Tag Archives: Law

My Old Man Rant

As a 62 year old man, I think I’m entitled to rant once in a while. But instead of “you kids get off my lawn!”, this is my rant:

In principle, economics can help advise most any decisions, like when to wake up, or whether to own a second car. But there are fixed costs to doing explicit econ analysis, and also persuasion costs when you try to influence the decisions of some audience. Thus econ analysis seems most valuable for the biggest decisions whose the audience respects economists for those decisions. Or perhaps many similar but smaller decisions which can all be analyzed at once in the same framework. As we economists are most known for our work evaluating institutions, and as our institutional choices are some of the biggest ones we have, this all suggests our biggest wins come there.

I was first exposed to economics and libertarianism at the same time, and what most excited me about both were similarities to science fiction: they let me imagine very different social worlds. One could see how we could have very different institutions from our current versions, ones that would also plausibly be better. Yes, one couldn’t be very sure that those worlds would be better. But they gave us new things to try, to test and see if they might be better.

When I was young, theory was king, and I tried to master theory. But since then data has come to be king (and queen), even in econ and libertarian circles. Yet I hadn’t realized just how far that trend had gone until this pandemic. To me the obvious theory question a pandemic raises is: what are good general institutions for dealing with pandemics? I wrote a bit on that early on, but was told then that we instead needed immediate help in a crisis. Which I also tried to offer, but which many hated.

Yet it is now two years into what is looking more and more like an eternal pandemic, and I still haven’t see economists or libertarians talking about better pandemic institutions. While this pandemic has done great damage to libertarian sympathies, I’ve only seen libertarians argue that in this particular pandemic, doing nothing officially would have been better than doing what we did. And I’ve seen economists argue about particular parameter settings of the usual government-run system: rules, subsidies and direct government management of masks, lockdowns, tests, and vaccines. Mostly via data, not theory, analysis.

But I’ve not seen work on if there are better institutional alternatives to these two categories, if not for this pandemic then for future ones. Which to me feels like a deep betrayal of what I most value in econ: our ability to imagine, test, and argue for big institutional changes. Even my immediate (and beloved) colleagues haven’t been interested.

To me, the obvious other category is: law. We are better off having law to deal with many harms we can each do to each other, such as assault, slander, and reneging on contracts. Better than ignoring them, and better than having government agencies more directly manage such behaviors. Yes, our society runs law centrally, and likely law would be better if offered privately. But even so, for many harms we are better off because we now apply law over the other two main solutions of doing nothing officially or direct government management.

For law to work for assault, slander, theft, or car accidents, we need it to be often feasible to bring sufficient evidence to convince a court that a particular person harmed a particular other person to a particular degree at a particular event. If so, we can then sufficiently discourage such harms merely via the threat of such legal penalties. At least if we can sufficiently punish those we find guilty, and if we make it easy enough for complainants to subpoena the evidence they need to make their case.

Law today often ensures sufficient punishment via jail and criminal law, which works even if not as well as would vouchers. Law usually allows parties to subpoena any info relevant to a live case, and it so happens that evidence needed to prove assaults and car accidents lasts long enough to let them be so subpoenaed. With vouchers and the level of surveillance likely soon, I don’t actually think we’d need most of our traffic laws; the threat of lawsuits would be enough.

The main policy problem with pandemics is that some people hurt other people by infecting them. Just like they do in assault, slander, theft, and auto accidents. So law could deal fine with pandemics if we could meet the same two conditions: (1) sufficiently able to punish those who found guilty, e.g. via jail or vouchers, and (2) often enough able to easily-enough subpoena sufficient info to show who did what to whom. It is on that last point that economists, and lawyers, have traditionally thrown up their hands and concluded that law can’t deal with pandemics.

That is, people have just assumed that it is not possible to tell who infected who in a pandemic. At least not often enough for law to be our main way to deal with severe pandemics. So for something like the flu we subsidize vaccines and little else, while for covid we go crazy with government managing many related details.

But today with smartphone tracking we can actually see who was close enough to whom when to have infected them. And if we have spit samples from two people infected with covid, we can compare the DNA in their viruses to see if they match. By combining these two pieces of information, one could make a sufficiently strong case that a particular person infected another particular person with the virus at a particular time and place.

So the question that remains is: should we actually induce sufficient information collection and subpoena power, and sufficient punishment ability, to let law deal with pandemics? That is, on the one hand we might make infecting others a punishable crime, require everyone to have their phone track their locations, to report their infections, and to save regular spit samples. And then let government police pour over these details. Which does sound like a pretty intrusive police state, though perhaps still better than the actual police state we’ve had during this last pandemic.

Or, only during an officially declared severe pandemic we could tell everyone that they must either strictly isolate, or, they can get a “pandemic passport” by agreeing to get a voucher, have their phone track their locations, and regularly save spit samples, all available only to be subpoenaed in case of lawsuits by people who claim to be harmed, but not for general browsing by a police state.

Yes, once a pandemic becomes nearly endemic, frequent infection events could clog up courts. But at such scale vouchers would streamline their processes and settle almost all cases out of court. I also know of ways to greatly cut court costs. And damages awarded might greatly fall once one could credibly argue that the victim would likely have caught it soon from someone else.

This idea of legally requiring people to save info so that it can be available to be subpoenaed for future lawsuits is not a particularly new idea. It is just the application to the case of pandemics that would be new. But in our new world of greatly increased surveillance and info of various sorts, we should in fact be thinking about how all that new info might help us solve problems. Like pandemics. Via new institutional changes

Come on, don’t any economists or libertarians out there want to think about new pandemic institutions?

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Innovation Liability Nightmare

When I try to imagine how our civilization might rot and decline over the coming millennia, my thoughts first go to innovation, as that has long been our main engine of growth. And while over the years I’ve often struggled to think of ways to raise the rate of innovation, it seems much easier to find ways to cut it; in general, it is easier to break things than improve them.

For example, we might press on one of our legal system’s key flaws. Today, law does far more to discourage A from harming B than to encourage A to help B. B can often sue A for compensation when A harms B, but A can rarely sue B for compensation when A helped B. Law. Today is mostly a system of brakes, not of engines or accelerators.

This is less of a problem for auto accidents or pandemics, where the most important effects of the most important actions are indeed harms. But it is a much bigger problem in innovation, where the main problem is too little incentive to help. In general, society gains far more from innovations than do the people who push for them. So innovation needs engines, not brakes.

The problem is that even events whose effects are overall beneficial will still have some harmful effects. For example, if you invent a new better mousetrap, you may displace previous mousetrap makers. Or by introducing cars, you may hurt people who supplied or managed horses. So what if our legal system makes it easier to sue people for the harms caused by their innovations?

For example, many have complained lately of negative effects of social media, such as increasing anxiety, decreasing privacy, and passing on “fake” news. And just as legal liability has been a big weapon in recent campaigns against harms from tobacco and pain-killers, liability may well also become a big weapon against social media. Wielded especially strongly against those who have most innovated and developed social media.

Imagine that holding innovators liable for the negative effects of their innovations became more widespread. But without increasing the rewards we allow to innovators for the benefits that they bestow. Together with the trend to increased regulation, this might just become enough to kill the innovation goose that lays our golden egg of growth.

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Why Not Extend Formal Social Systems?

Once humans had only informal systems of gossip and norm enforcement, but now we also have formal systems of law. These formal legal systems supposedly have many features designed to overcome problems with prior informal norm systems. For example, with gossip we tend to support the claims of our immediate associates without investigating contrary evidence, but we require formal law judges to instead consider evidence from all sides before making their judgments.

We seem to believe these claims that formal law systems overcome informal system failings, because we are quite reluctant to give up our formal systems. Few of us support dropping our formal law systems, and replacing them with informal gossip and mobs. But if so, why do we still use informal norm systems to deal with so many topics, instead of law?

We often say that we rely on informal norms when formal law systems are too slow or expensive. But when offered specific proposals for ways to drastically reduce the time and expense of formal legal systems, so that they can be used more widely, most people seem quite reluctant to endorse such changes. But if law fixes serious problems with informal norms, and if we could replace such norms with law in more places, why not do so?

What makes this even more puzzling is the fact that centuries ago in the U.S. our formal legal systems were much simpler and lower cost. The law was simpler, most people could go to court without a lawyer, and juries made most decisions. All of which did allow the law to deal with more kinds of conflicts. The scope of law has declined over the last few centuries as we’ve allowed law to get more complex and expensive.

One theory is suggested by the idea of “snitches”. Children punish each other for complaining about each other to parents or teachers; they are supposed to instead rely on informal systems among children. Insiders complaining to outsiders can make any group look bad to outsiders, and thus loyalty to a group can require that one keep one’s complaints inside the group. Thus we may prefer informal systems as ways to show loyalty to our groups.

Just like we’ve added formal systems of conflict resolution to our prior informal systems of gossip and norms, we’ve also added formal systems of abstract conversation to our prior informal talk systems.

For example, in academia we have many norms regarding how we present abstract claims and arguments to each other in books and journal articles, and how we evaluate such things. For most of these norms, we have stories about how they fix problems with informal talk. And few academics would endorse getting rid of all these norms and just reverting entirely to informal talk.

And yet, as new mediums and genres of conversation have appeared over the last few decades, we’ve seen relatively little support for extending the usual academic norms into these new places. I expect many would offer knee-jerk explanations saying that academic norms take too much time and energy to apply to these new places. But that seems to me mostly an excuse; I doubt that they’ve actually thought much about actual time and energy costs.

Regarding both dispute resolution and abstract conversation, it seems that we mostly just want to continue with formal institutions in their current scope of application, but not to apply them more widely, even when that becomes feasible. Perhaps because we prefer to show loyalty to the communities that manage our informal norm systems. But loyalty signaling doesn’t seem a good reason to think this is better for the world, or for our larger societies.

Added 10a: Speculative markets are another area where we don’t want to get rid of the ones we have, but we also don’t want more of them, to aggregate info into consensus on more topics. The cost of creating them has come way down, allowing a lot more of them, that we don’t want.

Property registries is yet another area. The cost of managing them have come way down, yet we don’t have official registries for many more kinds of property than we once did.

Perhaps the simplest theory here is that we’ve lost our taste for social change. Whatever was continues, but nothing new shall be added.

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Who Watches Discrimination Watchers?

Two LA area colleges, UCLA and USC, have a famous rivalry. Imagine that local law firms took sides, preferring to hire graduates from one or the other law school. Imagine further that some USC lawyers at a UCLA-favoring firm complained about this, calling it bias, pure and simple; UCLA grads coordinate to prefer other ULCA grads, independent of their qualifications. These USC lawyers demand a quota system, to ensure equitable hiring. If management resists, they plan to go to the media, to get the public mad about this, and then either use legal or norm/mob pressures to get their way.

Firm leaders say instead that UCLA trains better in their type of law, they can find better people by using personal connections, and many of their clients and collaborating specialists (like detectives) are also UCLA grads. Also, there are productivity advantages from having similar kinds of people, trained similarly, working together.

Now both kinds of theories are plausible. There are often productivity advantages from similar people working together, and yet humans also quite consistently, naturally, and even unconsciously coordinate to use relatively arbitrary features to form mutual-admiration societies that promote each other. And disentangling these effects can be quite hard. The UCLA grads involved may themselves not even know why they prefer other UCLA grads. (Random noise is of course also possible.)

What sort of evidence might we collect to decide? We could look at whether UCLA grads talk directly about preferring each other. We might note when they make mean jokes about USC grads, and prefer to socialize with each other. We could experimentally vary the school label for particular applicants, and see if that changes their chances. But even if that does change chances, defenders of the status quo could attribute this to well-calibrated statistical discrimination, as we can’t usually look into the depths of others’ souls.

We could do statistical regressions to predict who gets hired based on which individual features, and also school. But even if those stats found no significant coefficient on school, after controlling for other features, USC grads might claim that the weights used on which desired features count more are biased by what UCLA grads are taught to do and to value, and it isn’t fair if USC grads aren’t taught the same things.

This same sort of story can of course apply to many other features besides schools. Those who hire may prefer candidates who play particular sports, watch particular TV shows, live in particular neighborhoods, and wear particular styles of dress, or have particular work hour preferences. In all such cases, these choices might be due to productivity advantages, or due to arbitrary mutual promoting coordination. And these same processes can also influence who we choose as friends, lovers, and other kinds of associates.

When the purported feature of coordination is rather specific and local, such as school attended or sport preferred, our usual attitude is to allow local associations to “discriminate”, that is, to make choices correlated with such features. We tend to see competition between such associations as sufficient to discipline those who discriminate badly. If a law firm has a hiring strategy that picks worse lawyers, it will suffer naturally as a result; little need for the rest of us to add punishments. And we also balk at the enormous effort that would be required to impose, monitor, and enforce quotas, or other forms of preferential treatment, on a vast number of such features.

But attitudes on preferential treatments may change as (a) choosers face weaker competition and losses from choosing badly, (b) we consider features that are harder to change, (c) wider social scopes all coordinate to prefer the same features together, (d) many features come together as a package preferred across wider social scopes, (e) the choices made look closer to “dominance” relative to “prestige”, and (f) the features involved are strongly correlated with pretty objective and obvious coordinations to mistreat people that we are confident happened in the past, or in current societies of which we disapprove.

Sometimes we are more sympathetic to intervention, that is, to government or social/norm/mob pressure to insist on something closer to preferential treatment to ensure equity. But note: if we believe in a common tendency of humans to coordinate to form self-promoting mutual-admiration societies, and so are tempted to authorize such intervention to suppress this, we must also believe that this same tendency will induce similar group attempts to coordinate to take control over any powers in charge of such intervention. In order to use that power to directly favor themselves.

For example, if a committee is formed at a LA law firm to decide on the details of a USC vs UCLA quota system, a committee full of UCLA grads would probably make different choices than a committee full of USC grads. Thus these groups would vie for control over this committee. And if the problem was that UCLA grads dominate in the firm, wouldn’t they be most likely to win this contest for control?

The key claim might be that while we worry less about many small uncoordinated self-admiration societies, there is in fact a very large social coalition, spread across many associations, and using a large package of features to promote itself. Making it especially able to resist competitive pressures.

But in this case, I have to worry that this coalition seems especially likely to take control of this intervention process, and then use it to favor themselves. So I don’t feel much more confident about the political coalitions and government agencies that would be in charge of choosing preferential treatment regimes, relative to the many smaller organizations which would instead make such decisions in the lack of such intervention.

I’d rather try to increase the strength of competitive pressures on smaller organizations, to break up this larger coalition. For example, if there were one big law firm in LA that most all lawyers worked for, I’d rather try to break this firm up into many smaller law firms. Or imagine most all judges in LA come from UCLA, are in charge of choosing new LA judges, favor UCLA lawyers in the courtroom, and thus induce LA law firms prefer UCLA grads. In this case I’d rather break up this local cabal of judges, by bringing judges into LA from all across the nation or world.

So what I worry most about are centralized choke points controlled by groups responsible mainly to themselves. Groups who take over these choke points can then arbitrarily favor others like themselves for key positions, and punish any of them for favoring anyone else. Central government agencies, academic discipline leaders, professional associations, accreditation bodies, etc. Even if such people claim that their highest priority is global equity, to resist the worst self-promoting coalitions out there, I just find it hard to trust them.

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Prefer Law To Governance

Libertarians are usually adamant that they prefer less government to more. But sadly this tends to make them reluctant to express opinions on choices between different non-zero government scenarios. After all, that might have them seeming to endorse some non-zero government scenario, while their primary desire is to make it clear that they are anti-government. So the main choices on which they are willing to express an opinion is between ones with clearly “more” versus “less” government.

Alas, because there really are other choices that matter in the world. For example, it might matter how local is the government that is involved in any given area of life, even if a local and centralized government would have the same “amount” of involvement. It might also matter how accountable is government to citizens, and on what timescales; governments can be more or less “democratic” even when they have the same scope for controlling citizens.

One big choice that I think matters a lot is between dealing with a problem via civil law, or via governance. Civil law mainly deals with after-the-fact disputes between equal parties, where judges can’t anticipate whom they will judge, and where judges must articulate clear principles of choice. In contrast, governance gives a lot more discretion for officials to give orders regarding future actions, to pick out the people they want to influence, and to treat similar people quite differently.

For example, governance can deal with pollution by issuing detailed regulations on how, where, and by whom pollutants are made and used. In contrast, civil law can deal with pollution by letting those who suffer from it sue those who caused it. Governance can deal with poverty by taking money from whomever it wants, giving money to whomever it wants, and requiring recipients to abide by any lifestyle rules it wants. In contrast, civil law can deal with poverty by requiring siblings and cousins to take care of each other when in dire need.

Governance can deal with crime by managing police, prosecutors, and prisons who decide in great detail who will be be investigated and punished how and for what. In contrast, private bounty hunters and required liability insurance could make these all private choices, leaving to the community only the choice of what is a crime and how strongly it is to be discouraged and discovered.

Governance dealt with the pandemic by issuing regulations about masks, distancing, lockdowns, etc., by limiting and commanding how vaccines can be tested and produced, and then directly managing their distribution. In contrast, law could have dealt with the pandemic only via requiring liability insurance and the preservation of sufficient info to allow the infected to sue those who caused it.

In all these cases the key difference is less about the overall level of government control, and more about the discretion of government officials, which allows favoritism, corruption, and over-confident micro-management. In the choice between law and governance, I usually prefer law. (Though yes of course, I don’t know how to manage a war well via law.)

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Keep Govt Officials Out of Life Details

The government can meddle in your life both via both your production and consumption. That is, it can tell you how much of what to produce, and how to do that, and it can tell you how much of what to consume, and how to do that. These meddlings can be general and uniform across the population, and decided by a legislature. Or they can make more distinctions between people, and be decided by low level government employees.

For example, the government can subsidize fresh fruits and vegetables in general, for everyone, or Ms. Jones’ social worker might tell her that if she wants to keep her kids she better serve more fresh spinach to her children at dinner this week. The government can require everyone to pay the same fraction of their income in taxes, or a draft board can choose to conscript Mr. Jones into becoming a solider, and then his sargent can order him to take that hill now.

While we might disagree on where we would draw the line, I think we can all agree that, all else equal, it is better if the government decides at a high level to meddle uniformly in everyone’s lives, than if low level government employees meddle very specifically in particular details of individual lives. While an unregulated society most likely does have market failures that legislatures can mitigate via general rules, it is harder to believe that low level employees know enough about particular people to meddle well in their details. Furthermore, detailed meddling allows more corruption and arrogance by officials, and induces more hurt pride and resistance by those controlled.

We can, I think, go further and agree that it seems harder to justify meddling in production, relative to consumption. For example, we may accept the government using a general rule to tell us how much we owe in taxes, but it seems harder to accept a government official telling us in particular what kind of career to go into, what job to take, or whether we must work this Saturday. Regulations about job safety, for example, work better as general rules that apply to all jobs, rather than being chosen at the discretion of a particular official regarding a particular workplace.

I propose that we all think about law vouching in this context. Just as a government who decides how much you owe in taxes does not decide how you acquire that money, a government who decides that you owe a legal debt due to a crime you’ve committed need not be empowered to decide how you pay that debt, if that you will in fact pay that debt.

In our world today, the judge who sentences a criminal not only decides the overall level of their “debt owed to society”, but also specifies the particular kind of punishment. Usually prison, but sometimes fines or community service. (And in the past: public shaming, torture, exile, or death.). And our governments and courts regulate those prisons in great detail. Even so, prisons are terribly expensive and yet not very effective at deterring crime. And as you leave prison, your parole board and officer will make many detailed decisions on how you can live your life.

Under vouching, there is no government parole officer and the judge would instead only specify the fine your owe, which would be paid by your voucher. (And could depend on your wealth.) Then you would be further punished according to your prior contract with your voucher. You and your voucher would also choose your privacy rights and freedoms of actions, and suffer larger fines if those make it harder to catch and convict your crimes. Furthermore, you and some close friends could together choose co-liability, to show you will watch each other.

Under vouching, you would repay your debt to society, and be in much more in control of how to repay that debt. Just as with tax debts now. Does anyone really think that judges, police, or prison officials are extra good at deciding what will deter crime in any one individual? Moreso than all the other government officials who we do not let dictate the details of our lives?

Not that I’m not pushing for some extreme libertopia where government has no powers. I’m instead appealing to a quite common feeling that government meddling should be limited and general; our default should be to avoid it, when possible.

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Easy Conspiracy Tests

The most obvious kind of conspiracies to expect in the world are ones between your local organized crime, police, and political powers. These powers should each see each other as rivals to their dominance. So to reduce such threats they should should seek to either weaken each other,  or to ally with each other. There are rumors that such alliances are common around the world, and there is clear data that they have often happened in the past. 

So this is no mere theoretical conspiracy theory, to be dismissed by claiming that too many people would know to keep it a secret. This sort of conspiracy is not only verifiably common, it also has a quite credible threat of punishing those who too publicly expose it.

Given that this seems to usually be a real possibility, what sort of evidence might speak to it? Here are some indicators that, if true about your area, are at least weak evidence against such a local alliance:

  1. You see very little profitable crime in your area, such as gambling, drugs, or prostitution.
  2. You see profitable crime, but also conflicts over its control. E.g., wars over drug-selling territory.
  3. You see profitable crime, and little fighting for its control, but its consumer prices are quite near average costs.
  4. You see profitable crime, and see that those who enter such industries fear only police and competitors, not organized crime.
  5. You see a big conflicts in your area between police and organized crime. 
  6. Police in your area are bounty hunters, who regularly gain bounties from catching each other, and judges are clearly not corrupted.
  7. You do elections in a way that lets organized crime steal elections, yet they are clearly not being stolen.
  8. (what else?)

Now if you don’t see any of these signs in your area, you should estimate a higher than average chance that you have a crime-police-politics conspiracy in your area. And as the base rate is already substantial, your estimate should be even higher than that. 

If people were concerned about such conspiracies, they’d pay to hear from folks who collected and published stats on these indicators. And pay even more for stats that made it easier for skeptical observers to check on how such stats were collected and constructed. And then those with the worse indicators, suggesting local conspiracies, could learn about that fact, and perhaps coordinate to change it. 

So what does it tell you if few seem to care enough to even know if such stats are published?

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ALL Big Punishment Is “Cruel”

Cruel – willfully causing pain or suffering to others, or feeling no concern about it.

Cruelty is pleasure in inflicting suffering or inaction towards another’s suffering when a clear remedy is readily available. …affirmative violence is not necessary for an act to be cruel. … are four distinct conceptions of cruelty. … first … above in degree and beyond in type the [suffering] allowed by applicable norms. … second … fault of character consisting in deriving personal delight from causing and witnessing suffering … punishment or other violence is a means to restore the offset in the cosmic order of the universe caused by a wrongdoing. Anything that goes beyond what is necessary for this restoration, then, is cruel. … third … the pain or the sense of degradation and humiliation experienced … fourth … accumulation of all the prior conceptions. (More)

A great many things seem quite wrong with the U.S. legal system, especially in criminal law. I’ve tried to work out comprehensive solutions, but I should also identify more modest changes, more likely to be adopted. And one big way our criminal law seems broken is our huge prison population, which is near a world and historical peak of residents per capita.

Many people say we define too many acts as crimes, that we make it too easy for authorities to prosecute people, and that we punish many crimes too severely. And while those seem like fine issues to explore, I see an even clearer case that jail is usually the wrong way to punish crime. Let me explain.

In principle jail can serve many functions, such as education, reform, isolation, and punishment. But prison is now more expensive than college; few see it as a cost effective way to learn. And few believe that US jails actually reform many convicts. Yes, convicts do tend to commit fewer crimes over time, but that’s mainly due to age, not reform efforts. Jail cuts residents off from their prior social connections, such as jobs and family, and connects them instead to other criminals. Which seems bad for reform. 

Jail does isolate convicts, making it harder for them to commit many crimes. But we can isolate most convicts nearly as well and far more cheaply with curfews, travel limits, and ankle bracelets. Whole isolated towns might be set up for convicts. And if isolation were the main issue setting who we sent to jail and for how long, then for each person we put into jail we’d keep them there until we saw a substantial decline in our estimate of the harm they might do if released. 

But in fact the median time served in state prison is 1.3 years, way too short a time to usually expect to see much change. And even if there is a substantial decline soon after a peak crime age, we don’t vary sentence lengths in this way with age.

Furthermore, exile offers a much cheaper way to isolate. Let convicts leave the nation for a specified period if any other nation will take them. Not every one would be taken, but each one who is taken represents a big savings. Worried about them sneaking back unseen? Just make severe punishments for that. Maybe even make them post a bond on it.

So if education, reform, and isolation are poor explanations of jail, that leaves punishment. Ancient societies used fines more often, which they often took from family members if the convict couldn’t pay, and they often enslaved convicts to make them pay. But as we aren’t willing to do these things, we can’t get much money out of most convicts, which is why we need other punishments. 

Note that I’m not saying that jail could not in principle achieve other ends, nor even that jails do not to some degree achieve other ends. I’m saying instead that the widespread popular support for using jails today mainly comes from a widespread perception that jails achieve punishment, which most see as a desirable end. 

The classic logic of criminal punishment is that most people are less likely to commit a crime if they anticipate a substantially higher chance that doing so will result in their experiencing a “punishment” that they will dislike. (Relative to the chance if they don’t commit the crime.) Yes, this effect may be weak, but most people aren’t convinced of other approaches, and they aren’t willing to give up on this approach. 

But a big problem with using jail to punish is that our jails are terribly expensive, relative to feasible alternatives. For example, most of our jails are relatively “nice” and comfortable, with nice food, beds, climate control, entertainment, etc. At least compared to other jails in history. But typically X years in a nice jail gives the same expected punishment (i.e., anticipated dislike) as Y years in a mean jail, for Y < X. So if a mean jail costs no more per year than a nice jail, this is a cost savings.

Our history and the world today clearly demonstrate that it is possible to create jails that are less nice than ours. Furthermore, corporal punishment (often called “torture”) is even cheaper than mean jails. This was quite common in ancient societies, and is still used in some places today. For any sentence of X years in jail, there is some amount of corporal punishment, e.g., N lashings, that gives the same expected punishment at a far lower cost. 

Some say that torture and mean jails are more “cruel” than nice jails, and thus immoral, and thus forbidden. But as you can see from the above definitions, when the amounts of these things are adjusted to produce the same amount of anticipated dislike for each, then some of them cannot be more “cruel” than others in the sense of the dislike convicts expect to experience. The only grounds then offered for saying that some are more “cruel” is that some might induce more inappropriate “delight from causing and witnessing suffering”. 

Yet I can find no evidence suggesting that observers achieve more inappropriate delight from criminal punishments in the form of mean jails or corporal punishment. Yes, we can see many people taking delight today in the suffering of convicts in the jails that we now have. And those people would likely switch their design to focus on other forms of suffering, if those happened instead. But I see little reason to think that those who today do not delight in seeing convicts suffer from existing prisons would start to so delight after a switch to other punishments. 

An interesting way to vividly show everyone that our jails today are in fact just as “cruel” ways to punish as these alternatives would be to give convicts a choice. A convict who is sentenced to X years in ordinary jail might be offered the choice to switch to Y years in mean jail, or to N lashings (or other corporal punishment). Or perhaps even to E years in exile. A simple standard mapping function between X and Y,N,E could be used, one that is adjusted continuously to get pre-determined fractions of convicts to choose each option.

(With enough data, these mappings might depend on age, gender, etc. Some small fraction of convicts might be forced into each option, to induce reliable data on option effects on convicts. Over time, the pre-determined fractions could be adjusted toward the cheaper options if their outcomes continue to seem acceptable relative to costs.) 

Under this system, it seems harder to complain that it is more cruel to give convicts the option to choose something other than ordinary jail, relative to just forcing convicts into ordinary jail. And the fact that many convicts do choose other options should yell a big loud lesson to all: convicts suffer a lot in ordinary jail. They lose big chucks of their lives, including their careers, friends, and families. If you see a person suffering under torture, and you realize that this person chose torture over ordinary jail, that tells you just how much they hate and dislike ordinary jail. It tells you that you should not on empathy-for-them grounds feel good about yourself for instead forcing them into the option from which they ran. 

Yes, when each convict picks their favorite punishment option from a set, that will on average reduce their expected punishment. But not usually by a lot, and the X in sentences of X years of ordinary jail could be adjusted up a bit to compensate. In this situation, one reason to exclude an option is if we are much more uncertain about how much each person dislikes that option, relative to other options. It is better to know how much we are punishing a convict. 

But I see no reason now to think that we are now much more certain about dislike for ordinary jail, relative to mean jail, corporate punishment, or exile. When the judges who sentence convicts do know something about the option preferences about a particular convict, they might on that basis exclude some of those options for that particular convict. For example, exile might be a weaker punishment for someone who recently lived abroad. 

Yes, there’d be a tendency by those who embrace a criminal culture to take the “toughest” punishment option available, to signal toughness to associates. But this would on average hurt them, and isn’t that different from many other things they do to show toughness. Doesn’t seem a big problem to me.

So that’s my pitch. Let’s stop wasting so much on expensive jails, when we could instead produce the same punishments at a lower cost by giving convicts a choice between types of punishment. This would also show everyone just how cruel we have been by putting convicts in our current jails. A majority of those who answer my Twitter polls approve; what about you?

So why do people see the other options are more cruel? My guess is the representativeness heuristic is at fault. People imagine a random moment from within the punishment, and neglect how many minutes there are in each punishment.

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Who To Privilege Re Testimony?

Today any court can require anyone to testify about anything, if that testimony is seen as relevant to a case, unless that person has a legal “privilege”. I just did 21 polls asking who should have a privilege re testifying about you. Each poll had 223-277 responses. Here is a table of the 21 options, a 1/0 depending on if law today gives such a privilege, and sorted by the difference between the Yes and No percentage responses:

Items in red are those where the law and the majority of respondents disagree; they agree in 69% of cases. The differences: majorities think parents and children should get privilege, and these folks who now have it should not: accountants, blog authors, and government officials. They are evenly spit on newspaper reporters, who now have it.

I’m not sure I see a good rationale for these limitations; this seems more to be about giving official respect and recognition to key relations.

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A Call For Cancel Courts

For perhaps a million years, gossip was the only “law” humans had. We talked about who may have broken what norms, came to a consensus about guilt and remedies, and then cooperated to implement their remedy. Which worked well when we lived in bands of size 20 to 50.

But after the farming revolution, we found that gossip didn’t work so well in village-area-sized communities of around a thousand. In a band, most everyone heard most everyone’s opinions through several channels, and the person discussed was well known to all. But in a village, most didn’t usually know the accused well, they rarely heard all sides, and gossip created incentives to agree too much with, and exaggerate, the claims of the first person you heard on the subject. As a result, village gossip tended to induce a rush to judgement.

To fix gossip’ fillings, humans invented law, the core of which was having a trial, wherein a neutral judge heard all sides making their case, and respond to each other, before making their decision. Which limited the rush to judgement.

Today social media has amped up the power of gossip. Crowds can now form opinions on more cases, and thus enforce more norms on more people. But this has also revived the ancient problem of gossip rushing to judgement.

First, a few people start complaining that a target has been evil. If they complain about the breaking of a criminal law, then authorities can announce an investigation, and complainers can back off and wait for that to finish. But if the complaint is not about breaking a law, the crowd knows that punishment will only happen if they make a big stink.

So a small crowd tries to recruit a larger crowd repeating their accusations, hoping to eventually induce “cancelation” by the target’s associates. Fire them, cancel their speaking engagement, etc. Others often do join in, thinking they are doing God’s work by punishing evil. But they mostly just repeat the accusations they’ve heard, without doing more research. And so such crowds often go awry. (A fact to which I can testify from personal experience.)

The target’s associates may cancel out of fear of being cancelled themselves if they do not. It doesn’t help much for such associates to investigate, as if they find the target innocent, the crowd probably won’t believe them, due to suspicions of bias from wanting to protect their associate. And such suspicions are often well-grounded.

I’ve said before that it might be better if we had formal laws against the kinds of evil that cancel crowds now seek to punish. Because at least then there’d be a formal trail before punishment, which could exonerate many of the accused. But it doesn’t look like such laws will be passed anytime soon.

So I seriously propose that some respectable independent groups create non-government non-profit “Cancel Courts”. When a crowd starts to complain about a target, these courts can quickly announce some mix of a speedy investigation and trial on this complaint. They’d solicit evidence from both sides, study it, and then eventually announce their verdict.

If such courts could show themselves to be neutral and careful, then both sides might tend to accept their verdicts. If the target were found innocent, then the target’s associates could feel more confident in resisting pressures to cancel, and the crowd might be more willing to back off. And if the target were found guilty, associates might be more comfortable with cancelling, and the crowd could disband with more reason to think they had done good, by calling attention to and opposing evil.

There is of course work to be done here, to make cancel courts work well. They’d have to define categories of accusations, and standards by which to judge such accusations, and ways to explain their verdicts. (For example, I made this suggestion before.) But they don’t have to be perfect at first, or even ever. Remember that to be helpful they just have to be better than the status quo, which is the cancel crowds we have now. That’s a pretty low bar.

And as with most law, cancel courts don’t need to figure out all their categories and standards right from the start. As in most legal systems, they can evolve such things with experience. That is, they can use some mix of considering each case anew and trying to judge new cases similar to how they’d judged previous cases.

It might be best if everyone interested in creating cancel courts could cooperate to create a single court system. But if they can’t agree and ended up making several competing systems, that wouldn’t be such a terrible outcome. Sometimes the court verdicts would agree, giving a clear signal to crowds and associates. And sometimes they’d disagree, leaving us closer to the sort of situation in which we usually find ourselves today. Cancel courts don’t have to handle every case well to add value.

Those who build the first cancel courts should be prestigious folks with a reputation for care, at least as much as is possible given the other constraints here. More important, they should be clearly independent of both sides. Ideally, they should not be people who crowds have tried to cancel, nor should they have been part of such cancelling crowds. (Thus I should not be much involved.) If donations are accepted to support this process, such donations should be washed of any signs saying from which side of these disputes they came. To prevent pressures for verdicts that favor donors.

So, have I convinced any of you of the value of such a project?

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