Before we begin just consider the fact that creating a second senate consisting of hundreds of senators from each state with the power to repeal legislation with a 2/3 majority of the states would be essentially equivalent to this proposal. If you don’t think that a second senate with this limited power would be beneficial what could possibly be beneficial about this proposal? Now let’s consider the particulars.

First the purely practical aspect: what does it mean to repeal a piece of legislation? Does this mean that the states can repeal any passage/clause/section in federal legislation or does it only grant them an all or nothing choice to repeal an entire bill. I presume the suggestion is the later (so a repeal acts like a late presidential veto) since otherwise the state legislatures would effectively be a second congress, e.g., if congress strikes a balance between some kind of invasive search and judicial protections the states would be essentially writing their own legislation if they could simply strike out half that balance. Since this is the reasonable interpretation and the one closest to the proposed text I’ll assume that only entire bills or regulations could be repealed.

But this now creates massive problems. What if congress passes a law that changes the classification of Marijuana and psychedelics from schedule I to schedule II allowing it to be used medicinally then later congress decides that since it’s only `hard’ drugs in schedule I to increase the penalties for trafficking in a schedule I substance. If the states later repeal the bill reclassifying the psychedelics does trafficking these substances now come with a greater criminal penalty than congress (or a majority of the states) ever intended? This is just the tip of the iceberg.

What if congress decides to change the nomenclature in the same bill in which they legalize the medical use of Marijuana so instead of schedules I-V it’s now class A-E. Shortly afterward congress passes another bill revamping all the criminal penalties and whose text indicates that it repeals all previous criminal penalties for trafficking in drugs in favor of a new system of penalties phrased in terms of classes A-E. If the states repeal the bill legalizing medical use of Marijuana does this mean that all criminal penalties for drug trafficking are eliminated? After all the only non-repealed trafficking laws reference class A-E substances which no longer exist since the law creating them was repealed. As nice as result as that might be in this case the problems are starting to mount.

These issues were bad enough when we imagined the conflicts occurred by accident but what happens when congress wants to prevent the states from repealing their bills? They could simply pass popular bills right after the legislation at risk of repeal in such a way that should the states repeal the controversial bill the popular legislation would be rendered inoperative. As a silly example one might pass an agriculture funding bill which reads “No monies shall be distributed in excess of the number of words in section Y of the law multiplied by 10 million dollars,” where section Y was introduced by the controversial bill. Thus were the controversial bill to be repealed farm subsidies would be immediately halted. Should they wish to be less obviously contrived congress could simply package up the various bills they plan to pass in such a way that 2/3 of the states wouldn’t be able to agree on exactly what to repeal.

Finally, since the house and senate set their own rules it’s quite possible that “deem and pass” is perfectly constitutional. If so congress could break up the laws into an arbitrary collection of bills to undermine any potential state coalition. Alternatively congress could simply rewrite the rules preventing them from packing absolutely everything into one giant bill to evade the veto in that manner.

Now that we hit upon some of the practical problems let’s move on to the theoretical failures. The first and most puzzling of which is why would such a legislative veto be desirable now that we have direct election of senators? For a bill to pass congress it must have already received support from a majority of the elected senators so why should we let state legislatures which are often ignored by voters override the choices of the senators they elected? Despite the implications by Barnett that somehow state legislatures have more wisdom for the most part state legislators are much less likely to be knowledgeable about policy than our federal representatives. Indeed, it should strike one as weird that 2/3 of state legislators might vote to repeal what a majority of senators supported when they represent the same constituents.

This consideration exposes the true effect of such a measure and the motivation for considering it now. State legislators have national party affiliations and feel obligations to support that parties national views. Thus even though you may have voted for your republican state assemblyman because he has reasonable moderate views on taxes, school funding and etc.. he will likely feel pressure to vote for repeal of moderate democratic initiatives at the national level. In conservative states the democratic candidates for state legislature tend to be fairly conservative and vice versa but would still feel pressure from the national party to tow the national party line. In short letting state legislatures repeal federal laws would force voters to compromise between the candidates who have the best local policies and those that are most likely to be loyal to the voter’s favored national policies yielding less optimal results. It’s only because currently states are more heavily republican than the federal government that this suggestion is gaining any traction but if the states started repealing laws then the parties elected at a state level would start to follow the federal trends.

Lastly allowing states to repeal regulations as well as legislation totally undermines the benefits of regulation. The advantage of regulation, and the reason we don’t do everything by legislation, is that regulations can be issued by appointees under less direct political pressure. For instance regulations about safe levels of chemicals in drinking water can be issued by regulators who are some distance removed from lobbyists. Allowing state legislatures to repeal regulations puts this advantage at risk.

Certainly as far as US constitutional jurisprudence goes this isn’t the rule. In TENNESSEE v. GARNER, 471 U.S. 1 (1985) the court held

It is not, however, unconstitutional on its face. Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.

Notice the lack of any mention of imminence. Of course both common sense (and perhaps even other precedents) suggest that if other non-lethal means could be used to eliminate the threat then it would be unjustified to use lethal force. However, apriori consideration shows that reasonable outcomes require that it it be the absence of reasonable non-lethal means to avert a likely harm, not the imminence of the harm, that must justify lethal force against a dangerous individual.

The easiest counterexample is that of a terrorist on the verge of dispersing a surely lethal biological agent with a several week incubation period. Even though the deaths wouldn’t occur for several weeks surely it is justifiable to use deadly force to stop the terrorist from dispersing the germs. Thus it can’t be the imminance of the fatalities that matter but maybe it’s the imminance of the harm where the harm is injection with the biological agent. But surely it would make no difference if instead the terrorist was about trigger a remote device in an unknown, undiscoverable location in a major city that would disperse the biological agent after a week long countdown.

So maybe then it’s the imminance of the murderous act that is relevant regardless of when the consequences come to pass. Thus deadly force is justified in the above examples because the subject is on the verge of an action that seriously threatens the lives of others. This is an attractive view but again we can show this can’t be the right rule by considering a hypothetical.

This time imagine the terrorist has stolen a deadly biological weapon from a military lab but the spores are contained in a tamper resistant box that will take about 5 minutes to be opened. The terrorist is making no attempt to open the box but is about to steal a tank which the police know he plans to drive into a nearby city where he will release the biological agent. Surely if the police know that once inside the protection of the tank they will be powerless to stop the terrorist lethal force is justified in preventing him from entering the tank. I could extend the example further but the point seems clear, the law must deem lethal force justifiable when it’s the last and only chance to prevent a highly probable future murder even if that murder is distant in time and space from the use of the force. Our normal intuitions about the need for an imminent threat are a consequence of the fact that in most situations where the harm is not imminent the use of lethal force can be delayed without great risk.

Still one might distinguish the tank stealing terrorist case from the targeted killing situation by appeal to the fact that the tank stealing terrorist is currently in the midst of a concrete attempt to take lives. However, we allow law enforcement to kill hostage takers who are merely threatening to kill others but not currently executing a lethal plan and surely having a leadership position in a genuine terrorist organization puts you in the position of threatening to kill others, after all that’s your publicly stated goal. Moreover, in such a situation it is impossible to know when the terrorist leader might order an attack so one rarely will have reason to believe the killing may be delayed without incurring substantially more risk. Indeed, the situation seems very similar to a hostage taker, who may or may not be wearing a real bomb, visible through the window to the police sniper where the mere chance that the hostage taker might set in motion a deadly chain of events is enough to justify lethal force.

This suggests to me that the relevant distinction with respect to targeted killings is between those killings undertaken for the purposes of direct self-defense, i.e., to stop a terrorist leader from ordering/organizing a deadly attack, and those undertaken for strategic reasons, e.g., killing a terrorist leader with a purely PR role to instill fear in potential allies of the group. I’m not sure when either should be allowed but this seems to be a much more reasonable place to draw a line than imminence.

On a different point I suspect that it would actually be extremely easy for a suspect terrorist to remove themselves from the US government’s list of targets. Far from being flung in a dark hole in the ground if such an individual presented themselves at a US consulate I’m sure the CIA would offer them piles of cash to reveal information about their contacts.

Consider google’s (well stanford’s) PageRank patent. Recognizing that one could create a useful measure of a page’s importance by summing up the importance of the pages linking to it and realizing that this could be efficiently computed using tricks from linear algebra was anything but trivial. Indeed, this kind of non-trivial application of mathematics to an ill-defined problem (return the best search) is a prototypical example of the sort of discovery that benefits from patent protection. Society can derive great benefits from these kinds of discoveries and money will lure people with the expertise to solve these problems away from pure mathematics or the sciences but without the ability to patent the discovery the financial incentives wouldn’t exist². While most software patents are more like the 1-click patent than the PageRank patent there is no shortage of real world problems that are crying out for a similarly brilliant solution.

In the face of examples like google’s PageRank patent it’s tempting to say that software patents are just dandy and the real problem is obvious patents. Unfortunately, it’s not that simple. Consider a hypothetical patent on the use of a LRU (least recently used) cache for texture data in a MMORPG client³. It’s certainly obvious in the sense that any decently skilled software developer would consider that solution if he was asked to solve the problem but until you actually try this design it’s not clear that an LRU cache would work. Maybe players don’t backtrack much so an LRU cache would simply waste resources on rooms the player won’t see again for awhile. At least in this example it seems clear that simply noticing that a fairly obvious approach solved the problem shouldn’t warrant a patent. The cost of actually testing out the ‘discovery’ is quite low and usually there are only a few obvious approaches to try.

However, such a rule would be totally unworkable in another industry where there might be a vast array of potential approaches that experts in the field would agree seemed promising but the cost of investigating them are quite high. For instance in the pharmaceutical industry everyone might realize that a certain large class of compounds are promising candidates to treat depression but actually evaluating each of these compounds for efficacy and safety is very costly. Incentivizing drug development requires that we let the pharmaceutical company patent their discovery that compound 5043A1 actually works to treat depression.

Ultimately I think the real problem stems from the fact that we are lumping two very different kinds of invention into the patent system. There is the first type of invention, like the google PageRank system, that represents a flash of inspiration to try something that no one else thought of and then there is the second type of invention that consists of the discovery that some potential solution really works. Ideally the patent system would protect the first kind of discovery pretty broadly but only protect the second sort of discovery in industries where it requires considerable resources to ascertain which of many potential solutions succeeds.

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.

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.

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 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.

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.

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.

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

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.

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.

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.

As far as Hill goes there is nothing unusual to explain. It would be surprising to find a sexual harassment case where both sides weren’t angry about it. Whatever the truth each person always (mis)remembers events from their own point of view. That’s in the past and whether or not he was a cruel or socially clueless guy back then really isn’t relevant to his legal scholarship. However, what really bugs me about the Thomas issue is the constant suggestion that he is somehow a hypocrite for benefiting for affirmative action and then opposing it. The logical fallacy here is clear. No one would believe that opposing nationalized health care meant you shouldn’t use it if it is created so why would you think this about affirmative action. In fact being able to oppose something that has benefited you is an important virtue (not claiming this is at play here) not a flaw. The new attack is to call him a hypocrite for not believing he was getting an affirmative action appointment to the supreme court¹ but is it really that hard to believe that someone convinced themselves they were being rewarded for their merit? It isn’t like most people don’t convince themselves religion is true because they want to believe.

Now I happen to think that Thomas’s views on constitutional interpretation are harmful and would much prefer a justice who believes in a more evolutionary approach to jurisprudence but this doesn’t mean I can’t recognize that Thomas has a respectable intellectually plausible approach that he follows with at least as much consistency as other supreme court justices. Even if you disagree with his view on the harms of affirmative action it is a plausible theory seriously tendered and your obligation is to cite evidence refuting it not personally attack it’s proponents. For the love of god Thomas is just a guy, he may believe some gloriously wrong things but his beliefs are far more coherent and thoughtful than most liberals (or conservatives) I’ve met. He just happens to be wrong.

The furor and emotion surrounding Clarence Thomas is perhaps the best example of the true nature of politics. People aren’t really concerned about ideas and argument they care about group loyalty and emotional signaling. It doesn’t seem to matter to people that Thomas may have a reasonable argument for his position (they don’t even bother to refute it) they are angry because instead of showing gratitude to his ‘team’ even after benefiting from their gifts he switched sides and criticized those programs. No doubt this was a great way to approach things when you were trying to gain advantage in your tribe but it isn’t a good way to approach serious intellectual issues.

1. There are documented problems with the harshness of child abuse penalties (lifelong sex offender status etc..) discouraging family members from turning in their relatives. No doubt people are going to be an order of magnitude more reluctant to send their uncle or brother to jail for merely possessing child porn (whatever the truth is they will tell themselves he doesn’t hurt anyone). If child porn was decriminalized it might encourage more people to report pedophiles they know to social services who can then provide treatment.
2. Making possession and sharing of child porn illegal radically restricts the reuse of child porn. Suppose there is X amount of child porn that has ever been made and X is more than enough to satisfy most people. If they could all access that X amount there wouldn’t be as much motivation to molest kids to make child porn. On the other hand by making it illegal we likely take a great deal of that child porn off of the internet and balkanize the rest of it encouraging more people to pay for child porn and thereby encourage others to make it.
3. Prohibiting possession of something always creates a criminal element who tries to deliver that thing. Organized crime creating child porn may harm children more than the alternative. It’s hard to rate relative badness of this sort of thing but being repeatedly molested by a criminal enterprise may be much worse than being occasionally molested by your uncle.
4. Whenever you criminalize an activity that a fair number of the perpetrators see as victimless (“I just downloaded the pics I didn’t hurt anyone”) you reduce the barrier to further crime. This is the same way that government prohibition of weed has made it a gateway drug. In the legal scheme where mere possession of child porn is a felony many people may not see it as a big leap to go from mere possession to purchasing child porn from sketchy eastern European websites. On the other hand if you make it a felony to purchase child porn but not merely to possess it you might very well do more to suppress the profit motive in abusing children.
5. I suspect that some people who like to look at child porn (or at least who would were it not a felony) are actually decent people who do believe that children shouldn’t be molested, they just happen to be turned on by it. For instance some girls both feel very strongly about protecting college girls from being taken advantage of yet also find porn that depicts it really hot. I have no reason to believe that there aren’t some people who are turned on by child porn who feel similarly. By decriminalizing mere possession you can enlist the aid of these people in tracking down the abusers who make the material.
6. Making possession of child porn a felony encourages people to be very careful about who they share it with reducing the distribution of any single image. This makes it much less likely that the child pornographer will be caught since it is less likely to make it to the police in a timely fashion.
7. Sending otherwise productive members of society to prison and especially inflicting punitive sex predator laws on them is not only a huge societal cost but makes them more likely to offend. The guy who is turned on by molesting kids but has a nice career, friends and family may very well keep his desires under control. Send him to prison for a few years because you find some child porn on his hard drive and he may very well become bitter and having little left to lose descend to actually molesting children.
8. Maybe people who would otherwise get treatment are scared of asking for help lest their child porn collections be suspected and they get sent to jail. Since therapy seems to be helpful in preventing more abuse this could be another potential avenue of harm.
9. Perhaps the release provided to pedophiles by looking at child porn makes them less likely to go out and molest. While I think this is the least likely of all these points it needs serious study not another mass media sensationalization about a correlation between the two (duh people who want to look at child porn more likely to molest kids).

Now maybe these factors all end up getting balanced out by other ones but I seriously doubt that these questions have been seriously studied. They certainly weren’t why we passed the laws against child porn. Frankly I don’t really know whether child porn laws help or hurt and given that I’m unsure I think the default state should be not to regulate speech/content. However, one can reasonably disagree with this point.

What one can’t reasonably disagree with is that we have a morally responsibility to seriously examine whether laws criminalizing child porn reduce or increase the number of children who are molested. If you are in a position to seriously influence the law (politician etc..) and you allow more children to be molested because you want to make something as disgusting as child porn illegal or just because you are too lazy to consider the arguments then your not much better (maybe worse) than a child molester yourself. At least child molesters have the small excuse of extreme psychological pressure but if you let it happen out of mere laziness you have no such excuse.

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1. By child porn I mean photographic evidence of what would be otherwise termed molestation of a child. Teens taking pics of each other or people taking candid shots of their kids getting out of their bath even if later used for sexual purpose are not what I am talking about here. Maybe other laws should cover these situations but that isn’t the subject here, nor will I address here the question of where to draw various age lines. ↩

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