Thursday, April 04, 2013

Landsburg v Bork: What Counts as Injury?

My friend Steve Landsburg appears to have entered a competition with my friend John Lott over who can make the most politically incorrect argument. John's old entry was an article arguing that the fact that rich criminals were less likely to be convicted than poor criminals was evidence for, not against, the efficiency of the legal system (my discussion of that article is in chapter 15 of my Law's Order, under the subhead "Should the Rich Pay Higher Fines"). Steve's new one, which has gotten a good deal more attention, is a blog post asking why rape of an unconscious victim who suffers no injury in the ordinary sense should be illegal.

Reading attacks on Steve's piece, it occurred to me that I had seen the essential point before—from the other side, in an old article by Robert Bork which explained, among other things, why he was not a libertarian. It is a long time since I read it, and when I recently reread it I discovered that it was not mainly about the part I remembered, but that particular argument was what impressed me, since I am both a libertarian and an economist and the argument appeared to show that the two were inconsistent with each other.

Bork's argument, in my words not his, goes as follows:

When I pollute the air I am injuring other people, so it is legitimate for the legal system to respond by penalizing me. What makes it an injury is not the fact that I affect the air but that the effect does harm; one could imagine an effect, such as a change in the ratio of two stable isotopes of trace gases in the atmosphere, that would not matter to anyone and so would not be seen as an injury or a proper subject for legal action.

Harm, however, is ultimately subjective, since it depends on the preferences of the harmed individual.  When I smell the roasting ribs from my neighbor's barbecue, that isn't harm because I enjoy the smell. When the smoke from the barbecue makes me cough that is harm, because I don't like coughing—and would be harm even if the smoke had no adverse effect on my health. From the point of view of economics, "harm X" simply means "lower X's utility."

Suppose that, instead of polluting my neighbor's air, I engage in behavior that he disapproves of—read pornography, use contraceptives, work on Sunday. That too causes him disutility. Since the defining characteristic of harming someone is lowering his utility, I am harming him. Since I am harming him, my activity is just as much a legitimate target for legal action as my polluting his air would be. Hence the libertarian principle that I have a right to engage in what Mill referred to as self-regarding actions, actions that only affect me, is either false or empty. Either I don't have a right to read porn if doing so offends others without affecting them, or their offense counts as an effect of what I am doing so my reading porn isn't really a self-regarding action and there is no reason in principle why it shouldn't be banned.

When I first read it, it struck me as an interesting and persuasive argument for a conclusion I disagreed with—explaining why I thought it was ultimately wrong would take a different, and longer, post than this. 

Steve Landsburg's piece, responding in part to the Steubenville rape case, makes the same argument from the other side. We—at least Steve (and I)—don't feel that the argument for banning pornography or contraception is a legitimate one. Our reason is that the "harm" in those cases is purely subjective—I haven't actually done anything to you, so your unhappiness at my self-regarding behavior is your problem, not mine, and you have no right to use the legal system to make me conform to your wishes. And even if you argue that I have done something to you—acted in a way that resulted in your knowing what I was doing, knowledge that pained you—that doesn't count, because "knowledge that pains you" isn't injury in the same sense as causing you to get cancer is.

Which gets us to the part of Steve's post that gives lots of people reason, or excuse, to attack him. Suppose an unconscious woman is raped in a way that results in no injury—in the Steubenville case, "rape" actually consisted of digital penetration. She only finds out it happened several days later, at which point the harm is purely subjective, consists of her being offended at the knowledge that it happened. Why is this different from the subjective harm suffered by the person offended at someone else reading pornography? It feels different—to me and obviously, from his post, to Steve. But is it different, and if so why?

That, it seems to me, is an interesting question, one relevant to both law and  morality. It is ultimately the same question raised by Bork, although from the other side. Bork was arguing that the harm caused by the use of contraception and the harm caused by air pollution were ultimately of the same sort, that it was legitimate to ban pollution hence legitimate to ban contraception—his article was in part an attack on Griswold v. Connecticut, the Supreme Court case that legalized contraception, a fact I had forgotten when I started writing this post. Landsburg is arguing that rape that does only subjective harm is of the same sort as reading pornography that does only subjective harm (unlike Bork, it isn't clear that he is thinks his argument is right, only that he thinks it interesting), that it is not legitimate to ban the reading of pornography hence not legitimate to ban that particular sort of rape. 

I agree with both Bork and Landsburg that there is a real puzzle in our response to the legal (and moral) issues they raise. Hence I disagree with the various commenters whose response to the Landsburg piece was that it showed he was crazy, evil, or both.


Anonymous said...

Perhaps the concept of harm is too narrow? We need a broader term, perhaps the Rawlsian "separateness of persons." When you do harm to someone you violate their sphere of personal autonomy. And when you digitally rape someone, even if it does no harm, you also violate their sphere of personal autonomy.

But that raises another question: would moving from harm to "separateness of persons" be too broad and have non-libertarian implications? And if so, is there something broader than harm, but narrower than separateness of persons?

David Friedman said...

It may be worth thinking about a less emotionally loaded version of the problem, trespass to property rather than person. Suppose I come on your property, ignoring the
"no trespassing" sign, climbing over the fence, but do no damage. Should there be a legal penalty? Suppose I come into your house when you are away by picking the lock on the front door, wander around the house, then leave, having done no physical harm. You only discover I did it when you view the video made by your security camera.

My moral intuition is a good deal less clear on the first case than the second, a little less clear on the second than on Landsburg's case.

suckmydictum said...

After reading Landsburg's post, I thought at first that the reason "unconscious rape" was different that watching porn or cutting down trees was that society has observed raping unconscious women is a decent predictor of raping conscious women and takes steps to check that. Porn and tree cutting don't seem to predict much else than more porn and tree cutting.

Someone else delineated them as follows:

Porn involves A's distress over B's property.

Tree cutting involves A's distress over B's use of C's property

Unconscious rape involves A's distress over B's use of A's property.

Power Child said...

Things like looking at porn may not actually harm any adults, but could lead to an atmosphere that is actually harmful for kids (at least, when looking at porn is openly accepted). Adults who claim to be harmed by others looking at porn may, consciously or not, be speaking for kids, who are probably less (or not) aware of the harm.

For instance, most people don't mind the debauchery found on in Las Vegas, but many of those same people probably would mind if a similar level of debauchery was found in their neighborhoods and the neighborhoods around their kids' schools.

jimbino said...

What if you trespass on your neighbor's property, make renovations, and leave it vastly improved?

What if your rape of an unconscious woman leaves her with a beautiful child, after she paid for a botched abortion and the doc was acquitted of "wrongful birth"?

What if you pretend to be Warren Beatty to seduce a woman, leaving her with a big smile on her face until she discovers on the Web that you really aren't Warren Beatty?

jimbino said...

Power Child:

Who the hell wants to live in a world made safe for kids?

Even the Bible features only Baby Moses, Baby Jesus, Baby Isaac and the countless kids sexually mutilated by their parents or murdered by God!

Martin Wolf said...

In both the rape case and the "harmless burglary" case, part of the answer is that I should not have to trust other people's judgement about whether or not their actions will cause harm.

Digital penetration is a rather safe form of sex, but if the penetrator's hands are not clean, it could still lead to some nasty infections. If you burgle my house, you may not be planning to damage anything but you might accidentally bump into my priceless Ming vase.

And since there won't always be a security camera present, we'd have to trust the perpetrators to come forward voluntarily if it turns out that their actions were not as harmless as they intended.

"Ex post" we can say that such unintended harm did not happen in a particular case. But "ex ante" a law forbidding access without the property owner's consent, is still a good idea.

Joey said...

What if you pretend to be Warren Beatty to seduce a woman, leaving her with a big smile on her face until she discovers on the Web that you really aren't Warren Beatty?

It seems to be that if Landsberg's scenario is considered an injury, then so must Jimbino's.

Anonymous said...

Jimbino is a plagiarist! He clearly ripped off the scene from Revenge of the Nerds when Lewis pretended to be Stan and seduced Betty.

The Dark Lord said...

There is a reason each of us does not get to define harm outside our own personal space.
In other words for the law, society gets to decide what is and isn't harmful.
For you as a person the aroma from a neighbors barbeque may drive you crazy and thus you may decide to move. But to ask society to make them stop via a law means that society gets to define harm and that very well may not match your definition. I think the term is "reasonable man" and allowing the sqeaky wheel to define harm would ruin a legal system and society. Much like the precautionary principle can make life unliveable.

Daublin said...

Two main issues, and one smaller one:

First, people have property rights over their own bodies. In both the hypothetical and in the trespassing example, the defendant is stealing something that they should have had to negotiate for. As you say, though, this argument is not as compelling as the manipulation of a sleeping woman.

Second, laws (and moral rules) have to be enforceable, which means that the rules have to be relatively simple. It's similar to the way we don't let people brandish a knife in a dangerous way--that would be assault.

A confounding issue with this hypothetical is the assumptions are not very realistic. I have a hard time imagining the woman sleeping through being manipulated unless she was also drugged, which is already a terrible thing to do to someone.

Patrick said...


With regard to your "sneaking into the house" scenario, imagine I sneak into your house while you are away, sleep in it, then leave, leaving it tidy enough that you can't discover my trespassing without looking at your video. In this case, I think the benefits and the harms are clearer. I have gotten a free night's lodging, while you are now out the rent I would have had to pay.

If this is legal, then you will no longer be able to rent your house for as much, which means you have less incentive to improve your house, which translates to a real loss. When I violate your property rights and benefit therefrom without your consent, that imposes real costs.

If we agree that a woman owns her body, then it should be clear that real costs are being borne here too. It seems a bit crass to use as an analogy, but the cost has an easy mapping to dollars in the case of raping a prostitute in this manner. Presumably the cost would be greater still for any other woman. So rape, like trespassing, should be a crime (or tort) even if it is undetected at the time.

This can be contrasted to reading pornography. I don't think anyone would seriously claim to have a property right over what you read. The only person who could plausibly claim to have that right is you. Your neighbor is still free to buy that right from you, by getting you to agree by contract not to read pornography. Then you really would be infringing on his rights by reading it, since you'd be taking his money and then not following through on your agreement.

Andy C said...

Viewing porn is private, there is no physical action TO the complainant, and, if desired, can be practically prosecuted. The complainant is offended and their feeling of offence is the only real, direct harm.

It seems to me that torturing puppies meets all those criteria, and as cute as they are, they are an ordinary article of property.

If we can prohibit puppy torture, why not pornography?

Mark said...

Copyright governs a very similar situation: The copyright holder comes to no harm from somebody copying their work, but we still outlaw it.

jdgalt said...

What the plaintiff is calling "digital rape" is a normal part of seduction that it's perfectly reasonable for a guy to assume is OK, especially if he's as inebriated as she is. The notion that a guy should be held responsible for his actions when he drinks, but a gal should not, is an unworthy "feminazi" view. She can "man up" and live with it. The fact that you had unwise sex does not mean you were raped.

If she had been dosed without her knowledge or against her will, that would be different.

123 said...

Both demand and supply of law enforcement should be considered.
In a just society, psychic harm should not count towards the estimate of the damages, the estimate should be purely objective.
However, people have different preferences about the optimal level of law enforcement services in a society. The subjective preferences do have an impact on the funding of law enforcement. So the crimes with an additional psychic harm element will get more funding than the equivalent crimes without such a harm. Rational criminals will try to optimize with respect to psychic costs they impose.

David Friedman said...


The facts, at least as reported, are that she was unconscious—I suspect due to drink, although I'm not sure—and both of the men involved were conscious. So not equivalent to the case where both get drunk and then have sex.

Patrick said...


That seems like a very indirect way of dealing with things. I see no reason why it would tend to lead to an efficient level of punishment. Furthermore, there is a sense in which all harm is subjectively quantified--what makes psychic harm any different?

My preferred position is to define property rights clearly. Then when you violate my property rights, whatever harm I suffer, you must pay in damages. If I can prove a certain level of "psychic harm," then that's what I should get.

Since property rights are transferable by contract, the only step that remains is to assign initial property rights. A lot of this is easy--obviously I should by default own my body, my land, my possessions, etc., since the normal course of affairs is that I know better than anyone else when others trespass on these things and can control them at the lowest cost. But a lot is hard as well--copyrights and patents are a murky morass, involving assigning default rights to people over the distant behavior of strangers they could never practically control or know about, and with whom they have never contracted.

123 said...


Do I have a right to put such a notice on the fence? :
"Trespassers will be prosecuted. If I suffer psychic harm, I will hire the best lawyer, instead of a regular one"

123 said...

Crime is a transaction, albeit an involuntary one. It is rational and Pareto-enhancing for the victim to pre-commit to exert an above-average effort to secure a punishment when the psychic costs are present. Higher penalties for crimes where additional psychic costs are present is just a codification of this obvious principle in law.

All those anti-porn people should contribute to charity that bribes people not to watch porn.

Patrick said...


Sure, why wouldn't you have a right to post anything you want on your fence? Anyway, it's not even clear what qualifies a thing as psychic harm versus regular harm. But to answer the point I think you're trying to make, if psychic harm is part of the damage award, then it makes no sense to pre-commit to spend more on enforcement for such cases.

Presumably, you'd spend the optimum amount in any case. Why would I pay more to prosecute a case where the damage was $50 regular + $50 psychic than a case that was $100 regular + $0 psychic? The payout is the same, and if the cost of enforcement is the same, I should pay the same amount to enforce. If damages are calculated correctly, I will break even only if I spend the optimal amount on prosecution, and lose otherwise.

123 said...


Well, in my view only the objective elements should be considered when measuring harm. Subjective damages come into play because victims want to bribe criminals to behave in a way that reduces the subjective harm.

Patrick said...

But how do you determine what objective harm is? If I can prove that your actions left me $100 worse off, how do you differentiate how much of that harm was due to "psychic" reasons? As proof of damages, I could provide evidence that that's how much you would have to pay me to get permission to do what you did, but obviously the price I would demand would have some unknown mix of "objective" and "psychic" costs. Or, to put it another way, so-called psychic harm seems to me to be as objective as any other kind of provable harm.

Unknown said...

All "harm" is psychic harm. Given our understanding of utility as a subjective function, its increase or decrease is of the mind.

David's discrimination against "purely subjective" harm is nonsensical, as all harm is purely subjective.

That the woman should have legal right to prosecute the rapist seems obvious, given that he has forcefully made use of her property in a fashion she otherwise could have charged for. Resulting proportionality of punishment should be based on the market price of the stolen service.

martin said...


Resulting proportionality of punishment should be based on the market price of the stolen service.

Based how? A punishment of 1 second of imprisonment for each dollar in the market price is based on the market price. So is a fine of one trillion times the market price.

123 said...

@Jacob Oveson

If you support liberty and property rights, the only harm that is punished by law should be the objective harm to your liberty or your property. As the crime is an involuntary transaction, there is a pricing problem, but as in voluntary transactions, the pricing is affected by the subjective disutility of the harm done to your liberty or property.
What about those subjective psychic costs that do not arise from the violation of liberty or property? Pre-crime bargaining mechanism between potential victims and criminals would make it sure that these costs are taken into account too. Such a mechanism is Pareto-enhancing, the current law has got some elements related to it.

Anonymous said...

If I passed out drunk, and some guy poked me up the butt, even just with a finger? I would conduct a just feud outside the law, to the detriment of the public peace. And if my girlfriend or sister reported to me unwanted fingerings as above? I'd do the same. My response is sufficiently shared by enough more/less good citizens that our legal system treats such intrusions as a crime. Thrasymachus or Njal would agree. After all, nobody's holding a gun to your head to make you finger drunk chicks.
And decent men do it when they are awake.

gwern said...

And previously:

Patrick said...


I certainly agree that damages should only be awarded for property rights violations, and only for the harm that flows from them. I would trust a finder of fact to do an adequate job of figuring out what harms resulted from the violation.

But I still don't understand what you mean by "objective harm." Do you mean "measurable harm?" If so, then it is obvious that we can only award damages for objective harm, since we must measure damages to award them. Psychic harms are just as measurable as any other, so psychic harms are objective harms, too. Surely if victims experience (reasonable) shock, indignation, humiliation, or disgust upon learning of a violation of their property rights, then they should receive damages to compensate them for that harm, insofar as we can measure it.

What you say about ex ante calculations being the best way to determine harm is true. However, in the cases we are considering, I think ex post calculations would be as accurate. Crimes like these do not significantly change the utility functions of the victims, so ex post and ex ante calculations should give roughly the same number. So the rule "make the victim whole" would work adequately, and should be used if it can give a more reliable estimate of damages.

Alexx Kay said...

In our society, someone who is a "rape victim" suffers significant social sanctions because of that status, which are not subjective. These sanction are based in the subjectivities of other members of society, and are arguably unjust in and of themselves. But I don't think it can reasonably be denied that these sanctions exist in the world we currently are faced with.

123 said...

I had in mind harm to what we recognize as property when I said "objective harm". I disagree with your position because you are attributing property rights to mental states and moods.
David Friedman has explained everything very clearly in his newest post. Please check if you have any disagreements with what he wrote.

Patrick said...


Then we are actually in agreement, I think. I was only arguing that, *given a violation of property rights,* the victim should be able to collect damages for all harm the victim suffers that results directly from the violation, including psychic harm. If there is no violation of property rights, then of course there should be no damages (assuming the acts in question are subject to property rules, as opposed to liability rules.)

123 said...


No we are not in an agreement. I said ex-ante mechanisms that allow us to take purely psychic harm into account are useful, but I never said that in equilibrium you should get 100% damages for purely psychic costs. For example, I might prefer to get 50% damages for purely psychic loss, and spend the savings ex-ante for other purposes.

Patrick said...


Let us assume that the total psychic damage is 100. If you are saying that you want 50 ex post + 50*p ex ante, where p is the likelihood of your being a victim, then a 100% ex post damage award allows you to get this outcome. You just sell 50% of your tort claim in advance--basically selling insurance on yourself. David has described elsewhere how this would work. In this system, you must have the right to sell inchoate tort claims. Modern law doesn't permit this, but it should. See

123 said...

Patrick, it is a good thing that you support the Pareto enhancing sale of the claim.
However, I also disagree with the initial allocation of property rights. Practicality is just one reason why I disagree that you have the property rights to your good mental states.

Patrick said...


I only think you have a property right to your mental states in that it would be wrong for anyone to force their way into your brain and alter them. Basically, if someone violates some property right of yours, then I think they should be responsible for all damage they cause, including damage to your mental state.

In other words, if you inject me with a drug that makes me sad, you should be liable both for the pain of the pinprick and the sadness that you have forced upon me. This is rooted in the fact that you violated my "objective" property rights, i.e. my body, to cause me to be sad. By contrast, if you do something that you have a (property) right to do, and that makes me sad, then you owe nothing since you never violated my property rights.

David Friedman said...

"What are you suggesting here? That digital penetration is not rape?"

Digital penetration is not what "rape" has traditionally meant.

"That digital penetration does not cause injury?"

It does not cause pregnancy and is very unlikely to transmit a venereal disease, so although it could cause injury, the odds are a lot lower than for what the term "rape" traditionally meant--and what people who see the word are likely to assume it means. Thus I noticed in discussion of the Landsburg case people taking it for granted that the "rape" in the Steubenville case could have caused pregnancy--i.e. that it was penile penetration.

"The US Justice department defines rape as “The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.”

That may be the new legal definition, but it isn't what the term calls to mind to most who see it, or what it has traditionally meant.

"Do you disagree with this definition?"

I'm not sure how one disagrees with a definition. That definition describes current law. It doesn't accurately reflect past law, past linguistic usage, or current linguistic usage, although the last may be gradually changing due to the legal change.

Googling for [rape definition] the first definition I find is:

"the unlawful compelling of a person through physical force or duress to have sexual intercourse." Running down definitions, I eventually come to the older non-sexual ones, not to the new and broader sexual definition.

I find, from the NYT:

"The new definition, which has been in the works for several months and was formally announced by the Obama administration on Friday, will replace a narrower definition of “forcible rape” with one that includes, among other things, forcible oral or anal penetration. The narrower definition, which is limited to vaginal penetration, has been used since the 1920s in tracking how often such crimes are reported around the country."

Anonymous said...

Actually, the copyright holder loses licensing and royalty fees, so they are harmed.

Anonymous said...

Harm has been done in the above mentioned case because :
a)under current societal opinion and law (see notes below), no consent was received and this I believe was the a basis for determination of sexual assault
b)harm was done psychologically to the victim
What many of the commentators appear to be saying is that if there is no apparent physical damage - there is no harm. Guess they don't believe in PTSD, the outsourcing of jobs, chronic pain, or the 1%. They've also never been stalked, or had their house burglarized.
Society itself chooses what defines harm whether we as individuals like it or not. We all live within a society. To live within the society we choose to give up certain freedoms in order to receive certain protections.
It is up to us to define our society because we have to live in it. Questioning is always good.

TuringTest said...

What about dogshit? Where does dogshit fall on the psychic harm-tangible harm continuum? Not cleaning after my dog’s dogshit may impose a harm on others, but my having to clean up after my dog’s dogshit imposes a real harm on me ! Isn’t this Coase’s whole point in “The Problem of Social Cost”?

Anonymous said...

windwheel said...

You write- 'Bork's argument, in my words not his, goes as follows:

'When I pollute the air I am injuring other people, so it is legitimate for the legal system to respond by penalizing me. What makes it an injury is not the fact that I affect the air but that the effect does harm; one could imagine an effect, such as a change in the ratio of two stable isotopes of trace gases in the atmosphere, that would not matter to anyone and so would not be seen as an injury or a proper subject for legal action.'

This is not Bork's argument. He says that the principle of Neutrality, as applied to the Judiciary, prohibits distinguishing between 'psychic harm' arising from disapproval of Contraception and some other sort of harm resulting from pollution'. Bork was for Contraception and said there was no need for 'Grisworld vs. Connecticut' because the relevant statute had fallen into desuetude. In any case, the Judge had fallen into error by creating a wholly new general Right to Privacy which had no foundation in the Bill of Rights. Bork stipulates that the Legislature, as opposed to the Judiciary, is not bound by the principle of neutrality and can decide that some action is illegal because it disapproves of it even if no harm is caused.
Your notion that the Court has the power to take cognizance of a case where there is no injury to anyone reveals a bizarre misunderstanding of the concept of Justiciability. Bork's objection to Griswold was that the point was moot- i.e.since the statute against Contraception had long fallen into desuetude, no potential for injury existed any more. Your example of a currently harmless change in isotope levels in the air is an example of a failure of Justiciability by reason of unripeness. Bork nowhere adverts to this concept in his essay- it would have been ludicrous to do so. He was not writing for children but for Legal scholars who understand the underlying concept very well.

What is the reason for your bizarre claim that Bork was against Contraception?

Strung out cyclist said...

Maybe we should ask Seinfeld what he thinks about this issue.