Category: Law

Alas, the Law Conkers All

As a child, I lived in England for a year. There I learned to play the ancient and venerable game of conkers. A conker is the seed of a horse chestnut tree tied to a string. The basic rules of the game are elementary. The receiver dangles his conker steadily while the striker attempts to strike his opponent’s conker as hard as possible. A hit results in another turn for the striker; with a miss play passes to the receiver. As you might imagine, the striker sometimes misses so holding your own conker steadily in the face of a whizzing “sixer” can take some courage. Fingers may be bruised.

Sadly for young Britons, the playing of conkers is being banned by British schools under an onslaught of American-like lawsuits. Some say the lawsuits are brought on by the legalization in 2000 of contingent fees for lawyers. Others point to a long-term decline in the tradition of the stiff upper-lip.

In either case, it’s miserable. What’s next? Will young teens no longer be able to enjoy a shandy at the local pub?

Total information awareness everywhere

According to this article, a database firm sent the Feds a list of 120,000 “potential terrorists” based on a “terrorism quotient” developed by scoring over 4 billion records.

The scoring incorporated such factors as age, gender, ethnicity, credit history, “investigational data,” information about pilot and driver licenses, and connections to “dirty” addresses known to have been used by other suspects.

According to Seisint’s presentation, dated January 2003 and marked confidential, the 120,000 names with the highest scores were given to the Immigration and Naturalization Service, FBI, Secret Service and Florida state police….

Of the people with the 80 highest scores, five were among the Sept. 11 hijackers, Seisint’s presentation said. Forty-five were identified as being or possibly being under existing investigations, while 30 others “were unknown to FBI.”

“Investigations were triggered and arrests were made by INS and other agencies,” the presentation added. Two bullet points stated: “Several arrests within one week” and “Scores of other arrests.” It does not provide details of when and where the investigations and arrests took place.

I’m somewhat suspicious of these claims – my regressions are never that accurate! – but let’s pass on that question for now. What I find especially interesting is that the same firm is selling similar sorts of information to private buyers as well as to the government. SmartJury, a division of Seisint, provides:

…real-time access to public record information on potential jurors. Within seconds of entering potential jurors, you will receive reports including information such as: Criminal Records; Political Party Affiliations; Bankruptcies; Corporate Affiliations; Real Property Ownership (including value); Motor Vehicle Registrations; Web Site Domain Names; and 2000 Census Information (including median household income, average age, average years of education, and median home value).

Helpfully, SmartJury also provides demographic information from survey results to predict how each juror will vote! Part of the appeal of the jury system is the idea of drawing from a random/representative sample of the population – is that no longer possible? (And remember, the technology only needs to be good enough for the plaintiff to systematically identify just 1 juror who will push for acquital.)

And here is more meat for the conspiracy minded. The board chairman of Siesint is the former Director of the United States Secret Service and the board of SmartJury is littered with well-placed government types like Jack Kemp, William Bennett and Robert Kennedy Jr.

Thanks to Carl Close for the pointer.

Prof. Bainbridge answers 20 Questions

Prof. Bainbridge is the latest to undergo questioning at Crescat Sententia. When asked about law and economics the good professor had this insightful comment:

Traditional forms of legal scholarship were mostly backward-looking. One reasoned from old precedents to decide a present case, seemingly without much concern (at least explicitly) for the effect today’s decision would have on future behavior. Yet, law is necessarily forward looking. To be sure, a major function of our legal system is to resolve present disputes, but law’s principal function is to regulate future behavior [and]… law & economics gives judges a systematic mechanism for predicting how rules will affect behavior.

IPOs bring out the bloodsuckers

In the late 1930s, Edward Kasner was asked to come up with the name for a large number; as legend has it, he asked his nine-year old nephew, who said “googol,” and Kasner’s 1940 book “Mathematics and the Imagination” popularized the term for the number 1 followed by a hundred zeroes.

Can you guess where this is going….Yup, Ted Frank at Overlawyered continues:

Kasner’s great-niece, Peri Fleisher, is going public herself, complaining that her family hasn’t been compensated for Google’s choice of a name, and “exploring” the possibility of legal action.

Future Imperfect

Economist David D. Friedman has posted a draft of his manuscript, Future Imperfect, and he welcomes your comments.

This book is about technological change, its consequences and how to deal with them.

. . .

Much of the book grew out of a seminar I teach at the law school of Santa Clara University. Each Thursday we discuss a technology that I am willing to argue, at least for a week, will revolutionize the world. On Sunday students email me legal issues that revolution will raise, to be put on the class web page for other students to read. Tuesday we discuss the issues and how to deal with them. Next Thursday a new technology and a new revolution. Nanotech has just turned the world into gray goo; it must be March.

Since the book was conceived in a law school, many of my examples deal with the problem of adapting legal institutions to new technology. But that is accident, not essence. The technologies that require changes in our legal rules will affect not only law but marriage, parenting, political institutions, businesses, life, death and much else.

Piece work

Violinists at a German orchestra are suing for a pay rise on the grounds that they play many more notes per concert than their musical colleagues – a litigation that the orchestra’s director yesterday called “absurd”.

The 16 violinists at the Beethoven Orchestra, in the former West German capital Bonn argue that they work more than their colleagues who play instruments including the flute, oboe and trombone.

The violinists also say that a collective bargaining agreement that gives bonuses to performers who play solos is unjust.

Here is the full story. Here is a useful site on the labor theory of value. How about paying composers by the number of notes as well?

Nothing Secedes Like Secession

I’m in Tucson for a conference. Haven’t been here for a while and it’s striking how different the world looks here in the Southwest compared to the East Coast and most everywhere else. Desert. Cacti. The architecture. Javelinas–little wild boars. Saw some on the 18th hole of the resort’s golf course, wandering around. Even the squirrels are different here.

We take it for granted that this is part of America. But this nation from sea to shining sea could easily be lots of different countries a la Europe. Jay Winik in April 1865: The Month That Saved America talks about how unlikely it appeared in say, 1790 or 1820 that the US would become what it is today. Before the Civil War, the Whiskey Rebellion threatened to split off the western part of the United States. New England almost signed a treaty with England and split rather than join in on the War of 1812. California and Oregon considered forming a Pacific Nation.

By the end of the 1820s and into the early 1830s…when many Americans spoke of the Union, however much they had come to love it, they spoke of “our confederacy,” or more simply of “the Republic.” The Constitution, however revered, was a “compact.” The United States was just as often “the states United,” or “the united States,” or even “a league of sovereign states,” and was invariably spoken of as a plural noun.

Would it make any difference if Arizona were another country? Besides the hassle of going through customs for this conference, it might make a lot of difference. It would depend on the institutions and culture. Without American culture, trust, legal system and so on, there might not be a resort here, there might not be a booming Tucson. And of course, it could be even better. And had Arizona or other states broken away, it would have changed how the rest of the country evolved along the way.

Here’s David Friedman’s theory of the size and shape of nations.

The pledge of allegiance

Yesterday at the Supreme Court, Michael Newdow argued his own case against the phrase “under God” in the pledge of allegiance and apparently he did very well – managing to elicit a rare round of applause from the audience and ending gracefully on time and on point. Personally, although I am not religious, the phrase “under God” doesn’t raise my hackles. It’s the rest of the pledge that I hate.

Cato’s Gene Healy says it well:

From its inception, in 1892, the Pledge has been a slavish ritual of devotion to the state, wholly inappropriate for a free people. It was written by Francis Bellamy, a Christian Socialist pushed out of his post as a Baptist minister for delivering pulpit-pounding sermons on such topics as “Jesus the Socialist.” Bellamy was devoted to the ideas of his more-famous cousin Edward Bellamy, author of the 1888 utopian novel Looking Backward. Looking Backward describes the future United States as a regimented worker’s paradise where everyone has equal incomes, and men are drafted into the country’s “industrial army” at the age of 21, serving in the jobs assigned them by the state…Bellamy’s book inspired a movement of “Nationalist Clubs,” whose members campaigned for a government takeover of the economy. A few years before he wrote the Pledge of Allegiance, Francis Bellamy became a founding member of Boston’s first Nationalist Club….

Bellamy’s ritual for honoring the flag was right in step with those other National Socialists. Here’s a picture, dug up by Bob Wallace, illustrating the recommended salute (which later was to became politically incorrect).

bellamy.gif

The salute may be gone but the message remains.

Addendum: Hat tip to Walter in Denver who links to these even creepier photos of kids pledging allegiance.

The IRS’s chosen people?

According to this NYTimes article, a secret 1993 agreement between the IRS and the Church of Scientology lets Scientologists deduct the cost of a religious education as a charitable gift. The secret ruling appeared to come to light when the Sklar’s, who are Jewish, attempted to take a deduction for the religious portion of their children’s education at a Hebrew school. The IRS wrote them back asking for receipts from the Church of Scientology! The Sklar’s provided receipts from the Hebrew school and the IRS denied the deduction. The Sklar’s are now suing on the basis that all religions, or none, should be offered the deduction.

The secret agreement seems to have been leaked but no one knows for sure since the both the IRS and the Scientologists are fighting the subpoena demanding its release.

The world is always more bizarre than I imagine.

Scarlet Letters (and Numbers)

In Ohio, drivers convicted of drunk driving will be issued special red on yellow license plates. From an economic point of view, fines are the best punishment because they benefit the punisher as they punish the violator and imprisonment is the worst punishment since it punishes the punisher as well as the violator.

Many people don’t like fines, however, because they seem to allow the rich to get away with anything so long as they pay the price (see Tyler on progressive fines). But in theory, if the fine is set equal to the expected cost of the crime, everyone should face the same fine irrespective of wealth and if the benefit of violating the law exceeds the fine then paying the fine and violating the law is the efficient solution. Economists think this argument is obviously correct but it leaves most people cold.

Fines do have another disadvantage if you don’t trust the government (i.e. take this disadvantage seriously). Precisely because the fine is a revenue to the government it encourages them to fine more. And precisely because imprisonment is costly we expect government to be more restrained in its use.

Social sanctions punish the violator, and are perhaps a better signal to others about the costs of crime than are fines, but have neither benefits nor costs to the punisher – thus they lie in-between fines and imprisonment. If fines are thought unfair or too dangerous and imprisonment is too expensive then social sanctions seem ideal. It’s surprising that we don’t see this form of punishment more often.

Addendum: Thanks to early reader William Sjostrom in Ireland (read his Atlantic Blog) and Stephen Laniel at Unspecified Bunker for reminding me about the disadvantages of fines and the signaling quality of social sanctions.

The benefits of no-fault divorce

In the past three decades, liberalized divorce laws have reduced suicides among women, sparked a dramatic reduction in domestic violence and led to a decline in women murdered by their partners, according to economists Betsey Stevenson and Justin Wolfers.

Specifically, they claim, these benefits have resulted from the adoption of so-called “no-fault” divorce laws, in which one partner can end the marriage without the consent of the other.

After states adopted no-fault divorce laws, suicides among women dropped by 20 percent, the rate of domestic abuse fell by a third, and the number of women murdered by their partners dropped by about 10 percent, Stevenson and Wolfers found.

Adoption of unilateral divorce laws didn’t affect the suicide rate of men or the likelihood that they would be murdered by their partners. But domestic violence directed at both men and women declined, the researchers reported in a recent National Bureau of Economic Research working paper.

Here is the link. Here is the original research. Here is the home page of Betsey Stevenson; he is the home page of Justin Wolfers. Here is Wolfers’s summary of the research.

My take: I’m all for family values, but let’s not forget that some families should split up.

Born to Sue?

Frank Sulloway’s Born to Rebel (BTR) was a smash hit when it was published in 1996. Sulloway’s thesis, that laterborns are born to rebel while first-borns are conformist defenders of the status quo, was initially greeted with some skepticism among experts who knew of an earlier review of the large literature on birth order that had found little evidence for an effect on personality. The thesis struck a cord with the public, however, and Sulloway seemed to have gathered so much data from so many different sources (including scientific revolutions, political revolutions, religious revolutions etc.) that with a few exceptions (such as the great Judith Harris) the book won over skeptics and carried the day. Michael Shermer, Mr. Skepticism himself, said, for example, that Born to Rebel was “the most rigorously scientific work of history every written.”

Two devastating studies of BTR, however, have just now been published in the September 2000 issue of Politics and the Life Sciences (alas this issue is not online, perhaps for reasons discussed below). After exhaustive efforts, the studies failed to replicate key results in BTR – that is the authors tried to replicate what Sulloway said he did, on the data that he said he used and they could not reproduce anything close to his results. Now, you may be asking, how it is that the September 2000 issue of PLS has only now been published? And therein lies a story.

When Politics and the Life Sciences decided to publish the initial critique of BTR by Frederic Townsend, after peer review by four referees, it invited Sulloway to respond along with a number of others in a roundtable format that they had used in previous debates. Sulloway was guaranteed ample room to respond to Townsend and was invited to submit his own names for roundtable participants. He initially agreed but shortly thereafter he wrote to Gary Johnson, the editor of the journal, threatening that if the critique were published he would sue both the journal and the editor personally for what he considered to be defamation. Even if the Townsend article were thoroughly revised he insisted to the editor that it would be “appropriate – indeed legally mandatory – for you to preface his article with an editorial forewarning that reads more or less as follows”:

It is not normally the policy of this journal to publish data that are known, in advance, to be actually or potentially in error, especially when such data are being used in an attack on another scholar. However, as editor of this journal, I have decided…to publish these erroneous data in their present form. Readers are warned, however, that none of Townsend’s empirical claims, or the conclusions based upon them, can be trusted with any degree of certainty. Townsend has also made other blatant errors of fact and interpretation that are now known to the editor and that seriously affect the credibility of this paper….

Of course, the editor refused this absurd request. Sulloway later wrote to the president of the editor’s university (with copies to the chair of the Board of Trustees and the university’s legal counsel), saying:

…I intend to file charges of misconduct against one of your faculty members, Gary R. Johnson….these allegations include, but are not necessarily limited to: defamation/libel, false light invasion of privacy, fraud, promissory estoppel, and breach of fiduciary duty…I will also be blowing the whistle by filing formal charges of scientific misconduct against Gary Johnson with the American Political Science Association, the Human Behavior and Evolution Society, members of Congress who have shown a concern about science fraud, and all other professional organizations with which Professor Johnson or his journal….are affiliated.

Bear in mind that Johnson is only the editor of the journal and not even the primary critic! Naturally, Sulloway’s threats delayed publication of the journal, as more referees were involved and revisions took place, but the worst was yet to come. The journal’s publisher refused to publish the debate unless the parties involved committed not to sue him, his printer, his distributor, the journal, or the association. Of course, Sulloway refused. The heroic Johnson and the association then decided to publish the journal on their own. As a result, the final publication, including Sulloway’s response, is nearly five years late.

All of this, and there is much more that I have not reported, is from Johnson’s shocking editorial explaining the long delay. Perhaps the most disturbing aspect of the whole ordeal is that our legal system, sometimes described as Russian Roulette, has gotten sufficiently capricious and arbitrary that Sulloway’s abusive legal threats were nearly successful. Johnson writes:

The virtual terror that Sulloway’s legal threats have prompted in some of those associated – directly or indirectly – with the events described in this editorial suggests to me that contemporary science must adapt to a changed socio-legal environment if the capacity for open dialogue and critical exchange that is the lifeblood of science and scholarship is to be protected. Scholars, scientists, and publishers cannot focus properly on what should be their principal concerns if the threat of catastrophic legal costs hangs over them and their organizations and journals.

Markets in everything, in the subjunctive…

Here is a new way of organizing peer groups and your Friday evening out:

The ability to track the locations of people has a lot of other applications of course. As the tracking devices become smaller and cheaper expect to see parents putting them in their children both to protect their children from kidnapping and also simply to find out what trouble the kids are getting themselves into.

Another possible interesting application would be to manage affinity groups. Imagine a traveller who is cruising down a road trying to decide which night club to try out. If people registered with an affinity tracking service then a traveller could choose a club or restaurant whose currently present patrons fit some desired demographic profile. One obvious problem with such a service is that just because one person likes a particular type of person doesn’t mean that most who fit a desired profile will like that person in return. Look at celebrities for example. They are loved by all sorts of people who the celebrities would very much like to avoid. So a service would need to develop eligibility criteria that require matching of preferences in both directions before that person driving down the street would get a flashing light on their car LCD pointing them to a particular bar or night club.

That’s from Randall Parker, read his longer discussion, which focuses on GPS monitoring of criminals.