Law

The “BBC reports”:http://news.bbc.co.uk/1/hi/health/7186007.stm that a change may be in the offing in Britain’s policies on cadaveric organ donation:

Gordon Brown says he wants a national debate on whether to change the system of organ donation. He believes thousands of lives would be saved if everyone was automatically placed on the donor register. It would mean that, unless people opted out of the register or family members objected, hospitals would be allowed to use their organs for transplants. But some critics say the state should not automatically decide what happens to people’s bodies after they die. Currently there are more than 8,000 people waiting for organ transplants in the UK – a figure which rises by about 8% a year. Writing in the Sunday Telegraph newspaper, the prime minister said a system of “presumed consent” could make a huge difference. … The system already operates in several other European countries and has boosted the number of organs available for transplant.

My view is that Gordon Brown is wrong, but not for the reasons you might think.

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John Sides at _The Monkey Cage_ asks whether whites are more likely to support the death penalty when they think black people are being executed, and finds that the answer is yes.

In a 2001 survey conducted by Mark Peffley and John Hurwitz, a random subset of whites was asked:

“Do you favor or oppose the death penalty for persons convicted of murder?”
Somewhat favor: 29%
Strongly favor: 36%

Another random subset of whites was asked:

“Some people say that the death penalty is unfair because most of the people who are executed are African-Americans. Do you favor or oppose the death penalty for persons convicted of murder?”
Somewhat favor: 25%
Strongly favor: 52%

That is a 12-point increase in overall support

See more “here”:http://www.themonkeycage.org/2007/12/are_whites_more_likely_to_supp.html (and original paper “here”:http://www.uky.edu/AS/PoliSci/Peffley/pdf/Peffley%20&%20Hurwitz%20Death%20Penalty%20ajps_293.pdf.

The NY Times has an interesting piece on statistical studies of the deterrent effect (if any) of the death penalty. For those who want to get straight into fact-free debate, the bottom line is that the evidence is too weak to allow a firm conclusion one way or the other. What’s interesting to me, though is the way in which debates within different disciplines proceed, and the lags in transmission between them. Here I think the NYT story, while excellent in many respects, is quite misleading, presenting a story of deterrence-hypothesis economists facing off against legal critics.

That was pretty much the way things stood in the 1970s, after the publication of Isaac Ehrlich’s study in the American Economic Review claiming that one execution deterred 7 or 8 homicides. Ehrlich used multiple regression analysis (quite difficult and computationally demanding in those days, and correspondingly highly regarded) in an attempt to control for other factors affecting homicide rates and isolate the effect of the death penalty.

Over the next decade, economists learned a lot about the limitations of regression analysis. With limited amounts of data, it’s impossible to avoid mining the data for patterns which are then used to fit the model. And if you try enough specifications on weak data, you can get just about any result you want. A classic exposition of this point was Ed Leamer’s 1983 article “Let’s take the con out of econometrics” which pointed out the fragility of regression analysis on time-series data and picked, as an example, the deterrent effect of the death penalty.
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If you haven’t read Malcolm Nance’s Small Wars Journal essay, “Waterboarding is Torture … Period” – well, you should. It is a clear, cogent, forceful statement of the anti-torture position. At the bottom of that page you also get a long list of links and trackbacks, and a comment box. Here, for example, is a helpful explanation of why all the anti-torture complaints about ticking time bomb scenarios miss the point:

One need not imagine a ticking nuclear bomb, by the way. One only need imagine that they are a father who has captured a man who belongs to a pedophilia ring that managed to kidnap his 2 year old daughter. In other words, the life of the innocent need not be in direct or immediate danger, nor must there be a high number of innocents in danger. A single innocent babe in danger of being subjected to such inhuman cruelty deserves to be protected by any means necessary, provided one is certain they have collared a member of the ring. I would never ever be able to forgive myself for allowing my daughter to be degraded in that way, and believe I would sleep well and without guilty conscious should I subject such a man to the minimum force possible to rescue her.

Jesus wept. Meanwhile, another commenter earnestly wonders whether the reason there is so much resistance to torture is that leftists have been watching too much TV.

Then you get Alan “for it even while I was against it” Dershowitz. And Blackfive, on ‘the virtues of waterboarding and secret prisons’: “The reason that character is so important in choosing a President is that the Commander in Chief powers are almost unchecked.”

Sigh.

I don’t have original ideas to contribute to the ‘debate’. I’m against torture. Maybe this would have some rhetorical effect: you can’t waterboard your way to winning hearts and minds. Giving up our country’s longstanding commitments against torture means giving up any hope of winning any War on Terror we might think we are fighting.

I hereby add my humble voice to the chorus of indignation at the sorry sight of the Mukasey confirmation. What follows are my stray, semi-formulated musings about how we got to hell in this handbasket [click to continue…]

Over the last few years, Crooked Timberites, myself included, have given some grief to Jonathan Adler both under his own name and his ‘Juan non-Volokh’ pre-tenure pseudonym for failing to say very much about torture, abuse of state power etc. So it’s only fair to note that he has recently been much more willing to “directly”:http://volokh.com/archives/archive_2007_11_04-2007_11_10.shtml#1194490360 “criticize”:http://volokh.com/archives/archive_2007_11_04-2007_11_10.shtml#1194537717 Bush administration overreach than in the past and seems to be “moving”:http://volokh.com/archives/archive_2007_11_04-2007_11_10.shtml#1194453946 “towards”:http://volokh.com/posts/1194103751.shtml saying that waterboarding is indeed torture. Unfortunately, Alan ‘if torture was good enough for the Nazis, it’s good enough for us‘ Dershowitz seems, if anything, to be getting “worse”:http://blogs.ft.com/crookblog/2007/11/derschowitz-on-.html.

I was going to respond at length to commenter sg in the thread to John Quiggin’s post, but decided I would just bump it up to a post. I think I may fairly summarize sg as saying that some drugs are so intrinsically harmful that they must be illegal. Further, that the US wouldn’t be awash in guns and drugs “if the US would actually try and police the drug trade.” This last is just madness, on my view, and anyone who thinks different should just go peruse Radley Balko’s archives. [In fairness, it seems sg is referring to more competent policing rather than more overwhelming force and aggressive raids, but I’m unclear on how this is meant to work.]

I wanted to talk about something that would-be legalizers often hear, namely, “you’re not willing to admit that under your system there would be lots more drug addicts, and being addicted to drugs is, in itself, a bad thing.” In my experience this isn’t right at all, and everyone who advocates decriminalization will admit that more people will use drugs if they are more widely available and there are no legal penalties. This means more people would become addicted to drugs. How could it be otherwise? This doesn’t mean that I think it’s good thing for people to abuse IV drugs–it’s obviously a bad thing. But the costs our own nation incurs in the War on (Some Classes of People Who Use Some) Drugs are crushing: citizens jailed for drug possession and minor sales; the wholesale violation of civil rights that attends aggressive enforcement of anti-drug laws; the fundamental unfairness of denying sick people access to drugs give them relief. With decriminalization we would need fewer police officers, and those we had could focus on violent crimes. We could reverse pernicious trends in which more and more African-American men are shoveled into the maw of the prison system. That’s not even considering the violence and misery spawned around the world by our insatiable appetite for drugs. You’ll pretty much have to convince me that decriminalization will mean free samples of heroin-enriched enfamil before I even bother to reconsider my cost-benefit analysis. [click to continue…]

Here’s “Andrew Sullivan”:http://andrewsullivan.theatlantic.com/the_daily_dish/2007/10/effective-liber.html :

bq. “Effective liberty.” Two of the most chilling words you’ll ever hear. Crooked Timber wants the government policing speech to protect minorities. At last they’re honest about the true agenda of the left. Notice this isn’t about “hate-crimes”. It’s about “hate-speech.” But the motivation behind hate-crime laws – a loathing of liberty and group-think victimology – is still out there. …. Once you start deciding what speech is or is not acceptable, we no longer live in a free society. We live in a tyranny – where Crooked Timber and the benign left will call the shots and enforce their orthodoxy.

Let’s put things in simple terms. Most of the people who discuss this topic, and especially most Americans, have some Lockean view of individual rights in mind, rights that stop where the other guy starts. Government, seen as some alien policeman, only has a legitimate role in stepping in to stop people harming one another, where the paradigm cases of harm involve punching people on the nose or stealing their stuff. Since speech isn’t like that, government has no business regulating it.

Well I see where you’re coming from. But I think it’s from the wrong place. The right frame, in my view, is to think of the state as “we, the people” and to ask what conditions need to be in place for the people, and for each citizen, to play their role in effective self-government. Once you look at things like that then various speech restrictions naturally suggest themselves. First, there are the obvious procedural ones, the rules for running the meeting, as it were. Second, there are the financial ones: we can’t have the conversation dominated by those who are rich enough to buy up all the megaphones. Third, if we are trying to implement such a conversational ideal in a society riven by deep ethnic or religious divisions, we’ll need to take seriously the idea that despised or stigmatized groups might not get their voices heard, and that one reason for this might involve the discourse of other citizens. This isn’t a matter of “the government” policing speech, it is a matter of us regulating our collective conversation.

However … and it is a big “however”, the states in which we live are a long way from that ideal of self-government. Given that they are at that distance, there are strong reasons to think that those who dominate government will abuse their power, we ought to be very wary about restrictions on hate speech, and we ought to be sensitive to the fact that any regulations will be subject to abuse (including by people who represent themselves as victims to gain an edge), may be counterproductive, and so on. Hence it is false to say — at least as some blanket proposition — that I (rather than CT collectively, some of whom may think I’m nuts, for all I know) want “the government policing speech to protect minorities”.

Small additional note. Sebastian writes in comments “The United States courts have some of the most extensive thinking about free speech recorded anywhere—complete with built in case studies.” Well sort of. The Americans have a long tradition of trying to discuss these things using the language of an 18th-century document. Given the difficulties of shoehorning a lot of real-world problems into that frame, that gives them a long history of acrobatic hermeneutics somewhere in the vague area of free speech. Some of it is even relevant. The trouble is that many Americans (at least the ones who comment on blogs!) can’t tell the difference between discussing the free speech and discussing the application of their constitution.

Small extra additional note. Someone might put the argument that the best way to regulate “the conversation” involves giving people 1st Amendment-style protections. They might be right about that. There’s a case to say that. But note that that’s a _different argument_ from “government should only stop harm, and speech isn’t harm.”

I’m doing some research on Italian mafia-type organizations at the moment, and came across this “great article”:http://www.crim.ox.ac.uk/Site%20archive%20files/staff/StaffPub/MafiasMigrateLSR_260.pdf (PDF) by Federico Varese on the Calabrian ‘Ndrangheta and social capital. Those that have read Robert Putnam’s _Making Democracy Work_ will be familiar with his claim that the main reason for the differences between crime-infested and economically and politically underdeveloped Southern Italy and the relatively advanced North is their respective levels of social capital. Varese asks what happens when the ‘Ndrangheta tried to expand its operations from the low social capital South to the high social capital areas in the North. He finds that the ‘Ndrangheta has been more successful in transplanting its networks than social capital theory would suggest, but documents one case in which a ‘highly civic’ town – Verona – managed to repel mafioso drug dealers who were trying to infiltrate the city. The Catholic Church, the local Communists, and various social groups went into action to boot them out, and to get rid of officials and politicians who had taken bribes from the mafia. The end result of their successful efforts – a resurgent local heroin market run by vibrant community networks.

operators in the market belonged to the same social milieu that had given rise to a flourishing economy and adopted the same entrepreneurial spirit and straightforward commercial practices that characterized the legal sectors of the economy. Transactions in the illicit drug market took place according to shared rules of fair bargaining, and punishment took the form of exclusion from future exchanges and refusal to offer credit and discounts. In addition, a significant level of barter and individualized exchange existed in this market, and no third-party mechanism to punish defectors existed.

This did lower the rates of violent crime. Even so, I suspect that it’s not going to get prominent discussion in the Communitarian Newsletter anytime soon. Varese’s “book”:http://www.amazon.com/gp/redirect.html?ie=UTF8&location=http%3A%2F%2Fwww.amazon.com%2FRussian-Mafia-Private-Protection-Economy%2Fdp%2F0199279497%3Fie%3DUTF8%26s%3Dbooks%26qid%3D1190750446%26sr%3D8-1&tag=henryfarrell-20&linkCode=ur2&camp=1789&creative=9325 on the Russian Mafia is also an excellent read – his description of the sociology of the _vory_ in Russian prison camps reads like something from Dostoevsky.

Microsoft received a very significant setback this morning – its appeal against anti-trust actions taken by the European Commission was rejected by Europe’s Court of First Instance (with the exception of one, more or less unimportant aspect of the Commission’s oversight regime) (NYT story here, Court press release “here”:http://curia.europa.eu/en/actu/communiques/cp07/aff/cp070063en.pdf. This is a very interesting ruling, not only for the EU but for US markets as well. While Microsoft can (as it has done in the past) continue to sell tailored products for the European market only, it is likely to find its business model quite significantly constrained by the threat of future action. More detailed analysis below the fold … [click to continue…]

So it’s the time of year when I teach Plato’s Euthyphro and I’m getting ready to run through my usual very short history of Athenian homicide law: how before Draco there was no legal distinction between intentional and non-intentional killing; after Draco, the state began to take greater interest in what had previously been strictly family business; how after Solon it was possible, for the first time, for a citizen who was not a blood relation of the victim to bring suit. (I hope I got that right.)

And then I asked myself: pre-Solon (and even after) what did happen, in practice, if a stranger – some traveler – was killed, and there was no family to bring suit on his behalf? In the dialogue, Euthyphro explains to Socrates that it shouldn’t matter whether the victim is family or a stranger – the pollution is the same either way. And, theologically, that is a perfectly orthodox thing for him to say. More specifically (although Euthyphro doesn’t mention it) Zeus is well-known for having a soft spot for travelers. So if someone kills a traveler or stranger then, theologically, the public has a very legitimate interest in getting all that miasma cleaned up quick before lightning strikes.

So what did the ancient Athenians do in cases in which there was a killing – in which it may have been known who did the killing – and no family with standing to bring suit?

Specific follow-up question: suppose the victim was a guest-friend of an Athenian citizen. Would the citizen then have had legal standing to bring suit on the victim’s behalf?

“Marty Lederman”:http://balkin.blogspot.com/2007/08/jane-mayer-on-black-sites.html on Jane Mayer’s extraordinary – and horrible – _New Yorker_ “story”:http://www.newyorker.com/reporting/2007/08/13/070813fa_fact_mayer?printable=true on the routinization of torture in CIA ‘black sites’ (I suspect he’s also writing on the basis of his own sources here).

I have repeatedly argued here that there is no justification for keeping secret what interrogation techniques the CIA is permitted to use. In particular, it is absurd to “classify” something that is revealed to people outside the government who have no duty of confidentiality, i.e., to the detainees on whom the techniques are used. Those persons are free to disclose the information to others, as they have now done to Red Cross interviewers. Because of this, it becomes necessary to detain these persons, in isolation, presumably forever, _in order to impose a prior restraint on their speech concerning their knowledge of what our government has done to them._ In a strange sort of circular logic, the interrogation becomes the justification for indefinite detention, even long after the interrogation ends. Thus, as Jane writes, “[t]he utter isolation of these detainees has been described as essential to America’s national security,” so that they cannot reveal what happened to them.

I’d like to see some of our libertarian law professor colleagues give their views on this. For example, “Eugene Volokh”:http://volokh.com/archives/archive_2007_07_29-2007_08_04.shtml#1186164435 recently – and correctly in my view – has blogged about the problems in issuing a restraining order on a possible paedophile who hasn’t committed any crimes, talking about the dangers of “letting courts restrain movement simply based on people’s even repugnant ideologies and desires.” Does he believe that imprisoning people without trial (however repugnant their ideologies and desires), torturing them and continuing to imprison them indefinitely while preventing them from having contact with lawyers because they might reveal the methods that have been used to torture them is justifiable? One would hope not, but he and other prominent law professors in the blogosphere have thus far proved “remarkably”:https://crookedtimber.org/2004/06/13/eugene-volokh-hits-the-eject-button/ “unwilling”:https://crookedtimber.org/2005/11/06/libertarian-litmus-test/ to express more then a certain degree of perhaps-eggs-must-be-broken-to-make-an-omelette type squeamishness about the topics of torture and indefinite detention before swiftly changing the subject to something more congenial. Some kinds of restraints on free speech are more worthy of comment than others, it would seem (perhaps they’ll prove me wrong).

To echo “Sandy Levinson”:http://mediamatters.org/rd?http://www.tnr.com/blog/openuniversity?pid=123915 and “Eric Rauchway”:http://mediamatters.org/altercation/200707130003, “Is it a constitutional crisis yet?”

Sara Taylor is confused about the nature of legal-rational authority. Via “Matt.”:http://matthewyglesias.theatlantic.com/archives/2007/07/my_oath_like_your_oath_is_to_u.php

My undergraduates get introduced to this issue via the question, “Why can I require that you write a term paper but not require that you wash my car?” It’s not hard. The problem, as Chick Perrow remarks somewhere, is that even in well-run bureaucracies there’s always a tendency for the person or people at the top to act as though they own — and sometimes really believe they own — the whole organization, even though this shouldn’t happen.

The entertaining and oft-chonicled tradition of bitchy footnotes and sarcastic asides from the bench becomes strangely puzzling and difficult to understand when your friends are on the sharp end of it.