Tag Archives: Law

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.

 

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Beware Nggwal

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

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

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

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

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

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

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

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Our Prestige Obsession

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Why Crime Discretion?

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

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

To find out, I did this Twitter poll:

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

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

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Freedom Isn’t Free

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Bounty Hunter Blackmail

Consider a fine-insured-bounty (FIB) crime law system such as I outlined here. 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 at 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.

We could also let bounty hunters choose (many aspects of) police and prosecutor costs, methods, and priorities. Instead of agonizing over centralized one-size-fits-all crime policy decisions as we do now. We could also break the blue wall of silence to ensure that all laws are actually enforced, even on police, leaving only judge-based discretion on particular cases. Via redistribution, we could help those who face high insurance premiums, but know more precisely who we are helping how much.

The total social harm from each type of crime includes not just the harm caused directly by committing that crime, but also the costs incurred by bounty hunters in pursuit, and by insurers to prevent and estimate risks. Since in a competitive market with free entry the average bounty hunter costs should be close to the bounty level, this suggests that with competitive bounty hunters the fine is larger than the bounty.

This difference between the fine and bounty should also be large compared to the fine. After all, if this difference were small, then bounty costs would cause most of the social harm of this crime. In that case we’d be tempted to decriminalize this activity, to drastically lower its social cost. Unless the rate at which this activity happens varies strongly enough with the fine level, the harm of inducing more of these kind of events via decriminalization would be more than outweighed by less harm per event.

The fine and bounty levels should change if the criminal (or insurer) turns themselves in quickly. In that case, no one gets paid a bounty, there’s a high probability that such crimes will be caught, and both of these imply that the fine level should be lowered.

Having fines larger than bounties can create a dangerous incentive if the part of the system that sets fine and bounty levels also gets to spend a substantial part of the resulting net revenue. However, in modern governments it seems be quite feasible to greatly separate these groups, making this less of a concern.

Another problem created by big fine-bounty differences is private deals between insurers and bounty hunters. If a case regarding a particular claimed crime event goes to court, and the bounty hunter wins, then that hunter wins much less than the insurer loses. These two parties would rather settle out of court via “blackmail” deals where the hunter gets paid and keeps quite about their evidence. Here they could split the fine-bounty difference, so that the insurer loses less and the hunter gains more.

Now there are some big obstacles to such trades, in addition to the usual transaction costs, such as secrets, strategic delays, and finding the other party. The insurer can’t be sure that other hunters won’t acquire the same info, perhaps sold to them by this hunter, perhaps via overhearing this negotiation. The blackmailer might be bluffing about having info, and instead be recording their interaction to create evidence of criminal guilt. And payments must be spread out across time, as the blackmailer can continue to demand payments no matter what’s already been paid. These obstacles mean that in such deals the hunter will on average get much less than the fine amount.

But if we want to support large differences between fine and bounty amounts (e.g., F >3B), we’d have to prohibit such deals, and prohibit most insurer-hunter contact as well to make it hard to arrange such deals. Such prohibitions are easier to enforce on bounty hunters not protected by a blue wall of silence, but perhaps still not easy to enforce.

Keeping insurers and hunters apart has the disadvantage of making it harder for a hunter to help with crime prevention. If a hunter came across a person who seemed to be about to commit a crime, they might selfishly just wait for the crime to be committed, and then jump in to grab its bounty. We’d rather that they instead helped to prevent the crime. Such as by contacting the potential criminal’s insurer, and asking if they’d like to buy some info to help them avoid paying a fine. But if we allow such contact, hunters might contact insurers pretending to help with prevention, while in fact negotiating blackmail deals regarding crimes that have already happened.

When large fine-bounty differences are needed, I suspect that the best answer here is to just give up on having hunters help with prevention, and thus to limit insurer-hunter interactions. (This somewhat reverses my prior stance on blackmail.) Insurers are likely to take a lot of initiative to monitor and advise their clients. As a result insurers may usually be the first to guess that a crime may soon happen.

While most bounty hunters would be professionals, some would be amateurs who came across incriminating info via their usual interactions. Such amateurs would then face the choice to sell their info to professional hunters, or to contact the criminal (or insurer) in order to blackmail them. These these amateurs could more easily evade rules prohibiting hunter-insurer deals. But since they are not part of a competitive industry of hunters, compared to professional hunters their efforts are likely to be much more cost-effective, and far smaller. Thus amateur blackmail is much less likely to create a situation where most of the harm of a crime is due to hunter efforts. As a result, we may not actually mind this kind of hunter-insurer deal, and may not want to prohibit it.

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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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Taboo Gradations

Saturday I visited Monticello, and was struck by hearing this story:

Thomas Jefferson (TJ) brought slaves Sally & James Hemings with him to Paris. After 5 yrs, at ages 16 & 24, they could have stayed free in Paris, but they instead agreed to return to US as slaves. TJ agreed to free Sally’s future kids, and that James would be free in US after training replacements. The rest of their family had remained in US, she was pregnant w/ TJ child, James knew French & had a trade, and the French revolution had started.

Overall my opinion of Jefferson declined, and I tweeted:

Visiting Monticello, I’m not inclined to see Jefferson as more sincere then the typical politician. Articulate, charismatic, well connected, but not especially sincere.

As the Hemmings were famous slaves, they seem an interesting example of people who apparently voluntary chose to become slaves. I’ve long thought this was an interesting category, which includes the historically more common category of debt bondage. Even if one disapproves of enticing someone into voluntarily agreeing to slavery, that still seems less blameworthy than enslaving people via direct physical force. So I tweeted:

There should be a word for slaves who agreed to be salves, w/o extortion or other illegitimate pressures. E.g. Sally Hemings & brother made deals w/ Jefferson. Different word could highlight its lower moral culpability.

I soon added a link to a summary of this history, and the clarification:

Note: I’m not claiming that it is obvious that these two people were not subject to illegitimate pressures, only that it seems plausible that they were not. Allowing them to serve as an example of the concept I ask about.

Let me also now clarify, if it isn’t obvious, that a lower moral culpability can still be a very high level of culpability.

I have so far been subject to a storm of disapproving, and often quite rude, responses (1K comments so far). Most do not make any argument or intellectual point, but there are exceptions. One big set disapproves of making moral distinctions between different cases of slavery; many have said so quite explicitly. Apparently saying that some cases of slavery are worse than others is seen as excusing the less worse cases. They similarly see the claim that not all Nazis were equally bad as a pro-Nazi stance. They apparently see this as a signaling game wherein speaking this truth is taboo, and where violations have bad motives.

In response to a comment (explained below), I said:

Slave owners did many bad things, but each owner didn’t do every single one.

This received a similar storm of disapproval, as did this question:

Do you think all Nazis were equally bad?

Again, hard to see my statement or question as incorrect, but many see pointing to moral variations among slave owners or Nazis as praising them.

To see how many agreed with my claim on moral culpability differences, I did two Twitter polls. By a 2 to 1 margin out of 660 votes, they said that there exist plausible history, options, & preferences to make a scenario where someone got someone else to agree to be a slave less morally culpable than if they had enslaved them via direct physical force. By a 5 to 2 margin out of 486 votes, they said that Jefferson specifically would have been more culpable if he had instead physically forced the Hemmings to return to the US. So they clearly agree with me that we can distinguish different degrees of culpability here.

Another big set of responses to my original tweet that mentioned the Hemmings claimed that their deals did in fact involve “extortion or other illegitimate pressures”. I did a poll here and found folks agreeing with this claim, 2 to 1 out of 409 votes. A followup poll finds that out of four options I gave, most see the illegitimate pressures as due to their having been slaves before, and having family remaining in the US.

I teach law & economics, and so am familiar with the usual legal reasons given for not enforcing contracts, because the deals are not seen as legitimate. For example, when a contract itself has bad effects, as with contracts for assassinations or for price collusion. Or when the context of a contract suggests that it is a mistake, such as with ignorance, mental defects, or fraud. Or when one party induces a contract by threatening to cause harms in illegal ways, such as with a gun. Or when one party has an unusual degree of market power, inducing outcomes far from supply & demand, such as may happen when rescuing someone in the desert.

These are the sort of things I had in mind re “extortion or other illegitimate pressures”. It is fine to dislike the Hemmings’ deal because you just dislike slavery, full stop. But that’s saying the contract itself is bad, not that it was induced in a bad way. To show that it was induced badly, you need to show something like that threats of force were made, or that excess market power was used.

The fact that they were both slaves before shows that they understood what they were agreeing to, and so makes it less likely that this contract was due to a mistake or fraud. And our world is full of people who live far from their family, and full of others who might help them see their family. Surely we don’t want to reject deals just because one party is motivated by wanting to see their family.

Should we reject an airline ticket purchase because the traveler is going to see family? Should we reject a rental agreement because the tenant wants to live near neighbors they like? Should we say that most people are enslaved by their nation because they are reluctant to leave due to wanting to live near family? Should we forbid a church from offering a deal to avoid excommunication, as that act could cut one off from family? I doubt most people in history would agree to be a slave just to live near family, especially when they are young adults already apart for five years, so I’m skeptical this was the main reason the Hemmings agreed to this deal. In this poll of 10K, 90+% say they & most people in history wouldn’t do that.

A number of people argued that we should presume that Jefferson had threatened, if the Hemmings didn’t agree to his terms, to kill their family in the US, and to pay people to hunt them down and kill them. Because some slave owners had in fact threatened such things at times. (That’s the context in which I tweeted “Slave owners did …”) But until we find more specific evidence to suggest that, that seems a crazy extreme assumption to me to make about Jefferson in Paris, where the local law would treat such acts as murder. And I expect the rate at which owners killed the families of escaped slaves in retaliation to be quite low.

Added 1May: Many have argued that slaves are conditioned to obey and avoid risk, and this invalidates the Hemmings’ agreement. That would make more sense if they had just returned to the US without complaint. But (according to our best evidence) they actually explicitly threatened to stay, and negotiated directly with Jefferson on terms; they acted willing to disobey. And if they thought slavery was as terrible as people say, returning to slavery seems the larger risk. I get that harsh circumstances can change you, but I don’t yet see that as a reason to question the choices of such people.

Also, many have said they can’t see any point to making moral distinctions between behaviors if there aren’t people in front of us today that we might punish differently. But I’m an intellectual who specializes in conceptual theory, and who explores radical alternatives to existing institutions. The military draft, prison as a punishment for crime, and debt bondage are all conceptually related to slavery, as are many similar institutions that we might consider.

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Rebooting Justice

In 2017, I read a WSJ review of Rebooting Justice by Barton & Bibas:

When it comes to securing justice in an efficient and affordable fashion, lawyers can in fact be the primary obstacle. … Even basic legal services at small or mid-size firms may cost more than $200 an hour, placing meaningful legal representation beyond the reach of many Americans. … Why … costs of legal education and guildlike restrictions on entry to the profession … increasing complexity of legal processes, … choosing to represent oneself is … on the rise … [but puts one] at a severe disadvantage. … There’s no reason that paralegals, notaries, social workers and others with relevant training could not [help]. … inexpensive, downloadable forms to cover basic legal matters, like living wills or articles of incorporation. … computer-assisted mediation … Their more radical suggestion is to restructure the system so that many processes are specifically designed to omit lawyers. … The biggest obstacle to such reforms could well come from the legal profession itself.

This book was also reviewed in the New York Times:

In many contexts the presence of more lawyers actually reduces the speed and effectiveness of achieving justice. …
Few realize that the long-accepted understanding that courts have the final say on the interpretation of laws in general is not explicitly established by the Constitution. … State courts have simply asserted that they have “inherent authority” over the administration of the legal system. Under this view, rules governing lawyers, as “officers of the court,” and the practice of law in theory are “not subject to legislative reversal or encroachment.” … [Lawyers] benefit from a secretive disciplinary process that almost never results in penalties or expulsion, combined with aggressive policing of the “unauthorized practice of law” … The most powerful innovations documented in “Rebooting Justice” appear to have sprung from the creative minds of nonlawyers.

Every review I’ve found has been positive. Yet the book only got 6 reviews at Amazon (all 5 star), and only 2 at Goodreads. I bought the book back then, but only now just finished it. So the book is far from a page turner, and obviously didn’t sell many copies. But all reviews I’ve seen say it is basically right:

It is hard to argue with most of the arguments in this book: the present legal system is predicated on the assumption of litigants with relatively equal legal representation; however, in the modern age, this is all too frequently an unmet assumption. (more)

One review argued that deregulating who can practice law won’t be enough:

It is far from clear that it is the high cost of legal services—driven by alleged overregulation—that is preventing Americans from obtaining legal assistance. A recent study … found that cost explains the decision to not seek legal assistance in less than a fifth of civil justice situations. … In several states, one can become a lawyer without attending an ABA-accredited law school; some do not require attending a brick-and-mortar law school at all. … The United Kingdom began allowing corporations, known as alternative business structures (ABS), to own law firms and offer legal services since 2007. … not led to the collapse of the legal system. But … also not had an appreciable effect on access to justice.

Which is probably right. But no review disputed the book’s most radical suggestion: switch to an inquisitorial legal system, wherein judges take the initiative. From the book:

We can learn from the American system of administrative law judges and from European courts. We can adapt the inquisitorial system, in which court officials actively investigate the facts and probe the evidence instead of relying on the parties’ lawyers. That approach can cut through distracting procedural games to focus on the facts and issues at the heart of a case. Though inquisitorial judging sounds like an exotic foreign transplant, American administrative agencies already use similar methods to adjudicate unemployment and Social Security disability claims, and so do small claims courts. … Most courts in the world, including virtually all of the courts in continental Europe and most of the courts in Asia, South America, and Africa, run on an inquisitorial system.

This system is not only used in most of the world, in US administrative law, and in our small claims courts, it was also the main legal system in ancient societies, and it is used today by most non-government dispute-resolution systems, such as in churches, schools, firms, and families. This system is usually paired with a less precedent-based and more text-based system for deciding are the legal rules.

We in Anglo societies are often told that our different more adversarial and precedent-based system is superior, because it less allows corrupt judges. But as the book says,

[In a precedent based legal system] exceptions and balancing tests offer judges great discretion to adjust the law to reach almost any set of facts. They also create a massive amount of uncertainty in the system.

And if the main issue were corrupt judges, we could easily spend far more on that. For example, allow entrapment and pay many to try to bribe judges. Make 10% of court cases be fake cases designed to test judges. Often have several judges review the same case independently, and compare judge ruling stats. Monitor judge activities full time. Billion dollar bounties to those who prove corruption. Death penalties for the guilty.

Today most people simply can’t afford to use the courts to sue, and if accused of a crime they must mostly settle as if guilty, even if they are innocent, all because the system is now crazy expensive. (It didn’t use to be.) Inquisitorial judges would change that, and give most people meaningful access to a legal system to defend themselves.

By the way, requiring legal liability insurance would be another way to make sure both sides have equal access to effective lawyer support.

Here are a few more interesting quotes from the book: Continue reading "Rebooting Justice" »

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Consider Reparations

First … ally of President Trump’s. “We are in a civil war,” he said. “The suggestion that there’s ever going to be civil discourse in this country for the foreseeable future is over. . . . It’s going to be total war.” The next day … Trump critic … agreed with him — although she placed the blame squarely on the president. Trump, she said, “greenlit a war in this country around race. (more) 

Frequently in human history, one party has complained about how they’ve been treated by another. Typically, the first party suggests that the issue be resolved in particular ways, and the second party tries to avoid giving in to such demands. To pressure the other party to give in, such parties often act less cooperatively toward one another, and try to enlist allies to assist in this stance. Such conflicting coalitions can grow large, and the resulting feuds can be quite destructive, sometimes escalating into full scale war.

The larger society has an interest in resolving such disputes fairly, as the expectation of fair future resolutions can encourage better behavior. But that larger society has an even stronger interest in just resolving disputes somehow, anyhow, to prevent the accumulation of destructive feuds. So for roughly a million years, humans have used informal group norm enforcement. If a forager had a complaint about someone else, they could tell their band, and that band would discuss it and come to a consensus on how to resolve the issue. The band would then apply increasing pressures to get the disputing parties to abide by their decision, and to stop any feud.  

During the farming era, we formalized this practice as law, which lowered costs of making and enforcing group decisions on how to resolve particular conflicts. But the key idea remains: prevent escalating feuds via having relatively independent judges declare resolutions, and pressuring parties to respect them. Hopefully fair resolutions, but more importantly clear and widely accepted ones. Pressure parties and their allies not only to do what resolutions say, but also to publicly accept such decisions as resolving their conflicts. 

That is, we want people who have been loudly declaring their dispute to publicly put it behind them. For example, by treating ex-cons as “having paid their debt to society”. We’d like these legal resolutions to be reliable and predictable, to give people incentives to behave well and not do things that cause disputes. And when disputable events happen, we want the involved parties to have incentives to quietly make a deal to resolve them, so as to avoid larger social conflict and the need for a formal legal resolution. 

For a very long time, most legal conflicts have been resolved via cash transfers. Not always, of course; crimes often need more punishment than fines can produce. (At least without selling people into slavery or requiring crime insurance.) But cash makes many things easier, including trade and charity. Yes, cash doesn’t always make the best symbolic statement. Even so, law usually uses cash because it is an admirably robust measure of value across a wide range of groups and social contexts.  

Which brings me to the current US political conflict, and the topic of reparations for slavery and racism. Our political climate seems today to be drifting toward a war-like lack of restraint. And “grievances” seem an important part of this conflict. One side at least claims to represent wronged parties, parties whose wrongs have not been adequately addressed. And one especially big and long-lasting grievance has been about our history of raced-based slavery, and related racism. Many say that we have not adequately addressed this complaint. 

My main point here is that cash reparations for past slavery and racism harms make a lot of sense in the context of the general history and purpose of law. We have been suffering from a costly long-standing political feud, a law-like resolution could help us resolve and get past that feud, and cash transfers are our standard go-to way to resolve law-like conflicts.

I’m not going to argue for any particular level of compensation, nor for any particular interpretation of particular cases of precedent. I can believe that precedent isn’t clear here, and that many issues and complexities are in play. But complexity needn’t prevent resolution; we rely on law all the time to resolve complex disputes. In fact, in terms of avoiding wider social conflict, law is probably more socially valuable in more complex cases. 

Yes, reparations today for wrongs from long ago does require some form of vicarious liability, wherein the people who lose and those who gain from a cash transfer aren’t the same as those who did wrongs and who were harmed. But we actually use many forms of vicarious liability in law today, and ancient societies used it a lot more.  

Some fear that even after paying reparations, racism-complaint-based conflict would persist unabated. Others fear the opposite, that many would feel that we could cut back on other responses to racism, such as affirmative action, and “put the issue behind us”, risking complacency on future problems. Here I must come down strongly in favor of risking complacency. 

One of the main goals of law, and of humanity’s more ancient norm enforcement, has been to try to get disputes resolved, to give them a better chance of fading away. Yes, it remains possible that past wrongs will be repeated in the future. But to always presume that is to never allow disputes to be resolved, and to instead accumulate escalating complaints and feuds until war becomes nearly inevitable. 

If our national legal system isn’t up to the task of resolving this conflict, or isn’t seen as neutral enough by important audiences, I have a simple proposal: randomly pick 13 adults from the whole world, let them each pick one legal advisor, then isolate them all in a room and have them work together as a jury to pick a resolution. When they must pick a number, let them just use a median vote (each submits a number, the median of which is the answer). Finally, let the whole world apply social pressure to get everyone to accept this as the most neutral and independent resolution likely to be available anytime soon. Accept it, implement it, and then let it go. (If you worry about one side betraying the resolution later, consider spreading cash payments out over a long time period.) 

When conflict appears in a marriage, the couple sometimes seeks a counselor, who often offers neutral independent advice on how to resolve their conflict. Which is helpful when partners actually do want to resolve a conflict. But sometimes they prefer war, and the marriage ends. Similarly an independent reparations recommendation can’t force us to resolve our conflict over racism and slavery, if what we really want is all out war. But as with a feuding couple, if we think there’s still a chance that we’ll want to stay together, we might still give the independent counselor thing a try.  

Yes, like you I hear of many who seem eager for all-out war, as they feel confident they will win. For example, some intend to crush all opposition within the elite professions that they expect to dominate, such as journalism, academia, government, social media tech, and even law. But while such people do exist, social media exaggerates their numbers. It is not yet too late to step back from the brink, and reconcile. Via something like law. 

In a recent Twitter poll, I found that 800 respondents favored cash reparations (CR) 4-1 over affirmative action (AA) as a way to deal with past and present racism, including race-based slavery:


My 73 facebook poll respondents favored CR over AA 87% to 13%. Yes, there are reasons to doubt a wider public shares this judgment, but three different polls find at least that majorities of blacks favor cash reparations. The idea isn’t crazy.

Added 3pm: Over the weekend, I paid for nationally representative surveys via Google Surveys. When I asked the above question except with “just show results” replaced by “I don’t know” (IDK), then out of 220, IDK got 77%, AA 14%, and CR 9%. I initially paid for a much bigger survey, but bailed when I saw so many IDK. I tried again without the IDK option, and out of 1154, AA got 53% and CR 47%. I agree that these stats aren’t very supportive of a majority favoring CR over AA.

I interpret these stats as Google Survey respondents trying to answer as fast as they can to get paid more faster, and so only giving accurate opinions when such can be generated very quickly. If the question looks at all complex, then they pick an IDK or “none of the above” if they see one, and otherwise pick randomly. I’d pay a lot more for surveys where the same person is asked the same question a week apart, and only gets paid if their answers match.

Added 6Mar: Almost all responses are critical, from folks who apparently don’t want any reparations. They mainly complain that this case would be difficult to judge from a legal precedent point of view. But we almost never refuse to have a legal proceeding on the basis of difficulty of judging. If it seems plausible that a judge might find for the plaintiff, the case goes forward. A judge might then rule for the defendant because it seems too hard to find a clear enough reason to rule otherwise. But that’s after a proceeding, not before. I’m okay if the jury of 13 that I suggested picks, after much deliberation, a median compensation of zero; no reparations.

Added 8Mar: David Brooks comes out in favor of reparations:

Reparations are a drastic policy and hard to execute, but the very act of talking about and designing them heals a wound and opens a new story.

George Will opposes reparations because they’d be complicated.

Added 10Mar: A Postily poll of 283 finds 28% prefer AA, 36% prefer CR, 36% say IDK. Non-whites like CR more across the board, but even whites favor it 33% to 27%. Masters degrees & higher prefer AA. Democrats prefer AA over CR 45% to 26%. Oddly, all regions but the South preferred AA over CR.

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