Category: Law

The Federalization Fraud

Every time there is a nationally publicized crime some Federal politician stands ready to get tough and pass a law.  In recent years, we have had The Juvenile Crime Control Act,
The Church Arson Prevention Act,
The Sex Crimes against Children Prevention Act and so forth leading the naive to wonder why Church arson wasn’t illegal before the act was passed.

Of course, arson has always been illegal and well prosecuted under state law.  Federal law is not only unnecessary in many cases it is a fraud.  Take the most recent example, the Adam Walsh Child Protection and Safety Act passed this year.  The act dramatically increases the penalties for aggravated sexual abuse (or an unsuccesful attempt at such abuse) to a mandatory 30 year prison sentence with no opportunity for parole.  The penalties are draconian but here’s the kicker.  The penalties only apply to Indians on reservations, citizens of Washington DC and those few offenders who might cross a state line in commission of their offense.   No other citizens face anything like these kinds of penalties.

For more on the Theory of Federalism and an application to crime see my powerpoint discussion given last week to a group of Federal judges.


Today I am in Florida giving a seminar to a group of Federal judges on the law and economics of Federalism and Crime.  One of the surprising things that I discovered in my research is that cities, counties, and even most states can legally banish criminals from their borders.  I say most states because, for example, the Georgia state constitution makes banishment illegal.  Georgia judges, however, have found a way around the law they have imposed "158-county" banishment.  (If you guessed that Georgia has 159 counties give yourself two points.)

Banishment is a particulary noteworthy example of a negative spillover – banishment benefits the state doing the banishing but only at the expense of other states.  I will suggest to the Federal judges, therefore, that state banishment should be illegal.

There are some arguments for banishment from a city or county.  Banishment, for example, can remove a criminal from negative peer influences.  Whether the advantages outweigh the spillovers is an open question but city and county banishment should be left to the states because the state government can internalize the city/county spillover.

Do violent movies cause violent crime?

No, at least not in the short run.  Rambo gets the bad guys off the streets.  And for a while they even seem to calm down:

What is the short-run impact of media violence on crime?  Laboratory experiments in psychology find that exposure to media violence increases aggression.  In this paper, we provide field evidence on this question.  We exploit variation in violence of blockbuster movies between 1995 and 2002, and study the effect on same-day assaults.  We find that violent crime decreases on days with higher theater audiences for violent movies.  The effect is mostly driven by incapacitation: between 6PM and 12AM, an increase of one million in the audience for violent movies reduces violent crime by 1.5 to 2 percent.  After the exposure to the movie, between 12AM and 6AM, crime is still reduced but the effect is smaller and less robust.  We obtain similar, but noisier, results using data on DVD and VHS rentals.  Overall, we find no evidence of a temporary surge in violent crime due to exposure to movie violence.  Rather, our estimates suggest that in the short-run violent movies deter over 200 assaults daily.  We discuss the endogeneity of releases.  Potential interpretations for our results include a cathartic effect of movies, displacement of crime, and decrease in alcohol consumption.  The differences with the experimental results may be due to experimental procedures, or to sorting into violent movies.  Our design does not allow us to estimate long-run effects.

Here is the full paper.

Why law associates work so hard

I have learned a new mechanism to explain the organization of knowledge-based, client-intensive partnerships:

From the property rights perspective, large law firms are poorly suited to sustaining employment relationships because they have no enforceable means of controlling the firm’s key knowledge asset–client relationships.  The up-or-out partnership systems that have evolved over time in these firms offer an awkward but workable resolution to this problem.  By restricting partnership size to maximize surplus per partner and by making senior attorneys residual claimants, law firms limit the opportunity for sub-groups of partners to grab and leave with the firm’s clients.  This action, however, creates additional demand for inexperienced associates who serve as (imperfect) substitutes for their more experienced counterparts.  The result is that more associates are hired than can be promoted into a stable partnership.  Those associates who do not succeed outgoing partners will be dismissed before they acquire sufficient client knowledge to themselves pose a threat of grabbing and leaving.  That law firms find it worthwhile to commit to the costly practice of firing qualified attorneys in order to retain control over client relationships points to the general importance of control over assets in more conventional employment relationships.

The property rights model, in contrast to other explanations, can explain the coincidence of up-or-out promotion rules and partnerships in large law firms.  At the root of our model is the claim that law firms cannot rely upon legal mechanisms to establish control over client relationships.  We demonstrate that this is, in fact, the case under U.S. law.  In addition, the property rights model suggests two propositions that are supported by the available historical, institutional and econometric evidence: (1) up-or-out appeared first in large corporate law firms who specialized in delivering large scale, complex legal services to valuable, long-term clients, and (2) large law firms practice a style of law that limits contact between associates and clients.  Finally, the property rights model can account for the otherwise anomalous absence of up-or-out personnel policies in government agencies and large corporate litigation departments [TC: I like this latter point].

Here is the paper.  Here is another version with abstract.

Should pro-immigration forces favor a fence?

I am beginning to wonder:

Legislation passed by Congress mandating the fencing of 700 miles of
the U.S. border with Mexico has sparked opposition from an array of
land managers, businesspeople, law enforcement officials,
environmentalists and U.S. Border Patrol agents as a one-size-fits-all
policy response to the nettlesome task of securing the nation’s borders.

said the fence does not take into account the extraordinarily varied
geography of the 2,000-mile-long border, which cuts through Mexican and
U.S. cities separated by a sidewalk, vast scrubland and deserts,
rivers, irrigation canals and miles of mountainous terrain.  They also
say it seems to ignore advances in border security that don’t involve
construction of a 15-foot-high double fence and to play down what are
expected to be significant costs to maintain the new barrier.

And, they say, the estimated $2 billion price tag and the mandate that
it be completed by 2008 overlook 10 years of legal and logistical
difficulties the federal government has faced to finish a comparatively
tiny fence of 14 miles dividing San Diego and Tijuana.

"This is the feel-good approach to immigration control," said Wayne
Cornelius, an expert on immigration issues at the University of
California at San Diego.

Construction of a fence, of course, would defuse many other pressures.  Here is the full story.

Death vs. torture: uncomfortable thoughts

Under one view, it is worse to torture someone than to kill him, at least provided the level of torture is sufficiently high.  That can hold, a’la Amartya Sen, even if the person, in the Paretian sense, would prefer to be tortured than to be killed.

Most of us, including left-wing opponents of torture, think it is OK to kill al Qaeda operatives to stop an operation in progress or perhaps even kill them pre-emptively with reasonable cause.  Those same people don’t think it is OK to torture, except under extreme circumstances.  They also usually think that the slow torture of jail, including the homosexual rapes, is OK or perhaps to be ignored rather than to be either endorsed or countered (read Jane Galt on related questions).

One question is why (traditional) torture should be so much worse than murder.  For instance we might think that torture is worse for "public choice" reasons.  Perhaps the "mentality of the torturer" infects the body politic more than the "mentality of the murderer."  Perhaps it is more likely that torture privileges will be abused than that murder privileges will be abused.  Well, maybe, but I haven’t seen the evidence.  At the very least our current state of knowledge on these questions does not justify the extreme aversions of the anti-torture critics.

(Could it be that torturers are simply less admirable than murderers, as Robin Hanson suggested to me, and thus we like torture less?)

I toy with the moral view that torture is simply worse than painless murder.  Pain is a bad in a way that a missing life is not, noting that we must make adjustments for the pain of the relatives of the murdered.  Forget about comparing just the consequences of each action, there is something relational and enduring about the torture which is highly objectionable.

But no matter where I come out on that issue, I endorse a strong anti-torture view because I am in general anti-punishment.  Punishment is sometimes necessary, but in my core I think it is also wrong to send people to jail and that we should do so only with great trepidation.  Of course this view is unacceptable to the American public.

Many torture critics, willingly or not, end up with a waffling view on the sanctity of life.  In their moral schema murder is less bad than torture.  Sure, murder can still be "very very bad," but surely we start to wonder why lives are worth less than avoiding pains.  Some extreme pacifists will argue that we have no license to kill the same operatives we might otherwise be torturing.  That position would at least be consistent.

I believe the anti-torture forces, of which I count myself a member, find it easy to posture on the torture question, but overall they do not sit in an easily defensible , or for that matter popular, moral position.

Last week Robin Hanson dared me to write a pro-torture post; this is the closest I can come to that.

Addendum: International law, and other legal documents, surely creates other differences between torture and murder, but I am asking the prior question of how those laws should read.

Torture and neuroeconomics

Studying some neuroeconomics has made me even more opposed to torture than I was in the first place.  Yes I will make an exception for the ticking nuclear time bomb.  But if we are torturing a very very bad person, I don’t see the torture as satisfying justice.  The part of the brain which suffers is not the same as the part of the brain which planned the crime.  Yes neuroeconomic data are hard to interpret.  But under one view, there is a sheer production of pain which is severed, to some extent, from the individual personality of the criminal.  It is almost as if we are creating a new suffering entity which consists of little more than pure suffering.

I don’t think this is the most important argument against torture, but it is one additional consideration.  Retributive justice does not weigh on the pro-torture side of the scale as much as one might think.

Matt Yglesias surveys what the recent "torture compromise" really means.

Defining Terrorism Down

Would you believe that the median sentence length given to a terrorist has fallen since 9/11?  In fact, it’s fallen by a lot, from 41 months of prison time to just 20 days of prison time.  Have we gotten soft on terrorism?  Of course not.  In my judgment, sentence length has fallen because in an effort to increase the terrorism stats and scare us all into compliance the FBI and other government agencies have defined terrorism down. The situation has gotten so absurd that in recent years Federal prosecutors have declined to prosecute approximately 90% of the international terrorism cases brought to them by the investigative agencies.

Read the whole report here.

I am at least heartened by the fact that our decentralized system of justice means that prosecutors need not feel that they must march in lockstep with the agencies and the administration.  This is another reason to oppose abandoning the traditional American system of justice for "military tribunals" and other dependent courts not subject to checks, balances and review.

Hat tip to Boing Boing Blog.

Economics and the Law

That is a new revision of the book by Nicholas Mercuro and Steve Medema; here is chapter two.  Here is a book description

Elsewhere from Princeton University Press, here is the first chapter of Philip Tetlock’s wonderful book.  Thanks to for the pointers.

Addendum: Not from PUP, here is a new Daniel Drezner book on trade, completely on-line.