal system could be further strengthened if its subjects were to give it hostages. For example, a financial hub which holds many financial assets of subjects could also serve as a legal system, if those assets held could be forfeit in the case of adverse legal rulings. (And if that hub were run by a distinct non-partisan community proud to serve in its legal role, and sufficiently able protect itself from outside attack.)

Thus it seems possible for the world to have a legal system wherein a widely-used sufficiently-defended financial hub agreed to enforce treaties between the nations whose assets were held there. Then if a nation violated its treaty, and refused to abide by this court’s ruling against it, then this law could declare that nation an outlaw, and grab its held assets.

How is that different from a large world alliance spontaneously agreeing to treat a nation as an outlaw and then grab whatever assets they can? It would be the difference between norms and contract law. An alliance might not be fair. It might instead not protect a once-ally if that were inconvenient, or it might opportunistically use its power to unfairly dump on a nation if that happened to be convenient. In contrast, with a more formal law, we might have more (though hardly infinite) hope for principled consistent non-partisan rulings.

The world doesn’t need to have a strong world government to have a functioning contract law between nations. Treaties can be more than expressions of hope.

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