Category: Law

Against Broken Windows

James Q. Wilson’s broken windows theory is simple: broken windows, or other symbols of public disorder, invite crime. Thus, if you clean up the neighborhood, crime should go away. The NY Times discusses research conducted by Felton Earls, Rob Samson, Steve Raudenbush and Jeanne Brooks-Gunn testing this theory. They drove an SUV through *thousands* of Chicago streets and recorded with a video camera just about everything that was visible on the street – garbage, loitering, grafitti, etc. They also had data on crime and the attitudes and behavior of residents. Analysis of data showed that public signs of disorder such as garbage were not linked to crime. Instead, concentrated poverty and the willingness of residents to self-police (“collective efficacy”) explained the incidence of crime. The Times quotes Earls:

“If you got a crew to clean up the mess,” Dr. Earls said, “it would last for two weeks and go back to where it was. The point of intervention is not to clean up the neighborhood, but to work on its collective efficacy. If you organized a community meeting in a local church or school, it’s a chance for people to meet and solve problems.

“If one of the ideas that comes out of the meeting is for them to clean up the graffiti in the neighborhood, the benefit will be much longer lasting, and will probably impact the development of kids in that area. But it would be based on this community action – not on a work crew coming in from the outside.”

This point should be taken to heart by all students of crime. Yes, of course, police are necessary for public order and safety. But the police are finite resource – they can’t possibly monitor every street and corner. Thus, on a fundamental level, public safety comes from a community’s ability to regulate itself. The next time you hear a call for more police, or more prisons, or more public works, think about this insight.

Marriage Brokers

An article in the current issue of Legal Affairs focuses on professional match makers and the difficulties inherent in the business. It’s been estimated that there at least 6000 matches each year and the fee can be about $2000.

How good are the matches? According to the article, a preliminary study conducted by the Department of Justice suggests that mail order brides might suffer less abuse than other wives. However, match makers sometimes fail to inform prospective wives of a future husband’s history of abusive behavior, which has resulted in some cases of abuse and state regulation of the industry.

Of course, regulation of the industry seems plausible – mail order brides don’t have the social networks that enable home-grown brides to learn about their future partner, and they might be susceptible to abuse because they don’t know their new country as well. But there are other ways of dealing with this. Like job applicants, match makers could perform basic screening of candidates – a check of the person’s criminal record might be useful. Match makers who failed to do some basic screening could be held liable for some damages, a proposal to be debated by the legal bloggers. A match maker subject to these professional norms might find better matches than the old fashioned match makers.

Liability and flu vaccine

Liability law appears to be a critical factor behind the vaccine shortage:

As legal liabilities have chased many vaccine-makers out of the market, there are fewer manufacturers. This means less overall ability to produce additional doses, and less investment on new, faster ways to make vaccines.

In the US about 185m people risk serious flu-related illness each year.

At one time the US had 20 flu vaccine manufacturers. Today there are just four: Aventis, GlaxoSmithKline, Merck and Wyeth.

After the second world war the science of cell cultures led a boom in vaccine production. But gradually profit margins thinned on vaccines, as the government became a big buyer of them. Increasing legal liability drove many makers out of the vaccine business.

Today smaller biotech companies have entered the game. But they lack the capacity and the distribution to solve near-term shortages, experts say.

“One of the problems with vaccines is you put them in healthy people,” says Louis Galambos, history professor at Johns Hopkins University and an expert on vaccine manufacturing. “Now we’re in a situation where we have too few producers.”

Congress passed a law in 1986 to limit liability on vaccines for children. There are no such liability limits for adults, however.

Pharmaceuticals companies are inhibited by the particular structure of the US vaccine market, experts say. The US government is a large buyer of vaccines, leaving relatively poor profit margins on vaccines.

Here is the full story from The Financial Times.

Regulation by Litigation

Elliot Spitzer, New York’s Attorney General, apparently misunderstands so let me make it clear – it’s the rule of law not the rule of lawyers. As I feared, a real but relatively minor scandal in the mutual fund industry, is becoming the excuse for grandstanders promoting their own agendas that have little do with the original issues. Professor Bainbridge lays it out here (I recommend following up on his links but of course ignore any criticism you might find of my arguments! :)).

A Romanian liability crisis?

A Romanian pensioner has lodged a complaint against a TV station claiming their horoscope is unreliable.

The woman, from Maramures, says the horoscope repeatedly predicted she would receive a big sum of money but it never arrived although she waited for three months.

Thanks to for the link to Ananova. Here is the clincher:

Officials said they will analyse the complaint and take a decision.

But they advised the broadcasters to include an announcement that the horoscope may not be 100% accurate and that they cannot warrant for the truth of astral predictions.

Perhaps they will consult their horoscope before rendering a final verdict.

Don’t let the bed bugs bite

…or Judge Posner will punish you. The punitive damages exceeded the compensatory damages in this bed bug case against Motel 6 by some 37 times. The Supreme Court’s recent line of argument in Pacific Mutual v. Haslip, State Farm v. Campbell and BMW v. Gore has suggested that “four times the amount of compensatory damages might be close to the line of constitutional impropriety.”

But the four-times figure is arbitrary. Judge Posner comes to the Supreme Court’s rescue by cogently laying out the theory of punitive damages, gently taking the Court to task in the process. A high multiple may be justified when the action to be punished is unlikely to be discovered or when the actual compensatory damages are low and would not motivate plaintiffs to otherwise bring suit against a legally-aggresive defendant. Both factors play a role in the bed bug case but would not justify absurdities such as the billions of dollars in punitive damages awarded against Exxon in the Exxon Valdez case.

My only worry with Posner’s analysis is that juries and judges may not be able to handle it. Perhaps the Supreme Court knows this and instead promulgates a foolish rule that is nevertheless easier to follow.

Addendum: Posner is the only person alive who deserves both a Nobel Prize and a seat on the U.S. Supreme Court. I put greater odds on the former than the latter but I happen to know that he recently visited the White House. Remember where you read it first.

What is the fair use doctrine? offers this very brief and useful summary, thanks to for the pointer. This is the best simple statement I have seen of what “fair use” is all about. Note that the fair use doctrine will increase in importance, as companies put up tougher gates around their intellectual property. Bloggers must know about fair use as well, lest they quote too freely from copyrighted material and incur legal penalties.

For this economist, the courts aren’t nearly liberal enough in interpreting fair use. I think, for instance, that rappers should be able to sample songs without clearing copyright, at least provided they are doing more than simply copying large blocks of the song verbatim. Read Robert Christgau’s account of the famous Gilbert O’Sullivan case; O’Sullivan objected when rapper Biz Markie sampled his “Alone Again, Naturally,” a transformative use if I ever heard one. Will more sampling make rap better and cheaper? Yes. Will it diminish the supply of sample-ready material? Unlikely. So why not interpret fair use more liberally in this regard?

Sleazeball lawyer in a low-cut dress

I am speaking of Erin Brockovich. Sure, I liked the movie but the true story on which it was based was a lie. There was no cancer cluster in Hinkley, no scientific theory of harm, no coverup at the water office (see here for links). Having had one success in Hollywood, Brockovich is now after another this time by fanning hysteria that the kids at Beverly Hills High School (yes, 90210) are getting cancer from a nearby oil well. I smell a movie in the works.

Microsoft hires bounty hunters

Microsoft has put up “two $250,000 rewards, a total of $500,000, for information that leads to the arrest of the writers of two nasty computer worms — the Blaster worm and SoBig.” I am all for this as those guys sure wasted some of my time. As regular readers will know, I am also a fan of bounty hunters (see my earlier post; and my econometric paper – finding that bounty hunters reduce failure to appear rates and bring back fugitives much more succesfully than the public police).

Dalkon Shield, Silicone Breast Implants, Fen-Phen

A bill to move class action lawsuits out of the state courts and into federal courts narrowly failed in the Senate. Senator Tom Daaschle, explained his opposition to the bill this way, “It is the Dalkon shield, it is silicone breast implants, it is fen/phen.”

Good list. Wrong conclusion. The A.H. Robins Co. was driven into bankruptcy and forced to pay 3 billion dollars in damages but the Dalkon shield has been shown to be effective and safe. Silicone breast implants have been reviewed in studies by the AMA, the Institute of Medicine, the Canadians, the French, the British and others. All conclude that there are no unusual problems with the implants (any surgery has risks of course). The FDA will probably soon allow the implants back onto the market but in the meantime Dow-Corning has been driven into bankruptcy and tens of millions of dollars have been spent on lawsuits. Fen/Phen does looks like a serious health risk but tort law had nothing to do with removing the product from the marketplace. (Moreover, the issue is complicated. Only the Fen in Fen/Phen looks dangerous and that was approved in 1973).

A Taxonomy of Methods for Discriminating

Not all procedures for engaging in racial discrimination are equal. They differ in their legal standing, their social meaning, and their “economic” efficiency. The Supreme Court in distinguishing Grutter and Graatz, and the admissions regimes of the various state universities suggest a useful taxonomy.

There are three generic forms of racial discrimination not merely in admissions decisions but in other practices and policies as well: (1) express and objective (i.e., points and quotas); (2) facially neutral and objective (e.g., the top 10% of graduates from each high school); and (3) implied and subjective (“we look at the whole person”). From an efficiency perspective the first form of discrimination is the least harmful. It does not corrupt the measure of merit, it only sets a different standard for “minorities.” Its shortcomings are twofold. First, as the Supreme Court decisions in Grutter and Grattz makes abundantly clear it is the one method most likely to be found illegal. This is implicitly related to its second shortcoming, it is so barefaced. It makes clear to both those favored and those harmed that the favored are otherwise inferior in their qualifications.

The second method, using a facially neutral operational measure to achieve a suspect theoretical goal, now favored by the state universities of California, Texas and Florida, in granting admission to those who finish in the top X% of their high school class and by the United Network for Organ Sharing in granting more “points” in the organ allocation scheme for time on the waiting list, has the virtue of being an objective measure, and the virtue (?) of a disguise that reduces shame. Its shortcoming is that its effectiveness in bringing about the preferred ethnic distribution is tied to its inefficiency. It employs an objective measure of merit that substantially distorts. Thus, the rankings of both the favored and the unfavored groups are mis-aligned.

The third measure, a subjective, ad-hoc eclectic judgment, can in practice be a mimic of the first, the second, or anything else. The process becomes a beclouded mystery. This is both its virtue and its vice. There is no clear trail, evidence or standards that mark the favored as inferior–feelings are spared. On the other hand the absence of an objective measure means that the decisionmakers are effectively unanswerable and may indulge in any form of corruption.

Method (1) is clearly falling by the wayside. Is there likely to be a clear political winner between (2) and (3)?

Bounty Hunters

The “bounty hunter” conference was fascinating. To be precise, I was invited to speak before the California Bail Agents Association which includes bail bond agents who write the bonds, surety/insurance companies who back the bonds as well as bail enforcement agents (aka bounty hunters) who recapture fugitives.

The bounty hunters were generally big guys but not so that you would notice on the street – these were not your Gold’s Gym type. A bounty hunter can always buy muscle but what they really need is smarts. A successful bounty hunter avoids excessive confrontation because every pickup is a lawsuit waiting to happen. One bounty hunter told me a big part of his success has been unfailing politeness.

Another key element is getting family members to cosign the bond – even hardened criminals don’t want to see Momma’s house taken should they fail to appear at trial.

It’s no coincidence that bail agents typically have their annual convention in Reno or Las Vegas but these are poker players not mindless feeders of the slot machine. (The distinction between these forms of gambling strikes me as important but to my knowledge has not been taken up by economists.)

Many of the “bondsmen”, perhaps even a majority, are women. Bondsmen must develop intuition and judgment about who is a flight risk and women may be particularly good at this. Also, although the defendant’s are usually men, its often their wives, girlfriends and mothers who bail them out and dealing empathetically with these women is a big part of the art – alas, repeat business is not uncommon.

As with other insurance industries, you can make a lot of money quickly by writing bail but trouble comes when your charges skip and their bail becomes forfeit. At least that is what is supposed to happen but – and I am surprised to be saying this – lax regulators and high-price lawyers can open a window of opportunity that makes bad bail writing potentially profitable. The problems this creates for the honest players in the industry was a big topic at the conference. I was impressed, however, that there was also a frank discussion about how to distinguish rules meant to weed out the fraudulent from anti-competitive rules. This is a topic I need to think more about.

I was asked to speak at the CBAA because of my paper on bounty hunters with Eric Helland (forthcoming in the Journal of Law and Economics). Here are some key facts and findings:

A whopping one-quarter of all felony defendants fail to appear at trial. Of these some thirty percent can’t be found after a year.

The police are overrun with unserved arrest warrants for failure to appear and typically devote little time to the task.

As a result, FTA appear rates are some 28% lower for those released on commercial bail compared to those released on their own recognizance.

When a defendant does FTA he is about 50% more likely to be caught and is caught much sooner if a bounty hunter is on his trail compared to if only the police are involved. (Both of these effects are after controlling for other relevant factors, of course).