Thursday, July 21, 2016

A Story Idea

Someone comes up with a drug, or a technology, that gives the user perfect recall, the ability to rerun, in full detail, any part of his life. How would it get used?

One possibility is for self-education. Observing selected past experiences with a fifty year old mind and seventeen year old eyes might teach me a good deal about mistakes I had made, some of which I might still be making.  It might provide information about what it was like to be seventeen useful in dealing with current teenagers, including my own children. In life as it now is, we get to see each episode only once. As any video game player could tell you, being able to play the same events over and over makes it possible to greatly improve your skill. In my hypothetical, unlike a video game, you don't get to  try different tactics and see what happens. But you do get to see repeated replays of what you did the first time and the results.

Another possibility is entertainment. You can rerun, over and over again, your happiest, most exciting moments. Replace internet porn with memories of your first, or best, sex. Watch a reality show that was real, with yourself as star.

There is, however, a potential down side. After things go wrong, a marital breakup, a business failure, an election loss, it is tempting to go over it again and again, agonizing over what you did wrong and what you should have done. Now you can do it in living color. Forever.

The version of this scenario I have just described is probably impossible, since there is no reason to believe that a full record of my past is actually stored anywhere in my brain. But a different version, enabled by a different technology, might well come into existence in the not too distant future.

Consider a world with greatly improved surveillance, a much advanced version of video cameras on poles combined with face recognition software and database technology. In that world, David Brin's Transparent Society, everything that happens in a public place is recorded and findable. And once we have video cameras with the size and aerodynamic characteristics of mosquitoes, practically every place is public.

If the system is open access we are back with perfect recall. I am no longer watching my past life through the eyes of my past self, but I still get to watch it. 

I was born too early. But it might be reality for my future grandchildren.

Donald Trump and The Boy Who Cried Wolf

In 1964, Fact magazine published an article whose headline was "1,189 Psychiatrists Say Goldwater Is Psychologically Unfit To Be President." It included a variety of detailed and unflattering diagnoses of the Republican candidate for president by psychiatrists none of whom had actually examined him or, so far as one could tell, met him.

In 2010, Christine O'Donnell, a Republican candidate for the Senate, was widely mocked as the "masturbation hating candidate." So far as I could discover, the basis for that was a comment she had made in an MTV program on masturbation some fourteen years earlier:
"The Bible says that lust in your heart is committing adultery. So you can't masturbate without lust."
Both, I think, correct statements. 

That same year, another Republican senate candidate was reported as saying that he opposed the principle of separation of church and state. What he actually said was "The idea that church and state should be separated is fine with me. The idea that there should be no interrelationship between the two is not fine with me."

Those are particular incidents that struck me when they occurred–the two links above are to blog posts I made at the time. But the pattern is a general one. Center left writers and media routinely accuse candidates on the right of being ignorant, stupid, racist, and/or crazy. Most of the time it isn't true.

Donald Trump is, in my view, less  qualified to be president than any major party candidate in my lifetime. But after being told more or less the same thing about every candidate seen as right of center for the last fifty years, why should voters, especially voters right of center, believe it?

Saturday, July 09, 2016

Observations on London

I recently spent a few days in London and was struck by several features of current London culture:

1. Several times, younger passengers on the Tube (subway) offered me their seats. I have grey hair but do not appear (and am not) particularly feeble. I would be mildly surprised to have the same thing happen in the U.S.

2. Most hotels I have stayed in recently, in the U.S. and abroad, have a safe in the room with a combination that the guest sets. The hotel I stayed at in the U.K. didn't. That might mean that U.K. guests are less worried about pilfering by hotel employees than hotel guests elsewhere. Of course, my sample size is very small.

3. Walking through Notting Hill (no Napoleons visible) I observed the scene shown below, jam offered for sale with a request to put the payment through the house's mail slot.  I cannot remember having ever seen a similar scene here, although I don't suppose it's impossible.

Scotland and the EU

One result of the British vote to leave the EU has been a revival of calls for Scotland to leave the U.K. Doing so is considerably more attractive if combined with EU membership. That raises the question of whether, if Brexit were followed by Scottish secession, the EU would be willing to let the Scots in.

One argument in favor, from the standpoint of the EU, is that encouraging Scottish secession is a way of punishing the U.K. for leaving and so deterring other countries from doing so. One argument against is that allowing a breakaway region to join sets a precedent that some current EU members, most obviously Spain, might be unhappy with. The Scots could, of course, argue that the precedent would only be relevant to the case of breakaway regions from non-member states. The Spanish might or might not be convinced.

Brexit and Free Trade

Much of the discussion of the recent British vote to leave the European Union takes it for granted that the result will be less free trade for the U.K. While that is possible, so is the opposite result. Britain can still negotiate a free trade agreement with the EU, as several non EU countries have done, assuming both sides want it. And leaving the EU leaves Britain free to negotiate free trade agreements with other countries, most obviously the Commonwealth.

The critical issues are the positions of the U.K. government and its potential trading partners, including the EU. Many who voted for Brexit were motivated by a desire to reduce trade and/or immigration, but not all. The winning coalition seems to have included both protectionists and free traders. The free traders who voted for Brexit plus the free traders who voted against it might well add up to a majority.

For those who supported free trade, the objection to the EU was the rest of the package, in particular extensive regulation. Many people take it for granted that if you have free trade such regulation is needed to prevent countries from cheating, regulating the national market in ways that favor their producers. That argument assumes that national governments want to cheat on free trade. It treats a free trade agreement as a deal where each country gives up something it values, its own trade restrictions, in exchange for the other country doing the same. 

Much talk about trade views it that way. Politically speaking that view is correct, since trade restrictions are a way in which politicians can benefit well organized producer groups in exchange for their political support. Economically speaking, however, that view is false. The gain from protecting U.K. manufacturers from foreign competition comes at the cost of their customers and U.K. export industries. 

Unilateral free trade, the policy of England in the 19th century and Hong Kong in the 20th, produces a net benefit for the inhabitants of the country that adopts it, quite aside from any benefits to their trading partners. From the standpoint of the welfare of the citizens rather than their rulers, the usual trade negotiation consists of each side offering to stop shooting itself in the foot in exchange for the other side doing the same. If governments engaged in trade negotiations were trying to maximize the welfare of their inhabitants, there would be no need for either tariffs or agreements on regulation, since there would be no incentive for the governments to use regulation to cheat on trade agreements.

If supporters of free trade in the U.K. and potential trading partners are sufficiently numerous and sufficiently well informed, Brexit should lead to an increase in free trade. If they are numerous but poorly informed, believe that the benefit comes from a trading partner abandoning its restrictions, it still might lead to an increase. We will have to wait and see.

Monday, July 04, 2016

America's Annual Celebration of Lawlessness

Where we live, private fireworks are illegal. Walking around the neighborhood for an hour or so after dark, I must have seen several hundred rockets go up as well as a lot of ground level displays. Lots of people out watching.

It's enough to warm an anarchist's heart.

Wednesday, June 08, 2016

The Origin of the Law of Torture: A Cautionary Tale

[This is a passage I just wrote for a chapter of my current book project, Legal Systems Very Different from Ours. I thought my blog readers might find it of interest.]

People in the past worried about convicting the innocent too. In the early Middle Ages, they had a solution–let God judge. A defendant could be subjected to an ordeal, such as plunging his hand into boiling water, carrying a red hot iron, being dumped bound into water. Various passages in the Bible were interpreted to imply that God would reveal guilt (hand injured or body sank) or innocence (not injured, floated). Since God was omniscient, it was an approach that guaranteed a correct verdict.

The use of ordeals was eventually abandoned on theological grounds. A more careful examination of the biblical passages found little support for it, and it could be viewed as an attempt by humans to compel God to serve them, religiously dubious. In 1215, the fourth Lateran council rejected the religious legitimacy of judicial ordeals and banned priests from participating in them. Over the next few decades most European countries abandoned their use.[1]

That left medieval judicial systems with the problem of finding another way of being certain a defendant was guilty. The solution was to impose a very high standard of proof,  evidence “clear as the noonday sun.” Conviction required either two unimpeachable eyewitnesses to the crime or a voluntary confession. Circumstantial evidence, however strong, was insufficient.

In the history of Western culture no legal system has ever made a more valiant effort to perfect its safeguards and thereby to exclude completely the possibility of mistaken conviction. But the Europeans learned in due course the inevitable lesson. They had set the level of safeguard too high. They had constructed a system of proof that could as a practical matter be effective only in cases involving overt crime or repentant criminals. Because society cannot long tolerate a legal system that lacks the capacity to convict unrepentant persons who commit clandestine crimes, something had to be done … .(Langbein 1978)

The solution was the law of torture. Once the court had half-proof, one eyewitness or the equivalent in circumstantial evidence, the defendant could be tortured into confessing. A confession under torture was not voluntary, but that problem could be dealt with. Stop the torture and the next day ask the defendant if he is still willing to confess. Since he is now not being tortured, the confession is voluntary. If he doesn’t confess, torture him again.

John Langbein, my source for this account, offers a parallel story in modern law. Two hundred years ago, jury trials were short:

In the Old Bailey in the 1730s we know that the court routinely processed between twelve and twenty jury trials for felony in a single day. A single jury would be impaneled and would hear evidence in numerous unrelated cases before retiring to formulate verdicts in all. Lawyers were not employed in the conduct of ordinary criminal trials, either for the prosecution or the defense. The trial judge called the witnesses (whom the local justice of the peace had bound over to appear), and the proceeding transpired as a relatively unstructured “altercation” between the witnesses and the accused. In the 1790s, when the Americans were constitutionalizing English jury trial, it was still rapid and efficient. “The trial of Hardy for high treason in 1794 was the first that ever lasted more than one day, and the court seriously considered whether it had any power to adjourn… .”
Over the years since, trials have become longer and much more complicated, at least in part to reduce the risk of convicting the wrong person. Patricia Hearst’s trial for bank robbery lasted forty days. That was unusually long, but the average felony jury trial in Los Angeles in 1968 took 7.2 days, more than a hundred times the length of a felony trial in the Old Bailey in the 1730’s. If every felony conviction in the U.S. took that long, felony trials alone would require the full time efforts of more than the total number of judges in the state and federal systems.[2] Also the full time efforts of close to a million jurors, court attendants, and the like. Not impossible, but very expensive.

The American legal system found a less expensive alternative. Like its medieval predecessor, it substituted confession for trial. The medieval confession was motivated by the threat of torture. The modern version, a plea bargain, is motivated by the threat of a much more severe sentence if the defendant insists on a trial and is convicted. Like the medieval version, it preserves the form–every felony defendant has the right to a jury trial, a lawyer, and all the paraphernalia of the modern law of criminal defense–while abandoning the substance. Conviction after a lengthy and careful jury trial is, arguably, evidence of guilt beyond a reasonable doubt. The willingness to accept a sentence of a year, possibly a year already served while awaiting trial, instead of the risk of ten years if convicted is not.



[1] For details see  Leeson, Peter, “Ordeals.”
[2] In the U.S. in 2006, an estimated 1.2 million persons were convicted of a felony. If each of them had had a jury trial of 7.2 days the total would have been 8.6 million trial days. Assuming that courts function five days a week, 52 weeks a year, felony cases alone would have required the full time effort of 33,000 judges. Add in a few more for the trials of defendants who were acquitted. There are about 30,000 judges in the state judicial systems, and another 1,700 in the federal system.