Category: Law

What Europeans Talk about when They Talk about Brexit

I am tempted to call this long piece on a boring subject the best I have read in 2019, but you know I think that might remain true by the end of the year.  Here is an excerpt from the Belgium section:

I was in Brussels recently, taking my son to watch Anderlecht play, when I heard some English people in a café asking the waiter why no one liked the English. They were nice people asking a genuine question, but often it’s the wrong people who ask the right questions. The waiter replied, politely and in perfect English: ‘We can read your newspapers and watch your television; we hear what your politicians and your journalists say about us.’ That summed it up: all this time we Brits thought we were talking to ourselves, and we were, but everyone else was listening in. Belgians are not surprised by Brexit: it’s just the coagulation as policy of what’s been flowing as attitude for decades.

Or Denmark:

The leftish Information provides the most useful articles. One has a headline in English, though anchored in the land of Elsinore: ‘To Be or Not to Be, That Is Not the Question’. The real ‘question’ doesn’t concern the merits of Leave or Remain, but the complexities of a twin crisis, in both the UK and the EU. Another piece, published shortly after the referendum, describes the division of a nation into Leavers and Remainers as afgrundsdyb. Meaning ‘abyssal’, the term, I am told, hints at the unfathomable as well as the unbridgeable, while evoking something that is certainly dangerous to approach.

I enjoyed this line:

Croatia has more experience than most of entering and exiting alliances.

From the Germany section:

‘Brexit shows that the Brussels bureaucracy, that alleged monster that employs no more civil servants than a central German city administration, has done a great job. The extent of interconnectedness at all levels has to be renegotiated: supply chains, industry standards, food and pharmaceutical standards, security architectures, rural and air transport structures, fishing rights, research collaborations, student exchanges, a vast frictionlessness system is now in jeopardy’ (Gustav Seibt, Süddeutsche Zeitung).

This I had not known:

…in Norway the conservative right is overwhelmingly in favour of joining the EU.

And finally:

Being a Brit in Sweden can be embarrassing just now. We’re one of the Swedes’ favourite peoples, admired for our history and culture, and loved for Engelskt humor. Shocked they may be; but a diet of Monty Python and Fawlty Towers means that Swedes are not altogether surprised.

The authors are numerous, the whole piece was published in The London Review of Books, definitely recommended.  I would note that “what group X really thinks of Y” remains an under-exploited genre in journalism, and elsewhere, and it is one of the best ways of learning about a topic.

The Amazon War and the Evolution of Private Law

It’s well known that to boost their sales, sellers sometimes post fake 5-star reviews on Amazon. Amazon tries to police such actions by searching out and banning sites with fake reviews. An unintended consequence is that some sellers now post fake 5-star reviews on their competitor’s site.

The Verge: As Amazon has escalated its war on fake reviews, sellers have realized that the most effective tactic is not buying them for yourself, but buying them for your competitors — the more obviously fraudulent the better. A handful of glowing testimonials, preferably in broken English about unrelated products and written by a known review purveyor on Fiverr, can not only take out a competitor and allow you to move up a slot in Amazon’s search results, it can land your rival in the bewildering morass of Amazon’s suspension system.

…There are more subtle methods of sabotage as well. Sellers will sometimes buy Google ads for their competitors for unrelated products — say, a dog food ad linking to a shampoo listing — so that Amazon’s algorithm sees the rate of clicks converting to sales drop and automatically demotes their product.

What does a seller do when they are banned from Amazon? Appeal to the Amazon legal system and for that you need an Amazon lawyer.

The appeals process is so confounding that it’s given rise to an entire industry of consultants like Stine. Chris McCabe, a former Amazon employee, set up shop in 2014. CJ Rosenbaum, an attorney in Long Beach, New York, now bills himself as the “Amazon sellers lawyer,” with an “Amazon Law Library” featuring Amazon Law, vol. 1 ($95 on Amazon). Stine’s company deals with about 100 suspensions a month and charges $2,500 per appeal ($5,000 if you want an expedited one), which is in line with industry norms. It’s a price many are willing to pay. “It can be life or death for people,” McCabe says. “If they don’t get their Amazon account back, they might be insolvent, laying off 10, 12, 14 people, maybe more. I’ve had people begging me for help. I’ve had people at their wits’ end. I’ve had people crying.”

Amazon is a marketplace that is now having to create a legal system to govern issues of fraud, trademark, and sabotage and also what is in effect new types of intellectual property such as Amazon brand registry. Marketplaces have always been places of private law and governance but there has never before been a marketplace with Amazon’s scale and market power. It’s an open question how well private law will develop in this regime.

The moral horror of America’s prisons

That is the topic of my latest Bloomberg column, here is the final bit but not the main argument:

So what then to do? The first and most important step is for Americans to realize they have been creating and sanctioning a moral horror, and to treat it as a major political issue. Step No. 2 is to modify the career incentives for prosecutors to seek out ever tougher sentences. Step No. 3 is to experiment with more electronic monitoring of criminals, and to see if that can limit the number of people behind bars. Step No. 4 is to frame prison reform in more straightforward economic terms. It is not only about guaranteeing rights on paper. It’s also about designing the economic incentives for prisons to create secure and orderly environments. That has hardly been the focus of current systems. Finally — and this idea is broader in scope — the decriminalization of additional offenses should also be considered.

I realize these are complex issues, and potential remedies require far more consideration than I can give them here. But if you think America’s current penal system is the very best we can do, that is about the most pessimistic verdict on this country I have ever heard. Has anyone ever suggested that the American prison system is the world’s best? The can-do attitude is one of my favorite features of American life. We just need to apply it a little more broadly.

Can I simply say “I am right”?

Athletes Don’t Own Their Tattoos

NYTimes: Any creative illustration “fixed in a tangible medium” is eligible for copyright, and, according to the United States Copyright Office, that includes the ink displayed on someone’s skin. What many people don’t realize, legal experts said, is that the copyright is inherently owned by the tattoo artist, not the person with the tattoos.

Some tattoo artists have sold their rights to firms which are now suing video game producers who depict the tattoos on the players likenesses:

The company Solid Oak Sketches obtained the copyrights for five tattoos on three basketball players — including the portrait and area code on Mr. James — before suing in 2016 because they were used in the NBA 2K series.

…Before filing its lawsuit, Solid Oak sought $819,500 for past infringement and proposed a $1.14 million deal for future use of the tattoos.

To avoid this shakedown, players are now being told to get licenses from artists before getting tattooed.

That was then, this is now

[Andrew] Jackson imagined his role as that of a Roman tribune or dictator, summoned to executive power for a season for defend the plebeians against corrupt patricians.  That meant, among other things, slashing federal expenses and retiring the national debt.

Jackson in fact worked hard to strike down “internal improvements” in only a single state, as he was convinced that such legislation was unconstitutional, and that a corrupt Congress was working to enrich itself.

That is all from Walter A. McDougall, Throes of Democracy: The American Civil War Era 1829-1877, p.60.

Department of Unintended Consequences, American health care edition

In 2010, the federal agency that oversees Medicare, the Centers for Medicare and Medicaid Services, established the Hospital Readmissions Reduction Program under the Affordable Care Act. Two years later, the program began imposing financial penalties on hospitals with high rates of readmission within 30 days of a hospitalization for pneumonia, heart attack or heart failure, a chronic condition in which the heart has difficulty pumping blood to the body.

At first, the reduction program seemed like the win-win that policymakers had hoped for. Readmission rates declined nationwide for target conditions. Medicare saved an estimated $10 billion because of the reduction in hospital admissions. Based on those results, many policymakers have called for expanding the program.

But a deeper look at the Hospital Readmissions Reduction Program reveals a few troubling trends. First, since the policy has been in place, patients returning to a hospital are more likely to be cared for in emergency rooms and observation units. This has raised concern that some hospitals may be avoiding readmissions, even for patients who would benefit most from inpatient care.

Second, safety-net hospitals with limited resources have been disproportionately punished by the program because they tend to care for more low-income patients who are at much higher risk of readmission. Financially penalizing these resource-poor hospitals may impede their ability to deliver good care.

Finally, and most concerning, there is growing evidence that while readmission rates are falling, death rates may be rising.

In a new study of approximately eight million Medicare patients hospitalized between 2005 and 2015 that we conducted with other colleagues, we found that the Hospital Readmissions Reduction Program was associated with an increase in deaths within 30 days of discharge among patients hospitalized for heart failure or pneumonia, though not for a heart attack.

That is by Rishi K. WadheraKaren E. Joynt Maddox and Robert W. Yeh in The New York Times.

Why Doesn’t the FBI Videotape Interviews?

Michael Rappaport at Law and Liberty:

…if the FBI believes that an interviewee has lied during the interview, he or she can be prosecuted for false statements to the government. The penalty for this is quite serious. Under 18 U.S.C. 1001, making a false statement to the federal government in any matter within its jurisdiction is subject to a penalty of 5 years imprisonment. That is a long time.

How does the FBI prove the false statement? One might think that they would make a videotape of the interview, which would provide the best evidence of whether the interviewee made a false statement. But if one thought this, one would be wrong, very wrong.

The FBI does not make videotapes of interviews. Apparently, there are FBI guidelines that prohibit recordings of interviews. Instead, the FBI has a second agent listen to the interview and take notes on it. Then, the agent files a form—a 302 form—with his or her notes from the interview.

What is going on here? Why would the FBI prohibit videotaping the interviews and instead rely on summaries? The most obvious explanations do not cast a favorable light on the Bureau. If they don’t tape the interview, then the FBI agents can provide their own interpretation of what was said to argue that the interviewee made a false statement. Since the FBI agent is likely to be believed more than the defendant (assuming he even testifies), this provides an advantage to the FBI. By contrast, if there is a videotape, the judge and jury can decide for themselves.

…One might even argue this is unconstitutional under existing law. Under the Mathews v. Eldridge interpretation of the Due Process Clause, a procedure is unconstitutional if another procedure would yield more accurate decisions and is worth the added costs. Given the low costs of videotaping, it seems obvious that the benefits of such videotaping for accuracy outweigh the costs.

See also this excellent piece by Harvey Silverglate.

The New Cold War heats up, and it’s not mainly about the tariffs

The new American law, enacted on Wednesday and called the Reciprocal Access to Tibet Act, says the secretary of state, who is now Mike Pompeo, must within 90 days give Congress a report that lays out the level of access to Tibetan areas that Chinese officials grant Americans.

The secretary is then supposed to determine which Chinese officials are responsible for placing limits on foreigners traveling to Tibet and bar them from getting visas to the United States or revoke any active visas they have. The secretary must make this assessment annually for five years.

The goal of the law is to force Chinese officials to relent on the limits they impose on travel to Tibetan areas.

Here is more from Edward Wong at the NYT.  It is unlikely that this is a good idea.

Police in Philadelphia Stealing Houses

The Supreme Court is considering whether the Constitution’s ban on excessive fines applies to the states as well as to the federal government. If the SC needs more motivation to curb the abusive process of civil asset forfeiture they need look no further than Philadelphia. In a field filled with outrageous stories of injustice, the situation in Philadelphia where houses have been forfeit stands out.

A forfeiture petition for one property lists one gram of marijuana, a half gram of cocaine and some over-the-counter pills as justification for taking. In one case recently settled in a $3 million class-action lawsuit, Norys Hernandez nearly lost the rowhouse she and her sister owned after police arrested her nephew on drug dealing charges and seized the house. Another family named in the suit fought to save their house from the grip of law enforcement after their son was arrested for selling $40 worth of drugs outside of it. Of the lawsuit’s four named plaintiffs, three had their houses targeted for seizure after police accused relatives dealing drugs on the property. None of the homeowners were themselves accused of committing a crime.

As families fought to keep homes targeted by the DA, the revenues from the forfeiture sales became a big moneymaker for local law enforcement – netting some $6 million annually in the best years. The proceeds turned into an unregulated budget split between the police and DA. The money made off of the seized homes went to buy wish list items ranging from new submachine guns to custom uniform embroidery.

As if that weren’t enough, sometimes police officers were the buyers of the foreclosed properties! How’s that for demand creates its own supply?

“I am genuinely distressed to learn that the DA’s office permitted police officers to acquire forfeited homes of Philadelphians at public auction,” said University of Pennsylvania Law School professor Lou Rulli. “This disturbing revelation underscores one of many serious flaws in civil forfeiture — law enforcement is able to directly benefit from the actions they take to seize private property, often from lawful homeowners who have done no wrong.”

This story takes the cake:

Biddle recalled an instance, in 2007, when he purchased a property on the 5700 block of Chester Avenue for $21,000. To his surprise, he found a buyer just a few days later who was willing to pay nearly double that amount. He inked the sale.

At the next forfeiture open house, an incensed DA staffer, who by now knew Biddle on sight from his repeat visits to forfeiture auctions, approached him.

“They said, ‘That guy we took the house from? You just sold that to the guy’s mom,’” Biddle recalled. “They were pissed, but they knew I couldn’t do anything about it.”

Records show that it took the District Attorney’s Office three years to seize the property back, through a second forfeiture action filed against the pair.

This is from an excellent investigative report by Ryan Briggs.

Addendum: See also my piece with Makowsky and Stratmann forthcoming in the JLS, To Serve and Collect: The Fiscal and Racial Determinants of Law Enforcement.

Rational self-medication

We develop a theory of rational self-medication. The idea is that forward-looking individuals, lacking access to better treatment options, attempt to manage the symptoms of mental and physical pain outside of formal medical care. They use substances that relieve symptoms in the short run but that may be harmful in the long run. For example, heavy drinking could alleviate current symptoms of depression but could also exacerbate future depression or lead to alcoholism. Rational self-medication suggests that, when presented with a safer, more effective treatment, individuals will substitute towards it. To investigate, we use forty years of longitudinal data from the Framingham Heart Study and leverage the exogenous introduction of selective serotonin reuptake inhibitors (SSRIs). We demonstrate an economically meaningful reduction in heavy alcohol consumption for men when SSRIs became available. Additionally, we show that addiction to alcohol inhibits substitution. Our results suggest a role for rational self-medication in understanding the origin of substance abuse. Furthermore, our work suggests that punitive policies targeting substance abuse may backfire, leading to substitution towards even more harmful substances to self-medicate. In contrast, policies promoting medical innovation that provide safer treatment options could obviate the need to self-medicate with dangerous or addictive substances.

That is a new NBER working paper by Michael E. Darden and Nicholas W. Papageorgge.

The actuarial code of conduct, with David Wright

David posts:

While my interview guests are getting settled in I occasionally ask them to read out some of the actuarial code of conduct and we discuss it. I’m assembling those clips into some content for my paid actuarial continuing education channel which all actuaries should check out (and get those CE credits before year-end!).

When I did this with Tyler my little warmup act turned into an impromptu Conversations with Tyler where we explore what it means to be an actuary and whether he and I might start a competitor organization! We end with a discussion of fronting and I missed an opportunity to talk about fronting can enable competition among insurers but that will have to wait for another day!
Listen to the (10 min) clip here!

There is also a transcript at the link.  For some time now I’ve believed that the best podcasts would be the pre-podcast discussions held right before the podcast proper starts.

A social credit system for scientists?

Researchers in China who commit scientific misconduct could soon be prevented from getting a bank loan, running a company or applying for a public-service job. The government has announced an extensive punishment system that could have significant consequences for offenders — far beyond their academic careers.

Under the new policy, dozens of government agencies will have the power to hand out penalties to those caught committing major scientific misconduct, a role previously performed by the science ministry or universities. Errant researchers could also face punishments that have nothing to do with research, such as restrictions on jobs outside academia, as well as existing misconduct penalties, such as losing grants and awards.

“Almost all aspects of daily life for the guilty scientists could be affected,” says Chen Bikun, who studies scientific evaluation systems at Nanjing University of Science and Technology.

The policy, announced last month, is an extension of the country’s controversial ‘social credit system’, where failure to comply with the rules of one government agency can mean facing restrictions or penalties from other agencies.

The punishment overhaul is the government’s latest measure to crack down on misconduct. But the nature and extent of the policy has surprised many researchers. “I have never seen such a comprehensive list of penalties for research misconduct elsewhere in the world,” says Chien Chou, a scientific integrity education researcher at Chiao Tung University in Taiwan.

By David Cyranoski in Nature, via Michelle Dawson.

The Brexit equilibrium

Theresa May has survived, but enough Tories have credibly indicated they won’t support her Brexit plan at least not yet.  She doesn’t want Hard Brexit and doesn’t hate Remain, if the latter can be done sustainably.  She could threaten those Tories with a new election or with a second referendum.  If I were her, I would prefer the latter, as who would want to bring Jeremy Corbyn into the picture?  Nonetheless I don’t think she favors a second referendum per se (too hard to control and manage, no matter what the result).  The threat of a second referendum will be brought to the table, and that means some chance it will happen.  Right now the second referendum contract is selling at 36 cents on the dollar.  That seems correctly priced to me, with the more likely outcome being that enough Conservative MPs fall into line and Theresa May gets her way, more or less.

Why I disagree with Scott Sumner on China

U.S. government investigators increasingly believe that Chinese state hackers were most likely responsible for the massive intrusion reported last month into Marriott’s Starwood chain hotel reservation system, a breach that exposed the private information and travel details of as many as 500 million people

Story here.  And:

Armed with a rich array of personal data, an intelligence agency can also tailor an approach to a person to see whether the individual can be recruited as a spy or blackmailed for information. The passport data, which is not often collected in data breaches, probably was a particularly valuable find for the hackers.

You will note that no one is trying to sell the data.  And this:

The report, citing two people briefed on the investigation, reported China had launched an intelligence-gathering campaign which included hacking into health insurance companies and hacking security clearance files of millions of people living in the U.S. The New York Times reported the hackers are believed to be employed by the Ministry of State Security, which is China’s spy agency. The paper noted that the revelation that China was behind the Marriott hack comes as the U.S. government is gearing up to launch actions against China’s trade that include indicting Chinese hackers that work for the government. The New York Times noted the Marriott hacking isn’t expected to be part of the indictments but does add a sense of urgency to the moves the White House was mulling.

The Trump administration is also planning on declassifying intelligence reports that show China had been trying to create a database of American executives and government officials that have security clearances, reported The New York Times.

I could go on.  I am genuinely unsure what are the economic costs of these mischievous activities, but would note simply that it is sometimes necessary to punch back.  The choice is not free trade vs. protectionism (I strongly suspect Scott and I agree on the economics of trade), but rather a partial return punch now vs. a worse situation much later on.

Sorry people, but I will always be an independent…

Senate Democrats are pushing back against attempts to pass a compromise bill in the lame-duck session that could speed the introduction of driverless cars onto U.S. roadways, saying it lacks safeguards that would protect drivers.

Link here, and I’m sure you know the House Democrats don’t want to pass the new NAFTA.

Elsewhere, in Chicago, the war on democracy continues:

To get on the ballot, Krupa was required to file 473 valid signatures of ward residents with the Chicago Board of Elections. Krupa filed 1,703 signatures.

But before he filed his signatures with the elections board, an amazing thing happened along the Chicago Way.

An organized crew of political workers — or maybe just civic-minded individuals who care about reform — went door to door with official legal papers. They asked residents to sign an affadavit revoking their signature on Krupa’s petition.

And the background?:

The David is David Krupa, 19, a freshman at DePaul University who drives a forklift part time. He’s not a political powerhouse. He’s just a conservative Southwest Side teenager studying political science and economics who got it in his head to run for alderman in a race that pits him against the most powerful [Democratic] ward organization in Chicago.

Here is the story, it’s not just North Carolina where electoral law is treated with less than the utmost respect.

p.s. if you think or write “false equivalency” in response to this post, you fail the Intellectual Turing test.