This morning the supreme court released it’s opinion in Heller. Additional commentary from SCOTUSblog can be found here, here, and here and the Volokh conspiracy has some good commentary as well but some technical issues on their end temporarily prevent me from linking directly to their posts on the subject. The upshot of all of this is that the court decided by 5-4 to affirm the judgment of the appeals court and invalidate the DC handgun ban.

I find the Heller opinion and associated dissents disappointing for several reasons. On a pragmatic level I would have preferred a larger majority for either side rather than the narrow 5-4 opinion that virtually guarantees this issue will continue to be fought at ballot boxes and courtrooms for years before we have a firm precedent for second amendment interpretation. On a more theoretical level I find neither the majority or the dissent offer a very compelling case for their interpretation.

Steven’s dissenting opinion pulls out the old canard that the second amendment merely protects the right to own a gun as part of some official organized militia, i.e., the feds can’t stop the states from designating individuals as militia members and allowing them to keep weapons. Scalia’s majority opinion decisively repudiates this view by pointing out that the militia was understood at that time to be the preexisting body of armed citizens. Moreover, it seems clear to me that one of the motivations behind the second amendment was to create an armed citizenry capable of resisting tyranny as they did in the American revolution. In other words the choice to give this right to the people rather than the states was deliberate and reflects the clear belief on the part of the founders that individual citizens had the right to keep the sort of arms necessary to be effective members of a citizen army. Ultimately it simply doesn’t make sense to grant this right to the people at large if it was really a right of the states to designate people who could bear arms.

But the second amendment simply makes no mention of individual self-defense and no amount of Scalia’s fancy footwork can change that. The best argument Scalia can make is citing sources from shortly after the 2nd amendment was passed who choose to take it as guaranteeing an individual right to self-defense. If the justices wanted to find the right to own arms for self-defense was one of the unenumerated rights or part of the penumbra then I would consider the argument but it simply isn’t part of the second amendment. Given the understanding of the federal government at the time of ratification it would actually be somewhat puzzling for the framers to write in protection of an individual’s right to self-defense from the federal government. Unlike today the worry wasn’t over regulation by the federal government but outright tyranny: laws against protest/criticism, eliminating resistance by disarming parts of the population. Moreover, Breyer makes a compelling argument against an absolute right to individual self-defense by pointing out a ratification era law barring the storage of loaded weapons inside buildings for the safety of firefighters.

However, even if you accept that the second amendment preserves an individual right to self-defense Scalia’s opinion offers no convincing response to the argument by Washington DC that long guns (shotguns, rifles, assault rifles?) are sufficient for this purpose. Indeed according to SCOTUSblog the district court had reviewed articles suggesting that long guns were more effective for home defense. All Scalia does is observe that hand guns are the most popular choice of weapon for self-defense but this tells us nothing. Maybe people buy handguns for self-defense because it looks like the guns on TV but surely the 2nd amendment doesn’t guarantee the right to own a ‘badass’ self-defense weapon. More generally this leaves us with no idea what sort of weapons the government can restrict. Can the government regulate tazers? What about mace? Frankly the idea that the second amendment would guarantee a right to a tazer if they were sufficiently popular strikes me a ludicrous. Moreover, Scalia’s view shows nearly no deference to the court’s deciscion in United States v. Miller which held that only weapons that were reasonably related to the preservation or efficiency of a well regulated militia received 2nd amendment protection.

In my view the right interpretation of the second amendment protects an individual right to own the sort of weapons that generic members of the infantry would use. Thus the government should not be able to bar the possession of M16s, AK-47s or rifles but handguns would be fair game. Not only is this more true to the constitutional text and the original intent it is consistent with Miller. Unfortunately it’s also maximally politically unpalatable. It simultaneously pisses off the pro-gun lobby by allowing handgun bans while scaring the anti-gun lobby by eliminating bans on assault weapons. Of course the assault weapons ban is based purely on emotion (assault weapons scare people) not on a rational comparison of the joy peaceful users get with the harms a ban could avert. But when has that mattered? Note that my understanding of the second amendment would also allow laws banning the storage of loaded weapons in the house or other measures designed to avert accidental deaths.

This having been said I’m open to arguments for a national gun ban, or very heavy regulation. I’m skeptical that local regulations could be that effective in deterring gun deaths given the difficulty in preventing interstate transport of weapons but I would be more hopeful about a national regulatory regime. I just think any such law should be preceded by an amendment to the constitution. However, we must guard against the temptation to regulate guns just because they seem scary and are often used in crimes. While I have some guesses about what would and wouldn’t be reasonable laws I would be unwilling to encourage any specific law until I’d seen and understood the statistical arguments by both sides and I hope that other people will do the same.

So Phillip Sands, the author of torture team, is being interviewed on NPR as we speak about the use of harsh interrogation techniques at Guantanamo. Now I’m seriously bothered but many of the revelations about Guantanamo, particularly the possibility that we used harsh interrogation methods when we had strong reason to believe they wouldn’t be effective and that we kept people locked up despite strong reason to believe they posed no threat nor had committed no crime just to avoid looking foolish. Certainly the indefinite secret detention of people and the use of techniques like water boarding violates the spirit of both the US constitution and international human rights treaties whether or not they constitute technical violations. However, the suggestion that senior officials in the Bush administration, including Bush himself, face a real risk of being subject to criminal penalties by foreign nations is just absurd and actually encourages human rights violations. Moreover, the notion that merely suggesting that US law doesn’t bar certain kinds of harsh interrogation techniques is itself a war crime is flat out absurd.

Now is it possible that top members of the Bush administration will face prosecution for things they did in office? Yes, if later revelations stoke up sufficient public outrage they could face charges in the US but even that seems most unlikely. But the idea that Bush might end up being arrested during a trip to Europe after he leaves office is simply laughable. It’s one thing for the Europeans to arrest the former dictator of Chile and prosecute him for crimes that he had legal immunity for in Chile. Not only was there enough support in Chile for him to be (unsuccessfully) prosecuted but a country like Chile has much less international influence than the United States. Given the attitudes of US citizens toward international courts and US independence it’s simply not plausible that we wouldn’t make a fuss if another country tried to arrest Bush after he left office. It’s one thing to arrest a foreign dictator another to arrest a US president whose actions were supported by a substantial fraction of the populace. Even many people who might favor a prosecution in the US would recoil at the idea that the Europeans or anyone else could tell us what we could and couldn’t do. Arresting a former US president is the kind of stupid idea that could lead to a war (but won’t since no non-symbolic arrest will happen).

Moreover, perpetuating these simplistic attitudes about international law actually encourages human rights violations. Despite the fact that Chinese leaders and Kim Jung-Il have certainly committed human rights violations, including some that likely amount to torture, there is no serious suggestion that they will be prosecuted. This is appropriate as productive engagement is much more likely to improve the human condition than a hard line attitude. However, foreign leaders, knowing they won’t have the protections former US presidents enjoy, aren’t stupid will react accordingly. If they see that leaders of repressive regimes will be protected from prosecutions but former leaders of more open societies are not they have a substantial incentive to cling to power. On the other hand if we save war crime prosecution for truly horrific acts (genocide etc..) it might persuade dictators to soften their tactics or even give up power in exchange for pledges of immunity.

Finally I have to say I’m boggled by the idea that merely expressing a legal opinion about what US law allows could make one a war criminal. I mean if Yoo is supposed to be a war criminal for suggesting that water boarding was legal wouldn’t the human rights activist who protests the lack of a law preventing a US president from ordering water boarding be equally guilty? Now of course a legal opinion from the president’s legal advisers has legal significance that the opinion of a human right’s activist lacks but surely that legal significance doesn’t make it a war crime not to lie. If that human rights protestor was appointed as a legal adviser to be president he surely would not suddenly then be obligated to lie and pretend there was a law that barred water boarding when there was not. But if it isn’t criminal (or even immoral) for a legal advisor to say that water boarding isn’t currently illegal but really should be outlawed surely it can’t be criminal for him to mistakenly claim it isn’t currently illegal.

Now certainly, as we saw during the Nuremberg trials, if a lawyer goes beyond observing that something is legal to actively participating in decisions that choose to implement it than things are different. I suspect the intuition that Yoo has committed war crimes comes from people’s assumption that he deliberately twisted the law to achieve his preferred policy outcomes. However, as hard as it may be to believe, it’s far from clear that Yoo consciously did anything of the kind and it would certainly be near impossible to prove any such thing even if you think that water boarding rises to the level of a war crime.

So today on slashdot I ran across a link to law professor Daniel Solove’s article grappling with the “nothing to hide” argument against privacy protections. He certainly has some thought provoking things to say and his new book will likely be interesting but I think he makes some fundamental errors in his approach to the subject. Nevertheless, reading it did inspire me to better formulate some of my thoughts on the subject.

The problem with Solove’s arguments is that he tries to simultaneously argue for the value of privacy while seemingly rejecting the notion that there is any principled commonality to the values that we place under the rubric of privacy. While both of these notions are plausible on their own they are in significant tension with each other. If indeed privacy is a word like ‘game’, famously analyzed by Wittgenstein to be a hodgepodge of different concepts related only by a chain of analogies, then it’s at best pointless and confusing to defend it as a package and at worst a way to smuggle in values you can’t defend using the cover of an unprincipled linguistic grouping. Unless the values we term privacy have some important principled commonality then they should stand or fall on their own merits rather than riding the coat tails of the vague positive connotations we have with the word privacy.

To see that privacy isn’t really a monolithic notion compare the idea that other people shouldn’t be able to easily find out your social security number really doesn’t have much to do with the idea that the government shouldn’t be able to monitor your phone calls and reading habits. These two notions don’t really have very much in common. One of them is concerned with other people’s knowledge of your intimate affairs and private conversations while the other involves only a purely arbitrary identifying number. The reason we don’t want people to find out our social security number isn’t because it’s an intimate detail of our life but because it’s unfortunately used as an authentication method for certain financial transactions and we fear becoming the victims of credit fraud. Certainly it’s important that people not be able to buy a car in my name but arguments that defend my right to be free of government surveillance aren’t going to have much to say about who finds out my social security number and vice versa.

However, I do think there is a certain core concept that is shared by many, though far from all, things we conceptualize as a right to privacy. That is the notion that we should enjoy a certain autonomy or freedom of choice, both from the government and society, in how we conduct certain parts of our lives. Certainly this is no definition of even one kind of privacy but I think it’s the uncritical acceptance that it’s literally privacy that’s important that sidetracks so many people into silly issues like what facebook publishes by default on their friend feed¹. The reason I tend to be largely critical of privacy crusaders is that they tend to take the idea too literally and fight a lost cause trying to limit what other people are able to learn about you (endangering free speech….and privacy² along the way) rather than looking for the underlying value privacy provides for the culture and seeing how best to achieve that end in the information age

Ultimately what privacy provides is the freedom from judgment (be it legal, religious or social) about certain aspects of our lives. It does this both by making it practically difficult to enforce certain kinds of invasive laws (thus discouraging their enactment) as well as keeping your porn collection or wild spring break party a secret from your parents/priest/boss. Both of these mechanisms are endangered by the information age. The traditional protections of 4th amendment law border on uselessness in the face of fancy data mining programs to suggest likely offenders, the amount of information out there on the internet (your friends and neighbors gossip…and may take infrared pictures of your house even if the police can’t), and the huge amount of information we store on computers (police can subpoena your ISP’s buisness records or get access to your entire computer if they have probable cause to see even one document). Similarly search programs and the inevitable advent of facial recognition along with people’s tendency to post pictures to the internet will erase the anonymity you might have once had on spring break.

However, I think we can find replacements for these tools that provide the same benefits in the information age. Just as some other cultures have done we need to develop traditions of ignoring (or at least not scolding) based on certain aspects of people’s lives. This is the reason that unequal loss of privacy/anonymity is so much more dangerous than an equitable loss. Everyone has things that might embarrass them or present a less than professional image and if we all know that these can easily be found we are much more likely to let other people have their personal space as well. The legal aspect will be more difficult but it is also achievable. We will need to shift the focus of our protections away from the guarding of information and towards rules against intrusiveness. Perhaps in addition to rules requiring search warrants we could have rules barring unprompted investigation, i.e., rules that prevent tearing someone’s life up for a crime without a particularized identification of a victim who does/would have wanted an investigation. That’s just a shot in the dark but I suspect something better will be found.

In case you hadn’t heard Judge Kozinski just decided to recuse himself from the obscenity trial of Ira Issaacs because of the controversial pictures found in a (mistakenly) publicly accessible directory on his website. Reading the LA times article I linked above might give you the impression someone stumbled across his porn stash but an email from his wife and the comments in response to the Volokh Conspiracy coverage reveals that it wasn’t so much porn as crude humor. The most offensive content seems to have been either a man trying to relieve himself forced to flee from an aroused donkey or a (likely faked) picture of a young man fellating himself captioned with a spoof on the mastercard ‘priceless’ commercials. Hardly hard core content and even if it had been so what? The judge’s material was hosted on a private computer (possibly uploaded by his son) and (with the exceptions of minor copyright violations) there is no serious argument that he is guilty of any crime.

In fact I find it downright worrisome that judges can be forced to recuse themselves from an obscenity trial because they have tastes that some people find offensive. In effect if we demand that judges who are known to like risque pictures recuse themselves from obscenity cases we bias the pool of judges in a puritanical direction, much like death qualifying a jury biases them towards conviction. Now some might argue that a judge is obligated to recuse himself in a situation like this on the grounds that it demonstrates a conflict of interest but that argument is easily shown to be flawed.

Presumably the reason one might think there is a conflict of interest is that if Kozinski likes looking at risque photos he might feel greater affinity for the defendant or want to keep such images legal. However, if valid this argument would apply equally strongly to the judge who doesn’t like looking at risque pictures or finds them disgusting/offensive. After all if you find porn objectionable you probably have an even stronger motivation to find for the prosecution than someone who found some risque pictures amusing had to find for the defense. But of course no one would dream of demanding a judge recuse themselves because they dislike pornography.

If you still think Kozinski is obligated to recuse himself try replacing a pornography with death metal and check if the arguments still holds. Imagine that the government brought an obscenity prosecution against a band for playing some offensive kind of rock and roll back in the 50s or 60s (suppose Slayer was teleported back in time). Should judges have to recuse themselves in this case because they have been observed by members of the public rocking out in their car? Or most realistically suppose there was an obscenity prosecution over a book depicting child sexuality. Should a judge who read Lolita in college have to recuse themselves? What if they publicly admitted it was their favorite book thereby prompting a public outcry?

Ultimately judges are what stands in the way of tyranny by the majority (or minority who shames the majority into submission) and it’s harder for them to do that if they can be shamed into recusal because they aren’t sufficiently prudish. Unfortunately, because pornography is a sexual taboo there is an unfortunate tendency against defending it. Despite the vast numbers of people who consume internet porn no one wants to tell a news reporter they do, or even vigorously defend the practice lest their mom or aunt or whoever read this in the paper. This let’s people get away with ridiculous errors in logic that would be obviously absurd in any other context. Just in searching for background on this subject I ran into several articles that cast the general tendency of people to get bored with stuff they have already seen/done as if it was akin to drug addiction in the case of pornography. This situation with judge Kozinski is just another example that would never have happened if people didn’t shut off their brains when the issue of pornography came up.

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.

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

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.

So California assemblyman John Benoit announced legislation today that would set up numerical limits for the amount of illegal drugs (I believe schedule 1 substances excluding marijuana¹) one could have in your blood stream and legally drive similar to the .08 BAC limit for alcohol. Apparently the lack of such specific limits is making it difficult to prosecute inebriated drivers (presumably because they must convince the jury of they reached some subjective level of impairment). This is a good reasonable idea that would likely save lives

But of course a proposal as sane and reasonable as this was too good to be true. Benoit has now said (same article) that he is seriously considering making this a zero tolerance law. Yup, that’s right apparently demonstrating our moral outrage that people are taking illicit substances is more important than saving lives on our highways.

As we all know from drug testing in athletes drugs can be detected in your bloodstream long after the individual in question has sobered up. Thus if you are a drug user the net effect of such a zero tolerance law would be to decrease the relative penalty for driving while inebriated. If you know that even if you wait till the next morning to drive the police could still throw you in jail because of the residual drugs in your bloodstream then why bother waiting? We’ve already (unreasonably in my opinion) expressed our moral disapproval of drugs by making them illegal but it’s criminally stupid to put our moral outrage over people’s lives. Not to mention the perfectly sober people who partied the night before who will end up in jail under such a program.

Of course if groups like Mother’s Against Drunk Driving are really about saving lives and improving highway safety I expect them to come out strongly against bills like this one. I On the other hand if they are about revenge and getting even with that type of person they will probably support this kind of zero-tolerance legislation. I’ll leave it to the reader to decide which is more likely.

So I finally got my application in for the NSF postdoc and got some needed sleep. So instead of working on my math like I should be now I went and downloaded the new Radiohead CD, “Rainbows.” Now I don’t actually like Radiohead that much so I didn’t pay anything at all¹ and that’s a perfect example of the inefficiency of the current copyright system. I’m likely to get some positive utility out of this (satisfying a hoarding instinct if nothing else) and this utility is a pure loss on a normal copyright system. However, it’s pretty annoying to hear all the people on the media and in forums act as if the fact that people are paying Radiohead for their CD shows that this is a plausible alternative model.

Even paying $0 for real honest reasons (worth less to me than transaction cost of using a credit card) even I was inclined to feel a little bit guilty and no doubt this is what causes people who actually like Radiohead to chip in a reasonable amount. But one feels guilt primarily because you feel that Radiohead is somehow stepping out on a limb by trusting users to set their own price. If this was ever to become a common practice that pressure would disappear. More critically is that the very people like me this system benefits will cause it to break.

People have strong intuitions of fairness and if you ever tried to distribute music more generally with this sort of system people would start feeling like suckers when they pay twice what their friend did for the music. Ultimately there will be an inevitable slow creep to the bottom as people check with their friends and see that their only paying $6 so that’s not cheating if I do that or come up with other reasons why it’s okay not to pay a bit less. I mean hasn’t everyone someone justifying their use of P2P by saying they would buy music if only the studies didn’t produce such crap? The same process of self-justification would start to happen with self-priced products as well. Besides, who is going to decide to buy 5 CDs worth of music they only sorta like for their car trip because they only have $15 to spend and they value the CDs they really like more than that?

No, I’m afraid solving the inefficiencies of the copyright system will require a fundamental change to the system of IP for creative content. Some means of truly collective purchase is required and the best system that I can think of at this point is to put works in the public domain after 3 years or so with a taxpayer funded system that compensates content producers based on numbers of tracked downloads from some central online repository. Maybe some clever person can figure out something better but as IP fills a bigger and bigger role in our lives the unacceptable inefficiencies of the current market become less and less bearable so sooner or latter something will change.