All posts tagged law

Voluntary Slavery

Jeff Hummel recently gave an interesting talk on the subject of how the law should treat a contract that involves one person becoming enslaved to another. The title made the talk sound like a quaint subject of little importance to present day politics, and I attended because Hummel has a reputation for being interesting, not due to the title of the talk. But his arguments were designed to apply not just to the status that was outlawed by the 13th amendment, but also to military service (not just the draft, but any type where the soldier can’t quit at will) and marriage.
Hummel argues that instead of asking whether slavery ought to be illegal, we should ask what a legal system ought to do when presented with a dispute between two people over enforcement of a contract requiring slavery.
Some simplistic notions of contracts assume that valid contracts should always be honored and enforced at all costs, but the term efficient breach describes exceptions to that rule (if you’re unfamiliar with this subject, I recommend David Friedman’s book Law’s Order as valuable background to this post).
In the distant past, people who failed to fulfill contracts and had insufficient assets to compensate were often put in debtors prisons. That was generally abolished around the time that traditional slavery was abolished, and replaced with a more forgiving bankruptcy procedure. Hummel suggests that this wasn’t a random coincidence, and that a slave breaching his promise to his master ought to be treated like most other breaches of contracts. If bankruptcy is the appropriate worst case result of a breach of contract, then the same reasoning ought to imply that bankruptcy is the worst result a legal system should impose on a person who reneges on a promise to be a slave.
Hummel noted that the change from debtors prisons to bankruptcy happened around the time that the industrial revolution took off, and suggested that we should wonder whether the timing implies that we became wealthy enough that we could afford to abolish debtors prisons, and/or whether the change helped to cause the industrial revolution. Neither he nor I have a good argument for or against those possibilities.
If this rule were applied to military service, unpopular wars would become harder to fight, as many more soldiers would quit the military. As far as I can tell, peer pressure kept soldiers fighting in any war I think they ought to have fought, so I think this would be a clear improvement.
The talk ended with some disagreement between Hummel and some audience members about what should happen if people want to have a legal system that provides harsher penalties for breach of contract (assume for simplicity that they’re forming a new country in order to do this). Hummel disapproved of this, but it wasn’t clear whether he was doing more than just predicting nobody would want this. I think he should have once again rephrased the question in terms of what existing legal systems should do about such a new legal system. Military/police action to stop the new legal system seems excessive. Social pressure for it to change seems desirable. It was unclear whether anyone there had an opinion about intermediate responses such as economic boycotts, or whether the apparent disagreement was just posturing.

Shaming versus Prison

I’m wondering why the use of shame and humiliation isn’t used more often as an alternative to jail sentences.
The most plausible objection I’ve found seems to be that there are other alternatives that are better than those two choices. But even if that’s true, there are enough doubts about public acceptance of those possibly better alternatives that it seems odd not to give some encouragement to an alternative to prison that seems to have some political feasibility.

Book review: Synthetic Worlds: The Business and Culture of Online Games by Edward Castronova
Castranova is one of the first intellectuals to notice the importance of new societies that are being created in cyberspace. Much of this book is devoted to (sometimes redundant) explanations of why they are more than just games.
Around the middle of the book, he switches from describing a typical world for the benefit of those who doubt the importance of virtual worlds to describing how to design good worlds. This is where I started to find the book interesting and the questions thought-provoking, but the answers often unconvincing.
His most important discussion is about the near-anarchy that prevails in most virtual societies. He attributes this partly to the “Customer Service State” of for-profit world builders who are too cheap to pay for as much government as he assumes citizens want. But he seems to believe this is too inevitable to be worth much analysis. His more interesting question is why don’t the world’s citizens organize a government of their own? His answer is that citizens don’t have enough power over each other to enforce laws they might create. But he doesn’t convince me this is true (are boycotts useless? is repeatedly killing an outlaw not punishment?), nor does he explain why the designer face little pressure to change the design of the world to make it easier to enforce laws (what would happen if the world were designed to enable one person to effectively banish a person she doesn’t like from her view of the world?). I suspect part of the answer is that there’s less demand for government than he expects. I see some hints that his desire for government in cyberspace is a simple reflection of his desire for government in the real world. Yet I’d expect the analysis of whether government is desirable to be nontrivially affected by such differences as whether poverty and death cause much harm.
He claims “A fun economy should have property, theft, and jail too”, but only gives a few cryptic hints about what theft and jail add to an economy.
He claims “there should be no goods which never depreciate”, and partly justifies that by pointing to some benefits of a continuing need to produce new goods, but leaves me wondering why the rule should be universal or even close to universal.
He hints at the desirability of creating p2p virtual societies so that control over them can be decentralized instead of being determined by a corporate owner, but I’m disappointed that he fails to analyze whether this is practical.
One insight I liked was this description of how to deal with the desire for everyone to have high status: “How do you make a world in which everyone is in the top 10 percent? The answer: AI.”
He has a disturbing idea about the military uses of virtual worlds – an aggressor need not be hampered by unfamiliarity with the land he’s invading if he has unlimited ability to practice the invasion in simulation.
He has some ideas about how virtual worlds might help deal with threats such as grey goo, but doesn’t develop them as well as I would like. His ideas on using virtual worlds to make AIs more friendly appear to anthropomorphise AI in a rather naive and dangerous manner.

Net Neutrality

I’ve been wondering for a while whether I should blog about the net neutrality legislation that is being debated. At last, Brad Templeton has come up with a good analysis which covers much of what I wanted to say about why the belief that net neutrality is a good rule is not sufficient to tell us whether we should try to have that written into law.
Lessig’s book The Future of Ideas does a good job of explaining why net neutrality is a desirable rule – a commons can be a good thing, and net neutrality is a rule that’s important to keeping the internet functioning as a commons.
If we’re going to hope that legislation can be useful at protecting commons, then I suspect we need a concept of the commons that contains as much of a standardized bundle of rules as most versions of the concept of property rights contains. That way we could ask legislators to just apply this standardized bundle of rules to each new commons we want it to protect, without giving special interests much of a chance to write the details in such a way as to protect their special situation.
Unfortunately, I can’t think of a good set of rules which would be as intuitive as the rules which apply property rights to physical objects. I suspect that the best we can hope for is a set of rules like those describing what you own when you buy shares of corporate stock. We might even end up with rules as messy as those use for patents, in which case it’s unclear whether it would be worth the effort.

The conference on Human Enhancement Technologies and Human Rights this past weekend had many boring parts and a few interesting tidbits.
Many of the speakers were left-wing ideologues who seemed to be directing their speeches only to others from the same small set of left-wing academics. There were fewer libertarians at the conference than I expected, but still enough that it was strange how much of a disconnect there was between the ideology shown in the speeches and the ideology I knew from elsewhere that many people held but were being quiet about.
There was plenty of concern about whether increased control over one’s body would decrease diversity, but I heard little that enlightened me on that subject. There have clearly been many technologies that increased diversity, such as tattoos. There are some that have decreased diversity because there is a substantial consensus about what’s best (e.g. eyesight – it’s unclear why we should be concerned about a shortage of people who can’t see well enough to drive). Then there are a few traits such as degree of autism where there’s some uncertainty whether reduced diversity would be good. There are some pontificators (I didn’t hear anyone this focused at the conference) who think they know better than the masses what the right amount of diversity is, and that their opinions should be imposed on the masses. But the evidence for the pontificators’ expertise and the masses propensity to make mistakes is generally underwhelming, so I can’t find much reason to be as concerned about the effects of enhancement technology as I am about the desire to impose expert opinion on those who don’t want it.
Hank Greely pointed out that the letter of the law authorizes the FDA to regulate anything that could be considered a body enhancement, including clothing. So only the FDA’s interest in obeying the spirit of the law will deter them from regulating external enhancements.
One amusing report of unwanted side effects of an enhancement technology is the increase in sexually transmitted diseases in seniors following the introduction of Viagra.
Aubrey de Grey made an interesting argument that the most effective approach to convincing people to support a cure for aging is to persuade them that they are being logically inconsistent when they fail to do so. He has a point, but it’s weaker than he thinks. He gave several examples of problems that were allegedly solved by persuading society to be more logically consistent, but I generally doubt that’s what happened. One example was tolerance of homosexuality. I see few signs that logical arguments had much effect on that. I think the biggest change came from peer pressure, which became increasingly popular as gays became able to migrate to places where there were enough gays to safely start exerting peer pressure. Another factor was the shift away from the belief that the main purpose of sex should be reproduction. That initially happened due to changing circumstances (reduced reliance on children to support elderly parents). I’d say that has generally produced beliefs that are more inconsistent as people abandon the least convenient symptoms of the belief (e.g. contraception) but are much slower to abandon symptoms that are remote from their experience. I think similar theories could be made about some other examples he gave (slavery becoming more expensive to enforce when railroads made it easier for slaves to escape to a non-slave state).

Book Review: The Armchair Economist: Economics And Everyday Experience by Steven Landsburg
This short and eloquent book does a mostly excellent job of explaining to non-economists how economic reasoning works in a wide variety of mostly non-financial areas. But it’s frustrating how he can get so much right but still demonstrate many annoying oversimplifications that economists’ biases make them prone to.
For example, on page 145 he claims that a trash collection company could cheaply prohibit Styrofoam peanuts in the trash by checking everyone’s trash once a year and fining violators $100,000. But anyone who thinks about the economics of such fines will be able to imagine massive costs from people disputing who is responsible for peanuts in the trash. Maybe there are cultures in which such fines would ensure negligible violations, but there are probably as many cultures in which disputes over people putting peanuts in someone else’s trash cans would produce more waste than the peanuts do.
His suggestion of applying antitrust laws to politicians is almost right, but ignores the public choice problems of ensuring that laws marketed as antitrust laws do anything to prevent monopoly. The details of antitrust laws are complex and boring enough that few people other than special interests pay attention to them, so special interests are able to twist the details to turn the laws into forces that protect monopolies.
On page 183 he says “Flood the economy with money and the nominal interest rate goes up in lockstep with inflation”. Given a sufficiently long-term perspective, this is an arguably decent approximation. But he’s disputing the common sense of a typical reporter who is more interested in a short-term perspective under which those changes clearly do not happen in lockstep (on page 216 he provides hints at a theory of why there’s a delayed reaction).
He makes some good points about the similarities between environmentalism and religion, but it seems these points blind him to non-religious motives behind environmentalism. He says on page 227 about relocating polluting industries: “To most economists, this is a self-evident opportunity to make not just Americans but everybody better off.” Maybe if he included a payoff to the U.S. workers whose jobs went overseas, this conclusion would be plausible. But it’s hard enough to figure out how such a payoff should be determined that I suspect he simply ignored that problem.

For a while now I’ve been bothered by the absence of an eloquent phrase for monopolies on ideas that doesn’t perpetuate the recent claim that those monopolies deserve the same respect as ownership of physical objects. That claim has caused some presumptions which distort discussion of copyrights and patents, and lead to thoughtless conclusions such as this attack on Google’s Print Library (a project which sounds like it will respect copyrights more carefully than Google’s main search engine does).
Eric Drexler recently mentioned that “intellectual pseudo property” is an appropriate term, and pointed out that many of the rules it refers to are more like a lease than ownership. Apparently Markus Krummenacker used the phrase first (without a succinct argument that it should replace the phrase intellectual property).

Judicial Bias

Finally someone has produced a quantitative measure that tests the ideological biases of supreme court justices, and it shows a good deal of bias. It looks more like a collection of small biases rather than a simple polarization into left and right.
An article titled Alito isn’t “pro-life” or “pro-choice” but “pro-law.” by Jon Adler (who I knew when he was an undergrad and whose opinions I respect) has led me to believe that Alito will be less influenced by his personal biases than the average justice.

The CFTC has reacted to Tradesports‘ futures-like contracts that many U.S. residents have been trading without CFTC regulation.
It is surprising how closely the contracts that they objected to coincide with contracts traded under CFTC regulation – they apparently have prohibited Tradesports from offering to U.S. residents contracts on the results of the next Fed meeting (which Hedgestreet trades under CFTC regulation; Tradesports stopped offering these in May, possibly due to negotiations with the CFTC) but as far as I can tell Tradesports is still able to offer contracts on where the Fed Funds rate will be at the end of the year.
I am also surprised that the CFTC classified the contracts as futures options rather than futures. They do have something resembling as strike price, but otherwise resemble a futures contract more than they resemble an option.

Book Review: Innovation and Its Discontents : How Our Broken Patent System is Endangering Innovation and Progress, and What to Do About It by Adam B. Jaffe, Josh Lerner

This book presents a clear, concise and convincing argument that subtle changes in U.S. laws starting in 1982 have broken a patent system that was working reasonably well until then. It will be more effective at convincing the average person than most other attempts have been, both because of its style and because it shows that the changes which broke the system shouldn’t have been expected to help anyone other than patent lawyers. Their analysis will be useful in helping to avoid the takeover of other agencies by special interests.

Their description of how the system should be fixed is less impressive. Their summary of proposed changes strangely fails to include undoing the change in appeals court jurisdiction which they suggest was a primary cause of the problems. Their argument in favor of patenting software, business practices, etc. is more radical than they seem to realize, as it appears to imply that patents should also be extended to mathematical theorems, yet they act as if the burden of proof should be on their critics.

It is hard to believe their proposals go far enough. One suggestion I have is that, in return for higher salaries, patent examiners should be unable to work as patent lawyers for a year or two after leaving their job. This would reduce the number of examiners who can expect to be rewarded for patents that create disputes.

Their confidence that a traditional patent system is better than no patents is unconvincing (but they do a good job of explaining why it is hard to know what the best system is). They support their position by a few examples such as Xerox, whose copier wouldn’t have been invented as it was without patent protection. But it’s much harder than they imply to determine that a copier wouldn’t have been invented some other way a few years later.