Yesterday’s news

It’s a little late in coming, but the December issue of The Torch is now available online. The print edition had one of our most attention grabbing covers; you can see the photo that graced it on the front page of the website (some people say that’s W. Bush in the bottom right corner). My column was a pretty standard take on the CAN-SPAM Act and is dated now — the Act hadn’t been signed at the time of writing.

The January issue will be out in a couple weeks and the website will probably be in a new and improved format by then, too.

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Dawkins on trial by juries

I’ve been meaning to post for a while about an article from Richard Dawkins’ new book A Devil’s Chaplain. In it he disparages (and misunderstands the reasons for) trial by jury, but in the end he comes up with an intriguing suggestion for reform. An online version of the article is available here.

Dawkins assumes that the purpose of a jury is strictly to determine the factual issue of guilt or innocence by polling the decisions of its members. He compares the process to an esoteric scientific experiment to test innate color preference in herring gulls and asks what conditions need to be met to return valid results. Answer: there must be a large sample and each individual in it must be tested independently. Testing one bird doesn’t tell you anything meaningful about the species; testing a bunch of birds in a group introduces the possibility of imitative tendencies spoiling the data. Getting good results requires testing lots of birds individually.

So how do our human juries stack up against the herring gulls? Twelve people evaluating the evidence is better than relying on a single judge, but the evaluations aren’t truly independent. As Dawkins notes:

…juries are massively swayed by one or two vocal individuals. There is also strong pressure to conform to a unanimous verdict, which further undermines the principle of independent data. Increasing the number of jurors doesn’t help, or not much (and not at all in strict principle). What you have to increase is the number of independent verdict-reaching units.

What to do? Having multiple twelve person juries would be prohibitively expensive and complete isolation for each juror would remove the benefits that arise from group deliberation. Dawkins suggests that the system could be improved by having two juries of six people, or three of four, at every trial. They would be completely sequestered and would all have to reach the same verdict for an outcome to be valid. He calls this the Two Verdict Concordance Test and it would allow us to say with more confidence that cases that pass it have truly been proven beyond a reasonable doubt.

Up to this point I agree with Dawkins (more on that in a minute), but at the next step his view of trial by jury as strictly a fact finding tool takes his argument in a bad direction. He proposes testing trial by two juries against trial by two judges. Whichever system yields the higher concordance must be the more reliable system and, therefore, the one we should adopt. Dawkins places his bet with the judges:

Would you bet on two independent juries reaching the same verdict in the Louise Woodward case? Could you imagine even one other jury reaching the same verdict in the O.J.Simpson case? Two judges, on the other hand, seem to me rather likely to score well on the concordance test. And 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.

But what if he was factually guilty of breaking an unjust law (say, one that prohibits teaching evolution in school)? That Dawkins does not say, and therein lies the problem.

Dawkins writes that, “Twelve jurors are preferred to one judge only because they are more numerous.” Not so. Jurors are also preferred to judges because they represent the community, not the state. Statistical validity was not the concern of religious and political dissidents suppressed by the Court of Star Chamber, or pamphleteers charged with sedition in Colonial America, or abolitionists illegally aiding escaped slaves after the passage of the Fugitive Slave Act. Though underappreciated today, the power and right of juries to refuse to convict in unjust circumstances was vital for winning some of our most cherished freedoms.

There is still a role for jury nullification in modern life, such as in trials dealing with medical marijuana, euthanasia, regulation, taxation, or just cases where a law that’s good in general is bad in a particular case. Juries might not score as well as judges on the Two Verdict Concordance Test, especially in these kinds examples, but that is a feature of the system, not a defect.

Granting that Dawkins misses this point, does the rest of his analysis hold up? I think it does. Fact finding isn’t the only function of a jury, but it is one function. Even when the less objective, “conscience of the communityÔŅĹ” role of the jury is taken into account a representative verdict is more likely to come about with multiple juries than it is with just one. The only downside I can see is that the smaller juries would be less likely to include members with relevant expertise (for instance, a psychiatrist in a case involving prescription drug use), but with the way juries are dumbed down with peremptory strikes these days that’s not likely a relevant concern.

From a libertarian point of view, multiple juries would likely have the additional benefit of increasing the prevalence of nullification. As in the present system, any one juror would still have the power to prevent conviction. However, he would face less pressure to go along with a unanimous or guilty verdict since no one in the room would know what the other juries on the case are going to decide. [Afterthought 1/5/04: Or might he be less inclined to nullify, mentally shifting responsibility to the members of the other juries?]

I don’t know if it would be constitutional for a state to amend its jury system in this way and it’s probably best not to mess unnecessarily with something as important as trial by jury. Nonetheless, if the opportunity to institute trial by multiple juries arises (the first Moon colony? Iraq?), it looks like a sound option for reform.

The rest of A Devil’s Chaplain is up to Dawkins’ usual high standard. It’s an eclectic assortment of his shorter writings, with everything from reviews of Stephen Jay Gould’s books to a letter he wrote to his then ten year old daughter on good and bad reasons for believing things to remembrances of Douglas Adams. Recommended for its elegant writing, clear thoughts about evolution, and refreshingly candid attacks on religion.

For more on jury nullification, see the excellent book Jury Nullification by Clay Conrad or, for a shorter presentation, read this paper I wrote on the subject.

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Eye of the Needle

This official said Bush’s closest aides are promoting big initiatives on the theory that they contribute to Bush’s image as a decisive leader even if people disagree with some of the specifics. “Iraq was big. AIDS is big,” the official said. “Big works. Big grabs attention.” — from a recent Washington Post article on Bush’s rumored ambitions for a new Moon mission

As if remaking the Middle East, expanding Medicare, and making sure no child is left behind is not enough to keep the Bush administration busy, it’s now looking for even more ways to perpetuate the myth that only the government can take on ambitious projects. This, to put it mildly, is disappointing, especially coming from such a conservative president.

For a breath of fresh air, take a look at this article by science fiction writer David Brin. In it he describes an innovative way to harness philanthropy to accomplish great things. His proposal for an “Eye of the Needle” foundation is one of those creatively simple ideas that makes reading SF so enjoyable and one that libertarians could truly get behind (if you want to get right to the EON idea, skip to page 2 of the article).

Brin is also the author of The Transparent Society, a thought provoking book on technology and privacy, and the novel Sundiver, which I’m currently reading and enjoying.

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We’re gonna party like it’s 1989!

There have been a fair number of libertarians leaning toward Howard Dean as a tolerable alternative to Bush. Disappointing as Bush has been in so many areas, I just can’t see Dean as credible on foreign policy. This excerpt from his appearance on “Hardball” yesterday is a case in point. Howard Dean on how to handle Iran’s nuclear ambitions [full transcript]:

“Iran is a more complex problem because the problem support as clearly verifiable as it is in North Korea. Also, we have less-fewer levers much the key, I believe, to Iran is pressure through the Soviet Union. The Soviet Union is supplying much of the equipment that Iran, I believe, most likely is using to set itself along the path of developing nuclear weapons. We need to use that leverage with the Soviet Union and it may require us to buying the equipment the Soviet Union was ultimately going to sell to Iran to prevent Iran from them developing nuclear weapons. That is also a country that must not be allowed to develop nuclear weapons much the key to all this is foresight. Letís act now so we donít have to have a confrontation which may result in force, which would be very disastrous in the case of North Korea and might be disastrous in the case of Iran.”

OK, so he misspoke (which makes him at worst even with Bush). But he still has a credibility problem. As for Bush this week, +1 point for his hinting at a reduction of steel tariffs, -2 points for adding them to Chinese lingerie. One thing I’ll say to the credit of our previous president, we could rely on Clinton not to stem the flow of lingerie into the U. S. (not to mention being a more principled free trader).

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Conscription fiction

There was supposed to be a new Slant out today, but due to a server crash that issue has been delayed/canceled. Since my contribution would be overly dated by the time the next issue comes out, I’ve posted it here instead: Libertarians volunteer for draft boards. It pokes a little fun at my own political affiliation, which may not be a good idea right now in light of the response to my last Torch column.

The story is in response to the Guardian article referenced just a few posts ago. Thanks to Josh Keltner for some last minute formatting of the Hemingway pic.

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Torch is up

The November issue of The Torch is online. It includes the first letter to the editor from a member of the religious right written in response to one of my columns (Good for gays, good for liberty — the September issue). I’m so happy! I’ve always wanted to elicit a letter like this. It’s not worth going into a detailed reply, but I will note that the author misses the point by continuing to frame the debate in terms of “good” and “evil.” Homosexuality is increasingly seen as a morally neutral preference, which is why the Court could strike down the Texas anti-sodomy law on the grounds that the state could give no justification for its restriction of individual liberty.

My column this issue is my first foray into foreign policy, and in it I tackle my uneasiness with the way so many liberals (including libertarians) so stridently oppose(d) military action in Iraq. I argue that we should view the war as an experiment, perhaps a good one at that, and favor at least seeing it through to its conclusion. I’m open to later deciding that it was a terrible idea. For now, though, I’m withholding judgment.

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Do you feel a draft?

The Guardian reports that the Pentagon in seeking volunteers to fill long vacant seats on local draft boards. A recruitment ad, which I cannot find, appeared on the military website Defend America.

I hope I was wrong, but my first published editorial in the premier issue of The Torch expressed the fear that a new draft could be a consequence of 9/11. This is a sign that someone in the DoD is considering this option, and there’s at least one congressman who has done the same.

So now, a question about the right libertarian response: do we protest, or do we strike pre-emptively and fill the draft boards ourselves?

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October Torch online

The October issue of The Torch is now online. Highlights include Trapper Michael’s “Yes Virginia, we still have an athletics department” defending Chancellor Gee’s restructuring of the athletics program and a debate over the PATRIOT Act (pro: Seth Wilson; con: Brent Dooley).

My own column is on the DC voucher legislation. Two publications from Cato worth reading on the subject are David Salisbury’s policy analysis “What Does a Voucher Buy?” and Casey Lartigue, Jr.’s op-ed “Mayor Williams wants school vouchers for D. C.

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A gay time with Antonin Scalia

Last night I was at the Intercollegiate Studies Institute’s 50th Anniversary Gala. The food, drink, music, dancing — all great. The speakers were a mixed bag, with Mitch McConnell and William F. Buckley, Jr., being the highlights.

Senator Rick Santorum being asked to lead the audience in saying the Pledge of Allegiance was an omen that not all would be as pleasant, and the remarks by Justice Antonin Scalia proved this expectation true. Despite a request for no visual media coverage, the AP has published this report of the event complete with photo.

The article is good, but by focusing only on what Scalia said about the recent Lawrence decision it misses the more astonishing and alarming quotes — such as Scalia calling the Bill of Rights an “afterthought” to the “real Constitution.” He wasn’t just being overly literal; throughout the speech he derided the liberal emphasis on individual rights as opposed to majority rule.

I’m sympathetic to the idea that our current view of the Constitution is more liberal rights oriented than the Founders’ was (see Akil Amar’s The Bill of Rights for an interpretation like this), but Scalia takes this view to absurd lengths. What, after all, makes the “real” Constitution so good except that it checks a government’s power over minority interests by enumerating and separating powers and establishing a federal system? (Fed 10, anyone?)

Scalia seemed to undercut his own argument when he concluded by praising ISI for bringing conservative minds together. He noted that this is important since people’s thoughts are effected by what the people around them think, which strikes me as a reason to be skeptical of majority rule.

The lesson of the night: hearing Scalia in front of a room full of supporters is a frightening experience.

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Slave reparations? Here, have a muffin!

A Vandy alumnus sent me this link today, suggesting that we might try holding our own Affirmative Action Bake Sale. Conservatives at SMU did it and created an uproar (unfortunately, the administration there allowed a heckler’s veto to end their activity).

Left-leaning students at Vanderbilt have beaten the right to the punch (see my comment at the end of the article). When they did it no one raised any objections; I wonder if, at apathetic Vandy, things would have gone differently if a conservative group had tried it first.

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Those glamorous libertarians

When your movement’s most famous celebrity spokesmen are Drew Carey and Penn Jillette, “glamorous” and “radical chic” are not words you expect to hear describing it. Yet those are the words chosen by The Washington Post’s Anne Applebaum in her new column about how young globalization protesters are turning towards free trade.

Applebaum cites Sweden’s Johan Norberg and France’s Sabine Herold (picture) as the fashionable new faces of the pro-capitalism crowd. Norberg (who was a faculty member at the IHS seminar I attended this summer and is a really nice guy) modestly claims he is “not sure about the specific flattering remarks” (even though his first question from the IHS audience was “are you single and looking?”). I’ll leave that judgment to you, but will note that his new book In Defense of Global Capitalism is a good read– straightforward, direct, and supported with lots of evidence.

All of which leaves two questions. 1) Should, I too, grow my hair long and acquire a Swedish accent? 2) Is the possibility of someday meeting Sabine Herold worth the pain of taking a 5 hour French course when I return to Vandy?

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