Not so good on this…

The L.A. Times also ran this piece. Shorter version: Let’s make it illegal to donate money to any politician not pre-approved by the ruling parties. What could go wrong?

A cause for delegation

The editors at The New York Times are amused by the irony of seeing congressional Republicans suddenly calling for oversight of the executive branch now that the Treasury is asking for $700 billion to play with:

As delighted as we were to hear Republicans talk about oversight and accountablity, we couldn’t help but wonder where they were for the last seven years as the Bush administration essentially operated without Congressional oversight…

We can’t help but wonder how much the Republicans’ newfound zeal for regulating the executive branch and the equally out-of-control financial sector will last.

Probably until the elections are over.

All valid points. Congressional deference to the Bush Administration on matters of security has been shameful. But before calling out Republicans for their hypocrisy, the board ought to consider a little history. Congress has a long tradition of passing vague delegations of power and letting administrative agencies sort out the details. It’s a neat trick that lets them appear to address problems while washing their hands of responsibility when the execution goes awry. The practice goes back at least to the Great Depression with attempts to grant Roosevelt unprecedented power to regulate economic activity.

As Robert Levy and William Mellor document in their new book The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom, the Court initially ruled against these delegations as violations of the Article 1 requirement that “All legislative Powers herein granted shall be vested in a Congress of the United States.” In Schechter, for example, the Court struck down a portion of the National Industrial Recovery Act because it under it “The discretion of the President in approving or prescribing codes, and thus enacting laws for the government of trade and industry throughout the country, is virtually unfettered.”

There, unfortunately, the Court stopped. Not a single statutory program since then has been struck down as an impermissible delegation of congressional authority. As long as there is an “intelligible principle” to guide agencies’ discretion, they’re allowed to make and enforce new law — and these “intelligible principles” can be remarkably vague. The laws created by unelected administrative agencies now dwarf those passed by Congress. The Federal Register runs more than 77,000 pages long, listing rules from more than 300 agencies. The FCC, FDA, EPA, SEC, and countless other agencies derive their sweeping authority from the Court’s long history of letting Congress foist responsibility for costly regulations onto unaccountable bureaucracies. Levy and Mellor conclude that:

…delegation buttresses the power and influence of special interests. Ordinary citizens are even less well equipped to press their case before administrative agencies than before Congress. National legislators– but not agency heads — are responsive to the needs and desires of voters, who can exact retribution at the polls. By contrast, individual voters have no direct representation in the administrative process, nor do they typically have access to trained legal counsel, expert witnesses, and consultants…

Delegation has become a political narcotic — hooking Congress on more and bigger regulatory schemes with scant regard for their costs, little concern over the political repercussions, and most of all, disrespect for a Constitution expressly designed to prohibit what Congress has eagerly promoted.

Over at Volokh, David Bernstein speculates that approving a blank check for Paulson could provide the Court a fresh opportunity to revisit the non-delegation doctrine and the limits of what counts as an intelligible principle. If it does so, I expect the NYT editorial board will be among the loudest defenders of broad regulatory power.

“The Libertarian” speaks

Forbes.com launched a new column this week called “The Libertarian” featuring Richard Epstein. I’d rather see libertarian ideas mainstreamed than walled off into their own cage at the ideological zoo, but I’m glad that Epstein is contributing regularly. He’s a fascinating scholar and his book Skepticism and Freedom is one of the most rigorous defenses of classical liberalism there is. The introduction to the column is light but the coming articles about labor markets promise to be interesting.

[Via the University of Chicago Faculty Blog.]

Good day to be Bob Levy

It’s official: the Heller judgment striking down DC’s gun ban has been affirmed, and my day in the press office just got ridiculously busy.

For the lawyers in the audience

In the insane legal brief linked here, Minnesotan Ed Felien petitions the court to order Hennepin County Attorney Michael Freeman to arrest George W. Bush when he arrives in Minneapolis for the Republican National Convention. Felein alleges that Bush has committed crimes against the residents of Hennepin County and that Freeman has a duty to arrest him. These crimes include murder, the fixing of gas prices, and conspiracy to distribute heroin. Freeman, the coward, says he lacks jurisdiction.

Discuss.

It might be illegal, but it wasn’t stealing

Starbucks’ headline-making brand recreation is a bit tarnished today by an adverse court ruling. As decided in California, the company owes baristas about a hundred million dollars in tips that were distributed to shift supervisors and managers. The coverage makes it look like corporate was stealing from their workers. The L. A. Times, for example, leads by saying that “Starbucks got caught with its hand in the tip jar.”

The practice might have been illegal under California law, but it wasn’t stealing. If baristas (oops, I mean “partners”) didn’t like the practice they were free to work elsewhere or renegotiate terms. It’s also a sensible way to do business: if supervisors spend most of their time doing the work of baristas and cashiers, there’s no reason for them not to get tipped out with the other workers. Restaurants with on-the-floor managers who serve tables do exactly the same thing.

Assuming Starbucks’ compensation model is effective, this ruling won’t change much. It’s a one-time bonus for baristas who get to take advantage of a stupid law and a one-time hit for the corporation that’s getting nailed by it. It could lead to raises for supervisors to compensate for lost tips and will likely slow down pay increases for non-management positions. It doesn’t do much of anything to change incentives, except perhaps to make managers less invested in running fast, friendly stores. This isn’t a victory for workers’ rights; it’s a forced replacement of a business model that was working well to another, possibly less efficient one demanded by court decree.

Heller on C-SPAN

This morning oral arguments are being in held in Heller v. District of Colombia, likely the most significant Second Amendment case in 70 years. Due the to case’s importance and the high public interest, the Court is releasing the audio immediately upon its submission. Listen to it almost live on C-SPAN.

Litigating libertarians

Those of us of a libertarian bent have two very interesting cases in the courts right now, both carefully crafted to vindicate lost constitutional rights. The newest involves SpeechNow, an organization aimed at defeating candidates hostile to free political speech. Writing in the Washington Post, former Federal Election Commission Chairman Bradley Smith and Institute for Justice attorney Steve Simpson explain what’s at stake:

Political activist David Keating created SpeechNow.org to give individual Americans a way to speak about candidates free of the byzantine campaign finance regulations that apply to modern political speech. The group’s particular mission is to protect First Amendment rights at the ballot box — to buy ads urging citizens to vote for politicians who support free speech and against those who do not — but its model could be applied to any issue or candidate a group of voters cares about.

SpeechNow.org is an independent group of citizens spending their own money on their own speech. It does not accept corporate or union contributions, makes no donations to politicians or parties and does not coordinate its activities with them. It will also fully disclose its contributions and expenditures to the Federal Election Commission…

Nonetheless, according to federal campaign finance laws and the FEC, SpeechNow.org must become a “political committee,” a PAC, and comply with a host of regulations that rival the tax laws in burden and complexity. Failure to do so could result in up to five years in prison for contributors and the principals of the group…

Imposing limits on groups such as SpeechNow.org ends up hurting the very people whom backers of campaign finance regulation always claim they’re trying to help — people of average means who must pool their resources to be heard — while leaving the field to the very wealthy to spend what they please.

Those are among the claims SpeechNow.org and its members made in a lawsuit filed this week in the U.S. District Court for the District of Columbia. It challenges the constitutionality of requiring independent groups of citizens to register and organize as political committees. For the first time, federal courts will be asked to decide whether independent political speech by groups of individual American citizens has the full protection of the First Amendment.

The other is District of Columbia v. Heller, the challenge to DC’s gun ban that may end up being the first substantive Supreme Court case on the Second Amendment in 70 years. There’s been lots of commentary on the case, but my favorite article so far is this New York Times profile on its architect, Cato’s Robert Levy.

Bob Levy in the NYT

Bob Levy is The Man. That is all.

Pulling IP norms out of a hat

The methods or “secrets” of magicians are of paramount value in the trade. We conjurers work in a wonderfully creative community, awash in a steady stream of new sleights, props, tricks, books, and videos. Yet because our numbers are small, the protections of intellectual property law are often non-existent or too expensive to enforce. How do we get by without it?

That’s the question addressed in a fascinating paper called “Secrets Revealed: How Magicians Protect Intellectual Property Without Law.” It’s been making the rounds on a lot of weblogs as a case study of how innovation can thrive in the absence of IP law. The author, Jacob Loshin, outlines a very good model of the magic community; if he’s not a magician, he must have done a great deal of research to understand it so well. Here’s his basic thesis:

[Neither] copyright, patent, nor trade secret law offers significant protection for magicians’ intellectual property. Many of IP law’s qualifications and limitations flow from the assumption that intangible property is non-rival, and therefore that intellectual property holders should get something less robust than a full-fledged property right. Yet, IP law’s partial property rights ill-suit the unique characteristics of magic secrets, which require more protection than intellectual property law can spare to afford. Copyright law might prevent some stealing of magic routines, but it cannot prevent stealing or exposure of magic methods; patent law can prevent stealing of magic methods, but it cannot prevent exposure of them; finally, trade secret law might prevent some stealing and exposure of “proprietary magic,” but it cannot prevent the exposure of “common magic” without chilling the salutary practice of sharing among magicians…

The lack of protection from intellectual property law, however, has not stopped magicians from innovating and thriving. Intellectual property law leaves the most damaging threat to magic — exposure — undeterred. Yet, despite a few high profile incidents, the magic community’s intellectual property has not been subject to constant exposure. In this Part, we discover how magicians manage to create and enforce intellectual property rights without the help of formal intellectual property law. In short, the magic community has developed a fairly effective informal, norm-based IP regime which limits access, establishes use and exposure norms, and enforces violations — all outside the purview of the law.

The paper fleshes this out in much greater detail, so please read the whole thing for more information.

Loshin makes a strong case for the superiority of IP norms over IP law within the magic community, but not all magicians agree with his conclusions. An editor at iTricks.com writes:

“The paper lacks any actual economic research and most of all lacks input from magic creators. Creative people are constantly pulled from magic to places where intellectual property is better recognized,” said Andrew Mayne, who has worked with David Blaine, Penn and Teller and David Copperfield… “I’ve always felt that magic should be used as a negative example of what happens when the only power rests in the people with the most money and rule of law is nonexistent. By comparison, the music industry with its system of royalties and tracking for song writers looks like a wonderful utopia filled with chocolate rivers, bubble gum trees and cotton candy orchards.”

Economic research on magic product sales would indeed be interesting, but I think the paper holds up well without it. I’m curious who these people are that Mayne claims have been drawn away from magic because of a lack of IP protection. My impression is that the most creative magicians invent because they love the art, want to improve their acts, and seek acclaim from other magicians. Copying is a problem, but not, as far as I know, one that’s significantly driving out innovators.

An ongoing and bitter dispute between two high profile gaff makers provides a telling example of how creative magicians deal with theft. The props in question are difficult and expensive to create, but once developed they can be reverse engineered. The more established of the two craftsmen has alleged that the other has copied many of his original designs. But he’s not giving up. This is what he had to say about the conflict on a magicians’ forum:

Now some good things have come out of all this. I think that the feud/competition has actually increased my business by a rather large margin. And the competition has certainly been a catalyst for me to improve my products. That is good for the consumer, and also I have developed more pride in my work over the course. However, I really have to shake my head when I see these blatant copies of nearly everything I do. Not only that, [his] prices are substantially higher than mine, and I feel that I can safely say that I am putting a lot more time into making stuff than he is. Now I am getting advice to increase my prices to match his. Some think that higher prices mean better product, at least to those that aren’t in the know.

This strikes me as the typical response of a truly creative individual for whom making money off of his ideas is just one of many motivations.

None of this is to say that magic’s IP norms work perfectly. There are many cases of theft, some businesses have been hurt, and at times magicians keep innovations to themselves rather than risk seeing them knocked off by copycats. However, it’s far from clear that IP law would work better. Mayne envies the royalties and tracking of the music industry, but I can’t imagine applying that system to magic. In addition to being ineffective, it would risk a chilling effect on performances and inhibit the sharing that brings new magicians into the fold and fertilizes new ideas and methods.

If anything, it’s much more common to hear magicians complain about the tremendous glut of new products on the market rather than of a dearth of innovation. Despite the inevitable frustrations of being ripped off, the market is doing well.

One last observation: Though Loshin’s paper presents a thorough analysis of IP laws and norms among magicians, there is one new approach that, while relatively untried, is worth noting. A high profile magic creator and retailer recently introduced an innovative, very expensive (nearly $2000) prop system. The complexity of the craftsmanship renders it difficult to copy. However, to further protect the idea he is leasing, rather than selling, the system. Some details of the lease:

1. The system is leased without term and subject to a confidentiality agreement.

2. It can be sold and assigned only to another magician under certain conditions and subject to approval of the lessor. The price can be whatever the seller likes, but the new licensee must sign and notarize an assignment and release agreement. The original licensee will still be bound by the confidentiality agreement.

3. The license is similar to a software license. It grants rights to use the training materials and hardware but it is not to be shared.

I don’t know how effective this approach has been. Even if it is effective, my guess is it will only be affordable for very high-end products. In any case, it’s an interesting attempt at bringing legal IP protection into the magic community.

Update 9/17: Follow the debate at Techdirt.

Albo’s conflict of interest

If you live in Virginia, odds are good that by now you’ve heard of the new “civil remediation fees” going into effect today. The new law imposes steep penalties on drivers who get caught going more than 20 mph over the speed limit ($1,050), driving under the influence ($2,250), or violating a few other traffic laws. The new penalties are bound to have some unintended consequences, such as this one noted by The Washington Post:

The new fees will go into effect July 1, and defense attorneys, prosecutors and judges expect chaos. Court clerks fear having to deal with angry hordes learning about the fees for the first time at the payment window.

“I think that we will be overwhelmed,” said Nancy L. Lake, clerk of the Fairfax County General District Court, which includes the busiest traffic court in the state. “We feel we’re going to take a lot of flack.”

[. . .]

Traffic court judges fear they will see a huge increase in trials, with defendants unwilling to plead guilty because they know they will face additional fees.

The Post quotes Delegate David Albo, who co-sponsored the legislation, about how much money the new fees will raise for street maintenance. What The Post doesn’t tell you is what Albo does for his day job. From his Stateline.org bio:

Albo’s fulltime job is as a partner in the small Virginia law firm of Albo & Oblon, where he handles mostly traffic cases.

Hmm, a traffic litigator sponsoring a law that will dramatically increase the number of traffic tickets going to court? If I were the skeptical type, I might suspect a conflict of interest here.

And if I were The Post, I might have bothered to report it.

Find more coverage at the AlboMustGo weblog.

Update: Radley’s on it too.

Filan doesn’t go far enough

[Update 6/11/07: The system works! Or not! Another fine moment in prosecutorial discretion.]

Susan Filan, a former prosecutor and now senior legal analyst at MSNBC, wrote an op-ed this week calling for prosecutors to be more cognizant of their discretion in bringing charges. This epiphany came to her after reflecting on the grossly unjust case of Genarlow Wilson, a high school football player in Georgia sentenced to ten years in prison for having consensual oral sex with another student:

When he was 17 years old and a high school senior, he received consensual oral sex from a 15-year-old, 10th-grade girl.

Everyone agreed, including the prosecutor and the girl herself, that she initiated the act.

It was all captured on video — the evidence used to convict him at trial. On the tape, police saw a 15-year-old perform oral sex on one partygoer, and after finishing with him, she turned and did the same to Wilson. Under Georgia law at the time, this was considered aggravated child molestation, a felony for teens less than three years apart to have oral sex. It carried with it a 10-year sentence, even though it was only a misdemeanor for those same teens to have sexual intercourse…

The other students at the party took that deal and some of them are out of prison by now. Because Wilson thought he would be acquitted and did not want to be branded a child molester, he went to trial. The prosecutor blames Wilson for his sentence because none of the other defendants insisted on a trial; all the others “took their medicine.”

If you’re not familiar with Wilson’s case, I urge you to read more about it. This ESPN article about him is both touching and infuriating, and probably the best place to start.

Unfortunately, Filan’s prescription for preventing these kinds of cases in the future is much too trusting of her profession:

When I first heard about the case, I wasn’t too concerned. Wilson knew the risks, rolled the dice by going to trial and lost. But the more I think about his case and the more I read about his case, the more I think prosecutors have a duty to make sure they don’t take cases to trial that they can win, when the punishment doesn’t fit the crime. Prosecutors have discretion, and they have to use it fairly and wisely. So why do I write about this case now, two years into his sentence? For two reasons: for one, the Duke case has heightened my awareness that there can be injustice in the system, and as a prosecutor, I have an equal obligation to seek convictions as I do to make sure the convictions are fair and just and not wrongful. I must speak out against injustice in the same way I speak out against crime and in favor of law enforcement.

It’s all well and good to wish for prosecutors to use their discretion wisely, but we know that this isn’t always going to happen. Sometimes prosecutors have a warped sense of justice. Sometimes they’re more concerned with reelection than with the justice of a particular case. And sometimes, as with Wilson’s prosecutors, they’re just dicks. Simply urging them to do right isn’t nearly enough.

The best way to guard against these kinds of injustices is to empower juries to fulfill their intended role as a check on overreaching government power. Wilson went to trial knowing he wasn’t a child molester and hoping his jury would see that, too. And they did see that — but because contemporary juries are prevented from questioning the law, they tearfully convicted him anyway. From the ESPN article:

The day before the trial was expected to end, in the last night he’d ever spend at his home, Wilson went to a church down the street and asked the preacher to pray with him. He awoke early the next morning. He knotted his tie carefully and went to the courthouse. The trial finished that afternoon, and the jury came back with “not guilty” on the rape but “guilty” on the aggravated child molestation.

He looked at the forewoman. She was crying, seeming to understand they’d just undone a promising future. Indeed, when the jurors found out there was a 10-year mandatory minimum sentence, several were incensed. The prosecution told them to write a letter, then moved on to the next case.

The answer to cases such as Wilson’s is to allow defense lawyers to argue that some laws or applications of laws are unjust, inform juries of the sentencing consequences of a conviction, and urge them to act as the conscience of their community when called for. I don’t expect former prosecutor Filan to advocate such a radical return to the original intent of trial by jury, but I’d be greatly impressed if she did.

(Wilson has a habeas appeal pending, with a decision from the judge due Monday. Follow the details here.)

Previously:
Dawkins doesn’t get juries

Dawkins doesn’t get juries

For some reason, this old Richard Dawkins article critiquing the jury system is getting linked a lot today. I wrote about it once before, but since I think it’s both really interesting and very wrong, it’s worth revisiting.

Dawkins begins by discussing how one would test for innate pecking behaviors in chicks. Testing one chick doesn’t establish anything because it could be reacting randomly. You have to test multiple chicks. These chicks have to be tested independently, not in a group, or you run the risk that an initial random behavior could influence the whole group. In principle, testing a group of chicks together is really no better than testing a single chick.

Dawkins then carries this idea over to juries. The supposed advantage of juries is that having 12 people pass judgment instead of one makes the risk of a unanimous wrong verdict very small. But, he says, this doesn’t hold true because the twelve jurors aren’t independently sampled. Strictly speaking, 12 jurors are no better than one, since the group of jurors could be unduly influenced by individuals in the group. The jurors are just like chicks. So far, so good.

But then his argument starts to go off track:

Turning to courts of law, why are twelve jurors preferred to a single judge? Not because they are wiser, more knowledgeable or more practised in the arts of reasoning. Certainly not, and with a vengeance… Twelve jurors are preferred to one judge only because they are more numerous… Twelve heads are better than one, because they represent twelve assessments of the evidence.

But for this argument to be valid, the twelve assessments really have to be independent. And of course they are not. Twelve men and women locked in a jury room are like our clutch of twelve gull chicks. Whether they actually imitate each other like chicks, they might. That is enough to invalidate the principle by which a jury might be preferred over a single judge.

Not so fast. If trials were only about judging the facts of a case or matters of law, the case for juries over judges would indeed be weak. But the jury system is valued not for these reasons but because, unlike state-employed judges, juries act as a check on the government’s power to prosecute.

This makes Dawkins’ proposed test for whether judges or juries are more reliable very problematic:

I’ll call it the Two Verdicts Concordance Test. It is based on the principle that, if a decision is valid, two independent shots at making it should yield the same result. Just for purposes of the test, we run to the expense of having two juries, listening to the same case and forbidden to talk to members of the other jury. At the end, we lock the two juries in two separate jury rooms and see if they reach the same verdict. If they don’t, nothing can be proved beyond reasonable doubt, and this would cast reasonable doubt on the jury system itself.

To make the experimental comparison with Trial by Judge, we need two experienced judges to listen to the same case, and require them too to reach their separate verdicts without talking to each other. Whichever system, Trial by Jury or Trial by Judge, yields the higher score of agreements over a number of trials is the better system and might even be accredited for future use with some confidence.

I expect that judges would win this contest. This is partly because they’re more reliable judges of fact. But it’s also because judges are bound by law and precedent, so even if a law is unjust they have no choice but to enforce it. Juries are not bound like this and they are free to acquit rather commit injustice. Some juries will nullify and others won’t, so they clearly won’t win the Two Verdicts Concordance Test. But as computer programmers like to say, that’s not a bug, it’s a feature!

Dawkins concludes:

…should I be charged with a serious crime here’s how I want to be tried. If I know myself to be guilty, I’ll go with the loose cannon of a jury, the more ignorant, prejudiced and capricious the better. But if I am innocent, and the ideal of multiple independent decision-takers is unavailable, please give me a judge.

Innocent of what? Of murder? Then ok, he’s probably right. But what if he’s being charged with a victimless drug crime, or better yet, teaching evolution in a public school? If he’s “guilty” of violating these unjust laws, judges would have to convict him. Juries could conscientiously acquit. That’s what’s so great about juries, a virtue Dawkins never bothers to acknowledge.

Dawkins’ analysis only makes sense in a world where all laws are just. The jury system wasn’t designed for such a fantasy world, however. It was designed for the real world in which the government routinely violates the rights of its citizens. In cases regarding freedom of religion, freedom of speech, the Fugitive Slave Act, and Prohibition, American juries played an important role in fighting oppression. It’s true that this power of juries has been largely forgotten or denigrated in the past century, but by ignoring nullification, Dawkins misses the whole point of the system.

Dawkins of all people ought to take note of the notorious Scopes trial about teaching evolution in Tennessee. The defense had to essentially concede its case because the judge forbade nullification arguments, reducing the case to the purely factual question of what Scopes was teaching in the classroom. Scopes was convicted, of course. Judges failed him. A jury free to hear nullification arguments might have reached the just conclusion. (The defense’s appeal lost, too; Scopes got off on a technicality. It was another 40 years before judges ruled that such bans violate the Establishment Clause.)

I hope Dawkins isn’t really crazy enough to want to abolish trial by jury. That said, his point does raise the interesting possibility of splitting up the traditional jury of 12 into 2 or 3 smaller juries The juries would attend the same trial but be forbidden from communicating with each other, satisfying the scientific requirement for independent sampling.

My question is whether or not having multiple smaller juries would increase or decrease the likelihood of nullification. Perhaps, as Dawkins suggests, splitting up the jury would prevent one or two influential jurors from leading the entire group, increasing variance. Or perhaps the knowledge that there are other juries deciding the same case would cause potential nullifiers to abdicate responsibility, letting them take the easy way out in the hopes that a person on one of the other juries would vote to acquit. Either one of these scenarios seems plausible to me.