“Keyboard Wizard”
Check out this extraordinary piece from Brainpool, “Keyboard Wizard”:
http://www.isound.com/mp3player/play.php?type=song&id=259907
It’s sort of like The Who, but it rocks even harder. The bass, drums, and synth are incredible!
Mar
30
2009
30
2009
Mar
30
2009
30
2009
Prison Industry Lobbies for Harsher Sentences
I suppose it’s a perfectly rational move, but it still shocks the conscience to read accounts like this:
To be fair, government employees weren’t the only ones to lobby against crack-cocaine sentence equalization. A little-recognized subset of this vast prison-industrial complex lobbying community is composed of private correctional corporations, which sign lucrative contracts with governments to house inmates for profit, often shipping them to facilities out of state.
It is, of course, in these private prisons’ economic interests to see more people in prison serving longer sentences. And with current facilities bursting at the seams, times for this burgeoning industry are good. The country’s largest private prison provider, the Corrections Corporation of America (CCA), spent more than $2.7 million from 2006 through September 2008 on lobbying for stricter laws…
The societal costs — both human and financial — of these policies and practices are enormous, and growing. California — which carried a $15.2 billion deficit into this fiscal year — spends $10 billion per year on more than 170,000 inmates… California also faces high recidivism rates; state records show that more than two-thirds of released inmates return to prison within three years…
Source: http://thephoenix.com/Boston/News/73092-Freedom-watch-Jailhouse-bloc/
Mar
30
2009
30
2009
Government Behavior
The overriding goal of the government is to preserve itself in its current form. That goal will be pursued to the degree that institutional safeguards allow it to do so. In the words of Economist Paul Seabright, “the problem of how to constrain the exercise of power within the state has come to be seen as the central problem in political philosophy.”[1]
A legislator gains pecuniary and other benefits from his employment at the legislature—sufficient perks as to justify a costly and risky campaign for office. It is thus assumed that the legislator prefers to remain in office. Assuming this goal, one predicts that the legislator will implement short-term and long-term strategies to preserve incumbency. Campaign advertising, pork barrel, logrolling, and gerrymandering are classic examples of such strategies.[2] A complicating factor is that congressional incumbency is virtually guaranteed in most cases; once a candidate is elected, he can “slack off” most of the time and still get reelected.[3]
The executive branch follows similar logic. While the president and vice president are the only directly elected officials in the executive, assignment, promotion, and termination in other positions is controlled by elected officials. They therefore may also be reasonably classified as democratically determined.
The most politically isolated position in government is the federal judge. Judges are hired for life except by reason of impeachment, which is rare. Bad judges are thus preserved, but they can’t make too much mischief thanks to the appeals process and other institutional safeguards. Still, though, the political nature of judging remains, since hiring and promotion decisions are made by politicians.[4]
As a singular organization, the government has vast monetary and other resources, including near-limitless access to information.[5] Because the survival motive extends more or less to all officeholders, it is presumably operative on the government as a whole. Interestingly, though, the instrumental value of money is distorted for the government, since it can borrow almost infinitely without punishment. Voters tend to think retrospectively rather than prospectively,[6] so the electoral benefits gained from deficit consumption’s satisfaction of short-term preferences often outweigh the electoral costs associated with prospective worries about the national debt.
Notwithstanding these vast resources, the government still faces efficacious behavioral constraints, which come in three types: 1) the democratic process, 2) constitutional safeguards as implemented by the judiciary, and 3) institutional constraints that are either self-imposed or a byproduct of the organizational structure. The democratic constraints on the actions of government and government actors consist in the threat that politicians will be ejected from office if they abuse their positions. Primary and election procedures probably prevent most undesirable characters from gaining office, alongside many desirable characters. The threat of an electoral challenge is mitigated by the stark electoral advantages imparted to incumbents by the government’s organizational structure.
Legal and constitutional institutions also constrain government action. The U.S. Constitution, its amendments, and their implementation by the Supreme Court have had substantial effects on what activities the government is allowed to undertake.[7] American citizens still retain some protection of their private information from surveillance, for example.[8] More generally, the government and its actors are considered not to be above the law. A defense contractor in the employ of the government would still be liable for murder, for instance.[9]
Perhaps the single most important safeguard to the government maintaining iron incumbency and arrogating even more power to itself is the separation of powers as provided for in the U.S. Constitution. Among other institutions, the legislature can impeach executive and judicial officers, the executive can veto and pardon, and the judiciary can exercise judicial review. As James Madison emphasized in Federalist 51,
the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others… You must first enable the government to control the governed; and in the next place, oblige it to control itself.[10]
Madison’s prescience has been confirmed by America’s relative freedom and success throughout history. The Constitution’s checks and balances limit the power of any one branch of the federal government. However, separation of powers as instituted by constitutional law breaks down in military matters, a weakness exploited by militaristic political actors.
In conclusion, the preeminent goal of government as an organization is to preserve itself, but pursuit of that goal is constrained and influenced by the institutional norms defining government offices. Government agents will act selfishly, regardless of social harmfulness, unless selfishness is deterred by institutional enforcement. We should expect abuse of office to be rare if such abuse is punished, but common if abuses are not punished. While the American government can get away with many abuses of power, it is true that oftentimes the worst abuses are remedied by electoral ejection of abusers from office and adverse rulings by courts.[11]
[1] Paul Seabright, The Company of Strangers 227 (2004).
[2] Gary C. Jacobson, Modern Campaigns and Representation, in The Legislative branch 109, 112, 114, (Paul J. Quirk and Sarah A. Binder, eds., 2005).
[3] Jeffrey Milyo, What do candidates maximize (and why should anyone care)?, 109 Public Choice 119 (2001).
[4] Richard Posner, Judicial Autonomy in a Political Environment, 35 Ariz. St. L.J. 1 (2006).
[5] See Oscar H. Gandy, Jr., The Surveillance Society: Information Technology and Bureaucratic Social Control, 39 J. Comm. 61 (1989).
[6] Helmut Norpoth, Presidents and the Prospective Voter, 58 J. Pol. 776 (1996) (“The results unequivocally reject the prospective claim and confirm the retrospective one.”)
[7] Marbury v. Madison, 5 U.S. 137 (1803).
[8] Katz v. United States, 389 U.S. 347 (1967)
[9] Helvenston et al. v. Blackwater Security (2008)
[10] James Madison, Federalist no. 51.
[11] Richard Posner, 5 Law, Pragmatism, and Democracy (2003).
Mar
29
2009
29
2009
“Beyond the Economics of Crime” Conference
I co-authored a piece with UvA Professor Frans van Winden on behavioral-economic approaches to criminal behavior and regulation. The piece was presented to the “Beyond the Economics of Crime” conference at Heidelberg University on March 21. You can see the program with a link to the piece here:
http://www.eco.uni-heidelberg.de/lehrstuhl/PreliminaryScheduleHyperlink.pdf
I would recommend against reading the whole thing, however, since it is a relatively rough draft that will be polished for journal publication.
Mar
29
2009
29
2009
Note on Victim-Nationality Jurisdiction
Jurisdiction from the nationality of the victim has been called elsewhere “the passive nationality principle,” but I prefer the less opaque “victim-nationality jurisdiction.” It is the legal mechanism by which countries gain jurisdiction over crimes perpetrated against their own citizens regardless of where the crime occurs.[1] While victim-nationality has historically been opposed by the United Kingdom and the United States,[2] it has become more common in the last few decades, especially as part of multilateral agreements on terrorism.
Victim-nationality jurisdiction serves a state’s self-interest in protecting its citizens from harm even when they are abroad. Each of these citizens, through tax contributions, helps fund the extra criminal infrastructure necessary for prosecuting crimes committed abroad. While potentially costly, it theoretically should deter crimes against the country’s nationals wherever they travel.
The effectiveness of victim-nationality jurisdiction as a roaming deterrent has not been systematically investigated, but there is reason to doubt that effectiveness. Unless the exercising state’s nationals advertise their nationality at all times when traveling abroad, prospective offenders will not recognize the prospective victim’s nationality and thus fail to register the increased expected cost from punishment. Presuming that offenders could perfectly distinguish visitors on nationality, this theory also assumes that criminals have perfect information about which states exercise victim-nationality jurisdiction. This is also improbable. For victim-nationality jurisdiction to effect a palpable deterrent, some critical mass of countries would have to implement it such that there was always some cognizable chance that committing a crime against a visitor would result in prosecution by the visitor’s home-country.
This disconnect might be explained by psychological reciprocity instincts: humans have a strong retrospective retributive instinct against those who have injured members of their in-group, regardless of the ex ante deterrent effect. The possibility of impunity in cases where a fellow citizen has been injured triggers an autonomic adverse reaction in one’s countrymen. As a democratic whole, therefore, we elect leaders who will follow victim-nationality jurisdiction, regardless of its deterrent efficacy.
Nationality is a noisy signal, so victim-nationality jurisdiction could actually serve to increase deterrence for crimes against all individuals. If this be the case, then victim-nationality jurisdiction is an instrument of state cooperation and contributes to a public good of transnational criminal deterrence. Realistically, though, it doesn’t serve to deter crimes against all people, but rather increases deterrence for crimes against people who look like they are probably from a country that follows victim-nationality jurisdiction. Because European nations are more likely to enact victim-nationality jurisdictional mechanisms, then, individuals of European descent may be less attractive victims for crime throughout the world. Race-based differences in crime-victimization rates would be evidence of this dynamic. Of course, this increased expected cost of crime must be balanced against the expected benefit, and it’s possible that countries with victim-nationality jurisdiction might also have, on average, wealthier citizens. If that’s the case, victim-nationality jurisdiction might just serve to equalize deterrence for a country’s citizens and thereby enable them to go abroad without disproportionate fear of crime.
The interesting implication of victim-nationality jurisdiction is that, counter to most tourism advice, tourists from those countries implementing victim-nationality jurisdiction should actually advertise their nationality. This signal would deter prospective criminals. Indeed, in theory, these tourists should be safer even than locals, because crimes against them could be punished by either the government of the country where the crime occurred or the government of the victim’s home-country. Empirical data bearing on which effect is controlling are not currently available.
[1] European Committee on Crime Problems, “Extraterritorial criminal jurisdiction,” Council of Europe (1990).
[2] See Cutting (1886).
Mar
27
2009
27
2009
A Note on Reasonable Doubt
The founding statute of the International Criminal Court requires that “the Court must be convinced of the guilt of the accused beyond a reasonable doubt.”[1] The probability content of that standard is ambiguous[2] in light of the logically true statement that guilt of any accused is to some degree uncertain. Registering a probability standard from that language is impossible with legal reasoning; the pragmatist might bridge the gap by interpreting “reasonable” as “socially optimal.” On this welfare-economic view, the reasonable-doubt standard can be treated as an endogenous variable in the maximization of social welfare via efficient criminal deterrence. If the standard is too high, the expected costs of crime are reduced and the crime rate increases; if the standard is too low, socially beneficial activities are deterred, reducing social welfare. Establishing an optimal evidentiary standard thus serves broader goals of international criminal law.
While this sense of reasonable doubt provides a useful heuristical frame, it is probably infeasible in practice. Adjudicators of reasonable doubt instead draw on cognitive intuitions, perhaps influenced by emotional or social processes. Because individuals can have widely different intuitions about reasonable doubt, twelve heterogeneous jurors will be more likely to approximate the social average than three homogenous judges.
Application of reasonable doubt is thus one area of international criminal law that jurors might perform more effectively than judges. At the same time, the absence of juries in international criminal law has been unquestioned by few. Bearing in mind the epistemological gap between legal concepts and real-world objects discussed yesterday, though, the absence of juries is problematic. Decisions of criminal liability by judges are unfortunate because it requires the illegitimate leap from law to facts through legal reasoning; juries can blamelessly appeal to their cognitive and emotional intuitions without pretending to do otherwise. Even more troubling is that illegitimate leaps from law to facts are codified in precedent-setting judicial opinions. Legal reasoning from empirical facts exerts power on future cases notwithstanding that legal reasoning was not responsible for the initial decision.
But the question of whether to use judge or jury in international criminal law turns, for the pragmatist, on quality of outcomes. The leading concern is to ensure accuracy of the proceedings, because erroneous judgments undermine criminal deterrence[3] as well as the tribunal’s political legitimacy worldwide. Notwithstanding the concerns noted here, it could very well be the case that the professionalism of judges is a better guarantor of optimal outcomes than the majoritarianism of juries. This is an empirical question that deserves further investigation.
[1] ICC Statute Art. 66(3).
[2] James Franklin, “Case comment—United States v. Copeland, 369 F.Supp 2s 275: quantification of the ‘proof beyond a reasonable doubt’ standard,” Law, Probability, and Risk vol. 10 (2007).
[3] Richard Posner, “An Economic Approach to the Law of Evidence” (1998). As far as criminal deterrence goes, the inconsistent prosecution of international crimes is probably far more undermining than its evidentiary standards could ever be.
Mar
26
2009
26
2009
Note on Legal reasoning
Laws oftentimes read out as mathematical-logical constructs, pretending to account for and give instructions for every possible contingency. The truth, of course, is that legal concepts, like moral concepts, are “open” in the sense that they “can never be reduced to concrete situations or actions.”[1] When arising from actual facts, legal problems are not soluble by logical legal reasoning. Linking up legal notions of guilt with the actions they are intended to criminalize requires a further ontological leap that is not found in legal reasoning.[2] Something else outside of legal reasoning—a cognitive roll of the dice, if nothing else—always comes in to save the day, oftentimes without the conscious recognition of the decision-maker.[3]
Consider a hypothetical decision-maker D making a choice C from a continuum of alternatives. This model could represent damages decisions in tort or contract, or sentencing for criminal cases. Party A prefers some choice on the continuum; Party B prefers some different choice on the continuum. Given these preferences, the range of choices is restricted. Given judicial precedents, the range of choices is further restricted. The overlap between these two restrictions is the possible range of available choices to the decision-maker. Once the judge has pared down the options to those within this range, there is no objectively correct choice. Legal reasoning cannot determine that final step. Within the bounds of that choice-range, the result C is determined by extra-legal factors, most notably the social-psychological bargaining processes between A, B, and D.
Alternatively, consider a hypothetical decision-maker D choosing in favor of Party A or Party B. This sort of binary decision is exemplary of liability determinations or injunctive relief. In many (perhaps most) cases, there is precedent to justify a decision for either side. Rather than restricting the range of choices, these precedents can be conceptualized as determining the probability distribution among the discrete decisions. At any rate, there is no objectively correct choice that is attainable by legal reasoning. Again, the result is determined by extra-legal factors, with bargaining among the actors at the top of the list.
[1] Harmen van der Wilt, “Equal Standards? On the Dialectics between National Jurisdictions and the International Criminal Court,” International Criminal Law Review vol. 8 (2008), pg. 263.
[2] J.M. Brennan, The Open Texture of Moral Concepts (1977), pg. 119.
[3] Chief Justice John Roberts’s bad-faith self-conceptualization as umpire is exemplary of this tendency. See Richard Posner, How Judges Think (2008), pp. 78-79.
Mar
26
2009
26
2009
Bird Parasites Affect Song Length
From The Economist:
The paper’s authors, Linda Bischoff of the University of Bern in Switzerland and her colleagues, looked at great tits nesting in boxes in a Swiss forest. As the birds’ eggs started to hatch, they removed both the nestlings and the nests from the boxes. They microwaved the nests to kill any parasites and then returned both nests and nestlings. Then they infested half the nests with 60 hen fleas each…
the songs of those males that had suffered fleas in early life were a third shorter than those sung by the others. The once-infested were also less quick off the mark when the time came to sing. Male great tits respond to the calls of other males by calling back rapidly, and thus overlapping the incoming call with their own. By playing recordings of calls to the males they were monitoring, the team found that those which had been flea-free managed to overlap with almost two-thirds of the outsider’s call, whereas the others managed to cover less than half of it.
Mar
25
2009
25
2009
Death By Giant Lizard
From UPI:
JAKARTA, March 24 (UPI) — An Indonesian fisherman died after being mauled by a Komodo dragon on an island generally barred to humans because of the dangerous reptiles, officials said.
Mar
13
2009
13
2009
A Word on Media
The foremost interest of the news media is pecuniary. News stories are chosen, and news-gathering resources are distributed, to maximize corporate profits. Unlike the demand for money, the individual and aggregate demand for news is finite. On the consumption side, news consumers have only so many minutes a day dedicated to consume news. In newspapers, the number of pages determines the amount of information presented. In television or radio, the length of the program does so. Because the amount of information in the world is virtually infinite and the space constraints of news media are finite, the news media are compelled to make judgments in every decision about what facts and issues are printed in the news.[1] Remarkably, professional journalists are rarely even cognizant of this extraordinarily important political function they perform daily.[2]
Many—probably most—journalists believe themselves to be presenting nothing but the facts.[3] The journalistic myth of objectivity lends an air of mysticism and sacredness to their enterprise. Journalists, like ecclesiastics, are treated as more trustworthy to the degree that they are observed as ascetic. This asceticism is reflected in low salaries for print reporters as well as sensational public sacrifices, exemplified by braving hurricanes and war zones on camera. The intensity of self-sacrifice for their craft lends credibility to their news gospel, which, like religion, is costly to verify.[4] This self-sacrificial element of the journalistic ethic is internalized by journalists and makes them believe their own myths of objectivity.[5]
Many media scholars share the view that news media—in a far cry from factual objectivity—serve as little more than unquestioning conduits of the political elites’ self-serving propaganda.[6] This line of scholarship has made important contributions, but a more nuanced model of the news media has emerged. Rather than propaganda vehicle, the news media is a self-interested middleman, dependent on the government as supplier of information but beholden to the public as consumer of media products.[7] The government supplies such information that serves its own ends, and the media must work from that supply. But if the public demands other information, journalists will seek it out. On the other hand, the public is generally uninterested in hard political news,[8] so government abuse will be mostly ignored by media and public. The media’s collective blindness to the military analyst program following Barstow’s story illustrates this dynamic.
Possibly complicating the business-oriented goals of media companies are the professional ideals supposedly instilled in journalists by journalism school. Many of the reporters working for the media have ethics training and beliefs that run counter to the profit-making mission of their employers.[9] Those beliefs—that truth is more important than profit and that a vigilant Fourth Estate is necessary to the healthy functioning of democracy—might interfere with the employer-corporation’s amoral profit-seeking belief system.[10] Certainly, these principles matter in individual cases.[11] But aggregate studies suggest that their influence is limited on a macro level.[12] This might be explained by the promotion to editorial positions of employees with profit-friendly political dispositions.
Meanwhile, research shows that media can indeed influence government policies.[13] The importance of media in a democracy was not lost on the founders, who saw it fit to constitutionalize the freedom of the press in the First Amendment. “Were it left to me to decide whether we should have a government without newspapers or newspapers without a government,” Thomas Jefferson famously wrote, “I should not hesitate a moment to prefer the latter.”[14]
[1] Michael Schudson, The Sociology of News Production, 11 Media, Culture & Society 263, 265 (1989).
[2] Id. at 264.
[3] Id.
[4] Brooks B. Hull & Frederick Bold, Towards an Economic Theory of the Church, 16 Intl J. Soc. Econ. 1, 11 (1989).
[5] Schudson supra note 37 at 263.
[6] E.g., David Hermann & Noam Chomsky, Manufacturing Consent (2002).
[7] Matthew A. Baum and Philip B.K. Potter, The Relationship between Mass Media, Public Opinion, and Foreign Policy: Toward a Theoretical Synthesis, Annual Rev. Pol. Sci. (2008), pg. 21.
[8] Id. at 28.
[9] John R. MacArthur, The Second Front 20 (1992).
[10] Herman & Chomsky, supra note 42.
[11] Barstow, supra note 2; see also Dana Priest, CIA Holds Terror Suspects in Secret Prisoners, Washington Post, November 2, 2005 at A01.
[12] Id.
[13] David Stromberg, Mass media and public policy, 45 Euro. Econ. Revi. 652 (2001).
[14] Letter to Edward Carrington, 1787.