Government as Your Financial Planner
Liberal as Massachusetts is, sometimes I think my home state is not as bad as others when it comes to nannyism — the trend for government officials to infantilize citizens by treating them as incapable of making their own decisions.
But our attorney general Martha Coakley does have a taste for nannyism, seen in her belief that appropriate prescription drug treatment is a matter for prosecutors, not simply doctors and patients. She scratches that itch again today in her assertion that government is a better financial planner than the citizen (insert your favorite Big Dig joke here…). Her office has decided to ban “foreclosure rescues:”
Coakley said she would seek comments from the public over the next 28 days for proposals to make it illegal for lenders to inflate a borrower’s income on their mortgage application, to make mortgages that borrowers clearly cannot pay; and to provide credit when it is not in the interest of the homebuyer or an existing homeowner who is refinancing a property.
The government, or any impartial arbiter, I would argue, does have a legitimate role in defining what constitutes a legitimate contract. In addition, there’s not always a clear line between outright fraud and a fair contract that just isn’t the best deal for someone. So perhaps Coakley is doing the right thing; I haven’t researched “foreclosure rescues” and can’t say I know anything about them other than what I read in this article.
Yet it really sounds as though she is overreaching, telling citizens they are too stupid to avoid making a bad decision and can’t be held responsible if they do.
I am, however, somewhat sympathetic to her wish to ban lenders from “inflating” a borrower’s income; it’s plausible that some shady lenders would use misleading, ambiguous or obscure fine print to substantively alter the terms of a contract, for which borrowers should not be held responsible. But of course it depends on what “inflating” actually means.
Worse still is the idea of forbidding mortgages that the borrower “clearly” cannot pay. If it is “clear” to the lender that the borrower will default on the loan, the lender would not make the offer; if it is “clear” to the borrower that he or she can’t make the payments, then the borrower would not accept the loan. The strong presumption is that the government is a better judge of what someone can pay than both the lender and the borrower, each of whom knows their financial situation far more intimately than the state.
One can, of course, sympathize with someone who gets in more debt than he can handle; it happens to many well-meaning people. But that is what bankruptcy is for. We’re going down a dangerous road if we allow the government to protect us from our own decisions. It is one thing to have welfare and bankruptcy law in situations where a person is in a hopeless situation. It is another for the government to interfere in decisions that might possibly result in a hopeless situation — but might not.
Of course, the two are connected: once you decide to protect people from the consequences of their choices, you realize that paying for it (health care, welfare benefits, bankruptcy courts, etc.) can be expensive. It’s the next logical step for the government to directly interfere in people’s choices. But, of course, it’s in making bad choices, or seeing others do so, that we gain the wisdom to make better choices — including, of course, whom to elect to office.
The trend toward protecting people from bad choices will result in the population getting dumber, leading to even dumber politicians getting elected, leading to progressively dumber laws getting enacted: it’s the death spiral of the nanny state.
Technorati Tags: law, libertarianism, nannyism, welfare
Digital Privacy
Today Apple began releasing DRM-free music, which naturally engendered much commentary in the blogosphere. I thought there was an interesting post and comment thread over at The Unofficial Apple Weblog.
The post makes an interesting technical point about the DRM-free songs: the digital files are still embedded with the customer’s name (and possibly other unknown identifiers). Although there are no technical restrictions on copying, doing so might allow a copyright-holder to identify the source of a file uploaded to a peer-to-peer network, for example.
What isn’t clear to me is whether there is simply a name and account number embedded, or if there is more extensive watermarking.
The comment thread unfolded somewhat predictably, but well illustrates the different perspectives people take on intellectual property. There were two main perspectives:
1. Ominous Privacy Threat: People from this point of view found it unwelcome that music files could be tracked to an individual purchaser. This perspective has two subtypes: those who might want to engage in illegal file sharing, and those who see embedded metadata more as a general threat to privacy.
2. No Worries: Many commenters were more sanguine, observing that the only privacy “threat” was to people who break the law by illegally sharing files.
As is common for online discussions, there were many bad analogies and misinterpretations. For example, a commenter made a comparison to government wiretapping, sardonically adding “if you aren’t doing anything wrong, then there’s nothing to worry about.” This, however, is not really comparable, since wiretapping is an intrusion that may occur without you doing anything illegal or wrong, whereas you need to publicly share your downloaded music files before anyone can finger you for breaking copyright.
As a straight point of logic, I think the No Worries camp has the better of the argument. Those people placing higher value on privacy or anonymity can probably find a way to strip the metadata, or convert the file to other formats, and it’s understandable that Apple would choose to embed the customer’s information considering how reluctant the music industry has been to give up DRM.
But there are some Big Picture questions that I think merit addressing:
1. Tracing as a Point of Law: Many people reacted by pointing out that tracing is only of concern if you are breaking the law; their implication is that an embedded name and account number are sufficient proof that you illegally shared the file.
The trouble is that digitized intellectual property is “leaky” compared to tangible property: there are many, sometimes fairly innocuous ways a file can be illicitly shared. Most obviously, hardware on which IP is stored can be stolen (especially iPods or laptops). Less obviously, network permissions are often set too loosely allowing others to access files without your knowing. And sometimes other people have physical access to your computer (think about all the traffic going through a college dorm room). That a digital file with your name on it has leaked out doesn’t necessarily mean you shared it.
When you buy something physical, like a big screen TV, you own it, and enjoy the benefits of ownership as well as the costs of protecting your property (installing locks on your doors, burglar alarms, insurance, etc.). When you download music, you don’t enjoy the same benefits of ownership; technically all you have bought is a license to play music. If you don’t get the benefits of ownership, it seems dubious you should bear the costs of protecting the music on behalf of the record company.
2. Slippery Slope: Apple’s putting your name in a music file you downloaded is not really so monstrous. Many commenters noted Apple has always done so, although I find that objection irrelevant because only now is the music being touted as unprotected. But I agree it’s not such a big deal.
In the long run, however, we have to realize that as the digital paper trail follows more and more of our actions (and purchases), liberties we previously thought we had will become ever more constrained.
That’s very abstract so let me give an example. Let’s say GPS tracking technology keeps dropping in price, and more car manufacturers begin installing them in vehicles. They realize, however, that drivers who drive over the speed limit put more wear and tear on their cars. By linking GPS data to another database of speed limits, they can find if you are exceeding the speed limit and thus truncate or void your warranty. It’s easy to see why insurers and police agencies would be interested in such data as well.
You don’t have anything to worry about unless you’re breaking the law, right? Well, most of us do periodically commit minor infractions of the law. How many of the people insisting enforcement of IP is no problem always come to a complete stop at stop signs, never disobey the speed limit, never used alcohol before the legal limit, or never experimented with drugs? Probably not many.
And of those who do follow the law to the letter, but “made mistakes” in the past, are they willing to confess to the police and accept a citation — or prosecution — for breaking the laws they purport to believe in? Probably not many at all.
But we can ignore that with a wink and a nod, because no one’s going to know about it; no one’s going to do anything about it. There’s no way to prove it — yet.
We should be more honest about lawbreaking. It is not such a shameful thing, in of itself. It depends on the law. With that in mind, the discussion over intellectual property hinges on what sort of lawbreaking you are willing to stomach. File sharing is illegal, but I’ve known many people who are not otherwise criminals who don’t see a problem with it. Perhaps they are wrong, but perhaps the law is wrong. I don’t want to get into a detailed argument about IP — this post is verbose enough.
But I do want to stress there are going to be many more of these seemingly minor bits of information tying our identities to things we might prefer to keep private. Any one item, like this one with Apple, will seem minor and tolerable, but what is the cumulative effect? Eventually almost anyone can be prosecuted for one infraction or another, and who actually is prosecuted will be at the discretion of those in power.
Is Sex by Fraud Rape?
The Massachusetts supreme court says “no.” The case involved a man who had sex with his brother’s girlfriend by entering her bedroom with the lights out, pretending to be his brother. The court decided that the law has “for two centuries defined rape as sexual intercourse by force and against one’s will and that it is not rape when consent is obtained through fraud.” The court said the legislature would need to change to the definition of rape. Given that the same court found there is a right to gay marriage without awaiting legislative change, this reasoning strikes me as rather inconsistent.
My view is that, whether it is called rape or not, obtaining sex through fraud is a serious crime. Perhaps it is not as bad as using force, just as swindling someone is not as bad as directly using violence to obtain money, but it still deprives the person of the ability to make her own choices.
Although justice was not served, it is possible the court was correct insofar as having its hands tied by the legislature. Under our system the “lawmakers” in the legislature are supposed to be the source of law, so if they haven’t made the law, then it doesn’t exist.
This case illustrates the uselessness of the legislature. The legitimate function of courts is to discern justice, with justice seen as existing independently of any one person or group’s viewpoint. Having to rely on the legislature to create good law (and avoid creating bad law) impedes the courts’ ability to do justice.
The obvious objection is that we need a division of power; we do not want judges to have total discretion in deciding law. That is a good objection, but it would be a non-sequitur to infer a legislature is needed to supply the courts with law. Eliminate the legislature and establish competition between courts, so that judges must be fair, impartial, and respectful of people’s rights in order to protect their reputations.
Technorati Tags: law, philosophy, rape
Spelling Flames are Lame…
…but I really hate when people make this mistake:
Intellegent Gun Law Passed in Texas « The Libertarian
The content of the post is encouraging, at least, pointing to a story that says Texas is becoming more liberal about allowing people to use lethal force in self defense (“liberal” in the proper sense of the term).
“The right to defend oneself from an imminent act of harm should not only be clearly defined in Texas law, but is intuitive to human nature,” [Governor] Perry said on his Web site.
Now you’re talking.
Natural Law & Biology
While sociobiology is hardly a new subject, I always like to see fresh, topical research supportive of the idea that rights are not arbitrary constructs of particular societies, but arise ultimately from human biology. This particular article, citing research from Frans de Waal among others, suggests that a proto-morality, similar to human empathy, is evidenced in primate societies:
Some animals are surprisingly sensitive to the plight of others. Chimpanzees, who cannot swim, have drowned in zoo moats trying to save others. Given the chance to get food by pulling a chain that would also deliver an electric shock to a companion, rhesus monkeys will starve themselves for several days.
[...]
Though human morality may end in notions of rights and justice and fine ethical distinctions, it begins, Dr. de Waal says, in concern for others and the understanding of social rules as to how they should be treated. At this lower level, primatologists have shown, there is what they consider to be a sizable overlap between the behavior of people and other social primates.
This harkens back to Adam Smith’s notion of sympathy being the basis of morality. Naturally, though, the behavior of chimps does not tell us a whole lot about what rights people have, and to suggest something is good because it happens in nature (or wrong because it doesn’t) would be committing the naturalistic fallacy.
The naturalistic fallacy, and similarly the “is-from-ought” problem, are commonly taken as reasons for doubting that we have any natural rights. I tend to see this more as a limit of the abstract, deductive reasoning that moral philosophers like to practice.
They seem not to be satisfied with anything less than proving what is right with some kind of transcendental moral certitude. But although one cannot deduce ought from is in such a way, we can have considerably more success inferring right and wrong in terms of expected consequences from the way people actually behave. For example, don’t lie, because it harms the person being deceived, and will eventually gain you a reputation as untrustworthy.
This seems to beg the question: how do you know how people ought to behave in the first place? But that objection presumes people have no reference for their behavior other than what moral philosophers (or, perhaps, politicians and jurists) prescribe for them. The sociobiological perspective suggests that people are naturally equipped to feel empathy, to construct rules based on reciprocal empathy, and seek to punish those who violate those rules.
This provides a starting point for moral reasoning. One could say, in opposition, that a black guy in 1930s Alabama ought not date a white woman, given the expected consequences when the local white community finds out about it. But the problem with such an example is, in that situation, pre-existing concepts of normative behavior (specifically violent racism towards blacks) occlude the decision making process. The people in the situation are already predisposed toward a total lack of empathy and violence, having allowed their socially constructed notions of race override their natural, intuitive moral sense.
To discern one’s true rights you have to strip away all the layers of abstraction created in society, often created by one segment of the population to dominate and repress the others. You consider every person as an autonomous, independent equal, without regard for any pre-existing concepts of privilege or authority. And you imagine what norms would allow people to live peaceably together, or as Lysander Spooner wrote, how “to live honestly, to hurt no one, to give every one his due.”
The article also has an interesting comment about religion:
There are clear precursors of morality in nonhuman primates, but no precursors of religion. So it seems reasonable to assume that as humans evolved away from chimps, morality emerged first, followed by religion. “I look at religions as recent additions,” he said. “Their function may have to do with social life, and enforcement of rules and giving a narrative to them, which is what religions really do.
That strikes me as potentially important, given the common argument that religion is the foundation of morality, and without it nothing but amorality can exist. The reality may actually be the reverse: humans evolved to have an underlying moral sensibility, which religion is built on top of and sometimes overrides, as evidenced in the hatred and violence that the more extreme religions inspire.
Something to think about, anyway.
Technorati Tags: law, natural rights, philosophy, morality
Torture: The difference between law and judgement
Radley Balko captures my sentiments regarding torture. He adopts a seemingly contradictory position, that torture should not be legal, but in the event it proves necessary, the president can use his pardon to forgive it — almost as if he’s saying it should be illegal, but allowed.
This position is only contradictory, though, if one operates from the assumption that law must cover every possible contingency. That assumption is an unfortunate result of our litigious and increasingly politicized society, wherein right and wrong are barely (if at all) distinguished from legal and illegal.
In reality, that something is legal doesn’t make it right; that something is illegal doesn’t make it wrong.
Another way to look at it is to consider the importance of judgement, in that sometimes you must make a decision using your knowledge, experience and intuition in circumstances that could not have been fully anticipated — in circumstances where the proper course of action can’t be written out in advance.
Thus, it makes sense to proscribe torture in general, because we want to sharply limit its incidence. Expressly allowing torture, even with restrictions, has a variety of negative consequences. I won’t repeat them here.
On the other hand, if some US personnel should find themselves in extraordinary circumstances wherein they believe, in good faith, that torture is the only way to procure information that would save lives, I hope they would do it. I would not want an attack to unfold because some people insisted on following the rules.
Put differently, this means “justified” torture would necessarily entail some risk to those doing it. There can be no blanket immunity: what sort of “public servant” wants special rights to brutalize people, but with no risk to himself? I would only trust someone to do something as awful as torture if that person was willing to put his career, even his freedom, on the line because he was confident there was no other way to prevent an attack. Someone who wants the power, but not the responsibility, cannot be so trusted.
Technorati Tags: torture
An abortion post
Via Hit & Run, I came across an argument that the US population is short 45 million people — i.e. the people who would have been born since the Roe v. Wade decision had they not been aborted. If not for abortion they would today be “defending our country, … filling our jobs, … paying into Social Security.“
Debates about abortion consist mostly of people going back and forth viciously attacking each other, each side operating under its own set of implied assumptions. This is reflected in the comments to the Hit & Run post. After nearly giving up on the comments I found one commenter who, I thought, made the right response to this particular argument (which I’ll get to in a moment).
Though I’m not by any means qualified in economics, one element I like about the discipline is that it forces you to consider additional (often unintended) consequences to a change in policy. My reaction to the missing 45 million figure was to wonder how the prohibition of abortion would have changed the behavior of all those women who got pregnant after Roe v. Wade.
Maybe, with the risk of unwanted children, they would have been more careful about using contraception, or chosen to have less sex. Conservatives often complain about abortion being a license for promiscuity; so if, indeed, one believes proscription of abortion would result in less promiscuity, hence fewer pregnancies, it would be inconsistent to simultaneously claim the number of abortions equals the number of lost souls — since those souls wouldn’t have existed in the first place had abortion been illegal. To be fair to Zel Miller, the conservative Democrat who was making this argument, I’m not sure if he’s guilty of that double standard, but the point still seems germane.
Another, similar point the Reason commenter Xmas raised was that “It’d be safe to assume that a good portion of the women that had abortions when they were younger eventually had children when they were older. If those women had the aborted child, then they’d also be likely to not have the later child.”
So if a woman is satisfied and able to care for no more than three kids, and she can’t terminate an unwanted pregnancy at 16, that third child she would otherwise have later in life (probably when she is more financially and emotionally secure, and probably with a more desirable mate) is erased, generating no net gain in population.
After reading all this, my general sense is that we are mistaken if we think the potentiality of a life is the same as a life, has the same value as a life. An altar boy who decides to become a Catholic priest erases the potential lives that would be created if he chose instead to become a husband and father, but has he “murdered” those lives? Breaking up with a boyfriend or girlfriend erases the lives that could be created if you settled down and had children with that person. Even simply choosing not to have sex one evening erases the unique, potential person who could be conceived.
Abortion opponents obviously will not agree with this line of reasoning, because they draw the line at conception. My point is that the potentiality of a life is separable from conception; a fertilized egg at conception has the potential for new life, but it is just one step in a chain of events that must take place before the life is created. Before conception, those two people had to decide to have sex that evening, before that had to decide they liked each other, etc. Similarly, post-conception, the embryo has to implant successfully in the uterus and not be flushed away in the next menstrual cycle, as often happens. Thus, the value of a life and any consequent rights we ascribe to it don’t attach to any given potential for a future life. That something could result in a new life doesn’t mean it is one.
Guns & Power
From the Times:
Interpreting the Second Amendment broadly, a federal appeals court in Washington yesterday struck down a gun control law in the District of Columbia that bars residents from keeping handguns in their homes.
This is certainly welcome news to me, though it is just a small step in in the right direction, still short of concealed carry. Several years ago some family members of mine were mugged on a DC street, just going out for a walk in their neighborhood, because a few outlaws with guns – imagine that! — could be pretty confident everyone they saw was disarmed and decided to take advantage of that fact.
One point I don’t see stressed very often is that we need not just gun freedom, but a more universal gun culture supportive of that freedom. It seems to me that gun culture is a fringe sub-culture in the so-called blue states, and is more closely associated with southern states and especially rural culture, with gun control being more prevalent in cities.
These cultural differences result in wide disparities in gun laws between different jurisdictions, DC and Virginia being a key example. This, in turn, results in power imbalances with people in some jurisdictions being disarmed and powerless, and others not.
Supporters of gun control often seem to accept this argument, if obliquely, blaming gun crime occurring within gun-controlled districts on the supply of guns emanating from other, pro-gun jurisdictions. The logical conclusion for their argument is that gun control must be universal, which would eliminate the external availability of guns for criminals to take advantage of.
Unfortunately, that still does not eliminate power imbalances. The major overlooked power imbalance is that between the citizens and government. A central but oft forgotten justification for the right to bear arms is that should the government become a tyranny, the citizens should be able to overturn it. That was, after all, how the US was formed.
I’ve seen this point ridiculed on the grounds that citizens armed with pistols and rifles are no match a modern military replete with tanks and bombers. Yet the insurgency in Iraq shows that a decentralized guerilla force possessing mostly small arms can make things difficult, perhaps impossible for a larger adversary. And, I should note, I favor allowing private citizens to own any of the same weapons the government can own, which might well be a much better way of making governments receptive to arms control!
Other power imbalances remain under universal gun control. Consider other weapons — knives, swords, clubs, tasers, chemical sprays, etc. If jurisdictions again vary in their treatment of these, it will again necessitate a universal ban to prevent permeation from more liberal to more restricted jurisdictions. The problem is that many everyday objects (vehicles, kitchen knives, or the good old pipe wrench) can become weapons, the regulation of which will be ever more costly, perhaps impossible to enforce, and require the state meddling in the lives of citizens in ever more authoritarian ways. This is already happening in Britain.
At the far end of the spectrum, even with no weapons anywhere, the strong can still physically dominate the weak with brute force. I’m not sure how the state could ban some from being stronger than others, though I’m sure the British will eventually tell us.
The answer is to go in the complete opposite direction, eliminating almost all restrictions on weapons. Some environments are tightly controlled by necessity, such as the entrance to a courthouse, or a commercial aircraft. There it would make sense to disarm people. Overall, however, we should strive for a universal gun culture, where the widespread disparities in gun ownership disappear, and with them the power imbalances that lead some to use their weapons for wrongful advantage.
That doesn’t mean guns are a panacea, or there are no costs to this strategy, or that everyone must be armed. But I’d like to get to the point where it is not considered unlawful, unusual, or threatening that any citizen, in any particular place, would choose to bear arms.
Rape & Punish
Ilya Somin adeptly addresses the prison rape problem, one which he says is widely agreed to be a problem but about which nothing is ever done. It is an institutional problem, he explains, arising from government’s inability or unwillingness to protect the politically weak.
Much as I found his post incisive, his response — ending the war on drugs (hence drastically reducing the number of prisoners at risk) and privatizing prisons — doesn’t go far enough. The whole model of punitive incarceration needs to change. It makes very little sense:
We should adopt a restitution-based model instead of all this. If someone commits a crime, force him to indemnify the victim, plus legal costs, plus a deterrence factor that takes into account the severity of the crime and the probability of getting caught. Many first-time offenders (and offenders deemed more trustworthy) would not even need incarceration; they could pay restitution to the victim and go on with their lives.
This involves rolling the criminal justice system into the tort system, considering crimes more like severe torts (but not exactly). A preponderance of evidence is too weak a standard to mete out punishment for murder, for example, so the changeover would have to import some legal standards and procedures from criminal law.
As many criminals are indigent or nearly so, prisons would be oriented to productive enterprises rather than holding bins, keeping the inmates under wraps until they have paid off their debt. This brings to mind the stereotypical inmate job: making license plates (or, perhaps more recently, telemarketing). But as the focus is on reaching an economic goal, rather than serving out a term, prisoners would have a much greater incentive to work hard, so they could get out sooner.
In fact, the prisoner could be given leighway to choose among various prisons that might best exploit his particular skillset. It’s important to recognize a separation between the prison and whomever the criminal owes his debt. Competition between prisons would create pressure to adopt humane policies; a prison known for turning a blind eye to rape would lose business to competitors that better protect their inmates. Conversely, inmates would have to compete to be accepted at more desirable prisons; “slacker” inmates would end up at the worst places.
While Somin does suggest privatization, it is not enough to continue with the current model but simply subcontracting the operation of prisons to private operators. At best, this might result in somewhat greater efficiency, but the larger institutional problems would remain. A complete revamp is needed, focusing on introducing competition to make prisons better protect inmates, while simultaneously forcing offenders to recompense their victims. Our current system primarily benefits the unions or private contractors operating the prisons, and the politicians who feed off of our fear and anger.
Wind Farms
The New York Times reports on a wind farm controversy in rural Virginia (the Times requires free registration).
Returning for a moment to my earlier post, I mentioned Coase bargaining without explaining it. It refers to the Coase Theorem, which (roughly) says that, were it not for transaction costs, any definition of property rights would be efficient because people would negotiate until externalities are eliminated. One can view externalities simply as a consequence of high transaction costs. These costs prevent the full extent of negotiation that would be needed to reach an efficient outcome.
In the New York Times story, a wind farm, while environmentally attractive, has raised concerns about aesthetics, noise and light pollution (the turbine towers are tall enough that they require beacons to warn aircraft). The solution, per Coase, would be for the wind farm owner to bargain with affected parties to reach a solution that compensates for the nuisance of the turbines. Assuming the wind farm can still be profitable, it can then be constructed. But there may be a lot of people to bargain with; there may be holdouts. It is hard to identify who is really affected, and who is merely claiming to be affected in the hope of a payout.
In my example of factory pollution, the RFID-tagged dust particles emitted by the factory could be traced to a particular factory, and people afflicted by the factory’s pollution would be distinguishable from people with unrelated afflictions. This would greatly aid in reducing transaction costs — all victims do not have to negotiate with all polluters and vice versa.
Noise and light pollution and aesthetics may be trickier because they are more subjective. And there is still the problem of too many parties at the bargaining table.
A class action suit is one possibility, but this seems less than ideal. A tort system is needed when breaches of rights occur, yet the ideal is to have an efficient system of rights in the first place, where lawsuits are the exception, not the norm. It’s better for two farmers to have two clearly defined plots of land where each can grow his preferred crop, rather than share one plot and constantly sue each other when they get in each other’s way.
A better solution is for an intermediary to negotiate with the factory to a mutually acceptable compromise. Government is often proposed as such an intermediary. Government is a monolithic enterprise, not terribly responsive to the varying preferences of different people within its territory. For instance, people will have different tolerances for risk, and different interpretations of harm, as seen in the New York Times article. Perhaps, with the aid of technology, smaller, more responsive organizations could fill the gap between government defining rights for everyone, and individuals having to negotiate all of their rights.
