Archive for the 'Law' Category

Questioning the Fifth Amendment

Our frequent visitor Bennett Haselton emailed me recently with a question about the Fifth Amendment, and I invited him to expand his question into a guest post. Here it is:

Questioning the Fifth Amendment

A Guest Post

by

Bennett Haselton


I have a question that has only provoked a lot of confused righteous indignation in other forums, and I wonder if TBQ readers might have more thoughtful responses, if we phrase it as a logic puzzle.

My question: I don’t see why it’s good policy to give criminal defendants a Fifth Amendment right to silence in their own trial, as opposed to giving them the same rights and obligations as third-party witnesses (who can be subpoenaed and required to answer questions).

Now obviously I’m not saying that the state should be able to torture someone until they confess to something. When I say give defendants the “same rights and obligations as third-party witnesses”, I mean:

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RIP, Ronald Coase

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Ronald Coase has died at the age of 102. I am therefore reposting, with minor changes, the appreciation I wrote a few years ago for his 99th birthday.

In the theory of externalities—that is, costs imposed involuntarily on others—there have been exactly two great ideas. The first, forever associated with the name of Arthur Cecil Pigou (writing about 1920) is that things tend to go badly when people can escape the costs of their own behavior. Factories pollute too much because someone other than the factory owner has to breathe the polluted air. Nineteenth century trains threw off sparks that tended to ignite the crops on neighboring farms, and the railroads ran too many of those trains because the crops belonged to someone else. Farmers keep too many unfenced rabbits when they don’t care about the lettuce farmer next door.

Pigou’s solution—and it’s often a good one—is to make sure that people do feel the costs of their actions, via taxes, fines, or liability rules that allow the victims to sue for damages. Do a dollar’s worth of damage, and you’re charged a dollar.

Pigou endorsed this policy not because it seems fair, though it does seem fair to many, but because it yields, under what he believed to be very general conditions, the optimal amounts of damage. We don’t want too much pollution, but we don’t want too little, either, given that pollution is a necessary by-product of a lot of stuff we enjoy. Pigou offered a proof—now standard fare in all the textbooks—that his policies lead to the perfect compromises, in a sense that can be made precise.

The second great idea about externalities sprang full-blown from the mind of a law professor and subsequent Nobel prize winner named Ronald Coase, who stunned the profession in 1960 by pointing out that Pigou’s argument runs both ways. If you breathe the pollution from my factory, I’m imposing a cost on you—but at the same time, you’re imposing a cost on me. After all, if you lived somewhere else, you wouldn’t be complaining about the smoke and I wouldn’t be getting punished for it.

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Judgment Calls

If you need further proof that a human being is a close cousin to a chimpanzee, you need look no farther than the design of the American justice system.

Debra Nelson, the judge in the George Zimmerman murder case, has disallowed testimony from audio experts about whether that’s Zimmerman or the deceased Trayvon Martin who can be heard screaming on the 911 tape. That matters, because much of what’s in dispute here is the question of who attacked whom.

One prosecution expert was prepared to testify that the screams are Martin’s, and another that they are at least not Zimmerman’s. Defense experts were prepared to dispute those claims. They made their arguments in front of the judge for several days, whereupon she ruled that the jury won’t be allowed to hear any of it.

The judge’s concern was that there is no good evidence that the experts’ techniques are reliable. That might be true. But who should be making that call — the judge or the jury?

There is, I think, an excellent case to be made that juries are, by and large, incompetent (or at least less competent than judges) to determine what constitutes a plausible argument by an audio expert. But if you buy that argument, I think you’ll be pretty much forced to conclude that the jury is also incompetent to reach a verdict. If that’s your view, we shouldn’t have juries in the first place.

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Legal Problems

Economists often say that the law should be written to promote efficient outcomes. That’s more ambiguous than it sounds.

Suppose I want to take an action that causes you harm; for example, I want to cut down a tree that you like looking at. How do we tell if that action is efficient?

Definition 1. The action is efficient if my willingness to pay exceeds your willingness to accept. For example, if I’m willing to pay $100 for the privilege of harvesting the tree, and if you’d accept less than $100 to part with it, then the tree-cutting is efficient.

Definition 2. The tree-cutting is efficient if it would occur in a world with no transactions costs (i.e. a world in which there are no impediments to bargaining).

In many circumstances, these definitions are equivalent, and economists often pretend they’re equivalent always — but sometimes they’re not.

Example 1. I want to punch you in the nose non-consensually. (The non-consensuality is a big part of my enjoyment.) I’d pay $100 to punch you in the nose, and you’d accept $50 to take the punch. By Definition 1, the punch is efficient. But the punch would be unlikely to occur in a world with no transactions costs, because it would require bargaining, hence consensuality on your part, which kills my interest. So by Definition 2, the punch is inefficient.

Example 2. I am willing to pay $100 to cut down a tree; you are willing to accept no less than $150 to part with it. By Definition 1, the cutting is inefficient. But part of the reason I’m willing to pay only $100 is that I’m credit constrained. In a world with no transactions costs, I’d borrow more, and would be willing to pay $200 to cut down the tree. So by Definition 2, the cutting is efficient.

Example 3. I am willing to pay $1000 to cut down a tree; you are willing to accept $500 to part with it. By Definition 1, the cutting is efficient. But the only reason I’m willing to pay so much is that I make an excellent living in my job as a mediator who helps people overcome transactions costs. In a world with no transactions costs, I’d be much poorer and would be willing to pay only $200 to cut the tree. So by Definition 2, the cutting is inefficient.

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Robert Bork, RIP

Robert Bork will be remembered for many things, but the most important, and the reason we are so fortunate to have had him with us, is his eloquent and influential insistence that antitrust law is there to protect consumers, not to protect inefficient firms. The Supreme Court eventually agreed. He was, in my opinion, wrong about a lot of things, but he left the world better than he found it.

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A Naive Question

Can someone help me understand this?

1) The Constitution, as amended, gives the federal government the right to levy taxes uniformly across the states, and also to tax income.

2) The federal gasoline tax is neither levied uniformly across states nor is it a tax on income. Thus it must be justified under something other than the explicit taxing powers set forth in the Constitution.

3) I’ve always sort of presumed that the missing justification is provided by the Commerce Clause.

4) In other words, the right to levy a gasoline tax seems to be dependent on the Commerce Clause.

5) By the same reasoning, the right to levy a tax on not-having-health-insurance would seem to be dependent on the Commerce Clause.

6) But John Roberts says explicitly that the Commerce Clause can not be used to justify a tax on not-having-health-insurance.

7) How, then, can a tax on not-having-health insurance possibly be constitutional? It’s not levied uniformly across states, it’s not a tax on income, and we have the Chief Justice’s word that it can’t be justified by the Commerce Clause. Whence, then, the constitutional authority to levy such a tax?

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Fighting Back

notredameA consortium of Catholic institutions, including the University of Notre Dame, is suing to overturn the Obama administration’s contraception mandate. I hope they lose. I think.

The birth control mandate strikes me as a very hard policy to defend, though I’ve done my part to put together the best possible arguments in its favor. For the record, I do think there’s a quite reasonable case to be made for some insurance mandates — primarily with regards to pre-existing conditions and catastrophic illnesses. (There’s also a very good case against those mandates, so don’t take this as an endorsement!). Those mandates at least address plausible market failures. A contraception mandate pretty clearly fails that test (though see the discussion at the linked post for some reasoned argument to the contrary).

So I believe the mandate is bad policy, both in its specifics and in its general presumption in favor of government power. If this isn’t unconstitutional, we need a better constitution. But that’s not the basis of Notre Dame’s lawsuit. Notre Dame’s position, as I understand it, is that Catholic institutions (as opposed to, say, General Electric) should be exempt from the mandate because religious objections (as opposed to, say, financial objections) have some kind of special exalted status. That strikes this non-lawyer as straying perilously close to a law respecting the establishment of religion. And if that’s not unconstitutional, then we really need a better constitution.

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Paging Alex Tabarrok

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A mere two days after I lavished praise on Alex Tabarrok’s new book, which (among many other things) makes an eloquent case for patent reform, the U.S. Patent Office has proved that nobody’s listening by issuing patent #8,082,523 to Apple, Incorporated for a “portable electronic device with graphical user interface supporting application switching”. The abstract, in its entirety, reads as follows:

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Is “Legal Reasoning” an Oxymoron?

Our reader Jonathan Campbell has an excellent post on a bizarre example of legal “reasoning”. A defendant fires 95 shots into the woods; his friend fires 5. A man in the woods is hit by a bullet and dies. The defendant is 95% certain to be the killer (in other words, he is the killer beyond a reasonable doubt), but he is acquitted because the nature of the evidence is “statistical” and therefore cannot be the basis of a conviction.

This tends to confirm my suspicion that a legal “education” consists primarily of having your capacity for logic beaten entirely out of you. As Jonathan points out, all evidence is statistical in exactly the same sense that this evidence is. I put a bullet through your heart and you take five minutes to die. Did the bullet cause your death? Well, not certainly — there’s some small chance that you died of a heart attack that would have killed you anyway, thirty seconds before the bullet was able to finish its job. Is there a high probability I caused your death? Yes. Did I do so beyond a reasonable doubt? Yes. Is the remaining doubt of a statistical nature? Yes. So if there were any consistency in the law, of course I’d be acquitted. And of course I would not be. Which means, as has been noted in this space before, that the law is an ass. So, perhaps, are a substantial fraction of its practitioners.

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Justice Denied

John Thompson spent 18 years in prison, 14 of them on death row, for a crime that it seems very likely he did not commit. Prosecutors were aware that blood found at the crime scene was not Mr. Thompson’s, but they failed to turn this evidence over to the defense attorneys.

Does Mr. Thompson deserve compensation? A jury thought so, to the tune of $14 million. But five Supreme Court justices disagree, so Thompson gets nothing.

That’s because, according to the majority, it was only a single rogue prosecutor who misbehaved, so it would be wrong to punish the whole district attorney’s office. The dissenting minority argued that in fact there was a pattern of lax training in that office, so the jury award should stand.

But if an innocent man spends 18 years in prison, why should his compensation depend on the nature of the misconduct that sent him there — or even on whether there was any misconduct in the first place?

Look. We’ve pretty much all agreed that we want to have a justice system. Since all justice systems make mistakes, that means we’ve pretty much all agreed that we’re prepared to tolerate a certain number of mistakes. The question, though, is: Who should bear the costs of those mistakes? Should the costs fall entirely on an unlucky few like John Thompson who just happen to have been in the wrong place at the wrong time, or should they be spread more evenly among the populace that is perfectly happy to share in the benefits of the justice system?

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Judicial Overreach

Along with Mike Rizzo at the Unbroken Window, I am ambivalent about the Florida district court ruling thats strikes down Obamacare (by first striking down the mandate for individuals to be insured). Yes, Obamacare is bad policy; yes, it’s arguably unconstitutional. But as bad and unconstitutional policies go, it’s relatively benign. I (like Rizzo) am uncomfortable with a judiciary that can reject Obamacare while accepting agricultural subsidies, affirmative action, the Americans with Disabilities Act, and laws that dictate the size of your showerhead.

In fact, unlike, say, agricultural subsidies, the mandate for individuals to buy health insurance is at least a defensible response to a genuine problem — in fact, it’s a defensible response to two genuine problems.

First, as long as people are uninsured, they are going to show up at emergency rooms demanding care, and they are going to get it. Arguably, the best policy is to turn those people away unless they’re able and willing to cover the costs of their own care, but we all know that’s never going to happen. Given that we’re going to make medical care available to everyone, there’s at least an argument for making everyone pay for it.

Second, there really are good arguments for insuring people regardless of (at least some) pre-existing conditions; most of us would have insured against those conditions before we were born if we’d had the opportunity, and the inability of pre-born souls to sign insurance contracts can be seen as a form of market failure that bears correcting. But if you don’t allow discrimination on the basis of pre-existing conditions, then you’ve pretty much got to have an individual mandate; otherwise everyone waits till they get sick to buy insurance and the whole system breaks down.

Now the Obamacare system is very far from my preferred approach to these problems, but at least it’s a plausible response to a real set of problems, and hence arguably amounts to a system of taxes designed to provide for the general welfare of the United States, as allowed under Article I, Section 8 of the Constitution. That’s a lot more than you can say about, say, mandatory wheelchair ramps, the cost of which often far exceeds what you’d have to pay the wheelchair-bound to compensate for their absence. It’s a lot more than you can say about the Post Office, or the Commerce Department, or the Occupational Safety and Health Administration.

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Why Yes. The Law Is An Ass.

According to U.S. District Judge Henry E. Hudson, the same government that requires you to buy retirement insurance (via Social Security) is constitutionally barred from requiring you to buy health insurance.

Apparently some idiot lawyers have gotten it into their heads that the Social Security mandate is okay because it’s called a “tax”, whereas the Obamacare mandate is not okay because it’s enforced by what’s called a system of “fines”. From which I infer that if the government taxes you $1000 and uses it to buy you some health insurance, that’s constitutional. Or, if the government gives you a tax credit for buying insurance (after raising taxes to cover the cost of everyone’s credits, of course), then that’s constitutional — just as tax credits for home insulation are constitutional. Whereas if they just require you to buy $1000 worth of health insurance directly, that’s not constitutional even though it has exactly the same consequences as other policies that are constitutional. From which I infer that the law is an ass.

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Equal Protection

A U.S. District Court has overturned California’s Proposition 8 (the prohibition of same-sex marriage), which, says the court, violates both the Due Process and Equal Protection clauses of the Fourteenth Amendment. I am very happy to hear that the courts are open to overturning legislation that violates the Fourteenth Amendment. Next up, Title VII of the 1964 Civil Rights Act!

The issues are pretty much identical. Here is the District Court’s reasoning in the California case (this is the Court’s summary of the plaintiffs’ position, which the Court endorses):

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Cruel and Unusual?

Michelle Lyn Taylor, age 34, got drunk one night and tried to seduce a 13 year old boy by taking his hand and putting it on her breast. This was definitely Not Cool. Nevada prosecutors thought it was so uncool that they charged her with a crime (“lewdness with a child under the age of 14″) that carries a mandatory life sentence and then refused to plea bargain. (Two years earlier, a woman who had sexually abused two boys repeatedly over the course of a year was offered a plea bargain and served ten months in jail.)

In the videotaped sentencing hearing, which you can see in its entirety below, the judge seems bemused by the prosecutors’ choices but unmoved by the defense attorney’s attempt to raise a constitutional objection. The defense attorney, not entirely unreasonably, pretty much loses it.

Michelle Lyn Taylor is now serving a life sentence and will have her first shot at parole ten years from now. Does this strike any of you as reasonable?

Missing the Big Picture

Writing in the New York Times, law professor Kris Kobach promises to rebut all the major objections to Arizona’s new anti-immigration law and proceeds to ignore all the major objections. Professor Kobach’s idea of a major objection is “It’s unfair to demand that aliens carry their documents with them”, whereas my idea of a major objection is “It’s idiotic, hateful and destructive to put obstacles in the way of productive activity.”

The number of “unauthorized aliens” in Arizona at any given moment is estimated as just under a half million—about the same as the number of Jews in New Jersey. Over half the text of the Arizona law is devoted to penalizing employers who hire these people. Now suppose for a moment that the New Jersey legislature were to pass a bill penalizing anyone who hires a Jew. Would Professor Kobach defend this law, as he does Arizona’s, by pointing out that it doesn’t require anyone to carry a driver’s license?

The anti-immigration hysterics keep warning us that foreigners want to come over here and exploit our welfare system. The insincerity of that stance is exposed whenever, as in Arizona, its proponents set out to prevent those very same foreigners from coming here and working.

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Criminal Law

cagedOn June 25, 2010, Professor Joseph Weiler, editor of the European Journal of International Law, will stand trial in a French criminal court for running a mildly negative book review on a journal-associated website.

The book in question is The Trial Proceedings of the International Criminal Court by the Israeli law professor Dr. Karin N. Calvo-Goller. According to the reviewer the main part of the book “simply restates the…relevant parts of the ICC Statute.” This rehashing, he adds, is particularly unproductive since a large part of the volume consists of a reprint of the Statute itself.

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Scalia Against Secession

When screenwriter Daniel Turkewitz was working on a script about astronauts struggling to survive in crisis conditions, he enlisted a veteran astronaut as a consultant. That worked so well that when Turkewitz began his new project, a script about Maine seceding from the Union to join Canada, he decided to enlist an expert on the legal niceties of secession. In other words, he decided to enlist a Supreme Court Justice.

Eight out of nine justices (plus retired Justice Sandra Day O’Connor) ignored Turkewitz’s inquiry about what would happen if a secession case were to reach the Supreme Court. Rather astonishingly, however, Justice Scalia responded with the following letter, which Turkewitz’s brother Eric posted on his blog this week:

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