Archive for the ‘Legal Issues’ Category

Complexity, the “Do Something” Instinct, and the Sandy Hook Shooting

December 27, 2012 1 comment

I have as yet avoided writing about the Sandy Hook shooting, partly because I dislike rushing to rash decisions, and partly because I believe the narrative has focused on unimportant ideology as opposed to the important ideas underlying the situation and the reaction to it. Now, however, with the benefit of some distance, I will weigh in.

What happened was horrible. There is simply no way around that. On the other hand, frantic reactions, calls to political action, and statements claiming that what happened was “obvious” do nothing but exacerbate the problem.

In reality, while it is easy to deconstruct the event with the benefit of hindsight, it is simply impossible to claim some sort of valid foresight. It is not enough to say “I knew that something like this would happen,” because that is a statement without verifiability until the proof is at hand. And when the proof is at hand, such a statement is already useless. If you had any real knowledge, you would have stopped it from happening. If you had no ability to stop it, you had had no real knowledge – simply baseless speculation masquerading as knowledge.

One can analogize this “foresight problem” to other occurrences. For example, if someone gets in a car accident, he might say later on “if only I hadn’t slept in and left 20 minutes later than I usually do, I would never have been in this mess.” This is the functional equivalent of claiming foresight about Sandy Hook. If either were valid, the problematic situation would never have obtained.

Nor is it possible to claim that, despite the lack of specific foresight, there was enough knowledge to have stopped the tragedy via preventive action. This kind of claim usually follows the “if only we had this law…” form, and it is the functional equivalent of the above. This also fails to account for the foresight problem, and it suffers from a debilitating case of confirmation bias.

The foresight problem can be extended through thought experiment. Consider a chess game.* The number of possible chess games that can be played is somewhere in the order of 10^120, or many multiples of the number of atoms in the universe. Once the chess game is, say, 50 moves in, and the chesspieces are arrayed just so, it is relatively easy to reconstruct what happened. Before the game began, however, there was an infinitesimal chance of predicting just such an arrangement. And remember, this is chess: as complicated as its game-tree complexity is, it pales in comparison to the complexity of an hour, even a minute, of human action.

We have no useful foresight, but neither does our hindsight yield much when faced with the multitude of competing and interacting causes and effects that a chessboard simplifies but real life makes manifest. After all, if the “obvious” solutions were actually obvious in hindsight, this would not be a recurring problem. We would have corrected it after the last time.

For example, getting rid of guns does not solve the problem, as countries such as Russia continue to see mass violence despite heavy gun control, while Switzerland’s rate of gun violence is comparatively miniscule despite enormous rates of gun ownership. Britain found that gun violence increased 40% after its gun ban in the late 1990s. Unlike poorly-informed pundits, I will not speculate as to why. And indeed, a majority of the mass shootings that have occurred in the United States have occurred in states, localities, and even schools that are “gun-free” or gun-restricted zones. Real life does not cooperate with our strictures. (QED.)

Nor is lack of guns an obvious problem, as the just-as-reactive NRA has suggested. What earthly purpose would stationing the equivalent of TSA agents (who, by the way, are not armed) at schools be, when the TSA has shown nothing but incompetence? Why would one expect an armed policeman to stop a shooter when armed policemen are already commonly at schools and haven’t helped? Why would a national guardsman or combat veteran be effective? Remember that one of the worst mass shootings in history took place on a military installation in Texas. No shortage of guns on a military base.

What are we to do with ourselves, then, if there are no solutions to the problem? (And, emphatically, there are none.) We do the best we can to defend ourselves, but we also accept that the real world is a dangerous, messy place and circumstances beyond our control may end our lives abruptly.

Callous? I call it realistic.

Indeed, the possibility of being the victim of a mass shooting is quite similar to the possibility of being in a fatal car accident, except for the fact that the latter occurs with startling regularity by comparison. We seem to have no problem processing the idea that, while our lives might end on the road at any moment, we have balanced the risk and accepted that, dangerous as driving may be, we will carry on. We seem to completely lack the capacity to accept the idea that, while our lives may end in a mass shooting at any moment, we are capable of balancing the risks here too. Apparently, when guns are present, rationality goes out the window. This despite the fact that cars can be at least as lethal as guns.

And capable we are of balancing the risks inherent in life. After all, we do it literally all the time. Short of locking down the entire citizenry in individual padded cells, there is simply no way to prevent the next mass shooting. That may be hard to hear. But think of the risks you take every day that are greater. Driving is a good example, but also note that you are about as likely to be killed by lightning than be killed by a mass shooter. Shall we live our lives entirely indoors?

Or can we accept the fact that there is no solution?

Once we have accepted that the risk is intractable, we can begin to accept that calls to action, proposed laws, gun controls, the “do something” instinct – all are useless in the face of a tragedy like this. We can avoid the rush to judgment. We can avoid the poison of baseless ideology. We can begin the healing process. We can resume our lives.

While the complexity of the world denies us the ability to see into the future, we can see that the fruits of the “do something” instinct, be they legal or otherwise, are poisonous to liberty. We are faced with a choice. We can keep our liberties and our dignity intact, and live with a future where mass shootings are possible. Or we could pass laws taking away fundamental individual liberties, making the people servile and impotent, and thereafter live with a future where mass shootings are possible anyway.

These are our only two choices. We should choose wisely.


*I have previously used the chess example to illustrate complexity here.


In Praise of Copycats

August 15, 2012 Leave a comment

In this weekend’s Wall Street Journal, Kal Raustiala and Chris Sprigman have penned a thoughtful piece on the relationship between innovation and intellectual property. It’s called “In Praise of Copycats,” and it’s excerpted below.

The conventional wisdom today is that copying is bad for creativity. If we allow people to copy new inventions, the thinking goes, no one will create them in the first place. Copycats do none of the work of developing new ideas but capture much of the benefit. That is the reason behind patents and copyrights: Copying destroys the incentive to innovate.

Except when it doesn’t. There are many creative industries, like finance, that lack protection against copying (or did for a long time). A closer look at these fields shows that plenty of innovation takes place even when others are free to copy. There are many examples of successful industries that survive despite extensive copying. In fact, some even thrive because they are so open to copying.

The empirical case for intellectual property has not been proven (of course, finding a control group is difficult), and it seems as though many are successfully plying their trade in industries where copying is permitted. Ralph Lauren, for example, does not find it hard to land a paying job despite the lack of copyright protection for his designs. Vanguard Funds found no difficulty attracting billions to its S&P 500 index fund despite the lack of a process patent.

But it seems to me that the real question is whose interests a putative system of intellectual property is to protect. Is it more important to create a strong property right in patents, copyrights and trademarks so that inventors and their business interests are protected? Or is it more important to loosen the system so that the general public reaps the benefits? Ultimately, that seems to be the tradeoff.

I would personally prefer the latter, not just for the social consequences, but because the property right to what we now call intellectual property is a synthetic one anyway. It finds its justification more in the law than in first philosophy.

But given that, wouldn’t we do well to determine the legal foundations of intellectual property? Of course, we have to turn to Article 1, Section 8, Clause 8 of the U.S. Constitution:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

“To promote the Progress of Science…”? Interestingly, this assumes that granting a private property right as such would do so. On the other hand, if it does not, then perhaps the legal protection of intellectual property is ironically unfounded.

In areas as diverse as fashion, finance and football, intellectual property is unprotected, and not only does the consumer ultimately benefit, but it certainly seems as though progress is not hindered. Perhaps there’s something to the copycats after all.

Source Code Theft is not a Criminal Offense

May 11, 2012 Leave a comment

A court has found that source code theft is not theft of property per se, and therefore a criminal defendant has escaped prosecution. This may go nowhere ultimately, but it’s an interesting step in the development of software-related intellectual property.

An American court has ruled that software can’t be regarded as property that may be stolen. The ruling in question was delivered in the case of Sergey Aleynikov, a Goldman Sachs programmer. He was accused of downloading source code for the investment company’s high-speed trading system from the company’s servers. Local media reports say that Aleynikov was wrongly charged with theft of property since the code wasn’t a physical object and therefore the defendant didn’t gain control of anything when he downloaded it.

A note on campaign finance and SuperPACs

March 27, 2012 3 comments

In a letter in the Wall Street Journal today, a Richard Williams of Wenatchee, Washington writes with regards to Harold Clark Simmons’ giving more than $18 million to support Republican candidates:

I find Mr. Simmons’s extreme political views pretty abhorrent. Even if I agreed with them, it would disturb me that the political influence and power of one wealthy individual outweighs that of many thousands of other citizens. This situation is incompatible with our democracy.

I have one question for Mr. Williams of Wenatchee. How could you possibly disagree with someone when their opinions are backed by $18 million? What’s that? You are not swayed by huge amounts of money?

So why the assumption that everyone else is? Perhaps the problem is not that Mr. Simmons has given huge sums to promote his political views, but instead the problem lies in the fact that you assume everyone else is such a blithering idiot that they will be unable to help themselves from following Simmons’ money like zombies.

Your logic is poor, Mr. Williams. So poor that I simply cannot fear for the political process based on huge donations like this. After all, if someone with your limited logic skills can see through $18 million, I think the rest of us can fend for ourselves.

The STRIP Act – A Good Start

March 8, 2012 Leave a comment

Representative Marsha Blackburn has penned a popular piece over at Forbes about her proposed bill, called the STRIP Act, or “Stop TSA’s Reach in Policy” Act.

At a minimum, it would do away with the title Transportation Security “Officer,” and require that TSA agents not wear badges or masquerade as real police officers, which they emphatically are not.

I say this is a good start. TSA has been example one of bureaucratic entrenchment and mission creep over the last decade, and they have made our lives demonstrably worse for it.

While TSA agents’ accomplishments are well-known, like their ability to fail every single audit, and their perfect record of catching zero terrorists, we have to ask – at what cost?

Look, I am all for abolishing the TSA tomorrow, and forgetting about this sorry chapter in American history. (As an aside, can we get rid of the term “post-9/11”? Everything after 9/11 is post-9/11.) But I recognize that getting rid of this wart on society will take measured steps to assuage the fears of the naive and avoid the wrath of the security state and its lobbyists. Rep. Blackburn makes a good point:

Will the STRIP Act solve every problem facing the TSA? Absolutely not. The STRIP Act seeks to expand upon the work of my colleagues by chipping away at an unnoticed yet powerful overreach of our federal government. If Congress cannot swiftly overturn something as simple as this administrative decision there will be little hope that we can take steps to truly rein in the TSA on larger issues of concern.

This is a good start, and I encourage you to write to your Congresscritter to support it.

Don’t know how? Start here:

A quick article on intellectual property and piracy

March 7, 2012 Leave a comment

Over at Forbes, Paul Tassi has an interesting article on Intellectual Property and piracy.  Take a look at this opening and tell me you don’t want to read the whole thing:

Now that the SOPA and PIPA fights have died down, and Hollywood prepares their next salvo against internet freedom with ACTA and PCIP, it’s worth pausing to consider how the war on piracy could actually be won.

It can’t, is the short answer, and one these companies do not want to hear as they put their fingers in their ears and start yelling.

Wait, so you’re telling me that yelling won’t solve all my problems!? That ramming a “shoot first, ask questions never” law like SOPA/PIPA through the Congress is not actually going to help people!? Stop the presses.

The issue that lobbying shops like RIAA and MPAA have with piracy is not one of property rights – they don’t care a whit about your property rights. It’s not even law – to them, that’s a means to an end. It’s a question of business model.

Rather than adapt their business model to one that can work in a world where common thieves have adapted their business model, they would instead prefer a law that would kill off just about the only free part of the market left in the world.

And what is not being acknowledged is that the things that pirates do are illegal already. Pirates are nothing more than common thieves with a new tool. Record companies and movie studios have the resources and rights to go after pirates. When they have, the backlash over suing 14 year olds for millions of dollars has caused them to back down, but is that in any way my problem? Or anyone’s problem who innocently uses the internet?

In a world where the internet has sped up the inevitability of “adapt or die,” the big drivers of intellectual property law are not only refusing to adapt, they are seeking to levy the costs of their dead business model on everyone else.

A Public Choice look at the corporate income tax

March 6, 2012 Leave a comment

Megan McArdle gets to an immensely important issue to modern business in an article in the Atlantic called “Why I Still Think We Should Eliminate the Corporate Income Tax.”  In pertinent part:

If we really hate corporate power, we’d probably want to look at the things that entrench it–like heavy regulatory burdens that are more easily borne by large, powerful companies.  But this is not an argument that ever gets much traction outside of some economists, and the libertarian community.  Which makes me think that the corporate income tax is largely expressive–we like policies which penalize corporations, particularly big ones, regardless of their actual effect on corporate power.

Although stopping short of claiming that the corporate tax is a driver of corporate power over that of individuals, McArdle (who admits the latter is plausible) makes an important point.  If we desire a level playing field for everyone, big and small, then how is having a hundred-thousand page tax code conducive to getting the little guys on the same footing with the GEs, GMs, and Berkshire Hathaways of the world?

When giant corporations are the only ones who can afford armies of lawyers and accountants to get their tax bills to zero, what hope have the little guys for a level playing field? Make no mistake, this is a governmental problem. Every company and individual does their best to minimize their tax bill. But when the expense involved in bringing it down exceeds the capital of the business, you’ve clearly gone past the point of diminishing returns.

And these massive expenses can only be borne by those with enough resources to hire every white shoe on Wall Street and give enough money to Obama to land a place on his speed dial. You want less corporate power? So do I, but it starts in Washington. You want fewer mosquitoes, drain the swamp.

This logic extends very well into other areas of law, including – most egregiously – Sarbanes Oxley and Dodd-Frank. These types of laws introduce a classic Catch-22 to the common small businessman. If you want funding, you need to be able to afford to jump through government hoops. Of course, you’ll never be able to afford to jump through government hoops if you don’t have funding.

This is doubtless a major reason why IPO activity has been fleeing America’s shores for more fertile ground in places like Hong Kong. While there are certainly many factors at play, it bears pointing out that high IPO activity is, to a huge degree, generated by stable institutions and good governance. That being the case, it is easy to conclude that, despite their stated goals, things like the corporate tax, Sarbanes-Oxley, and Dodd-Frank actually have opposite results.

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