So listening to a piece about the RIAA lawsuits against college students got me thinking about just how broken the american legal system is in this regard. The adversarial system is supposed to encourage good precedent by ensuring that individuals on both sides of an issue have incentives to present their case as effectively as possible. Whatever your opinion about the RIAA’s lawsuits it’s clear that the exact opposite is occuring in this situation.

Instead of those individuals with the best defenses taking them trial we see just the opposite happening in the RIAA cases. While there are many individuals whose cases raise tough questions about the accuracy of the RIAA’s identifications or whether merely making songs availible constitutes infringement the case that was most throughly defended so far was that of Jammie Thomas who insisted on claiming she hadn’t even made the songs available despite the singularly strong evidence showing this to be a lie. Unsurprisingly the jury saw through the blatant deception and convicted her without reaching any of the serious issues.

Some might dismiss this as an isolated oddity but I think it reflects fundamental incentives that our system creates when large companies sue individuals for massive damages while offering cheap settlements. Given the fact that under the American rule even a successful defense might cost 60-100k any reasonable individual is likely to swallow their pride and pay the couple thousand dollars of bribe money, even if they know they were misidentified. This creates a situation where only the copyright analagos of tax protestors or the judgement proof are likely to defend their cases. Hardly providing ideal test cases. Certainly foundations and charities like the EFF and ACLU can help offset this problem but not every situation is popular enough to attract these deep pockets and our justice system shouldn’t require charitable aid to produce fair results.

One might be tempted to move to the English rule but while this rule would help even this seems to leave a dangerously imbalanced playing field. Corporations are likely to sue private individuals in such a fashion only when they hope to gain massive deterent benefit while the individual can only hope to gain a few thousand dollars. For instance suppose you produced a mix tape pushing the boundaries of fair use which you gave away for free. A group like the RIAA may have a large financial stake in convincing others such behavior will be punished while your potential gain from pursuing the lawsuit under the English rule is just the few thousand the settlement offer proposes a rational defendent will still stimply pay the protection money and give the corporation their example. Besides, the English rule risks unfairly deterring individuals from suing corporations lest they get left with the massive bill the corporation ran up on lawyers.

Hopefully some clever economist can imagine some clever scheme that results in even better incentives but it occured to me that a partial solution to both this problem and the dangers of the English rule more generally might be the following. Create a system where by default the lower pays their own attorney’s fees and gives the winner the amount of money he (the loser) spend on attorneys. This would then minimize the harms of the English rule (you still control the maximum risk you undergo) while giving some extra incentive for ‘example’ defendants to go to trial in hopes of winning a relatively large payout since their example status likely means a great deal of lawyers fees were paid out in selecting and pursuing their case.

I also think some scheme should be considered that prevents corporations from backing out of cases that might go the wrong way. However, on the other side I think that there out to be special scientific decisions with precedential value that corporations can use to easily defend against massive product liability lawsuits but these are both matters for later posts.

If you arrived at this page by following a link I posted in a comment discusson with the claim it was child pornography (which I neither approve of nor posses) you’ve done the same thing that allowed the FBI to get extensive search warrants to look for child porn on the computers or in the mail of those who followed the link. While this behavior may not break new legal ground the fact that otherwise law abiding people are willing to follow this link out of mere curiosity, skepticism or the desire to see if I was telling the truth suggests that merely following a link claiming to offer child porn is not a good reason to believe that the person who did so is a bad person.

Additionally I have a significant problem with the idea that merely checking to see if something is child porn could itself be a crime. In particular this seems to have troubling free speech implications. The first ammendment has long been held to protect the consumption of media as well as it’s production. Now there is a good argument that child porn as the product of a criminal act ought to be exempt but the supreme court has ruled that computer generated child porn is protected by the first amendment. If it is illegal to follow the link because it might be real rather than CG child porn this seems to raise troubling issues about your first amendment rights. Moreover, surely you have a first amendment right to read media that is titled to be child porn but isn’t and since you can’t know what the content is until you actually view it how can clicking on the link itself constitutionally qualify as a crime?

Now one might argue that clicking on the link isn’t a crime, it only gives probably cause to believe a crime has been committed. True, I agree that members of a forum populated by pedophiles and perhaps advocates for legalization of child sex/porn are very likely to also possess child porn but clicking on the link is not evidence of a specifc crime and relies on impermissible considerations. It’s also true that people who belong to NORML are likely to have pot at home but surely we don’t want the government to be able to justify searches based on our protected first ammendment activity.

Anyway I haven’t had time to really think this through or research it so I might be missing something but these are my initial thoughts.

I used to wonder why no one argued over affirmative action using practical evidence based approaches to gauge it’s effectiveness in attaining some desired end. I now wonder how I could have been so hopelessly naive. People can’t even parse simple remarks like those Geraldine Ferraro made to the Daily Breeze,

“If Obama was a white man, he would not be in this position,” she continued. “And if he was a woman (of any color) he would not be in this position. He happens to be very lucky to be who he is. And the country is caught up in the concept.” Ferraro does not buy the notion of Obama as the great reconciler.

“I was reading an article that said young Republicans are out there campaigning for Obama because they believe he’s going to be able to put an end to partisanship,” Ferraro said, clearly annoyed. “Dear God! Anyone that has worked in the Congress knows that for over 200 years this country has had partisanship - that’s the way our country is.”

I’ve included the second paragraph to make the context clear. Ferraro is obviously a bit irked by the bizarre messianic conception many people have of Obama and the perception that Clinton’s actions are frequently seen as base political gamesmenship while they see the same actions by Obama as grand leadership. Now I actually think that is a compelling argument to vote for Obama. This skill is the essence of political talent and a useful attribute to have in a canidate or leader. However, it suggests that Ferraro is likely speaking out of understandable personal frustration rather than the devious political calculation some of the media are suggesting. But understood as an off the cuff remark what did it mean and should anyone get upset about it?

Well Ferraro obviously means that in some possible scenario where Obama wasn’t black he wouldn’t be competitive in the democratic party. The million dollar question is which scenario did Ferraro have in mind? Now it seems pretty obvious to me what she meant was something like: if everything had been the same at the start of the primaries except that Obama was white he would have quickly lost. Not only is this not a racist remark it’s probably true. Even those who are denouncing Ferraro for racism admit that many blacks are voting for him because he is black and it’s silly to think that at least some of his appeal to liberals comes from their perception of him as a healer of racial discord, a trait that (like it or not) depends on his skin color.

What then of the comment that “he is lucky to be who he is?” Far from meaning that blacks tend to have it better in America than whites as many critiques assume normal english usage suggests it merely means Obama’s race is a proximate cause of this good fortune. I mean assume that your friend went down to the corner store hoping to buy a magazine but because his job pays so little he finds himself a dollar short he instead buys a winning lotto ticket. Now you might reasonably remark, “damn man, your lucky you didn’t get that raise last month.” Obviously you wouldn’t be saying that in general people are better off not getting raises. In other words she is doing nothing more than reiterating the fact that Obama’s race is a net political assest in the democratic primary.

This view is supported by Ferraro’s contention that far from being racist her remarks are a positive racial message, i.e., people want to vote for a black man to help heal racial divisions in the country, as well as her remark that she was chosen as a vice presidential nominee because of her gender. Despite the stupendously stupid suggestion by Berkeley professors Edley and Echaveste that Ferraro is demeaning herself with this comment really all she is saying is that had she been in a similar situation but been a man she would not have been chosen. Yet more evidence that Ferraro was never suggesting that Obama owes everything to affirmative action or that blacks are better off than whites as the critiques all presuppose.

Note that this interpretation of Ferraro’s remarks didn’t require any mental gymnastics. It was the obvious meaning that jumped to mind when I heard the words. Now perhaps, because the news had primed you to hear them as racist, the same might not be true of you but really all I need to show is that there is a plausible interpretation that isn’t racist to show that we should give Ferraro the benefit of the doubt based on her past behavior. Now no doubt someone is going to try to argue that even though Ferraro didn’t mean to make a racist remark that her failure to properly guard against unintended racial effects of her words is enough justification for her public flagellation. Yet on these grounds it is the Obama people who have taken it upon themselves to widely publicize these words (even though Obama is reasonably refusing to call them racist) who should be held accountable.

It’s quite reasonable to believe that we ought to tax the rich more and use that money to better fund our public schools. Though I think guaranteeing free college educations to students who perform well might be more effective than anything the school districts could buy with the money.

None of this, however, justifies calling out Bill Gates for being insufficiently generous. I was absolutely flabbergasted to see the SF Bay Gaurdian offering a populist critique of Gates because he only gives 350 million to US schools despite the vast wealth our society has allowed him to accumulate. I mean jesus christ how can this paper avoid gagging on it’s own hypocrisy when it criticizes the rich for not sufficiently helping out the less fortunate because they are giving their money away to aid the truly poor. Even poor american kids are quite wealthy compared to children in much of Africa that Gates is trying to help with his donations.

Sigh, yet more evidence that neither side is motivated by a serious examination of choices and consequences but instead are motivated by simplistic emotional reactions to what they see on the news.

As I said yesterday Spitzer deserves to be kicked out of his job for being a raging hypocrite. Or more particularly (since we tolerate some hypocrites) for doing one of the very things which he built his political reputation upon. However, the moralizing, holier than thou finger waving and faux concern is really starting to piss me off. Given the large percentages of the population who have tried soft drugs, visited prostitutes (something like 1/5) or the huge proportion of the population who has looked at porn the zero tolerance policies enforced at businesses and schools across the nation surely require a vast army of hypocrites to enforce. How many prosecutors, police, teachers and principals in our schools did (or still do) smoke pot? How many of them ruin some kids life instead of giving him a second chance while happilly keeping their own (past?) use secret? How many people who do/did view porn go along with it when their aunt, friend or even internet news posting disapproves of the activity? How many enforce their companies zero tolerance policies when someone is caught browsing questionable material rather than offering them a second chance? Who fails to speak up when a fellow teacher, secretary, attorney, whatever gets fired when drunken pictures of them at a party appear on the internet? I could continue but it would be too easy.

Ohh sure everyone has some excuse about why their behavior doesn’t really count. It was a different era back then, the pot now is weaker. I never looked at internet porn, it was just playboy (did you ever forget and accidently take it to work?). But everyone has a story. No doubt Spitzer told himself what he was doing was different because he made sure to give these girls extra cash. If it really is so different then there is no reason to hide it right? Everyone else would see it wasn’t like these bad things. Maybe you say you have to enforce the rules, that’s what the organization expects. But Spitzer could say the same and ultimately the reason our corporations and institutions have zero tolerance policies is that no one has the balls to say, “hey wait a minute, maybe this stuff isn’t that bad.” I’m not saying you need to admit to all your private peccadillos but don’t be so intimidated by them that you jump on the puritanical band wagon.

Ohh and don’t try to pretend that your real concern in this matter is Spitzer’s children or wife. I mean which do you think is going to be worse for them: Spitzer being accused of patronizing a prostitute or being accused of using a prostitute and losing his job. Hell, if your only concern here was the personal harm to his wife and children then why the fuck are you trying to make their lives worse by kicking Spitzer out of his job?

I’ve updated to 2.3.3. Unfortunatly this ended up deleting the openid to account links so if you logged on via openid you may need to log on manually once and then reassociate your openid URL. If you have a problem with this let me know and I can fix things for you. Once things calm down with jobs and stuff expect to see some improvements around here.

Ohh, I also fixed the dropdown menus at top so they aren’t so annoying.

It appears that Spitzer was seeing prostitutes while publicly denouncing people and trying to send people to jail for operating a high end prostitution ring.

In one such case in 2004, Mr. Spitzer spoke with revulsion and anger after announcing the arrest of 16 people for operating a high-end prostitution ring out of Staten Island.

“This was a sophisticated and lucrative operation with a multitiered management structure,” Mr. Spitzer said at the time. “It was, however, nothing more than a prostitution ring.”

Now prostitution should clearly be legal. I don’t think there is anything inherently wrong with explicitly paying money for sex, and let’s not kid ourselves what differentiates prostitution from dating the guy with the nice car is only the explicitness of the transaction. In fact criminalizing prostitution, and thus requiring those women who want to monetize their sexual allure to give up their autonomy and hitch themselves to a rich guy, seems decidedly sexist to me. True, as a practical matter it is right to worry that some women may get treated badly or abused in prostitution but once as a practical matter the question is will less women be hurt if prostitution is legal (or tacitly tolerated) or if it is illegal?. I think the answer is clear. If prostitutes don’t fear arrest they can seek police protection from extortionists and pimps, can receive health care, have worker’s rights and otherwise be protected by the same systems that protect the rest of us but so long as it is illegal we create a shadowy underworld that will trap the most desperate and abused women and use the illegality of their business as a means to subjugate them.

But while some argue that the moral acceptability of prostitution is a defense of Spitzer I couldn’t disagree more. At worst patronizing prostitutes is a relatively minor moral failing. Knowingly placing people in prison who don’t deserve to be there is on the order of kidnapping, rape or murder.¹. Sure, we can’t expect any one politician to undo all that is wrong with our justice system. If Eliot Spitzer had stood up and said, “I think we should legalize prostitution,” his political career probably would have died right there and done no one any good. But it’s one thing to pick your battles carefully, it’s another thing entirely to exercise your discretion to send people to prison for being involved in the same activities you do so you can further your political career. Unless evidence comes to light that Spitzer fought to minimize the penalties or change the law on prostitution he deserves to hang for hypocritically sending people to prison for offenses he must not have thought warranted that treatment. At the very least he doesn’t deserve a free pass from the people when he wouldn’t give that pass to others.

Now some complain about the use of seemingly absurd application of laws like the Mann act or arcane financial crimes to ‘get’ Spitzer. I couldn’t agree more with the queasy unease many people have about stretching these laws to cover Spitzer’s activity to satisfy the people’s moral outrage or serve political ends. But this sort of tactic was Spitzer’s calling card. Two wrongs don’t make a right and I believe we ought to take the high road and refuse to do to Spitzer what he did to others but having made his career on this sort of ‘dirty’ legal trick it’s appropriate that he lose it for the same reason.

Ultimately if this had been Bill Clinton chared with say smoking pot I’d go to the mat for him. Certainly he has never openly spoke in favor of legalization but he didn’t choose to advance his political career by throwing others into prison for the same things he himself did and I got the impression that his administration at least slightly favored liberalization (his pardons, DOJ attitude toward MMJ). However, if we don’t hold people like Spitzer accountable to their own standards we further encourage politicians to victimize the less powerful with faux moral outrage. More on this later.

Now, I’ll leave you with some links for purient interest about the girl he was with and other details. I would feel sorry for her if I didn’t think she was sure to get a generous offer from playboy, likely to get a book deal (or payoffs from other clients) and maybe even have her CD produced.

• people about Kristen
• Hufington Post, lots of links
• Kristen’s MySpace Page, note the creepy guys leaving messages.
• Details About Trysts
• Post Identifies Prostitute

Throughout this entire campaign Obama has unabashedly sought to use the caucus system to his advantage. Despite the stark differences between the results of caucuses and one-person one-vote primaries Obama seems to have every intention of using these antidemocratic means to secure the nomination. Not only do caucuses place unfair peer pressure on those who might be not want to be seen as voting against hope they obviously disenfranchise those who don’t have the time to spend hours in a caucus as well as those too apathetic or sleep-deprived to attend. Don’t our democratic values require that Obama repudiate these votes and agree to rerun the contests in these states using primaries?

NO! That would be fucking stupid. Just as stupid as the recent petition from MoveOn.org to “let the voters decide” or any of the huge number of blogs whining about antidemocratic super delegates. All of the bizarre rules about how the democratic party chooses it’s nominee affect who is chosen. If caucuses had been banned it’s reasonable to think Obama might have quickly been dismissed as unelectable. Hell, even if you decide to count caucuses it’s not clear it’s fair to say that Obama is ahead in the popular vote. After all the citizens of two entire states were disenfranchised by the actions of a few of their state officials. Even if you agree (as do I) that the national party is reasonably deterring rule breaking that doesn’t mean excluding the millions of innocent residents in those states isn’t antidemocratic¹. Hell, if you believe superdelegates are antidemocratic then you should think the entire primary process in which national party officials reserve early voting for certain states is inherently antidemocratic and it seems clear that placing Iowa first while obscuring the results from large coastal states like New York and California in the mass of results from Super Tuesday was a substantial and likely decisive factor in Obama’s lead.

But we don’t even need to go there to see this antidemocratic argument is total bunk. The entire idea that somehow any deviation from the popular will (even in a private political organization) is somehow antidemocratic (in a bad sense) is simply absurd. I mean is the supreme court antidemocratic? It overturns majoritarian demands based on pre-written rules. Should Senators refuse to filibuster horrific bills so long as 51% of the population (or 51% of representatives) favor it? Hell, the very idea of the constitution is a set of rules that override majoritarian sentiments. Is it antidemocratic²? In a certain technical sense these things are probably ‘antidemocratic’ in that they circumscribe majoritarian power but they are not antidemocratic in the sense of being antithetical to the ideals of a free republic as the word is used in common discourse. Thus it’s simply not true that Clinton’s superdelegate strategy is antidemocratic (in a bad sense).

If you still aren’t convinced ask yourself if you think the parliamentary system used throughout most of Europe is antidemocratic. After all the parliamentary system chooses the prime minister without any direct input from the voters. Sure you might point out that most canidates are committed to a particular party and thus, just like the US electoral college, the voters in effect pick who will be the next prime minister; but this overlooks what happens when no party controls more than half the seats. Just as in the democratic primary when parliament is too closely divided for any one party to claim a majority the MPs get together and decide who they will elect as prime minister based on coalitions and bargains without any voter input at all. Surely if it isn’t antidemocratic to totally leave the decision in the hands of our duly selected representatives then it can’t be antidemocratic to select a canidate based on the popular vote as well as the judgement of the superdelegates that we selected.

Ultimately there just isn’t a serious argument that Clinton is doing anything different than Obama in using the existing rules of the democratic party to maximum effect in pursuing the nomination. Obama isn’t going to renounce caucuses even though they skew the vote in his direction nor is Clinton going to renounce superdelegates. Now there may be reasonable arguments that the superdelegate system is bad but the mere fact that it can reverse the delegate count doesn’t make it any more suspect than our constitution or supreme court. Realistically, I think what is going on here is that most Obama supporters (like almost everyone) were pretty ignorant about the nature of the democratic nomination process and just assumed that it was a simple majoritarianish election. Thus when they felt they’d won that majoritarian election it felt deeply unfair that their ‘win’ might be undermined by these superdelegates though of course in actuality they had never won and it was never a simple majoritarian contest. Besides, nomination decisions aren’t about being fair at all; they are about maximizing the chances that reasonable views will prevail for the nation.

That is why, despite the fact that it’s perfectly reasonable for her to win using superdelegates, Clinton should drop out of the race now. I voted for her in the California primary because I thought she was a more reliable choice to run the country but for the good of both the party and the country she should give it up now. Like it or not people perceive the superdelegates to be some kind of sketchy cabal overturning the will of the people rather than the way they see senators or MPs. By extending the campaign Clinton will only tarnish the appeal of both her an Obama and if she wins after this she will immediately alienate a large section of the party. I mean can you imagine how many people would be disenchanted with the party if the first credible black canidate won the national party vote only to be passed over because of opaque party machinations of (mostly white?) insiders? It’s totally unfair but as I said the nomination is not about being fair to the canidates but about picking someone a good canidate who is likely to win. Besides, after she started whining about always being asked questions first I began to have serious doubts about her electability. Doesn’t matter if she is right you can’t whine while running for president (and yes it would be just as bad if not worse if she was a man).

On the radio program I’m listening to and all over the web people are (or at least were a year ago) wringing their hands over the fact that 13% of US muslims said that suicide bombing could sometimes be justified. What a dumb fucking question. Of course suicide bombing can sometimes be justified. In fact I think the low percent answering yes suggests a troubling failures of logic and imagination.

I mean how many people would really feel that Stauffenberg would really have been doing a moral wrong if he had staid in the conference room with the bomb and actually made sure he killed Hitler instead of failing. You might not believe he was morally obligated to do so but surely giving your life even for a 10% greater chance of saving millions is not morally impermissable. Now true if we look at the actual PEW center study we see the question is posed in a slightly more troubling manner. It asks about suicide bombing against civilian targets for the defense of islam. But even if history doesn’t provide us with easy examples where this sort of action was acutally justified it isn’t hard to imagine ones where it would be justified. For instance suppose Hitler was clearly a civilian leader of the country (as our president and secretary of defense are) and the holocaust had been directed against muslims.

Admittedly the results of the survey are in fact somewhat disturbing given that there were a small but non-trivial percent of respondants who said that suicide bombing was ’sometimes’ or even ‘often’ justified as opposed to rarely (but when you are talking 5% and 1% respectively you have to wonder if they are just blowing off steam from a bad day, or just fucking with people. I mean hell what percentage of Australians answered ‘jedi’ for their religion on the census?). However, little of the hand wringing bothers to go beyond saying that some muslims think suicide bombing can be justified as if that was a facially absurd or immoral view.

I’m not going to take a position on whether the survey itself is disturbing or not (though it has been overblown) but let’s drop this stupid pretense that somehow suicide bombing is facially beyond the pale. Our own movies are filled with heroic suicide attacks, even bombings sometimes against targets that would technically qualify as civilian (evil corporate masterminds bankrolling assassinations and murders, drug kingpins who rely on others to implausibly poision children and so forth). The truth is that we find ‘terrorist’s’ suicide bombings so abhorrent because we view their cause as unjust, their means disproportionate and their targets largely innocent. Indeed we are right to do so but we can’t pretend we aren’t making a substantive moral claim by hiding behind a criticism of the means terrorists use. The bombing of the US barracks in Beirut wouldn’t have been ok if the truck was radio controlled instead of driven by a suicide bomber despite obviously being a military target.

The modern 24 hours news cycle is pretty good at deluging us with bizarre attempts from around the world to enforce the law and encourage social compliance but this one still surprised me. Someone in the UK apparently thought it was a good idea to have local schoolchildren lecture drivers so they have “chance to hear directly what the children think of speeding drivers.” For christ’s sake can’t they at least pretend to have put serious thought into this program instead of going with a feel good solution?

I mean presumably the only reason anyone might (honestly) support such a program is because they thought that deaths and injuries caused by speeding were a serious social harm and lectures would increase overall welfare by being a more effective deterrent. But if you really thought speeding was that big a harm go raise the fines or impose jail time on speeders. In fact it’s far from clear that speeding is even a net harm since the revenue contributes to society while allowing those who gain the most from speeding pay in to society for a small indulgence. It’s downright silly to think that this new program would provide such greater deterrence per unit of suffering to justify trading the revenue from tickets for the expense of having children give lectures. Somehow I doubt they gathered even the smallest smidgen of evidence about this or even thought about it. Nor, I suspect, did they even consider whether the greater attention people pay while speeding (gotta look out for cops) compensates for the increased danger of faster driving.

What really bugs me about this program though is the underlying dishonesty, underhanded social pressure and the dangerous cultural tendency is represents. Just bringing in children to confront a speeder is like pulling out a cute puppy during a political debate and saying, “your plan will kill little munchkins.” Having the children deliver the lecture is downright disgusting. This program doesn’t tell speeders “what the children think” of them. That’s absurd. If they primed the children with stories about race cars and fast driving instead of how bad speeding is they would say something entirely different. These children are being used as mouthpieces to deliver moral lectures that couldn’t stand on their own two feet. You can resent the police man for being an idiot or blowing up speeding into something more than it is but it’s not the children’s fault so you can’t resent them and you surely can’t point out to them that cost-benefit analysis really doesn’t support their position. Frankly, I think it’s despicable to hide behind children so people can’t respond to your moralizing bullshit.

But sure if we have to go this way: won’t someone think of the children? Isn’t anyone worried about underhanded emotional tricks being held up to our children as the right way to confront those who disagree? What about the effect of substituting feel good emotional appeals for real cost-benefit analysis? Shouldn’t we be teaching them the virtues of an objective evenhanded justice system that enforces the law rather than moral prejudices? This case might be harmless and silly but this is the same kind of thinking that causes the unjustified exaggeration of anti-smoking laws, laws against fatty food not to mention attempts to legally persecute the overweight as well as our stupidly moralistic rules about sexual content and intoxicating substances. If out society is going to remain free we need to do more than mechanically enforce certain legal guarantees; we need to cultivate the attitude that the law is an impartial means of punishing people who break the rules not a means of perpetuating your moral preferences on others.