Category: Law

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.

A recipe for stopping crime?

The researchers expected that the number of crimes committed per person would fit a statistical distribution shaped like a bell if the criminal acts were being committed by random people in the selection: only a tiny fraction of boys would commit no crimes or lots of crimes, and most boys would fall into the average slot of committing a medium number of criminal acts.

Instead they found that that crime rates fell into a mathematical pattern called a power law, in which large deviations from average behaviour are more common. In both studies, most of the boys committed no crimes at all. In the Pittsburgh study, quite a few boys reported over 1,000 criminal acts during the study period, while the average number was just 90.

Physicists often find power-law statistics in systems with many interacting parts. This suggests that the young boys in the study are not responding randomly and independently to criminal opportunities that come their way. Instead they are probably influencing one another, presumably through strong peer pressure.

When the researchers subtracted results from the boys who had committed no crimes, they found a slightly different, better fit to a power law for the remaining subjects. This seems to indicate that people who commit no crimes are living in a different world from those who do – mathematically speaking.

The bottom line?

The best way to combat casual crime is not to search for persistent offenders but to deter people from committing their first crime…”Crime is never going to go away,” says Ormerod. But, he says, the best way to reduce it is to stem the flow of individuals into the criminal population.

Here is one summary. Here is the original research.

A Federal Marriage Amendment

Press release from a universe just parsecs from our own:

President Bush today announced support for the Federal Marriage Amendment to the constitution. “Marriage is a sacred institution” said the President “If we are to prevent the meaning of marriage from being changed forever, our nation must enact a constitutional amendment to protect marriage in America…Marriage cannot be severed from its cultural, religious and natural roots without weakening the good influence of society.”

Bush called on Congress “to promptly pass and to send to the states for ratification” an amendment to define marriage as a sacred union. Liberal courts, said the President, have undermined the institution of marriage by not taking seriously the damage done by those who violate their covenant with God and spouse. Calling for a return to family values, the President said the Federal Marriage Amendment will bring back the traditional penalties for those who violate their unions thereby restoring marriage to its rightful place at the center of a civilized nation.

The price of eternal vigilance

I am just back from Philadelphia where for the first time I visited Independence Hall, birthplace of the Declaration of Independence and the Constitution. I was shocked by how small and modest is the main room in which it all occurred – there is barely space enough for thirteen simple desks set side-by-side. The constitutional convention could have fit in my living room!

Independence Hall is remarkable but I could not enjoy it fully because I was disconcerted by the circumstances of my arrival. I flew into Philadelphia and of course was scanned, wanded, and de-shoed before boarding the plane – this I was prepared for – but it was depressing to walk from the Liberty Bell to Independence Hall and be subjected again and again to gates, armed guards, scanning, searching and surveillance. What is next? Will we be asked to show ID before entering the birthplace of liberty? The experience was upsetting.

It seems to me that the price of eternal vigilance is liberty.

When Affirmative Action Kills

The United Network for Organ Sharing says that “justice refers to allocation of organs to those patients in the most immediate need.” As such, skin color should be irrelevant in deciding who gets a transplant. But although proponents are loath to make race an explicit factor in transplant policy they are surreptitiously redesigning the organ allocation system in order to increase the number of blacks who receive transplants. The system is being redesigned to meet the ideals of the social planners despite the fact that such “affirmative action” will result in more deaths overall. As a proponent of financial incentives for organ donors I have often been accused of being immoral. But my conscience is clear – I have never advocated killing people to serve my idea of social justice.

From the Wall Street Journal (Friday, Feb. 6).

New rules for allocating scarce kidneys will result in 6.4% more blacks getting transplants, while slightly increasing the number of unsuccessful transplants, a study finds.

Blacks and other minorities have long been disadvantaged on transplant waiting lists — in part because the scoring system gave strong priority to compatibility between a recipient and the donated organ. Although blacks donate organs as often as whites, they have an extremely wide variety of protein markers on the outside of their cells — making an exact match much harder to find than for whites.

Making matters more acute, kidney disease in blacks is very common, owing to their higher rates of high blood pressure, which takes a toll on the urine-filtering organs. Blacks make up 12% of the U.S. population, but account for 36% of the 56,544 people in the U.S. waiting for a kidney. Prior to the scoring system overhaul, they were 33% less likely to get a kidney than whites.

The new rules, implemented in May by the United Network for Organ Sharing, stop giving priority for a certain type of immunological match known as HLA-B.

The report on the new system, in Thursday’s New England Journal of Medicine, used a statistical method to predict what will happen under the new rules. It finds that, had the new rule been in effect in the year 2000, 2,292 blacks would have gotten kidneys, up 6.4% from the actual number of 2,154 blacks. Meanwhile, 3,954 whites would have gotten the organs, a decrease of 4%. Hispanics would have seen a 4.2% increase. Asians would have seen a 5.9% increase.

Critics feared the new rule could reduce the success rate of transplants, effectively wasting precious organs on people whose bodies were likely to reject them. About 2% more organs will be rejected in people of all races, resulting in the need for another transplant, the study predicts.

Is the breast offense a good defense?

A Tennesse woman has sued Janet Jackson, Justin Timberlake, CBS, MTV and Viacom because viewers of the Superbowl half-time show suffered “outrage, anger, embarrassment and serious injury” when they saw Janet Jackson’s right breast. Naturally, this is a class action suit on “behalf of all Americans.” I dunno, I kinda enjoyed it.

Here is another class action that I was dragged into.

John Edwards on Trial

Very good article in the NYTimes on the larger implications of John Edwards’s career as a trial attorney. In Edwards’s first big case he artfully channeled the words of an unborn baby girl to convince the jurors that an obstetrician’s decision not to perform a Caesarean section resulted in the girl being born with cerebral palsy. The smoking gun in the case, according to Edwards, was the record from the fetal hearbeart monitor. As a result of this and other similar cases doctors “have responded by changing the way they deliver babies, often seeing a relatively minor anomaly on a fetal heart monitor as justification for an immediate Caesarean.”

[But] studies have found that the electronic fetal monitors now widely used during delivery often incorrectly signal fetal distress, prompting many needless Caesarean deliveries, which carry the risks of major surgery…[Moreover] the vast majority of children who developed cerebral palsy were damaged long before labor…[and] a series of randomized trials challenged the notion that faster delivery could prevent cerebral palsy. Reviewing data from nine countries, two researchers reported last year that the rate of the disorder had remained stable despite a fivefold increase in Caesarean deliveries.

Edwards can’t be blamed for being a good attorney, even if the science rejects his claims, but his front of caring for the victims does not stand scrutiny. Edwards, along with his fellow attorneys in the North Carolina plaintiff’s bar, argued against a compensation plan that would insure everyone with a child born with cerebral palsy.

My take: A tort system should deter and insure. But our tort system does neither well, especially when it comes to product liability and medical malpractice cases. Winning claims often have little connection with true negligence so the system does not deter and instead of insurance the tort system offers those with injuries a lottery ticket, handing large payouts to some and nothing to others with equal difficulties. To top it off, the system is expensive as more dollars are spent on litigation than flow to plaintiffs.

Why can’t you find your favorite song?

… fans who venture onto any of the pay music sites will not find the most popular band ever, the Beatles. They will not find other top-selling acts, such as the Dave Mathews Band, Garth Brooks, the Grateful Dead, AC/DC and the Cars.

They will find that top-selling acts Madonna and Red Hot Chili Peppers sell their songs by the album, but not as singles.

They will find some musicians on one service, but not on others. They will find puzzling choices: Led Zeppelin fans can buy a 47-minute spoken-word biography of the band online, but no Zeppelin songs because the band has not licensed them for sale on the Internet.

Why are these potential gains from trade not being exploited?

1. Some artists are holding out for a higher price or better terms. This can mean either a better cut for the artist, or the artist does not like the “all songs for 99 cents” model of iTunes.

2. Many artists feel that selling songs on an individual basis takes them out of proper context or cannibalizes sales for the album.

3. Pre-1998 contracts do not specify Internet rights to the songs. Assignment of Internet rights can require the underlying contract to be renegotiated.

4. Renegotiations must involve both the performer and the songwriter.

5. Often the relevant parties cannot be found or are otherwise difficult to deal with. One executive said: “You can be sure the heirs are a son and daughter who aren’t talking to each other and one of those two is getting divorced.”

Here is the full account. You will find stories of high transaction costs, poorly defined property rights, and stubborn holdouts, all the classic predictions of institutional failure theories.

The bottom line: Selection, not just price, remains a big advantage for non-legal downloading. If iTunes and related services are to make it in the long run, they will need to offer near-universal choice of music.