Category: Law

Tomatoes and the force of law

This last week my home state of New Jersey made the tomato the official state vegetable [NB: this is the same state that named an NJ Turnpike rest stop after Vince Lombardi].  But isn’t the tomato a fruit?  In defense of its action, the state cited an 1887 U.S. Supreme Court ruling that tomatoes were subject to tariffs on vegetables.  Supposedly tomatoes can qualify as a vegetable because they are served with dinner and not as dessert.

Here is the link.  I believe the blog is by Craig Newmark’s daughter, it is worth a look.

Copyrighting Storms

Writing in the Financial Times, James Boyle makes an interesting comparison between how Europe and the U.S. treat government produced data, everything from "ordnance survey maps and weather data, to state-produced texts,
traffic studies and scientific information."

On
one side of the Atlantic, state produced data flows are frequently
viewed as potential revenue sources. They are copyrighted or protected
by database rights. The departments which produce the data often
attempt to make a profit from user-fees, or at least recover their
entire operating costs….The other side of the Atlantic practices a benign form of
information socialism. By law, any text produced by the central
government is free from copyright and passes immediately into the
public domain.

Surprisingly, it’s the US which practices the "benign form of socialism."

Take weather data. The United States makes complete weather data
available to anyone at the cost of reproduction. If the superb
government websites and data feeds aren’t enough, for the price of a
box of blank DVD’s you can have the entire history of weather records
across the continental US. European countries, by contrast, typically
claim government copyright over weather data and often require the
payment of substantial fees. Which approach is better? If I had to
suggest one article on this subject it would be the magisterial study
by Peter Weiss called “Borders in Cyberspace,” published by the
National Academies of Science. Weiss suggests that the US approach
generates far more social wealth. True, the information is initially
provided for free, but a thriving private weather industry has sprung
up which takes the publicly funded data as its raw material and then
adds value to it. The US weather risk management industry, for example,
is ten times bigger than the European one, employing more people,
producing more valuable products, generating more social wealth.
Another study estimates that Europe invests €9.5bn in weather data and
gets approximately €68bn back in economic value – in everything from
more efficient farming and construction decisions, to better holiday
planning – a 7-fold multiplier. The United States, by contrast invests
twice as much – €19bn – but gets back a return of €750bn, a 39-fold
multiplier. Other studies suggest similar patterns in areas ranging
from geo-spatial data to traffic patterns and agriculture. “Free”
information flow is better at priming the pump of economic activity.

Link addded.  Thanks to Paul van Hoek for the pointer.

Why is the Eiffel Tower uglier?

The Eiffel Tower is uglier than ever before; it now has new and garish flashing strobe lights.  And why?

The Eiffel Tower’s likeness had long since been part of the public domain, when in 2003, it was abruptly repossessed by the city of Paris. That’s the year that the SNTE, the company charged with maintaining the tower, adorned it with a distinctive lighting display, copyrighted the design, and in one feel swoop, reclaimed the nighttime image and likeness of the most popular monument on earth. In short: they changed the actual likeness of the tower, and then copyrighted that.

As a result, it’s no longer legal to publish current photographs of the Eiffel Tower at night without permission.

Here is the story.  Here is my previous post on why the French take copyright so seriously.  We can’t blame it all on the French, however, "the cloud" a publicly owned  artwork in Chicago’s Millenium Park is also copyrighted and apparently protected from photographs by security guards.

Honesty about illegal file-sharing

The Supreme Court has been hearing a major case on file-sharing.  Should Grokster and other web-based file-sharing services be held liable for contributory copyright infringement?  Forget about the law, what does the economist say?  Yes "fair use" provisions are excessively stringent, but here are three reasons why I cannot accept the radical anti-copyright position.

1. In ten year’s time, what will happen to the DVD and pay-for-view trades?  BitTorrent allows people to download movies very quickly.  Note that DVDs already account for more than half of Hollywood domestic revenue.  Furthermore the process will be eased when TVs and computers can "talk" to each other more readily.  Yes, I am familiar with Koleman Strumpf’s excellent work showing that illegal file-sharing has not hurt music sales.  But a song download can be a loss leader for an entire CD or a concert tour.  Downloading an entire movie does not prompt a person to spend money in comparable fashion.

2. Perhaps we can make file-sharing services identify (and block) illegally traded files.  After all, the listeners can find the illegal files and verify they have what they wanted.  Grokster, sooner or later, will be able to do the same.  Yes, fully decentralized and "foreign rogue" systems may proliferate, and any identification system will be imperfect.  But this is one way to heed legitimate copyright suits without passing the notorious "Induce Act."

3. I question the almost universal disdain for the "Micky Mouse" copyright extension act.  OK, lengthening the copyright extension does not provide much in the way of favorable incentives.  Who innovates with the expectation of reaping copyright revenues seventy-five years from now?  But this is a corporate rather than an individual issue.  Furthermore economic research indicates that current cash flow is a very good predictor of investment.  So the revenue in fact stimulates additional investment in creative outputs.  If I had my finger on the button, I still would have pushed "no" on the Mickey Mouse extension, if only because of the rule of law.  Privileges of this kind should not be extended repeatedly due to special interest pressures.  But we are fooling ourselves if we deny that the extension will benefit artistic output, at least in the United States. 

Vioxx and Tort

We have two systems of drug regulation in the United States, the FDA and tort law.  Unfortunately, neither system works well.  FDA incentives push for excess delay and excess cost and the tort system appears random if not perverse in its operation with good claims receiving nothing and bad claims receiving billions.

Writing in the New Yorker, James Surowiecki discusses some relevant research from Kip Viscusi:

Merck would seem to have one big thing in its favor: the company
voluntarily withdrew Vioxx from the market. But while Merck executives
may have hoped to persuade people that they were acting responsibly,
plaintiffs’ attorneys have taken the withdrawal as an admission of
guilt…internal
company documents show that Merck employees were debating the safety of
the drug for years before the recall.

From a scientific perspective, this is hardly damning. The internal
debates about the drug’s safety were just that–debates, with different
scientists arguing for and against the drug….While that kind of weighing of risk and benefit may be medically
rational, in the legal arena it’s poison. Nothing infuriates juries
like finding out that companies knew about dangers and then “balanced”
them away. In fact, any kind of risk-benefit analysis, honest or not,
is likely to get you in trouble with juries….Viscusi has shown that
people are inclined to award heftier punitive damages against a company
that had performed a risk analysis before selling a product than a
company that didn’t bother to. Even if the company puts a very high
value on each life, the fact that it has weighed costs against benefits
is, in itself, reprehensible. “We’re just numbers, I feel, to them” is
how a juror in the G.M. case put it. “Statistics. That’s something that
is wrong.”…

Before a jury, then, a firm is better off being
ignorant than informed.

My Law and Literature class today

Today I start my Law and Literature class, my reading list is here.  If you are wondering what I am excerpting, from the Bible we are doing Exodus, Deutoronomy, and Job,
from Melville we are doing "Bartleby," and from Kafka we are doing "In
the Penal Colony."  All are favorites of mine.  Check out the list for
the rest plus five films.

By the way did you know the following?

Students asked to watch five seconds of soundless videotape of a
teacher in the classroom came up with evaluations of the teacher’s
effectiveness that matched those given by his own students after a full
semester of classes.

The link is here, already supplied by Alex immediately below.

The Time to Deduct

Congress has just passed a bill which lets taxpayers deduct this month’s donations to tsunami relief on their 2004 taxes.  I think this is a good idea but why stop at one month and why stop at tsunami relief?  Taxpayers can deduct IRA contributions from their previous years taxes up until April 15, why not allow the same thing for charitable deductions?

    Allowing deductions to be made at the same time as taxes are paid will help individuals to make better decisions because it is much easier to examine the donation-tax tradeoff when you are doing your taxes in April than in the previous year when you are making your donations.  Today, in contrast, you have to make your charitable donations at least 4 and a half months before the tradeoff becomes salient.

Stupid product warnings

A toilet brush with a tag that says "Do not use for personal hygiene" has taken top prize for the wackiest consumer warning label of the year, according to an anti-lawsuit group.

The Michigan Lawsuit Abuse Watch, M-LAW, whose main mission is to reveal how lawsuits and anxiety over lawsuits have created a need for overly obvious warnings on products, sponsors the The Wacky Warning Label Contest each year.

Other top finishers this year include:

— A scooter with the warning "This product moves when used."

— A digital thermometer with the advice "Once used rectally, the thermometer should not be used orally."

— An electric blender used for chopping and dicing that reminds users to " "Never remove food or other items from the blades while the product is operating."

— And a three-inch bag of air used for packaging that read "Do not use this product as a toy, pillow, or flotation device."

Here is the link.  Read Alex too.

Paying for Kidneys

In a new paper, Gary Becker and graduate student Julio Elias estimate that for a price of $15,000 the shortage of kidneys could be eliminated from live donors.  The risk of death to a live donor is no more than 1 in a 1000.  Combine this with a value of life estimate of $3 million and add in some costs for time off work and so forth and you get the Becker/Elias figure of $15,000.

$15,000 seems too low to me but it probably would since my income is above average. As a robustness check, the authors note that in India a kidney can be had for about $1000 and US per capita income is about 15 times that in India so $15,000 looks to be in the right ballpark.  A similar calculation from Iran, where kidney sales are legal, is also consistent.  In anycase, even if they are off by a factor of 2 the point is well taken that for a modest sum many lives could be saved.  (In fact, dollars would be saved also because transplants are cheaper than dialysis.)

Becker and Elias have a useful response to (so-called) moral objections. Take any argument against kidney sales and apply it to the volunteer army.  Do kidney sales "commodify the body?"  Perhaps, but then the volunteer army commodifies life.  Would kidney sales eliminate altruistic donation?  As the example of Pat Tillman and many others demonstrate people still volunteer for the military for non-monetary reasons.  Are there difficulties for donors to calculate risks?  Again, perhaps, but these also apply to joining the military (and if so we could allow for a cooling-off period for both donating an organ or joining the military, as we do in some states for auto purchases).

If you are not in favor of the volunteer army then Becker and Elias don’t have any knock down arguments but I suspect that many people who are against kidney sales also favor the volunteer army and for these people Becker and Elias are posing a consistency challenge.

Markets in Everything – law school

Jay Wilson, a second-year law student at New York University, was
desperate to register for a popular course in constitutional law.

Unfortunately for him, the course, taught by the youthful Daryl
Levinson, was completely booked for the upcoming spring semester.
Fortunately, Mr. Wilson had some money to spare. In a posting on an
online bulletin board at the law school, Mr. Wilson offered $300 to any
student willing to drop the course to make room for him…

Students interviewed at the law school said the practice of
exchanging course spots is common at the school. As a kind gesture,
some cash-strapped students have promised to bake cookies for willing
traders or pass them invitations to exclusive parties.

Mr. Wilson, they said, took things to a new level: a no-nonsense
business deal, the sort of financial transaction that they expect to
deal with only after graduation.

Of course, the authorities soon moved to quash such deals.  The dean, however, did not explain why paying to get into a class is wrong but paying to get into law school is good.  Hmmm….perhaps Mr. Wilson would have had better luck had he offered to pay the dean rather than another student.

I have pioneered this approach even further.  Students in my classes have been known to offer payment to get out. 🙂

Thanks to Ray Lehmann for the link.

Jail Mail

I edited a book, Changing the Guard, on private prisons and crime control.  Last week I received an interesting letter from an expert in the field….a prisoner in Tennessee.  Frankly, I was expecting a crank but in fact the prisoner, who shall remain anonymous, had a lot of intelligent things to say about how the prison system operates.  Here is one observation:

A privately owned and publicly traded company like CCA has no incentive to rehabilitate criminals.  It is in the best interests of the company for even more criminals to exist.  Unfortunately, the same is true of government run prisons.  And contrary to what you may have been told, prisoners are not paroled because they have indicated by their actions or behaviors while inside that they are less likely to reoffend; they are let go because the Parole Boards believe that will commit another crime.  This way the prison lobbyists can then "prove" that parole doesn’t work.  The Department of Corrections gets less money from paroled prisoners than it does for those kept inside.  And also, "good" inmates are less trouble (less labor) than the trouble-makers, and so trouble-makers get released.

Good analysis.  I hope, however, that he does not test his theory on how to gain early release.