Archive for the ‘Law’ Category

My friend Damon Linker has a new piece for The Week arguing that George W. Bush, Dick Cheney, and Condoleezza Rice cannot be war criminals, because the laws they are accused of violating are merely “international law,” which is no law at all:

[I]t’s inaccurate to describe these rules and regulations as laws. They are, strictly speaking, bilateral and multilateral treaties between and among governments.

Laws, by contrast, are written, enacted, and executed by governments, and they apply exclusively to those residing within territorially defined political communities (be they city states, nations, or empires). Citizens of liberal democracies hold, moreover, that laws gain legitimacy — and become binding — only with the consent of the governed. And that standard is (tacitly) met only when the laws have been crafted by the people’s democratically elected representatives.

“International law” fulfills none of these requirements.

Treaties among governments are still written and enacted by governments. They enjoy the “consent of the governed” in just as much a sense as national laws do(*): they are created by representatives of the people. International organizations, after all, represent governments, who in theory represent voters.

Let’s look at what the U.S. Constitution says: Treaties are the supreme law of the land (Article 6, clause 2). That means they override laws passed by Congress! The Supreme Court can and should strike down ordinary legislation that conflicts with the U.S. government’s treaty obligations.

Now, international law doesn’t have a coercive enforcement arm (and a good thing too), but it does have enforcement mechanisms that rely on reputation and incentives. When a government violates its treaty obligations, it runs the risk of incurring sanctions, including (for war crimes) the extradition of its leaders to international criminal courts.

The U.S. government should be careful about entering into new international agreements and treaties precisely because international laws do have legal force. Were these instruments merely rhetorical, the Senate could afford to give them merely perfunctory debate, but Senators realize that they do matter, and they do debate them very seriously.

Now, whether Bush Administration officials are war criminals is another matter. It’s a complicated issue, but interested readers can take a look at the debate over how the Rome Statute of the International Criminal Court should define the crime of “aggression.” One can plausibly argue that the U.S. government had not signed up to a particular definition of this crime at the time of the Iraq War and so was not bound by it.

(*) Which is to say: very little. I’m not bound to obey laws simply because someone assigned to represent me voted for them. But this argument undermines the moral force of all kinds of laws, not just international laws.

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The Economist has come out against race-based affirmative action in the United States, a surprising (to me) move given the magazine’s socially left-of-center outlook (e.g., for legalizing drugs and banning handguns). Indeed, the way in which affirmative action as currently practiced discriminates against Asians even more than against whites is difficult to justify. (I argued here that state-sponsored affirmative action is not inherently unjust.) Moreover, the paternalist case against affirmative action cannot be dismissed out of hand:

[After California banned affirmative action, t]he number of blacks and Hispanics enrolled fell, particularly at the flagship schools, Berkeley and UCLA.

What was more surprising was that in the entering class of 2000 a record number of black students graduated on time. Mr Sander and Mr Taylor argue that previously low black graduation rates were a result of the mismatch which occurs when a student granted preferential admission winds up at an institution for which he is not academically suited. He begins at a marked relative disadvantage and falls behind quickly. His grades get lower and lower and in the worst cases he loses confidence and fails to graduate.

Mr Sander and Mr Taylor attribute a host of bad outcomes to mismatch. For example, more black than white high-school seniors aspire to science and engineering careers, but once in college twice as many black students as white abandon those challenging fields.

Note that if you buy this argument against affirmative action, you should also oppose “legacy” preferences in affirmative action (and rational parents would not oppose the move, leaving no apparent constituency on the other side of the question).

Nevertheless, affirmative action in the United States is not as noxious as ethnic and racial preferences in many other parts of the world. In Sri Lanka, ethnic Sinhalese university applicants receive large preferences relative to ethnic Tamils. The reason seems to be nothing other than that Sinhalese are the majority in the country, and they will damned well discriminate against minorities however they please. (Such is the reality of democracy in the developing world.) In Malaysia, Malays and other bumiputera receive wide-ranging preferences in education and business. (For instance, firms must have at least 40% Malay ownership.) Chinese and Indians suffer.

So in most of the world, “affirmative action” just means that politically dominant ethnic groups get to repress the politically subordinate. But in the United States, affirmative action does not mean the translation of the ethnic majority’s political power into other spheres of social life. Blacks in the U.S. remain a small minority of the population and thus suffer from collective political disadvantage (due in part as well to their overwhelming support for one political party, which leads politicians to take their votes for granted). Eliminating all educational and economic advantages for blacks will alienate most of them. Of course, many African-Americans oppose affirmative action — but most still support it and see a role for it. The Supreme Court should be reluctant to impose a judicial solution to a sensitive political problem. A sweeping ruling constitutionally prohibiting virtually all racial preferences in all walks of life is more likely to increase racial tension than diminish it. The justices should apply the law but do so humbly, with the understanding that nine justices cannot foresee all future political contingencies.

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David Friedman provides what I think is the best answer to Landsburg’s provocative question.

I think I have now answered Steve Landsburg’s puzzle. The difference between his example (or mine) of an action that imposes only subjective costs and his example of an activity such as reading pornography, or Bork’s of using contraception, that imposes only subjective costs, is not the nature of the harm. The difference is that in the one case the cost is of a sort that can be measured, the action controlled, via a property rule. In the other, it is not.
More precisely, the property rule under which I have a right to read porn and you can only stop me by offering to pay me not to do so produces its result by ignoring the cost my porn reading imposes on you, since, as with the case of risks imposed by careless driving, including that cost requires an unworkable contract between all of the prudes and all of the would-be consumers of porn. The property rule under which you have a right to forbid me, or anyone else, from reading porn, produces its result by ignoring the cost your ban imposes on me, for the same reason.
Neither property rule gets the cost/benefit calculation correct, but the former rule is a great deal less expensive to enforce than the latter, which is an argument for it.
What about a liability rule? That is the point at which the subjective nature of the harm comes in. It is true that, from the standpoint of economics, all harm is ultimately subjective—having my arm broken or my car dented would not be a cost under sufficiently bizarre assumptions about my preferences. But some subjective costs are a lot easier to measure externally than others. When I claim damages for my wrecked car, there are market prices out there for repairing or replacing it that provide a court with a reasonable basis for estimating the cost. When I announce that your reading of porn, or oil drilling in a wilderness I never plan to visit, inflicts large psychic harm on me, there is no such basis for checking my claim.
In other words, the property rule is more efficient where it is harder to measure the harms of transgression and where it is easier to arrange payment and trade if the default allocation is inefficient.
Steve Landsburg follows up on his initial post. I think Brad DeLong owes him an apology.

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My Twitter feed has been filled with Americans and others expressing outrage about a Saudi court’s sentencing a man to be paralyzed from the waist down. He had stabbed a man in the back, paralyzing him.

I’m not going to defend or oppose the sentence, but I am going to defend a principle here: the violence inherent in the justice system should be obvious rather than hidden.

A couple of years ago, Peter Moskos suggested bringing back flogging as an option for prisoners: a year off your sentence for every stroke of the lash. He wrote eloquently of the horrors of the carceral state. And, so long as judges don’t simply respond by increasing sentence duration, it’s hard to see how the option to choose the lash would make prisoners worse off. As I wrote at the time:

I’m pulled to agree with Moskos. But I worry. I worry that the best evidence seems to suggest that prison deters crime mainly through incapacitation – criminals cannot commit crimes except against other criminals while behind bars. There’s good evidence for deterrent effects through things like California’s three strikes legislation, but incapacitation matters a lot. Longer term crime rates could go down with a switch from prisons to flogging if those committing crimes were better able to maintain a connection to the community and if prisons encourage recidivism. But rates would almost have to increase in the short term: those viewing flogging as much cheaper than a jail term would expect a reduction in the effective expected punishment for a criminal act. I’d hope that Moskos’s prescription would maintain the use of prisons as preventative detention for the really scary crazy dangerous cases.

A decade ago I would have worried that reducing the price of punishment experienced by the state would increase the total amount of punishment. If it’s expensive to keep a prisoner for a year, the state might be reluctant to put marginal offenders in jail. That’s not proven much of a constraint, so I worry rather less about that now.

But I do worry that the mob used to enjoy the spectacle of a public hanging.

When I read about cases like John Horner, (likely) entrapped by the DEA and facing a 25 year mandatory sentence for having sold his leftover prescription pain medicine to another man who had made him believe that he was in desperate pain, I wonder whether it’s the Saudis or the Americans who are really out of line. If you had two young daughters, and were facing 25 years delivered by the American justice system for doing no harm to anyone, wouldn’t you prefer surgical paralysation? I would.

Sometimes I wonder whether the focus on injustices committed abroad are a way of avoiding thinking of the ones at home.

In other news, we now have decent evidence that “tag and release” is more effective in preventing recidivism than incarceration. Here’s the abstract from the newly published paper by Di Tella and Schargrodsky in the Journal of Political Economy:

We study criminal recidivism in Argentina by focusing on the rearrest rates of two groups: individuals released from prison and individuals released from electronic monitoring. Detainees are randomly assigned to judges, and ideological differences across judges translate into large differences in the allocation of electronic monitoring to an otherwise similar population. Using these peculiarities of the Argentine setting, we argue that there is a large, negative causal effect on criminal recidivism of treating individuals with electronic monitoring relative to prison.

Lengthy carceral sentences for drug crimes are arguably behind much American inner-city disfunction. When a reasonable proportion of men of marriageable age are in prison, really bad things start happening to family formation.

Moskos is looking more right all the time.

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Roger Koppl argues this week at ThinkMarkets that “Income inequality matters.” He thinks it matters so much that he says it twice. He believes “Austrian,” pro-market, economic liberals should be speaking up more on this “central issue.” I think Koppl could not be more wrong. The issue deserves all the inattention we can muster for it.

The problem I think is not Koppl’s motives. He rightly says that we should “watch out for ways the state can be used to create unjust privileges for some at the expense of others.” He is certainly right about that. He argues that unjust state policies may be skewing market results in such a way as to increase inequality. He may be right about that. But he is wrong in suggesting that we ought therefore to be paying attention to income inequality. We ought therefore to be paying attention to those policies. Whether they produce greater inequality is neither here nor there.

Koppl gives four examples: (i) policies that privatize profits and socialize losses, (ii) bad regulation, (iii) collapse of the rule of law, and (iv) public schools. I can certainly join Koppl in a hearty wish that we not only attend to these unwarranted policies, programs, and tendencies, but that we do so with a degree of urgency prompted, in part, by their effects on the poorest and most vulnerable among us. But talking about inequality is precisely a distraction from doing so.

In a great paper of a few years ago, Harry Frankfurt argued that “Egalitarianism is harmful because it tends to distract those who are beguiled by it from their real interests.”* Frankfurt thought that focusing on equality was actually pernicious because it distracted us from attention to real harms, of which inequality is at most an indicator. And he was right. It may well be that, for example, the evisceration of the rule of law results in greater income inequality. But it also might not. Whether or not it does so, however, it is unjust, and it deserves our attention. Similarly for the increase in moral hazard and regulation, to say nothing of the deplorable system of public education. All of these need attention, and one prime reason they do so is because of their effects on those least capable of circumventing their evils. If we care about the poor, what we ought to care about is bad policy, not indicators that may or may not have anything to do with policies that are making people worse off. As long as we are worrying about income inequality, we are worrying about the wrong thing.

* In “The Moral Irrelevance of Equality,” Public Affairs Quarterly, April 2000.

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Several of my progressive Facebook friends posted about Gabrielle Giffords’ testimony before Congress about gun legislation, editorializing that we/they should pay close attention because of her personal experience as a victim of violence. Now, I understand why some criminal courts allow victim-impact statements: before deciding what sort of punishment should be meted out, it’s relevant to see how the crime has had an impact on the victim. But Congress isn’t in the business of punishing particular offenders – its function is to create legislation for the good of the country. (Yes, I’m rolling my eyes too, but let’s stipulate this arguendo.) So the relevance of victim-impact statements in this context is…what? This strikes me as legislating the ad misericordiam fallacy, using raw emotion as a substitute for rational analysis. But what’s especially irritating is that the last big example of this was when the other party was in power, and the party in power always has a predictably selective memory. After 9/11, emotions were pretty raw. A lot more pain and suffering that day than after any of the recent mass shootings. What was the result? A decade-long war in Afghanistan. Rampant abuse of executive power. Indefinite detention without trial. Lost privacy rights. The TSA. Kill lists. Mass shootings are to the left what terrorist attacks are to the right: emotional outcry by the public leading to grandstanding by whichever party is in power, and increased erosion of liberty. This is what happens when you legislate based on raw emotions, and disregard both the Constitution and the very idea of rational analysis. Let’s not keep making the same mistake.

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Several commentators have weighed in on President Obama’s decision to stop deporting certain immigrants under 30 who were brought illegally to the country when they were under 16. This morning, Andrew Napolitano and Ilya Somin have come down firmly on opposite sides of this issue.


Along comes the president, and he has decided that he can fix some of our immigration woes by rewriting the laws to his liking. Never mind that the Constitution provides that his job is “to take care that the laws be faithfully executed,” and that “all legislative power” in the federal government has been granted to Congress. He has chosen to bypass Congress and disregard the Constitution. Can he do this?

There is a valid and constitutional argument to be made that the president may refrain from defending and enforcing laws that he believes are palpably and demonstrably unconstitutional. These arguments go back to Thomas Jefferson, who refused to defend or enforce the Alien and Sedition Acts because, by punishing speech, they directly contradicted the First Amendment. Jefferson argued that when a law contradicts the Constitution, the law must give way because the Constitution is the supreme law of the land and all other laws are inferior and must conform to it. This argument is itself now universally accepted jurisprudence — except by President Obama, who recently and inexplicably questioned the jurisdiction of the Supreme Court to invalidate the Affordable Health Care Act on the basis that it is unconstitutional.

Nevertheless, there is no intellectually honest argument to be made that the president can pick and choose which laws to enforce based on his personal preferences. And it is a profound violation of the Constitution for the president to engage in rewriting the laws. That’s what he has done here. He has rewritten federal law. (emphasis original)


Some critics, such as John Yoo and Arnold Kling, attack the president’s decision not on the merits, but on the grounds that he lacks legal authority to choose not to enforce the law in this case.

This criticism runs afoul of the reality that the federal government already chooses not to enforce its laws against the vast majority of those who violate them. Current federal criminal law is so expansive that the majority of Americans are probably federal criminals. That includes whole categories of people who get away with violating federal law because the president and the Justice Department believe that going after them isn’t worth the effort, and possibly morally dubious. For example, the feds almost never go after the hundreds of thousands of college students who are guilty of using illegal drugs in their dorms. The last three presidents of the United States – all have reason to be grateful for this restraint.

Yoo contends that there is a difference between using “prosecutorial discretion” to “choose priorities and prosecute cases that are the most important” and “refusing to enforce laws because of disagreements over policy.” I don’t think the distinction holds water. Policy considerations are inevitably among the criteria by which presidents and prosecutors “choose priorities” and decide which cases are “the most important.” One reason why the federal government has not launched a crackdown on illegal drug use in college dorms is precisely because they think it would be bad policy, and probably unjust to boot. That, of course, is very similar to Obama’s decision here.

Finally,Yoo also argues that prosecutorial discretion does not allow the president to refuse to enforce an “entire law,” as opposed to merely doing so in specific cases. But Obama has not in fact refused to enforce the entire relevant law requiring deportation of illegal immigrants. He has simply chosen to do so with respect to people who fit certain specified criteria, that the vast majority of illegal immigrants do not meet. Even if the president did choose to forego enforcement of an entire law, it’s not clear to me that that is outside the scope of prosecutorial discretion. A president who uses his discretion to “choose priorities” could reasonably conclude that enforcement of federal laws A, B, and C is so much more valuable than enforcement of D that no resources should be devoted to the latter if they could possibly be used for the former.

This is a tough one. If you adopt the constitutional text as your guide, Obama’s actions seem clearly illegal. On the other hand, the constitutional text, interpreted literally, may demand something that is impossible: perfect enforcement. What say you, Pileus readers?

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