The thorny problem of inconstant judges

One of the periodic themes of this journal is that the reality of power is everywhere and always messy. I have described my conception that the most important high-level problem to be solved is well-defined and secure property rights in the state itself. This is a slightly more formalized way of saying "secure power".  I'm certainly not claiming originality in this idea - Moldbug's formalism is what got me started thinking about this.

In viewing matters this way, I think it's important to know what we're studying. Perfectly secure power in a governing regime seems to be somewhat akin to a perfectly efficient engine. 

In both cases, it's easy to design one on paper. The process is entirely straightforward! Fuel is mixed with air, then inducted into the cylinder, then the spark plug ignites it. What could be easier than that? There's an absolute monarch, and everyone just follows his orders.

And then when you actually implement the thing, you find all sorts of leakages due to annoying complications in details of the machine that you'd largely abstracted away from. Understanding these turns out in many ways to be more of an engineering problem than a pure science problem. 

But even though the perfectly efficient engine or perfectly secure monarch may be a platonic ideal, that doesn't mean that the forces preventing you from getting there should be viewed as mysterious. Indeed, if you do that, you'll have a very hard time improving things. Maybe you can be a menshevik, and slightly improve the design. Maybe you need bolshevism, to start with a new design that doesn't produce these specific frictions (although, of course, it will produce others, perhaps others you hadn't encountered or thought about).

More importantly, in either case you should care very much about how far away you are from the platonic ideal. Otherwise you're just committing Asimov's Relativity of Wrong. Is your government the equivalent of a nuclear power plant, or a coal power plant? And if the latter, how might you change that? Moreover, the messy world of the social sciences makes things hard. Physicists love to mock the social sciences as being unscientific, but there's no escaping the fact that we have to design this particular power plant based on the computational output of a large number of meat sacks, all designed slightly differently, all interacting with each other. 

The modern world presents us with very few serious monarchs to examine. This also liberates us from focusing on the specifics of what went wrong in any one case (what could Louis XVI have done differently? Lots of things, as it turns out). 

A lot of people on the dissident right have thought hard about the problem of delegation, which is definitely a first order problem, probably the largest one. No man rules alone, and the sovereign's decisions have to implemented by his subordinates. What are their incentives to implement it honestly, or competently, or not divert resources to themselves?

But there is another problem that I think gets relatively less focus. Which is the following: how does the monarch prevent himself from being psychologically manipulated or pressured by those around him?

Among the closest modern analogs to an absolute monarch is a US Supreme Court Justice. The analogy is not exact, because there's a very small-scale democracy going on within the nine of them. But this is voting at a level where your vote often might matter, and you know the parties, and it's a repeated game. 

In the court context, the delegation problem is how to make sure the court's decisions get implemented by lower courts, and by other governmental agencies. This is still challenging - what happens if lower courts routinely ignore your precedent, and you have to slap them down over and over (or just let your decision get undermined)? What happens if people just refuse to follow it? That used to be a big problem but is less so these days. 

But if you're on the right, the delegation question is not the central problem with the court today. The Republicans have long made a point of trying to get better, more conservative justices appointed to the court. And yet, as night follows day, maybe half of the supposedly conservative justices turn out to become liberals. Maybe if we vote for Trump, we can get some more rock-ribbed conservative justices like Sandra Day O'Connor, Anthony Kennedy, David Souter, John Roberts, or, increasingly, Neil Gorsuch. 

This problem seems to be wonderfully emblematic of the failures of the mainstream right. They keep losing. They know they keep losing. They are unhappy about the fact that they keep losing. And yet, their state of the art solution is just "push harder!". More of the same should do the trick! More voting. More rallies. More donations to National Review. More Republican Senators and Presidents, so we can get more Republican-appointed judges, just like...the same ones that put us in the unsatisfying position.  For republicans, it's basically a coin flip. Appoint the guy to the court, and maybe he turns out to be a stalwart judicial conservative, like Scalia or Thomas. Maybe he turns out to be mushy, like Roberts. Maybe he turns out to be a complete liberal, like Souter. 

If your best case scenario is a 50/50 chance at being right, congratulations, you getting to appoint every single judge results in a random walk over judicial appointments. Lose a single election, and it's downward drift.

At almost no point does it seem to occur to the mainstream right- why do half the Justices we appoint turn out to be traitors? And more importantly, what can we do to stop this happening? 

Perhaps, dear Republicans, this is a problem you ought to spend more time seriously studying, rather than just turning the same crank over and over and expecting different results

There are a few ways to think about what might be going on.

The first possibility is treachery. Everyone has to hew to a narrow set of Overton Window beliefs to get appointed. Prospective Supreme Court Justices are all skilled at concealing their true feelings, if such feelings should be undiplomatic. They're experts at saying the right thing to get ahead. Republican party chiefs will just never know what a person will do until he's finally unconstrained. Power tends to corrupt, and absolute power corrupts absolutely, as Lord Acton put it. These guys don't get absolute power, but they get enough of it that when you can't force them to do what you want, they do as they please.

The main problem with this hypothesis is that it stumbles on the fact that Democrats never seem to have this problem. When the chips are down, and the issue before the court is politically charged, rather than just some arcane matter of trusts law, Democrat appointees always seem to toe the party line.

So if this is our explanation, we've largely just kicked the can down the road a little. Why is there treachery among Republican appointees, but not Democrat ones? Even if the field is littered with sociopath traitors, is there nobody talented enough to get appointed by a Democrat, then drop the mask and reveal their inner Scalia?

Let us instead consider an alternative. All these justices started out intending to be conservative, but instead buckle under the social pressure brought to bear upon them. 

From the comfortable distance of one's armchair, this seems like a small thing. So what if some law school students don't like you? 

Reader, do you know what it's like to be hated? I mean, viciously hated, smeared in the New York Times, denounced as a stoolie or a rapist or sexual harasser or an Uncle Tom, day in, day out? Publicly stabbed in the back by people you helped and trusted, over and over? Like the pressure brought to bear on people by hostile journalists and the police, this is something that it's easy to sneer at until it happens to you. 

The reality is that most people just aren't good at dealing with being hated in a vicious and public manner. Despite their best intentions, it sways their choices. 

It's tempting to explain this in terms of concrete quid pro quo arrangements. If you switch to writing liberal judgments, you get invited to better parties and events, or have more fun friends or whatnot. This is definitely part of it. But I suspect there's a pure psychology aspect too. 

To pile metaphor on metaphor, look at the home team advantage in sports. Mosokowitz and Wertheim looked at this. The main driver of the home field advantage is not that it makes the players perform better. I was always skeptical of this myself,even before this study. These are professional athletes, with huge amounts of money at stake. Do they just not try their hardest without cheering? As it turns out, no, the effect seems to mostly be on the referees. And this is nothing but pure psychological pressure, on people literally selected and professionally rewarded for impartiality. The referee is anonymous. He's not getting invited to any swank parties. Even if he makes a lousy call, it's very unlikely that he's going to be harassed by name. The cost is just fifty thousand angry people yelling at you if you grant the penalty kick, and the same fifty thousand cheering if you just let it slide. 

And I suspect this is a large part of what's going on with Republican appointed justices too. Most of these people are law school strivers. They've been groomed for success for a long time, told they were the smartest in their class, voted most likely to succeed in high school, all that stuff. Then, they get made into some lower court judge, where they get less power, but almost total deference. Yes, your honor! No, your honor. And if you do something controversial, what happens?  You are mostly just "a federal court judge in Hawaii". You are the epitome of the machine - a cog, implementing something, replaceable with another cog. No sense hating the cog! But once you're on the Supreme Court, you are now Chief Justice Roberts, and your choices reflect on you, not the machine. 

Look at smiling John Roberts in his confirmation hearing:

Do you think that, before he took on the job, this guy had any experience of being hated? To ask is to laugh. The words on everyone's lips were "looks like nice guy". Good luck with that. He's a nice guy alright.

This is part of what soft power is. It's not always just a euphemism for hard power in disguise, the polite note before the US air force crushes your town. The reality is that psychological constraints are real constraints. We can't see them, but that doesn't mean they're not there. Most people simply aren't good at dealing with this pressure, or at a minimum, will be worse at dealing with this pressure than they think they will be if they haven't yet been subjected to it. It's reminiscent of the Randall Collins point about violence. Most people also don't like inflicting random violence on people, except in a limited range of circumstances. 

Most people also don't like being yelled at with curses and hatred, even if that hatred is very unlikely to result in actual violence to them. Monkey brain knows what's going on. Monkey brain knows that an angry crowd yelling at you is highly correlated with you being dismembered. Monkey brain responds, for the same reason that you get queasy when walking on a glass floored skyscraper walkway. 

To solve the problem of the social pressure being brought to bear on Supreme Court Justices is probably a coup-complete or regime-complete problem - something you can't solve without first changing the government. A good giveaway for such things is if at any point they involve the step "next, we reform or replace the New York Times".

But if you were of the menshevik mindset, there is probably still progress that can be made. The petrol engine can be improved, even if we can't yet turn it into a fusion engine. 

In particular, one useful rule of thumb when judging appointees - what experience do they have with being smeared and hated? And do they have a personality likely to be more resistant to this, inasmuch as it's possible to forecast this. Are they naturally combative and devil-may-care, like Scalia? Do they thrive on having haters? Do they have a history of being outspoken? Unfortunately, this tends to make it hard to get confirmed in the first place these days, so that may not be possible.

In an ideal world, they might have some concrete experience with similar jobs. One obvious case - running a medium sized business, and having to fire people. Yeah, you'd better believe that will toughen you up. Can you inflict pain upon people, and deal with their anger and contempt, while keeping your eye on the larger purpose? Have you had to command troops in battle, and know that making the wrong call on whether to breach that door will likely result in either your guys getting shot, or civilians being shot?

Ironically, the main pre-job exposure people have to being hated is from Democratic and media efforts during the confirmation hearings. While you have very small number of observations here, I suspect that Clarence Thomas being viciously smeared before he started probably had a searing effect on his choices. It likely made him permanently bitter, as there was basically no worse smears that could be thrown at him than what he faced before he started the job. But he knew what his enemies were like,  and exactly what their good opinions were worth, and wasn't going to cave to them after that. 

An interesting question will be to see what happens to Kavanaugh. I think it's easy to overextrapolate the Thomas outcome, and ignore the possibility that some people overreact in the other direction - they cave harder sooner in order to make the smearing stop, or they rationalise it. I'll show I'm the bigger man by not being the right wing monster they accused me of being, and instead implement this unprincipled exception for liberalism. 

You may think this doesn't really apply to monarchs. They can just fire the hostile press, or implement lese majeste laws to execute people who insult them. 

But remember, the pain point is psychology. What if you get a monarch who just really wants to be loved, and can't deal with being despised, or even just with causing necessary pain on citizens? 

I don't hold myself out as any kind of expert, but that's certainly the description I've read of Louis XVI. He wore civilian attire, rather than military. A man of the people! That worked out well for him.

Maybe you think this is all old hat. Very well. Here's a simple test. Take the sentence 

"Previously conservative judges are susceptible to public pressure, and probably will end up changing their views to conform to it."

Ask yourself - would this apply to...me? Would I be susceptible to public pressure, and change my views to conform to it?

Ha, no, of course not. Biases for thee, cold-iron robotic logic for me. 

If you are certain that the answer is "no", and yet you've never had any firm experience of resisting exactly such pressure, I suggest that there is a large chance that you may be greatly underestimating the forces at work here. 

To paraphrase one half of my nom-de-plume:

Hath not a judge eyes? hath not a judge hands, organs, dimensions, senses, affections, passions? If you scream in his face, does he not flinch? If you mock him, does he not feel stung? If you slander him, does he not bristle? If you selectively apply pain, does he not learn the lesson?

What's the value of a Bill of Rights?

The standard mythology of the right is that the constitution established separation of powers and limited government. By restricting the power of the federal government through the enumerated powers and the bill of rights, the constitution thus restricts the ability of the government to tyrannise its citizens.

Well, that's the theory. The first clue that something has gone awry in this theory is that nobody talks any more about the enumerated powers as an obstacle to tyranny. Hey, wasn't the federal government only supposed to be able to legislate on a small number of specific topics? Like, for instance, the following (courtesy of the excellent A Crime A Day)

Okay, so the Federal Government now can legislate on absolutely anything that isn't explicitly prohibited by the Bill of Rights. This may seem to violate the text of the constitution, but that's just because you haven't paid enough attention to the penumbras and emanations.

Part of what we're running into is the problem Moldbug described quite aptly - limited government is a fiction because sovereignty is conserved. Who is doing the limiting? If it's the judiciary, then the judiciary is sovereign.

There are no governments by pieces of paper, only governments by men. If the judges choose to follow what's on the paper, then the paper wins the day. If they don't, then it doesn't.

But to bring the matter full circle, are the judges really sovereign? Can they decide anything they want?

Well, maybe. Judges didn't used to be so sovereign. Back in 1832, Andrew Jackson (apocryphally) said of a Supreme Court decision "John Marshall has made his decision; now let him enforce it!". This was the Presidential equivalent of 'How many divisions has the Pope?'. Indeed, the similarities between the Pope vis a viz Stalin and the Supreme Court vis a viz the President are striking. There are relatively few federal officers directly answerable to the court across the land, which means that the courts are reliant on other people and branches of government to enforce their decisions. If everyone else chooses to obey, it is partly out of a) convention, and b) a quasi-religious reverence that got attached to Supreme Court decisions after Brown v. Board of Education. 

In other words, if the Supreme Court is sovereign, then it resembles the messy reality of what being King was actually like, rather than the textbook theory of absolute power. To wit, a large part of the skill of being king was knowing what orders would actually be obeyed and carried out, and limiting one's instructions to those. A king who goes too far in his estimation of his subjects' obedience and starts getting openly disobeyed won't stay as king very long.

At the moment, the Supreme Court just gets obeyed, out of a sense of duty. But if they pushed things too far in one go, that sense of duty might evaporate, and with it the whole prestige of the court.

And at last we see where written constitutions, or Bills of Rights specifically, might finally have some effect.

In particular, a statement on a piece of paper can serve as a strong coordination device- these things are disallowed under our system of government. Now, the sovereign is he who decides the exception, and a sovereign supreme court can decide when a particular constitutional provision doesn't apply.

But unlike the medieval kings (who obtained their right to be king by virtue of birth), the Supreme Court is in a bind. A substantial amount of its influence comes from the belief, even if deluded, that the court is actually following the piece of paper. Overrule that too explicitly, and the masses might lose their will to obey.

In order for this to work, however, the issue has to be something that a) people care about enough to challenge the nobility of the Supreme Court, and b) that people can agree on widely when the provision has been breached.

So which provisions might actually have a shot at forcing the court to do something that its individual members might not prefer to be done?

In this regard, 'Equal Protection' will be almost completely nugatory as a restriction on the court's personal preferences. What the hell does it guarantee? What needs to be equal with what? In fact,the very ambiguity lets it get used as a sword, to apply whatever leftist idea is the order of the day.

So what are the two areas that the Supreme Court has blinked on, at least relative to the view that Cthulu only swims left?

The big one was DC v Heller, when the Supreme Court unusually rejected the opportunity to gut the 2nd Amendment by claiming that it only allowed people the right to join a militia. 

This would have quite likely risked a total shitstorm, because gun owners really, really care about their guns, and every single one of them would have gone insane over this. I suspect some justices recognised this, and stepped back from the precipice. 

(Incidentally, this seems to be exactly what John Roberts did with Obamacare, changing his decision at the last minute rather than risking the court suddenly becoming public enemy number one with leftists, the court's natural constituency at the moment).

The other case, curiously, is the First Amendment.

Now, on the face of it, you may think that America has all sorts of restrictions on free speech, and you'd be right.

But you can rest assured that there is nothing on the books as repulsive as Section 18C of the Racial Discrimination Act in Australia, or the loathsome Human Rights Commissions in Canada that Mark Steyn had to battle with for years, or the repugnant British prosecutions of people for racist tweets.

On the issues that the left cares about, America still has fewer governmental prohibitions than nearly all comparable western countries. 

Now, it may be that America is just more conservative on this stuff. But if you look at how rabidly leftists at American colleges treat these issues, or how radioactive accusations of racism are, it's hard to countenance that.

Rather, I think that Congress and the Courts haven't yet had the gumption to make a big push to overturn this, because unlike equal protection, it would be pretty indisputable that the provision had been ignored.

In the case of free speech, I am sadly pessimistic about its long term prospects. At some point, when the hysteria over racism becomes sufficiently widespread, expect the Supreme Court to carve out some unprincipled exception that 'hate speech is different from free speech'.

But they're not there yet, because it would still be a risky move. 

In the rest of the world, however, it wasn't. Without the coordination mechanism of a long-standing bright red line, people just sat there and took it.

In the US, they'll probably end up taking it too, but the piece of paper maybe bought us 20 years or so.

That may not be much in the long run, but it's something.

Legal institutions are sticky things, often stupidly so

I cannot for the life of me understand why courts still award alimony.

Not child support - that still mostly makes sense in principle, though in practice it has its own problems , like the fact that it can be spent on any number of things other than care for the children. There also particularly revolting versions like California's paternity arrangements whereby a man who is duped into believing that someone else's child is his own has only two years from the birth of the child to challenge paternity, otherwise he's stuck paying child support forever, genetic testing be damned. And even if he files in time, the court may still decide it's not in the child's interests - the man's interests, having been the subject of a vicious con that is the male equivalent of rape, are of less importance.

Where was I? Oh yes, the basic principles of child support are reasonable.

But what in the name of all that is holy is the justification for alimony in this day and age? When you marry someone, apparently you are entitled to a certain standard of living from that person in perpetuity. Phrased this way, it is bonkers.

For the feminists on this blog, here's a story a friend of mine told me today. His brother in law was married to a woman, and they had a child. The woman was a lawyer, but decided she wanted to stop working. She wasn't actually involved any more than the man in raising the child - they had nannies to take care of the child. Instead, the woman just lived a life of leisure, and never returned back to work. At some point she got bored, began an affair, and divorced the man. She claimed alimony, which she was awarded, based on the lifestyle she had before. She could still go back to her legal career now, obviously, but why would she? The man will be stuck paying alimony unless the woman decides to remarry. Of course, since there's now enormous financial disincentives against her remarrying, the smart money predicts she'll just move in with her new boyfriend and never remarry, so as to keep the cash flowing.

How on earth did we end up with such a bizarre arrangement? It seems obvious that nobody in their right mind would design this monstrosity today. But it's a holdover from the years long past when
a) women couldn't work outside the home, so couldn't support themselves short of remarrying,
b) divorces were only granted by fault, so if the man wanted to just pack up and leave, he would be slugged with alimony, but if the women was having an affair and the man sought a divorce, bad luck for the woman.
and
c) the social pressure on people to remarry the subject of their affair after the divorce was large, hence 'alimony until remarriage' was a reasonable estimate of the length of financial hardship.

It's pretty clear that none of this holds any more. There is a very limited grounds for alimony when a woman has given up several years of a career to raise the family's children. But once the children are at school age, it's hard to know why courts should subsidise permanent leisure. And between nannies and daycare, there are plenty of ways for both parents to go back to work within a length of time that won't be massively disruptive to a career, certainly for the one point something children that the average couple has.

There are good policy reasons to make sure that a non-working partner doesn't get totally left in the lurch, particularly when children are involved. But remember, even without alimony most of the time the non-working partner is going to get a significant fraction of the assets, so they're not going to be totally broke. And if there are still reasons to grant payments under a limited form of alimony, it seems that they should be something like unemployment benefits - payments for a limited number of time while the person finds a new occupation. Why one should get alimony indefinitely without working is beyond me. And if there are no children involved, it is absolutely inconceivable what the justification for alimony is. Get a damn job!

None of this will happen, of course. Feminists like alimony because they live in a Stalinist 'who, whom' universe, where extracting resources from beta male schlubs is an end in itself.

The only chance whatsoever for alimony reform is that as women's incomes start rising, the number of cases where lazy men are claiming alimony from their working ex-wives is on the rise. That might finally strike feminists as being unfair and deserving of reform, but just about nothing else will.

Speaking of which, in that story I told you, I did alter one minor detail. The main protagonist was actually my friend's sister-in-law. The lazy parent who stopped working, began an affair and successfully claimed alimony? That was the husband.

And you know what? The absurdity and injustice is exactly the same.

A series of mostly rhetorical questions to the people complaining on Facebook about the Indian Supreme Court decision upholding the constitutionality of laws criminalizing homosexual acts

1. The decision itself can be found here. Have you read it, even if only briefly? Did it occur to you to even search for it? Have you read a summary of the main arguments the court advanced? Do you know which protections in the Indian constitution the law was alleged to have violated?

2. In your opinion, is there such thing as a law that is sound policy but nonetheless unconstitutional?

3. In your opinion, is there such thing as a law that is poor policy but nonetheless constitutionally valid?

4. Related to #3, the court stated in its decision:

"It is, therefore, apposite to say that unless a clear  constitutional violation is proved, this Court is not empowered  to  strike  down  a  law merely by virtue of its falling  into  disuse  or  the  perception  of  the society having changed as regards the legitimacy of  its  purpose  and  its need."

Do you agree?

5. If you did not agree in #4, on what basis should the court decide which laws to strike down?

6. If you did agree in #4, how do you personally decide whether you think a law is constitutional or not? How does this relate to your answer to #1?

7. The court concluded its decision with the following:

"While parting with the case, we would like to make it clear that  this Court has merely pronounced on the correctness of  the  view  taken  by  the Delhi High Court on the constitutionality of Section 377 IPC and found  that the  said  section  does  not  suffer  from  any  constitutional  infirmity. Notwithstanding this verdict, the competent legislature  shall  be  free  to consider the desirability and propriety of deleting  Section  377  IPC  from the statute book or amend the  same  as  per  the  suggestion  made  by  the Attorney General."

If you do not like the policy implications of the current decision, why is your displeasure directed at the court, and not the relevant legislature, who has had the power to repeal this law all along but chose not to exercise it? Or the voters for the politicians in said legislature?

8. If a court comes to a decision that supports good policy by utilising arbitrary and shoddy reasoning that departs from what it has stated before, can you think of any negative consequences to this? Do you think these consequences are important or not?

9. Related to #8, what is the value of precedent? Do you think it is important that the likely decision of the court on a particular legal question is mostly predictable in advance to legislators and citizens?

I'm not holding my breath for any answers.

Economists are often astounded at the sheer number of people who have little appreciation for basic principles of economic reasoning. On the other hand, the appreciation for economics is ubiquitous when compared with the legal equivalent - the number of people who have zero conception that a court case has any important dimensions other than whether you personally would have voted to support the law or principle whose constitutionality is being called into question.

Keeping Calm and Carrying On

How might brands work if there's no intellectual property protection?

Ordinarily, it's hard to know. Most works are protected by copyright restrictions until long after they've lost all interest to the public. That means that by the time you can replicate them and make parody versions of them, nobody's much interested.

An unusual thing happened though with the 'Keep Calm and Carry On' posters. They were made by the Ministry of Information in Britain in 1939 and not actually released to the public at the time. But they only reached commercial success starting in 2000 when a couple in Britain who'd purchased one of the original posters started making copies.

I would have guessed based on my crude reading of what the internet tells me about UK copyright law, as an anonymous work the copyright extends for 50 years after being made available to the public. So by 1989 anybody could make versions of it. Life is never that simple, of course, and as sure as we live in an overlawyered society, some clowns have tried to trademark it, failing in the UK but succeeding elsewhere.

Still, the relatively opaque ownership has made it relatively easy for parody versions to spring up everywhere. 'Keep calm and X Y' is now ubiquitous, for various values of X and Y - Party On, Fight On, Huck On, Chive on (?!), whatever takes people's fancy.

On the one hand, there's a tragedy of the commons effect going on - the life span of the design will surely be shortened as it becomes almost a meme. Everyone overuses it for their lame jokes until it becomes a cliche.

But on the flip side, there are lots of different creative interpretations. Moreover, the design ends up being way more widespread as a result, at least for a shorter period of time.

It's the difference, in other words, between a gold mine where Rio Tinto owns the land, and a Gold Rush on public land where everyone descends to mine the obvious bits as quickly as possible.

You may think that a massive short term exploitation of an idea is undesirable, but you don't even know the half of what undesirable is. Undesirable is the Disney Corporation successfully lobbying Congress to get endless copyright extensions passed so that their damn Steamboat Willie cartoon never passes into the public domain, thereby ensuring that no book written after 1926 will ever pass into the public domain in the US. Man, !#$% Disney. I struggle to keep calm when reflecting on rent-seeking that egregious.

My instinct is to nearly always make copyright terms shorter. When a good is non-rival, copying it is, at a first-approximation, nearly always welfare increasing. If there's a big societal gain that we could be securing by making the distribution of versions of  'Keep Calm and Carry On' restricted to the discretion of its original designers, I can't honestly see what it is.

Odd Hedges Against Modern Worst-Case Scenarios

File this one under “it’s probably still a bad idea, but it’s not clear exactly why”.

The idea of a hedge is to take steps that are (typically) costly today in order to get better payouts in bad states of the world. Unemployment insurance and health insurance are classic ones, well understood by most people.

But there are plenty of other disasters in life that people don’t think much about how to hedge.

There are, for instance, plenty of possible states of the world where civil society breaks down altogether. Frankly, the best argument for gun ownership is for the eventuality of some extended civil emergency where government disappears for weeks or months on end. If the police aren’t coming to save you any more, you’ll probably wish you’d bought that shotgun. And antibiotics. And water. Lots and lots of water. You’re laughing at the preppers now, but that’s to be expected – until the disaster comes, they’re the weirdos buying insurance that never pays out.

The most unorthodox life hedge that I’ve been musing about (only in abstract terms, of course) is that of faking low level symptoms of mental illness. Go to a doctor, and complain that you’ve been hearing voices. They’re not saying alarming or violent things, just other voices in your head. When you get referred to a psych, they can disappear. Maybe they come up again in a few years. Or if you’re worried about appearing crazy, complain about chronic sleepwalking and other dissociative states. 

What, you’re probably wondering, is this a hedge for?

Credibly establishing an insanity defense if you’re charged with a serious crime, particularly a capital crime.

Courts have a good ability to sniff out people who are bogusly claiming insanity to get out of prison sentences. It’s no good to just claim after the fact that you were mad. But if there’s a paper trail of psych evaluations starting several years earlier, it becomes much easier to run an insanity defense.

Obviously, as any good lawyer will tell you (and as I've written about before), you generally don’t want to plead insanity, since this means getting locked up in a psych ward forever, which may or may not be better than getting locked up in prison forever. It probably is better than the chair, though.

That’s where sleepwalking comes in. Some jurisdictions will accept various dissociative states (like sleepwalking, being concussed, that kind of thing) as indicating a lack of intent, but not indicating enough craziness to get you institutionalised. I don’t know how likely this is to work, but it’s a possibility.

Of course, the down side is that you will have a medical history of mental illness, which might cause all sorts of problems I don't understand. That said, for better or worse (and it's often for worse), modern society is reluctant to forcibly institutionalise mentally ill people who haven't committed a crime and aren't an immediate threat to other people's safety, so I don't know how big the costs of being diagnosed as schizophrenic would actually be. Of course, after you're charged, all bets are off.

These actions fulfill the big point of the hedge – if you find yourself being charged with a capital crime, you may well wish you’d done it. I personally doubt this will ever happen to me, so the chance of it paying off is low, and the potential other costs of being diagnosed as mentally ill are large. So it’s probably a bad idea. Plus, I don't want to lie in general, let alone commit fraud, so I wouldn't be doing it in any case. But it’s still interesting to think about.

On the Supreme Court and Gay Marriage

-First and foremost, read the damn decision. Otherwise you'll be one of those absolutely insufferable people who view every court decision as a 'Gay Marriage Yay!' or 'Gay Marriage Boo!' pantomime. These people have zero conception that there actually is a question of law going on, and that a badly decided case with a desirable policy outcome will create other problems down the road that the pantomime crowd never think about.

You can find a pdf of it here. I heartily recommend reading Scalia's dissent, even if you're broadly happy that gay marriages in one state will now be federally recognised. In fact, you should especially read Scalia's dissent if you're broadly happy with the policy aspects of the decision.

-As I mentioned to you a few months ago, Justice Scalia predicted way back in 2003 that the Supreme Court was going to legalise Gay Marriage, and that Lawrence v. Texas (which overturned the Texas anti-sodomy statue) was merely a prelude to this result, the Court's protestations to the contrary notwithstanding.

Well, the Court this time decided not to settle the Elephant in the Room question of whether for a State to prohibit gay marriage violates the 14th Amendment equal protection clause  (which, if they did, would have decided the issue once and for all). Instead, it was held that for the Federal government to define marriage to exclude gay marriages in states which allowed them was a violation of the 5th amendment because it served no legitimate purpose and thus was a violation of basic due process. From the majority opinion:

DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.

In other words, we're not deciding the substantive issue of gay marriage, just one part of it. Roberts wrote separately just to emphasise this point:

But while I disagree with the result to which the majority’s analysis leads it in this case, I think it more important to point out that its analysis leads no further. The Court does not have before it, and the logic of its opinion does not decide, the distinct question whether the States, in the exercise of their “historic and essential authority to define the marital relation,” ante, at 18, may continue to utilize the traditional definition of marriage. The majority goes out of its way to make this explicit in the penultimate sentence of its opinion. 

In other words - listen up you lower court punks, don't think we've given you carte blanche to insist on gay marriage everywhere.

Scalia mocks the majority super hard for this feint of judicial modesty:

The penultimate sentence of the majority’s opinion is a naked declaration that “[t]his opinion and its holding are  confined” to those couples “joined in same-sex marriages made lawful by the State.” Ante, at 26, 25. I have heard such “bald, unreasoned disclaimer[s]” before. Lawrence, 539 U. S., at 604. When the Court declared a constitutional right to homosexual sodomy, we were assured that the case had nothing, nothing at all to do with “whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Id., at 578. 

I haven't forgotten Lawrence, you clowns.

Now we are told that DOMA is invalid because it  “demeans the couple, whose moral and sexual choices the Constitution protects,” ante, at 23—with an accompanying citation of Lawrence. It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it. I promise you this: The only thing that will “confine” the Court’s holding is its sense of what it can get away with. 

In other words - at least own up to what you're proposing, rather than maintaining this nonsense that this is all just about the solemn dignity of states to define marriage however they wish (a notion that will last about 5 minutes into the oral arguments for the next case).

I do not mean to suggest disagreement with THE CHIEF JUSTICE’s view, ante, p. 2–4 (dissenting opinion), that lower federal courts and state courts can distinguish today’s case when the issue before them is state denial of marital status to same-sex couples—or even that this Court could theoretically do so. Lord, an opinion with such scatter-shot rationales as this one (federalism noises among them) can be distinguished in many ways. And deserves to be. State and lower federal courts should take the Court at its word and distinguish away. 

Ha!

In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. 

If there's anyone in the country who disagrees with the last sentence, I'm yet to meet them.

-Laws are complicated things. I am quite certain that the vast majority of the people who are sure that the Defense of Marriage Act is a hateful piece of legislation designed only to injure gays have not tried to deal with the mess that is overlapping definitions of different terms when the laws of different jurisdictions come into conflict. Even the notion of a 'US Resident' is virtually impossible to get a clear answer on - there's tax residence, and immigration residence, and driving license requirements (which I've heard dozens of answers about) etc. So even if you didn't want to limit the federal definition to exclude gay marriage, there are plenty of other reasons why you might want a uniform definition. Scalia mentions some of them:

To choose just one of these defenders’ arguments, DOMA avoids difficult choice-of-law issues that will now arise absent a uniform federal definition of marriage. See, e.g., Baude, Beyond DOMA: Choice of State Law in Federal Statutes, 64 Stan. L. Rev. 1371 (2012). Imagine a pair of women who marry in Albany and then move to Alabama, which does not “recognize as valid any marriage of parties of the same sex.” Ala. Code §30–1–19(e) (2011). When the couple files their next federal tax return, may it be a joint one? Which State’s law controls, for federal-law purposes: their State of celebration (which recognizes the marriage) or their State of domicile (which does not)? (Does the answer depend on whether they were just visiting in Albany?) Are these questions to be answered as a matter of federal common law, or perhaps by borrowing a State’s choice-of-law rules? If so, which State’s? And what about States where the status of an out-of-state same-sex marriage is an unsettled question under local law? See Godfrey v. Spano, 13 N. Y. 3d 358, 920 N. E. 2d 328 (2009). DOMA avoided all of this uncertainty by specifying which marriages would be recognized for federal purposes. That is a classic purpose for a definitional provision.

If you are expecting the boosters of the recent decision to provide you with a clear answer to any of the above questions, I would advise you not to hold your breath.

-As for myself, I find myself broadly disliking the decision, but for conflicting reasons. As a matter of policy, I'm fine with gay marriage. If I were minded to vote (or registered to vote. Or allowed to vote), I'd vote to allow it. So to that extent, while it's not high on my list of priorities, I'm happy enough with the practical aspects of the outcome (subject to the previously mentioned practical concerns).

But I deeply hate judicial activism. It poisons the legal certainty that lets people organise their lives according to well-settled precedent. Democracy may have plenty of flaws, but the makeup of the current Supreme Court seems to have managed to reproduce most of the maladies and perversions, just on a micro scale. We've got 4 (mostly) conservative justices, not all of whom can be relied on to produce politically conservative outcomes, 4 consistently liberal justices who can unfailingly be relied on to produce politically liberal outcomes, and Justice Kennedy playing the role of the entire swing voting electorate -  inscrutable, unpredictable, and of principles that are, shall we say, difficult to forecast. The voters in this case are definitely smarter, but do you think the policies produced are better?

Judicial activism - combining all the disfunction of democracy, but without the benefit of the law of large numbers and De Moivre's theorem!

In other words, judicial activism is just one more manifestation of the many ways that this republic has decayed from the original founders' vision. I second the Moldbug critiques of such a vision, but it's certainly a zillion times better than the monstrosity we're currently saddled with.

At the risk of this post being an 'All-Scalia-All-The-Time' one, I cannot help but excerpt his closing remarks

We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide. But that the majority will not do. Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that  comes from a fair defeat. We owed both of them better. I dissent.

As do I.

Seeing the Gay Marriage Legal End Game Before Everyone Else

The US Supreme Court is currently considering arguments for and against gay marriage. In the prognosticating about what was going to happen, and given John Roberts' willingness to cave at the last minute on Obamacare, I think Pax Dickinson's view is probably a fair bet:

"My guess is that SCOTUS will arbitrarily legalize gay marriage in all 50 states. Cthulhu only swims left."

The latter part is a rather reliable prediction, especially in the long run, but it's a somewhat noisy predictor for any particular Supreme Court decision. Cthulhu swam right, at least temporarily, on the question of the Second Amendment. Maybe gay marriage will break the same way, although I wouldn't bet on it.

That said though, there's someone who called all this much earlier, saying that the Supreme Court was going to impose gay marriage on the country. They made this prediction way back in 2003, in fact.

See if you can guess who it was (answer below the fold).

Whack That Mole!

Over at Hacker News comes another story of patent trolls at PersonalWeb trying to use the legal system to extort money out of a company that actually produces something of value - Rackspace.

Rackspace describes the hilariously inept lawsuit:

To explain, this suit claims that Rackspace infringes the PersonalWeb patents “by its manufacture, use, sale, importation, and/or offer for sale of the following products and services within the PersonalWeb Patent Field: Rackspace Cloud Servers and GitHub Code Hosting Service.” It’s apparent that the people filing the suit don’t understand the technology or the products enough to realize that Rackspace Cloud Servers and GitHub are completely different products from different companies. By now, it’s widely known that GitHub is hosted at Rackspace, but beyond that, there is no other connection between the two.

In other words, they named both Rackspace and a client of Rackspace as both being things sold by Rackspace.

But don't let this kind of pathetic 'failure-to-google-even-basic-details-about-the-tech-industry' ineptitude fool you - these guys are technology pioneers, and its crucial to protect their right to innovate for ... well, nobody knows quite what fig leaf they're even claiming.

Rackspace in its post describes legislation they're supporting to try to combat this problem.

The next legislative effort will likely center around what is known as the SHIELD Act, which has been introduced by Rep. Peter DeFazio (D-Oregon) and Representative Jason Chaffetz (R-Utah). This bill would require plaintiffs to pay defendants’ legal costs if the suit is unsuccessful. Under current law, the patent trolls don’t have any meaningful risk in bringing litigation. The defendants, on the other hand, are subjected to enormous legal expenses and discovery costs. The SHIELD Act is designed to level the playing field and take away the trolls’ unfair advantage. We encourage all of our customers, partners, open source collaborators and friends to support Reps. DeFazio and Chaffetz in their effort to discourage these abusive patent troll lawsuits.

I applaud this effort, but it seems to miss the forest for the trees.

Tree #1 - patent trolls keep filing lots of frivolous lawsuits, extorting money out of technology company. This needs some sort of specific remedy, such as making unsuccessful plaintiffs pay the defense's legal costs.

Tree #2 - Unscrupulous junk science trial lawyers keep suing doctors for enormous amounts of money over any perceived problem, driving up the cost of malpractice insurance and healthcare. This needs some sort of specific remedy, like capping damages for pain and suffering in malpractice lawsuits.

Tree #3 - Thugs desiring to silence public debate file lots of lawsuits to bankrupt opponents. This requires some sort of specific remedy, such as an Anti-SLAPP statute to help stop egregious discover processes and make unsuccessful plaintiffs pay the defense's legal costs.

What is the forest? The fact that America refuses to implement an across-the-board loser pays system of civil proceedings.

The great reasons why unsuccessful patent trolls should pay the other side's legal costs apply to everybody - lame unfair dismissal claims, Americans with Disabilities Act gold-digging lawsuits for trivial breaches of building codes, frivolous claims that you slipped over on somebody's sidewalk, etc. etc. etc. You can get rid of the whole lot of them, all at once, by just making the losing party pay the legal fees.

The lawyers will howl that this will discourage people from filing lawsuits.

Exactly. There are far, far too many lawsuits in America. A big part of the reason for this is that filing a lawsuit when your own counsel is operating on contingency (as lots of plaintiffs have) gives you a call option - your payoffs are zero or positive. And people are surprised when lots of people load up on call options?

If you simply made plaintiffs bear some of the costs, in expectation, that they impose on society through their lawsuits, you wouldn't have to screw around with a zillion other makeshift fixes for the enormous numbers of problems that this underlying legal deficiency creates.

Is this going to happen any time soon?

Sadly, no.

The Obamacare Ruling, Part 1

So I'm about half way through the Obamacare ruling - so far, I've gotten through the Roberts opinion and the Ginsburg opinion. My thoughts on the relative merits of the cases may change when I read through the dissenters.

A couple of thoughts on what I've read so far.

First, there is a marked contrast in how much the different opinions seem to opine on the merits of the law. Here's Roberts take, at page 59 of the PDF:

The Framers created a Federal Government of limited powers, and assigned to this  Court the duty of enforcing those limits. The Court does so today. But the Court does not express any opinion on the wisdom of the Affordable Care Act.  Under the Constitution, that judgment is reserved to the people.

By contrast, Ginsburg's opinions have an irritating habit of inserting thinly disguised editorialising about her support of the laws in question as a matter of policy. From page 74 of the PDF:

To make its chosen approach work, however, Congress had to use some new tools, including a requirement that most individuals obtain private health insurance coverage. See 26 U. S. C. §5000A (2006 ed., Supp. IV) (the minimum coverage provision). As explained below, by employing these tools, Congress was able to achieve a practical, altogether reasonable, solution.

I guess she didn't get the Roberts memo about not expressing any opinions on the wisdom of the legislation.

Here's Ginsburg, dishonestly repeating one of the classic talking points of the left about healthcare, from page 70 of the PDF:

Not all U. S. residents, however, have health insurance. In 2009, approximately 50 million people were uninsured, either by choice or, more likely, because they could not afford private insurance and did not qualify for government aid.

The Census estimate was 46 million, but what's a few million between friends. And out of this number,  (by the Politifact estimate) at least 15% of those 'residents' don't have health insurance because they're illegal aliens who shouldn't be in the country in the first place. To describe their problem as being one of 'not qualifying for government aid' is deliberately disingenuous.

But what is most egregious about the Ginsburg opinion is the reliance it makes on the free-rider problem.This is an important part of her argument justifying the law under the Interstate Commerce Clause. The individual mandate is justified as being 'necessary and proper' for regulating interstate commerce. There's a long argument starting on page 70 of the pdf, which I won't reprint in full, but the gist of it is that you can't force insurers to cover people with pre-existing conditions at the same price as everyone else without the individual mandate. This is because guaranteeing that pre-existing conditions will be covered at no extra cost creates an incentive for people to wait until they get an expensive illness, and only buy insurance then. This causes huge cost-shifting in the insurance market, and threatens to make the whole thing collapse. It's a classic free-rider, or moral hazard, problem.

Ginsburg's description of this problem, as a matter of economics, is really quite good, and I don't have much to quibble about there.

But why is this a social issue? Can't the hospital just deny them treatment? That may be considered unfair, but it's a pretty damn effective solution to the free-rider problem. And here's where Ginsburg's argument comes in:

The large number of individuals without health insurance, Congress found, heavily burdens the national health-care market. See 42 U. S. C. §18091(2).  As just noted, the cost of emergency care or treatment for a serious illness generally exceeds what an individual can afford to pay on her own. Unlike markets for most products, however, the inability to pay for care does not mean that an uninsured individual will receive no care. Federal and state law, as well as professional obligations and embedded social norms, require hospitals and physicians to provide care when it is most needed, regardless of the patient’s ability to pay.

Let's reprint the key bits again, in case you missed them:

Federal and state law, as well as professional obligations and embedded social norms, require hospitals and physicians to provide care when it is most needed, regardless of the patient’s ability to pay.

Got that? Federal Law has created a free-rider problem in this market, and now it requires a solution.

Now, as a practical description of the problem, that's totally fine. It is, indeed, the root of a lot of the problems.

But as a constitutional justification for the law, this is insane.

The government wouldn't ordinarily be able to compel individuals to purchase something under the interstate commerce clause, as I read the Ginsburg opinion, unless this is 'necessary and proper' to some already constitutional purpose.

No problem! The government passes laws that create a free-rider problem. One solution (not the only solution, but who cares!) to the problem is to mandate a pool of customers to subsidise those that you've legislated to ride for free. And the existence the government-created free-rider problem is used as the constitutional basis for justifying the entire edifice.

Don't believe me? Listen to Ginsburg's description of why it would be absurd to suggest that the government might be able to create a mandate for eating broccoli:

Consider the chain of inferences the Court would have to accept to conclude that a vegetable-purchase mandate was likely to have a substantial effect on the health-care costs borne by lithe Americans. The Court would have to believe that individuals forced to buy vegetables would then eat them (instead of throwing or giving them away), would prepare the vegetables in a healthy way (steamed or raw, not deep-fried), would cut back on unhealthy foods, and would not allow other factors (such as lack of exercise or little sleep) to trump the improved diet.  Such “pil[ing of] inference upon inference” is just what the Court re­fused to do in Lopez and Morrison. 

I don't know whether this argument is presented as deliberately misleading bull#$%^, or just very sloppy thinking. This is what the government would have to do to justify a broccoli mandate under the guise of it reducing healthcare costs.

But suppose that a government wanted you to eat broccoli. Justice Ginsburg has created a far simpler method for them to justify it! Just pass a 'Broccoli Human Rights Act of 2014', requiring that no person shall be denied broccoli by any supermarket or store based on their inability to pay, provided that they can prove that they are sufficiently hungry. There's a real problem - some people go hungry. Broccoli is a good solution to that problem. Presto! Our starving poor now have access to broccoli.

But we've now created a terrible free-rider problem. Broccoli-sellers have started to lose tons of money. One might characterise the problem as being that 'Federal and State Law, as well as professional and social obligations to not let people starve to death, require stores to provide broccoli when it is most needed, regardless of the customer's ability to pay'. One solution to this is the Affordable Broccoli Food Act of 2020, with it's Broccoli Individual Mandate component.

And this is exactly the same logic that Ginsburg found so compelling above. She'd pass it here. She'd pass it there. She'd pass that legislation anywhere.

So what are the other limits on the likely existence of the Broccoli mandate under the Ginsburg reasoning?

Other provisions of the Constitution also check congressional overreaching. A mandate to purchase a particular product would be unconstitutional if, for example, the edict impermissibly abridged the freedom of speech, interfered with the free exercise of religion, or infringed on a liberty interest protected by the Due Process Clause. 

At last we've gotten an honest argument. Legislation justified under the interstate Commerce clause will be struck down if it's explicitly prohibited elsewhere.

You can tell me this is a good way of running a government. But don't tell me that this is still a Federal government of enumerated powers. Everything that is not prohibited is permitted.

Fortunately, this is not the current law of the land on the Interstate Commerce clause. (The law was upheld under the taxing authority, which I might get to in part 2). Unfortunately I fear that Justice Ginsburg will prove spot on in one assessment in particular, though:

THE CHIEF JUSTICE’s crabbed reading of the Commerce Clause harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy in the interest of those who labor to sustain it.  See,  e.g., Railroad Retirement Bd. v.  Alton R. Co., 295 U. S. 330, 362, 368 (1935) (invalidating compulsory retirement and pension plan for employees of carriers subject to the Inter­state Commerce Act; Court found law related essentially “to the social welfare of the worker, and therefore remote from any regulation of commerce as such”).  It is a reading that should not have staying power. 

Absolutely.

For one reason, because the vast majority of interstate commerce clause decisions they've made in the past have gone in this direction. 'Regulating Interstate Commerce' includes banning marijuana that's grown in one state and sold within the state, regulating swimming pools (which are pretty darn hard to transport across state lines once they're in the ground), and stopping a farmer growing too much wheat on his own property for his own farm use.

The only rule I can glean from their precedents before now is 'If it affects a price of something, somewhere, somehow, it's interstate commerce.' Now the court has said that, in theory, it won't keep going in this direction, even though it didn't have the stones to overturn the law in the end.

But let's get back to the quote itself. The other half of the problem is that a good chunk of the Court thinks that it is appropriate to put in an important and widely-read opinion that it feels that New Deal legislation was 'efforts to regulate the national economy in the interest of those who labor to sustain it'.

Just under half the court think that this is what constitutes being non-partisan, and they usually manage to find a swing voter from among the rest, I suspect her assessment will prove entirely correct.

Ugh

So Obamacare is constitutional.

I'm going to swallow my own advice and refrain from commenting on the substance of the case until I've read the decision. But it's going to be a glum and melancholy task alright.

In the meantime, does anyone seriously doubt the wisdom of Mencius Moldbug on this matter:

In reality, no sovereign can be subject to law. This is a political perpetual motion machine. Law is not law unless it is judged and enforced. And by whom? For example, if you think a supreme court with judicial review can make government subject to law, you are obviously unfamiliar with the sordid history of American constitutional jurisprudence. All your design has achieved is to make your supreme court sovereign. Indeed if the court had only one justice, a proper title for that justice would be "King." Sorry, kid, you haven't violated the conservation of anything.

The Kings have spoken - Obamacare stands.

How Not To Interact With The Police

File this one under 'Positive, Not Normative'.

I think not nearly enough people give any thought to plausible psychology when interacting with police. You can observe this by the dumb@$$ things they do.

If I had to guess at what motivates people to be police officers, it might be some combination of the following:

1. They like the idea of keeping the city safe.

2. They like the thrill of fighting crime.

3. They like having authority over other people.

4. They like being part of a fraternal organisation that looks out for each other while doing the first three items.

You can read blogs like Second City Cop to get a sense of what I'm talking about.

To my mind, this set of motivations explains both the positive and negative aspects of typical police responses:

a) If a police officer decides that you're an innocent bystander being threatened by some thug, they'll put themselves in physical danger to help you out. Say what you will about this being their job, it's still an admirable trait.

b) If the police officer decides that you're a minor nuisance but otherwise not a serious problem (speeding by a small amount, yelling too loudly in public) and are being polite and respectful to them, they'll likely tell you to stop, and will perhaps be content to let you go on your way, or give you some small fine.

c) If the police officer decides that you're being disrespectful to him, even if you're not posing a serious threat to public order, they're almost certainly going to make your life difficult. They'll do this knowing that point #4 will work in their favor - other cops, and law enforcement generally, will back them up, even if they've acted like a bully.

d) If the police officer decides that you're being disrespectful to him AND being a threat to public order, you'd better believe that they're going to bring the pain.

Let's suppose the 4 stated assumptions form a fair amount of motivating psychology for police officers. How should you react when interacting with a police officer who stops you?

Consider the following example of one way to behave:




Let's begin by noting that you have no legal obligation to be polite. The cop in question was acting like a power-mad bully, and manufactured a bogus reason to arrest the guy. In a more just society, the cop would be fired, and the guy would get an apology, if not compensation.

We all know, however, that that ain't gonna happen. The cop will get off scot free, and the motorcycle rider has already had several hours in prison, regardless of whether he eventually gets prosecuted. Remember, positive not normative. We're working with the world as it is, not as it should be.

If you're the kind of person who stands on principle that you're going to be rude to a cop who acts rudely to you first, I can see a fair case to applaud that action. Cops shouldn't just be able to get away with any kind of bad behaviour.

But suppose you're just interested in making your life as easy as possible. What overarching principle would you choose?

I would venture the following four bits of advice :

1. Always be scrupulously respectful.

2. Only offer verbal resistance to the cop's demands in order to assert your legal rights.

3. Think very carefully whether asserting your legal rights is likely to be worth it, and do not offer any verbal resistance unless you think you're going to be arrested or charged anyway. 

4. Never offer physical resistance.

If we believe the psychology we described earlier, cops really hate it when you don't defer to their authority over you. Being rude or swearing is an obvious way of getting them pissed off. You're already in either case c) or d) of their likely responses, and what have you gained? You've given vent to your feelings. If that's all the benefit you get, you're paying very heavily in the amount of hassle in the next hours and days of your life for that opportunity to tell Officer O'Malley to get f***ed.

Another obvious mistake is to demand to know their badge number. People think that because this isn't swearing, it won't land them in trouble. Think again - this indicates your desire to retaliate against the cop, and that's going to annoy him a ton. If you're getting arrested, there'll be plenty of time later to find out the arresting officer's name and file a complaint - why make that intention obvious up-front? Demanding to know his badge number if you don't actually intend to file a complaint is just as stupid as swearing at him.

But does that mean you should always submit to everything a cop asks you?

No. This is where point #2 comes in. You do not want to give the police officer further evidence that will help convict you of a crime, should the matter proceed to court. What kind of things does that mean?

If they want to ask you questions about a crime you may have committed, don't answer anything without a lawyer. If you're unsure, just don't answer. What if you didn't commit the crime, or don't think you did? Doesn't matter - shut the hell up.

If they want to search your car, house or pockets, you want to indicate that you don't offer your consent. In the US, if you  don't consent to a search, the police must establish probable cause in order for any evidence they find to be admissible. If you consent to the search, they don't have to establish squat.

But, (and here is the rub), you can't refuse to do any of those things without indicating that you're not submitting to their authority. And that will piss them off - there's no avoiding it.

Hence point #3 - you want to be very careful before offering the first signs of not acquiescing to the cop. You only get one chance to be a nice obedient citizen. Once you've given that away (by politely resisting demands or by being a jackass), it won't come back. Trying to be polite once he starts arresting you won't win back his good graces.

It's not easy to know exactly what the threshold is for resisting demands though.

If you've been pulled over for speeding and they ask you if you know how fast you were going, most answers you give are going to hurt you from a legal standpoint:

-"I was going 70 in the 65 zone" - you just confessed your guilt. Case closed.

-"I don't know how fast I was going" - this makes it hard for you to assert in court that you weren't speeding, since the officer will testify that you claimed at the time you couldn't be sure you weren't speeding.

-"I was doing 65" - if the officer can prove you were speeding, they might decide to get you for making false statements, yet another crime.

So legally, it's in your interests to refuse to answer the question. But this will piss off the cop, and at a minimum it guarantees they'll give you a ticket, and perhaps hold you up for longer. Is that worth it?

In general, probably not. The main time it might be is if you're planning to challenge the ticket in court. If you're not, you're probably just better off admitting you were speeding and offering your apologies.

For me, I'd draw the line at the point that they want to search my car (or house). At that point, my response would be 'I know you're just trying to do your job officer, and I don't have anything to hide, but I'm sorry, I don't consent to searches.'

I'd do this knowing that they're going to be pissed off. They might call the K-9 unit. They might call for backup. They might insist I get out of the car and search it anyway. They might hold me up for the next 3 hours.

That's the price I pay to increase my chances in an actual court case. If the officer wants to search my car, he's already pissed off with me. I'd rather not take the chance that he breaks something, or plants evidence and I've now consented to the search.

None of this means that we shouldn't be angered by scenes like the video above. It's maddening that cops get to act like thugs and bullies and just get away with it.

But everything in the video was entirely predictable. Guy is part of a motorcycle group roaming around. That's your right, but it makes you look like a potential threat to public order. At 1:42, the guy gives the two-finger 'up-yours' sign to the cop as he drives by. When he gets pulled over, the guy tells the police officer that he can't take the camera (instead of just that he doesn't consent to the camera being taken although he will not physically resist such an action, a different formulation). Guy asks for the cop's badge number. Shortly afterwards, guy gets arrested. Guy doesn't immediately acquiesce when asked to place his hands behind his back, raising the possibility of a resisting arrest charge.

It may well be that the cop was going to make up a bogus arrest reason in order to confiscate the camera. It may be that the arrest was unavoidable.

But all the acts of resistance displayed were almost certain to irritate the cop, and did very little to help the man in court.

If you feel that as a matter of principle that it's worth it, more power to you.

If you, like me, don't feel it's worth it, you're better off swallowing your pride, shutting up, and acquiescing to  their demands when the po-po start acting like bullies.

Either way though, you should know the cost of your actions when you make them. Otherwise you resist running afoul of the advice of the great Sun-Tzu:

To begin by bluster, but afterwards to take fright at the enemy's numbers, shows a supreme lack of intelligence.

Sometimes the solution is not where you think it is.

The story of Brett Kimberlin is a very scary one about how the American legal system can be used as a weapon to silence criticism. You can read a summary of it here or in the International Business Times here.

Have a read of one of those. Do it now. Then come back.

I want to focus on a statement attributed to Kimberlin, because I think it says a lot about the American legal system. The blogger Patterico reported on an email he received purporting to be from Kimberlin after Patterico wrote negatively about Kimberlin. The email contained the following statement:

I have filed over a hundred lawsuits and another one will be no sweat for me. On the other hand, it will cost you a lot of time and money and for what.

Let's focus on the above quote, which I assume for the time being to be genuine.

There is something deeply wrong with a legal system where a person would ever have cause to boast about the number of lawsuits they've filed.

America has a legal system uniquely well-designed for filing frivolous lawsuits. Unlike nearly every other common law country, America does not institute a loser-pays system. What this means is that if you're willing to represent yourself and sue lots of people, the only cost to you is likely to be your time.

Outside of America, it is virtually inconceivable that a statement like 'I have filed over 100 lawsuits' would be a credible threat - partly because losing a series of lawsuits would wind one up in bankruptcy long before they reached 100, but also because respondents in civil cases can take the risk of defending the suit knowing that they'll be largely reimbursed if they win. In America, for the most part if a pro se litigant sues you, no matter how ridiculous the claim, even if you win, you lose - in your time, in your lawyers fees, if you have to travel interstate to defend yourself, if you have to go through lengthy discovery processes etc. Anti-SLAPP statutes (such as California's quite robust one) help out to some extent, but they're an imperfect whack-a-mole type solution

It's a lot easier to just make it the default - if you lose, you pay.

Back when William Wilberforce was trying to outlaw the slave trade in Britain, he found it hard to get laws passed to abolish the trade directly. Instead, he very brilliantly got passed a law that allowed the Royal Navy to seize ships flying foreign flags of convenience (which is what slave ships would do). It wasn't directed specifically at slave traders, but it ended up severely depriving them of their ships and profit.

If you don't like harassing lawsuits like these, regardless of what they're about, the easiest way to stop the whole lot of them is a loser-pays legal system. Most people don't seem to regard that as the lesson of the whole affair, but it should be.

An Innocent(?) Man

The Columbia Law Review is set to publish an article alleging that Texas executed an innocent man in 1989, Carlos DeLuna. He was convicted of the murder by stabbing of a women in a bar, but it's claimed that another Carlos (who looked similar) had committed the crime.

This isn't the first time that this has been alleged. There are claims that Cameron Todd Willingham was also wrongly executed for the arson murder of his children, in 2004. There, the allegation is that the expert evidence used to claim that the fire was deliberately started was mainly pseudoscience nonsense.

Jason Kottke linked to both of them. Both of them make for disturbing reading. I ended up reading them in reverse order, and it reinforced that there are actually two questions:

1. Has an innocent person been executed by capital punishment in recent times?

2. Will this fact likely be established beyond sufficient doubt such that public opinion believes that an innocent person was executed by capital punishment?

In terms of the first question, (particularly from reading the Willingham case) it seems likely to me that arson-based murder is a very likely candidate.

Think about it. For the vast majority of murders, there's not much doubt that the person was, in fact, murdered - the issue is mainly by whom. For arson, on the other hand, a large part of the determination is whether the fire was an accident or was deliberately lit. A guy that was nasty to his kids, and woke up one day to find his house on fire, looks a lot like an arsonist on paper. The main way to tell them apart is based on the scientific evidence about whether the fire was deliberately lit.

And from everything in the Willingham case, it's hard to avoid the conclusion that large amounts of this are junk science, folklore, and other kinds of nonsense. The field seems to be improving, so hopefully there's less chance of this kind of thing happening in the future.

Still, how much confidence does this give you about all the previous capital punishment for arson cases? They were very likely decided by the same kind of junk science. This makes it more likely that someone will have been executed wrongly.

But, and here's the rub, I imagine that arson cases are less likely to satisfy question #2. Precisely because it's hard to say that a fire decades ago was deliberately lit, it's also hard to say that it wasn't deliberately lit. Without this extra piece, the average person gets to the conclusion that maybe the guy might not have done it, but they aren't sure either way. Since people don't think emotionally in terms of probabilities (there's a 50% chance I should be outraged, and a 50% chance that justice was done, albeit by a shonky method), this doesn't get people fired up. Even in the Willingham case, I come to the conclusion that it certainly doesn't convince me beyond a reasonable doubt that the fire was deliberately lit (which is kind of the point). Which means he shouldn't have been convicted if I were on the jury. But there's a difference between failing to establish guilt (which is what courts determine) and establishing innocence (which, like it or not, is what death penalty opponents have to do).

Which is where the Carlos DeLuna case comes in. There, there is quite strong evidence of a specific alternative murderer, along with enormous evidence of a shockingly bungled case. So it's not just that he wasn't guilty beyond a reasonable doubt - death penalty opponents can also make an affirmative case that someone else was the murderer.

Without reading all this stuff in detail, I never quite know what to make of these cases by advocates that a particular person is innocent. I'm open to being convinced, but there seem to be a lot of false positives - death penalty opponents keep choosing pinup boys like Mumia Abu-Jamal where, despite the evidence that the investigation was not done well, it also seems quite likely that the guy did in fact kill the cop. Death penalty opponents would seem advised to be careful about crying wolf, because even potentially sympathetic audiences can start to feel like every new claim is just another beatup.

Personally, I'm a Bayesian - probabilities are never zero, and no system is failsafe. Done enough times, eventually someone will be wrongly executed. When this happens, it will be a travesty, but this doesn't turn into a categorial imperative against the death penalty, any more than the death of a single soldier provides a categorial imperative against war. Death penalty advocates are very reluctant to make the claim that a very small probability of a wrongful execution may still be worth it to secure justice for the rest.

The real mystery to me is why people focus only on death penalty cases as the source of outrage. When the state kills an innocent person after years of careful legal deliberation, all hell breaks loose. But when the state kills an innocent person immediately in a rash and shameful manner, people largely just yawn.

How To End Judicial Activism

If there's one thing that raises conservative ire, it's activist judges striking down [conservative] democratically elected laws based on expansive readings of constitutions. You thought you'd passed a law allowing the death penalty for the rape of a child under 12? Wrong, the Supreme Court says that's cruel and unusual!  Thought you'd passed a law to prohibit the abortion of  fetuses? Wrong, you hadn't counted on Justice Blackmun reading into the penumbras and emanations of the constitution a right to privacy, which somehow transformed into a right to abortion! Thought that you'd passed a law regulating political advertising in the leadup to an election in Australia? Wrong, you hadn't counted on the Australian High Court finding an "implied freedom of political speech" in the constitution. Etc etc etc.

Judicial conservatives tend to interpret the constitution narrowly, based on what the words meant at the time they were written. They also tend to be reluctant to overturn precedent, based on respect for the court's earlier opinions. Judicial activists tend to believe in the importance of modern social values in interpreting the constitution - in practice, they're happy to take very expansive interpretations of the words if it produces a social result they're happy with. They also don't tend to care as much about precedent, being willing to overturn settled doctrines if they don't like the result.

At the moment, political conservatives are screwed by judicial activism, because it acts as a ratchet towards ever more left-wing laws. The reason is as follows. Nearly all judicial activists tend to have left-wing political leanings. By that, I mean that the activist rulings they pass tend to be supportive of leftist political issues. Once an activist decision gets passed, judicial conservatives are split - some of them will want to overturn the earlier ruling because they think it misreads the constitution. Others will reluctantly let the ruling stand, because they also don't like overturning precedent. This means that the judicial conservatives will always be somewhat split in overturning these precedents, while judicial activists will be united in upholding them. Hence the bad judgments stand, and you end up with a ratchet.

There is, however, one possible way around this problem. Historically, political conservatives have tended to be judicial conservatives. A respect for political tradition tends to correlate with a respect for the vision of the founding fathers, and distrust of concentrating power in the hands of unelected judges.

But there's no reason this has to be the case. And I confidently predict the following - if you wanted to rapidly end liberals love affair with judicial activism, all you would need to do is appoint a bunch of politically conservative, judicially activist judges.

A rough model for this kind of thing would be the Institute for Legal Justice, which files lawsuits on behalf of private property rights, economic liberty, the first amendment, and other such matters. It's basically like the libertarian version of the ACLU.

And something similar could work in the courts too. For instance, suppose that a politically conservative activist court decided that government licensing of commercial transactions was illegal. There's lots of crap bases for doing this! It could be some oddball combination of freedom to assemble (under the first amendment), and something to do with monetary transactions being a form of speech. Sound ridiculous? It is, but an implied freedom of commerce is not really more ridiculous than an implied right to privacy.

This kind of ruling would drive liberals batty. Suddenly you'd have grounds to overturn all sorts of commerce-killing health, safety, and environmental regulations, all protected with the force of the constitution. And in no time flat, liberals would suddenly rediscover the joys of sticking to the original interpretations. How dare those judges start overturning the popular will with their social engineering! And the new judges would solemnly utter that the constitution was a living, breathing document, and the current political climate was increasingly intolerant of interference in commercial transactions. And liberals would be forced to reply "but... but... but..."

As well as being hilarious and full of schadenfreude, this would force liberals to ask themselves whether they really liked activist courts after all. The danger of expanding government power is that eventually it gets wielded by the party you don't like. If courts played by the same rules, we might ironically (at least in the long run) end up with less appetite for judicial activism. The cost is the politically conservative judges would have to prostitute their views on constitutional theory, which, for better or worse, they don't seem to want to do.

A pity, really. It would kill off judicial activism, or it would at least level the political playing field that activism takes place on. Frankly, either one would be an improvement on the status quo.