classifying communications services

In 1880, the British High Court held that the telephone was a telegraph under British law.  The judgment in The Attorney-General v. The Edison Telephone Company of London:

Held, that Edison’s telephone was a ‘telegraph’ within the meaning of the Telegraph Acts , 1863 and 1869, although the telephone was not invented or contemplated in 1869.

Held, also that a conversation through the telephone was a “message,” or at all events a “communication transmitted by a telegraph,” and therefore a “telegram” within the meaning of those Acts; (LR 6 QB D244)

These holdings seem ridiculous now, when only 28 telegraph lines appear in Verizon’s 2008 regulatory account of its interstate communications demand.  But if you read the Court’s decision, you will find it reasonable and well-argued.

Attorney-General v. Edison turned on statutory interpretation.  The key statutory text was the Telegraph Act of 1869, s. 4:

The Postmaster-General shall have the exclusive privilege of transmitting messages or other communications transmitted, or intended for transmission, by any wire or wires used for the purpose of telegraphic communication, with any casing, coating, tube, or pipe inclosing the same, and any apparatus connected therewith for the purpose of telegraphic communication, or by any apparatus (other than such wire) for transmitting messages or other communications by means of electric signals.

The Court read this statute to grant the Postmaster-General a monopoly on any apparatus for communications by means of electric signals.  It judged the telephone to be such an apparatus.  Given the rudimentary development of constitutional interpretation of that time, reaching any other judgment would have been quite difficult.

The Telegraph Act of 1869 foreclosed a broad realm of future innovations without any good reason.  Given that the telephone wasn’t contemplated in 1869, no specific characteristics of the telephone could have justified granting the Postmaster-General an exclusive privilege to it.  Freedom of the press and freedom of association are deeply rooted freedoms in Britain.  Not interpreting the Telegraph Act of 1869 with respect to the electrical technology of that time means that it potentially threatened the future practice of press and associational freedom.  Policy makers might take such communicative freedoms for granted while writing statutes that undermine them, or while literally proposing their abolition.   Courts can usefully insist that a new law not project constraints on wholly unknown communications possibilities without the law explicitly accounting for established communicative freedoms.

Related:  human rights to communicate using electrical (radio) devices

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public utility tariffs in an online, semantic web

Public utility tariffs are typically established through a formal administrative process that legally certifies rates (prices) and makes them public.  Hence, these prices differ significantly from commercial prices established without any specific public administrative process.   The difference between public utility tariffs and commercially established prices is under-appreciated.[1]  The web and technologies for semantic mark-up can make public utility tariffs a valuable, open-data product of the public administrative process.

Tariff regulation has tended to focus on rate-making principals.  In the U.S., the Interstate Commerce Act of 1887 addressed railroad “common carrier” rates.  The Act required that railroad rates be “reasonable and just” and prohibited giving “undue or unreasonable preference or advantage” to any railroad customer or type of railroad traffic.  Similar rules have been extended to a variety of services, including some in the water, energy, trucking, and communications sectors.  What exactly these rules mean is typically a matter of contentious administrative and political debates.  Those most willing to invest time, money, and effort into these debates have been businesses with significant financial interests in tariff decisions and politicians and interest groups who see opportunities for scoring news-marketable symbolic victories.

The Interstate Commerce Act, however, was also quite concerned with making tariffs public.   Section 6 of the Act required a plain statement of rates and conditions to be made available for public inspection.  Ten days’ public notice was required for an increase in rates.  Reductions in rates could be made immediately, but they also were required to be publicly posted immediately.  The Act’s requirements for making rates public were quite specific in terms of the communications technology of the time:

Such schedules shall be plainly printed in large type, of at least the size of ordinary pica, and copies for the use of the public shall be kept in every depot or station upon any such railroad, in such places and in such form that they can be conveniently inspected.

The Act also gave the newly formed Interstate Commerce Commission broad powers to adopt new communication technologies:

said Commission shall from time to time prescribe the measure of publicity which shall be given to such rates, fares, and charges, or to such part of them as it may deem it practicable for such common carriers to publish, and the places in which they shall be published

In response to the Act, some common carriers used what were called “midnight tariffs”.   The basic idea was to tip-off a favored customer about an obscure reduction in a tariff just before the old tariff was re-enacted.  Thus no other customer but the informationally favored customer got the lowered tariff rate.  In response to such abuse, Congress amended the Interstate Commerce Act to require 30 days’ notice for a tariff increase or decrease. [2]

Tariffs are now typically available on the web in forms that humans and data-gathering software applications cannot readily read.  British Telecom, for instance, has online Price Lists that presents a huge amount of relatively unstructured information.  Only a well-informed human could easily make sense of this information.   In the U.S., tariffs filed at the Federal Communications Commission (FCC) are available through the FCC’s Electronic Tariff Filing System.   Tariffs in that system are pdf documents describing rates and terms.   Only a well-informed human could easily make sense of this information.   Tariffs are not generally available in ways that make tariff information most useful to the widest range of persons and applications, given up-to-date communications technologies.

Presenting tariff data with standard mark-up technologies and vocabularies would be a valuable contribution to open-data ecologies.  Smart-grid systems for more efficient energy consumption need structured, software-interpretable price data.  Efficient use of communications networks requires not just standardized, real-time propagation of technical routing tables but also standardized, real-time propagation of prices associated with different routes and services.   More generally, requiring that tariffs be public knowledge openly available to applications would discipline and leverage administrative and legal resources used in the public process of establishing tariffs.  Tariffs under such a process would look nothing like current tariffs.

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Notes:

[1] In British English, tariff is more or less synonymous with price.  The relevant distinction is between prices certified through a public administrative process and prices not certified through such a process.

[2] Amendment enacted on June 29, 1906.

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enforcing spectrum use rights

Policy analysts and governments have been concerned much more with distributing spectrum use rights than with enforcing them. Distributing spectrum use rights confers benefits on parties who receive them and often generates considerable revenue for governments. Enforcing existing rights, in contrast, always makes at least one party unhappy.

Across the world, almost no public records exist of publicly adjudicated disputes between parties who claim conflicting spectrum use rights. Yet what parties are allowed to do under existing definitions of spectrum use rights is not tightly specified. Some rights, such as natural human rights, are understood to exist irrespective of governmental actions that enact and enforce them. But spectrum use rights might also be understood as practical claims that will prevail in actual dispute circumstances. The absence of a public record of disputes makes existing spectrum use rights in this sense subject to considerable uncertainty.

Moreover, across the world, the institution nominally responsible for adjudicating disputes about spectrum use rights is typically the same institution that defines and distributes those rights. An independent judiciary is usually thought to be important for ensuring rule of law. The lack of an independent judiciary body for spectrum use rights makes those rights less secure.

My work, Revolutionary Ideas for Radio Regulation (2002), considered the constitution of spectrum policy.  About seven years later, it still seems to me that enforcement of spectrum use rights needs more analysis and discussion.  As a modest and belated additional contribution to that end, I have posted the datasets I constructed of FCC field office enforcement actions and FCC Enforcement Bureau orders for the years 2000 to 2001.  These datasets are based on documents publicly available on the FCC website.  The datasets organize the relevant data so as to allow analysis of the enforcement of spectrum use rights.

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Hammurabi’s code on social relations in ancient Mesopotamia

Ancient Mesopotamian legal codes had broad purposes.  For example, the Code of Hammurabi, written in the city of Babylon about 1760 BGC (about 3768 years ago), declares as its purposes:

to bring about the rule of righteousness in the land, to destroy the wicked and the evil-doers; so that the strong should not harm the weak; … [to] enlighten the land, to further the well-being of mankind. … Hammurabi, the protecting king am I. … [I] brought prosperity to the land, guaranteed security to the inhabitants in their homes; a disturber was not permitted. … That the strong might not injure the weak, in order to protect the widows and orphans, .. in order to bespeak justice in the land, to settle all disputes, and heal all injuries, set up these my precious words

The Code of Ur-Nammu, written in the city of Ur about three hundred years before the Code of Hammurabi, specifies in its preface:

Ur-Nammu … in accordance with his principles of equity and truth … [did] establish equity in the land; he banished malediction, violence and strife … the orphan was not delivered up to the rich man; the widow was not delivered up to the mighty man; the man of one shekel was not delivered up to the man of one mina [sixty shekels].

The Code of Hammurabi, like other ancient Mesopotamian laws, represents the ruler as a father to his subjects.  Consistent with this idea, it and other ancient Mesopotamian laws recognize the vulnerability of widows and orphans, who are persons without male benefactors/protectors.[*]  Yet, in contrast to the position of the male ruler, whose power and riches the laws glorify,  the Code of Ur-Nammu specifically condemns a high-status [“one mina”] man exploiting a low-status [“one shekel”] man.  This concern for low-status men is less conceptually consistent,  more unusual, and less appreciated than the father-ruler’s concern for widows and orphans.

An all-powerful king’s concern for low-status men probably responds to the social obviousness of some men’s extreme exploitation of other men in ancient Mesopotamia.  Ancient Mesopotamian social structure(and the law codes themselves) clearly distinguished classes of persons, including a numerous class of chattel slaves.  A free man could be made a slave as punishment for crime or debt.  One man making another man into a slave is an extreme form of exploitation.   Because exploitation of men was so extreme and so obvious, the all-powerful king declared implicitly that only he had authority to exploit other men.

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[*] The epilogue to the Code of Hammurabi imagines and represents a subject figuring Hammurabi as a father: “Hammurabi is a ruler, who is as a father to his subjects, … who has bestowed benefits for ever and ever on his subjects, and has established order in the land.”

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regulating prices for goods and bads in ancient Mesopotamia

Ancient Mesopotamian laws set prices for goods and for bad acts.  For example, the Code of Ur-Nammu, written in the city of Ur about 2100-2050 BGC (about 4000 years ago), set “temple expenses” as specific prices in barley, sheep, and butter.  The code also declared, “If a man commits a murder, that man must be killed;” and, “If a man knocks out a tooth of another man, he shall pay two shekels of silver.”  The Code of Hammurabi, written in the city of Babylon about 1760 BGC, set prices for doctor’s operations of different types and on different classes of persons (six different prices), a price for a veterinary surgeon’s operation, prices for building a house, for caulking and pitching a ship, for renting a ship (including different prices for rent inclusive or exclusive of ship crew), for tending oxen and sheep, for farm laborers, for men ploughing, for ox ploughing, for threshing, etc.   It also set prices for bad acts, e.g. “If a man put out the eye of another man, his eye shall be put out”; “If a freed man strike the body of another freed man, he shall pay ten shekels in money.”  Other ancient Mesopotamian laws, such as the Laws of Eshnunna (ca. 1770 BGC, city of Eshnunna) and the Laws of Lipit-Ishtar (ca. 1930 BGC, city of Isin) include a similar mix of prices for goods and bads.[1]

This expansive, written price regulation was profoundly important to its authors.  The epilogue to the Laws of Lipit-Ishtar declares:

he who does anything evil to it [the represented Laws], who damages my work, who enters the treasure room, who alters its pedestal, who effaces this inscription and writes his own name (in place of mine), or, because of this curse, induces an outsider to remove it — that man, whether he is a king, an enu-lord, or an ensi-ruler … [May the] primary son of the god Enlil, not approach; may the seed not enter; … [May] the god Enlil … revoke the gift of the lofty Ekur temple.  May the god Utu … make his cities into heaps of ruins.[2]

These explicit, elaborate concerns for ownership of laws are conventional in epilogues to ancient Mesopotamian laws.  The epilogue to the Laws of X (written sometime between 2050 and 1800 BGC) includes similar language, as does the epilogue to the Code of Hammurabi.

The prices declared in ancient Mesopotamian laws were meant to last forever.  The Code of Hammurabi makes this goal explicit:

May any king who will appear in the land in the future, at any time, observe the pronouncements of justice that I inscribed upon my stela.  May he not alter the judgments that I rendered and the verdicts that I gave, nor remove my engraved image.  If that man has discernment, and is capable of providing just ways for his land, may he heed the pronouncements I have inscribed upon my stela, may that stela reveal for him the traditions, the proper conduct, the judgments of the land that I rendered … If that man (a future ruler) heeds my pronouncements which I have inscribed upon my stela, and does not reject my judgments, or alter my engraved image, then may the god Shamash lengthen his reign

At least formally, Hammurabi was quite successful in projecting his authority forward in time.  The Code of Hammurabi was studied and recopied for at least fifteen hundred years.[3]

Prices for bad acts differ significantly from price for goods important in ordinary life.  In a law such as “If a man commits a murder, that man must be killed,” the price for murder has a readily understood correspondence and symmetry.   Prices for ordinary goods, such as a bushel of barley, lack such correspondence and symmetry.  Not surprisingly, the price of barley 4000 years ago in Mesopotamia is much less related to current prices for food than the ancient Mesopotamian price for murder is related to current prices for murder.

Moreover, prices for bad acts are relevant only in abnormal circumstances, while prices for goods important in ordinary life enter in daily transactions.  Hence the cost of regulated prices not responding to relevant changes in circumstances is much less with respect to bad acts than with respect to common goods.   Observed prices for common goods in Babylon from 385 to 61 BGC show large variations.[4]  For example, the price of a cubic meter of barley in kilograms of wool had an interquartile range of 9.4 kg to 18.9 kg in Babylon from about 382 to 71 BGC.  Extreme variations were much wider (see graph below).  If the prices that Babylonian kings set for common goods had been practically important and enduring, they would have greatly harmed ordinary life.   That’s not true for the prices that the kings set for bad acts.

(underlying price data)

Concern for common welfare and justice motivates governments to enact criminal laws.  Concern for common welfare and justice has also throughout human history motivated governments to regulate prices for ordinary goods.  Criminal law typically has low cost and high popular support, and the effects of bad prices for crimes often are not obvious.   Price regulation for common goods typically has high cost and can rapidly lose popular support.  The implications are important but counter-intuitive: changes in government price regulation are much more likely to be consistent with common welfare and justice in the long run.  Common circumstances of human life regulate government regulation of goods’ prices much better than they regulate criminal law.

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Notes:

[1] English translations of these laws can be found in Roth, Martha Tobi, Harry A. Hoffner, and Piotr Michalowski (1995), Law collections from Mesopotamia and Asia Minor (Altanta, Ga.: Scholars Press).  For a compilation of wages and goods prices from the Code of Hammurabi, see Godfrey Rolles Driver and John C Miles (1952), The Babylonian Laws: Ancient codes and laws of the Near East (Oxford: Clarendon Press) v. I, p. 476.

[2] This and the following quotation are from the translation in Roth, Hoffner, and Michalowski (1995). The “lofty Ekur temple” was a temple to Enlil in the sacred city of Nippur.

[3] See Babylonian Law.  About 1200 BGC, about 500 years after the Code of Hammurabi was written, an Elamite king Shutruk-Nahhunte took as plunder a stela displaying Hammurabi’s code.   He brought the stela back to his kingdom in Khuzestan, Iran.  That stela is currently on display at the Louvre Museum in Paris.

[4] For a detailed discussion of these prices, see R.J. van der Spek, Commodity Prices in Babylon 385 – 61 BC.  Mr. van der Spek has made his convenient compilation of the data freely available on the web.  I am grateful for his generous contribution to world knowledge.

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Locrian law: some peculiar legal institutions

About 2360 years ago, an influential Athenian got a law passed to help some of his friends avoid being imprisoned for not paying a debt to the city.  Other Athenians subsequently charged him with legislative corruption.   This case would fit easily into a twenty-first century struggle for a well-functioning republic.

In support of this indictment, an Athenian speech described another city’s legislative mechanism.  The Greeks living in Locris reportedly proposed laws while wearing a noose:

if any one wishes to enact a new statute, he proposes it with his neck in a noose, and if the statute is judged to be good and useful, the proposer goes away alive, but, if not, the noose is drawn and he dies. … [in more than two hundred years] they had only one new statute passed.[1]

This description highlights the sufficiency of old laws and punishment for proposing new, bad laws.  Those points, not surprisingly, are fundamental to this particular case’s indictment.

The noose makes the democratic legislative process unlikely to be used except in extraordinary circumstances.   The benefit to a proposer of a new statute would have to be large to compensate him for even a small risk of death for having the proposed law rejected.   Only special-interest legislation, with a high level of special interest, or legislation addressing a community emergency in which all had a high interest, would be proposed.

The one new statute passed was of the special-interest type.  A one-eyed man reportedly feared that his enemy would blind him.  The one-eyed man successfully proposed a  new law stating that a person knocking out the eye of a one-eyed man would be punished with loss of both eyes.[2]  The offender and the formerly one-eyed victim would then both suffer blindness.  This law may have significantly lessened the one-eyed man’s risk of blindness.   But undoubtedly it was of little interest to most of the city’s citizens.

Another ancient account describes the noose being used to regulate legal appeals.  In this account, a young man challenged a legal judgment of the Locris’ highest legal official, the Cosmopolis:

Thereupon the Cosmopolis summoned him to discuss the interpretation in accordance with the law of Zaleucus; that is, to argue on the interpretation of the law with him before the court of the one thousand, and with a halter [noose] round the neck of each: whichever should be shown to be wrong in his interpretation was to lose his life in the sight of the thousand. But the young man asserted that the compact was not a fair one, for the Cosmopolis, who happened to be nearly ninety, had only two or three years of life left, while in all reasonable probability he had not yet lived half his life. By this adroit rejoinder the young man turned off the affair as a jest: but the magistrates adjudged the question of abduction in accordance with the interpretation of the Cosmopolis. [3]

The young man’s concern is his relatively high cost of losing.  But the Cosmopolis and the young man also have much different benefits of winning. The probability of the court supporting the young man’s interpretation is also relevant.   Given the large, even if unequal, penalties for the Cosmopolis and the young man, both would be willing to go forward with the appeal only with a small set of dual potential benefits and of dual probability estimates of winning.  Just as for the legislative process, the noose makes the appeal process a formality rarely rational in practice.

The institutions of Locris apparently were well-regarded in the ancient world.   The Athenian speaker probably would not have invoked the Locrian example if Locrian institutions were widely despised.  An influential Greek philosopher described Locris as “a most well-governed [city].”[3]  An ancient Greek historian stated that the people of Locris “are believed to have been the first people to use written laws” and that Zaleucus, Locris’ law-giver, was the first to define penalties within laws so as to reduce penal disparities.[4]  Locrian sophistication in regulating civic communication is also underscored in other reported Locrian laws:

[a free-born woman] may not wear gold jewelry or a garment with a purple border, unless she is a courtesan; and a husband may not wear a gold-studded ring or a cloak of Milesian [luxurious] fashion unless he is bent upon prostitution or adultery.[5]

These laws craftily stigmatize flashy dressing.  A hereditary aristocracy is thought to have dominated Locris’ government.  Perhaps aristocrats enacted these laws to lessen opportunities for public resentment toward fellow aristocrats’ ostentatious displays of wealth.

From its beginning, law has had complex motives, meanings, and effects.  Recent study has emphasized the accessibility of ancient Greek law to ordinary Greeks.[6]  While procedures of legislating and appealing were formally accessible to the citizens of Locris, Locrians could use those institutions only at the risk of their necks.  Civic institutions that appeared to be accessible seem to have been more valued than civic institutions that were actually accessible.  At least in Locris, constructing the republic was as much a matter of making good poetry as it was building a sturdy house.

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Notes:

[1] From Demosthenes’ court speech, Against Timocrates (delivered in Athens, 353 B.G.C.) p. 37.   Epizephyrian Locris, to which Demosthenes probably refers, was a colony that the Locrians, a Greek tribe, founded about 680 B.G.C. on the coast of Italy.

[2] Id.  Josiah Ober, “Law and Political Theory,” in Gagarin, Michael, and David Cohen (2005), The Cambridge companion to ancient Greek law (Cambridge: Cambridge University Press) pp. 408-10 considers Demosthenes’ Locrian example.  Id. p. 409 states: “The theoretical premise behind Locrian lawmaking procedure is a settled preference for established law and a suspicion that, absent grave risk, would-be lawmakers will seek to benefit themselves rather than the community at large.”   The second part of that statement seems to me to be a significant misinterpretation of the Locrian example.  A one-eyed man getting a law passed about knocking out the eye of a one-eyed man is surely special-interest legislation.  See above.

[3] Polybius, Histories, 12.16, probably written about 140 B.G.C.  Zaleucus was a celebrated, archaic-era law-giver for the Epizephyrian Locrians.

[3] Socrates, in Plato, Timaeus, 20a.

[4] Strabo, Geography, 6.1.  Zaleucus thus anticipated the U.S. Sentencing Guidelines.  The Guidelines reduced federal judges’ sentencing discretion and increased the plea-bargaining power of prosecutors.  The Guidelines were overturned in United States v. Booker, 543 U.S. 220 (2005).

[5] Diodorus Siculus, Library, 12.21.

[6] See Gagarin, Michael. 2008. Writing Greek Law. Cambridge: Cambridge University Press.

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mixed statutory and case law in ancient Mesopotamia

Consider this law:

If a man says to his comrade, either in private or in a public quarrel, “Everyone has sex with your wife,” and further, “I can prove the charges,” but he is unable to prove the charges and does not prove the charges, they shall strike that man 40 blows with rods: he shall perform the king’s service for one full month; they shall cut off his hair; moreover, he shall pay 3,600 shekels of lead.[*]

This written law was established in Assyria about 3100 years ago.  It’s a defamation law, but it specifies a highly particular form of defamation.  Did the Assyrian have a written law covering every major type of defamation (you’re a bastard, your mother’s a whore, you’re a clumsy oaf, etc.)?  Most likely not.  “Everyone has sex with your wife” seems to have functioned in Assyrian law as a synecdoche for defamation.

The Assyrian law differs from case law.  The parties to the action are generic “man,” “comrade,” and “wife.”   The law occurs within a list of similarly structured, written laws that make no particular references to historical case judgments.

Particularization apparently was not a generic characteristic of ancient Mesopotamian legal texts.   Ancient Mesopotamian laws combined general categorizes of parties with highly particularized actions and punishments.  Whether these laws mattered in practice is a subject of considerable academic debate.  Perhaps these laws indicate that making laws and judging cases were closely connected institutionally in the Assyrian kings’ administrative organs.

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Read more:

Note:

[*] Text from the Middle Assyrian Laws, ca. 1076 BCG, of the city of Assur.  See Roth, Martha Tobi, Harry A. Hoffner, and Piotr Michalowski. 1995. Law collections from Mesopotamia and Asia Minor. Writings from the ancient world, no. 6. Altanta, Ga: Scholars Press, p. 159.  The preceeding law: “If a man should say to another man, “Everyone has sex with your wife,” but there are no witnesses, they shall draw up a binding agreement, they shall undergo the divine River Ordeal.”  The witnesses are most plausibly relevant to uttering the statement, not having sex with the wife.    Evidently, this law concerns a situation where the defamation defendant denies making the statement.  In contrast, the law quoted above includes the defamation defendant asserting that he can prove the wholly implausible statement that “everyone” has sex with the wife.   These laws make most sense together as defining defamation at different levels of insult and injury.  A similar set of laws is organized around the statement, “Everyone sodomizes you.”

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circumstantial entrenchment of public reasoning

Requiring only young men to register for military conscription is an obvious instance of sexism in the U.S. today.  Women today are an important part of the all-volunteer U.S. military.  One out of every seven soldiers on active duty is a woman, and one out of every forty-three soldiers killed in the Iraq war has been a woman (see data notes and references).  Women are admitted to all the U.S. military academies, and the U.S. military includes female generals, female fighter pilots, and many other women doing difficult, dangerous jobs.  Even if one believes that women should be excluded from some military jobs, the military still could easily employ an equal number of men and women.   Laws that compel only men to serve in the military cannot rationally withstand even a cursory examination of current facts.

This sexism attracts almost no public concern.  In 1981 in Rostker v. Goldberg, the U.S. Supreme Court upheld male-only Selective Service registration.   In light of current circumstances, that decision might best be seen as following in the line of Dred Scott v. Sandford.  One can find some law professors arguing that male-only Selective Service registration discriminates against women.  Occasionally newspaper articles describe middle-aged male government workers getting fired because they failed to register for Selective Service as young men many years earlier (see, e.g. here and here). More generally, most young women probably don’t want to be legally obligated to register for compulsory military service.  While male-only Selective Service registration reflects a long, under-appreciated (at least among law professors) history of constraining and devaluing men’s lives, most young men probably think that registering is merely a bureaucratic requirement with no real implications. Heated public discussions of sexism tend to focus on issues such as the share of women holding science and engineering professorships, or the media’s treatment of female candidates for high public offices. Neither the media, nor young women and young men, nor the legal academy have much interest today in sexist Selective Service registration.

An extraordinary situation that produced a military draft would give Selective Service sexism much greater significance and make that sexism much more difficult to address. While historically normal, being forced into the military would be a life-shaping change for young men in the U.S. today. At the same time, circumstances demanding such change would not be propitious for affirming in new ways ideals of equality between women and men. In the British Commonwealth during World War I, men who did not “volunteer” to serve in the military were shamed with White Feather campaigns. Complaining about sexism in compulsory military service in the midst of a national emergency would be much more difficult for men than personally seeking to avoid military service. The latter was called cowardice, the former might be called subversion or treason.

Male-only selection service registration displays an interesting pattern of circumstantial entrenchment. Because most persons consider male-only selective service registration to be unimportant, its unreasonableness in current circumstances doesn’t matter. Circumstances that would make male-only Selective Service registration important would also make asserting its unreasonableness infeasible.

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the perfect crime in real-world reasoning

A law professor figured out that persons cannot be legally prosecuted for crimes that take place in Yellowstone National Park’s fifty-square-mile area in Idaho.  He wrote an article about the law’s Yellowstone-Idaho crime problem. The Georgetown Law Journal accepted and published his article.  No one has convincingly refuted his legal analysis.

In conjunction with his publication, the law professor valiantly but unsuccessfully attempted to get legal authorities to resolve the Yellowstone-Idaho crime problem.  He explained:

I quietly sent drafts [of his law journal article] to the Department of Justice’s Office of Legislative Affairs, the U.S. Attorney in Wyoming, and the majority and minority counsels for the House and Senate Judiciary Committees.  …  The U.S. Attorney responded that he had no power to amend the law.  The Department of Justice did not respond at all. Neither did the Senate Judiciary Committee.[1]

The law professor tried again, with a more extensive set of authorities:

I wrote to the majority and minority counsel and all of the members of the two relevant Judiciary subcommittees: Courts, the Internet, and Intellectual Property on the House side, and Administrative Oversight and the Courts on the Senate side. That was twenty-two representatives, seven senators, and four staff lawyers.[2]

He received no responses to any of these letters.  He concluded:

I had learned my lesson. A person with just an idea—a person who is not a lobbyist, who makes no campaign contributions, and who relies simply on the force of his arguments—should not count on members of Congress acknowledging his letters or phone calls. If someone in Congress does notice his idea, he should not count on being in the loop, let alone being consulted. He should not expect to get a serious legal reply to his legal arguments.[3]

Most persons are not interested in ideas apart from organizations, status networks, and material interests.  That’s as true for law professors as it is for members of Congress.

Economics applies to ideas and affects reasoning.  The Yellowstone-Idaho crime problem that the law professor identified in 2004 has existed since 1894.  Across those 110 years, the problem has apparently produced no effects.[4]  Significant interests are attached to court jurisdictions, especially with regard to federal lands.  Moreover, political negotiations about political boundaries are difficult.  Because the Yellowstone-Idaho crime problem fails a cost-benefit test for real-world action, Congress reasonably ignores it.

The real-world operation of the criminal justice system could easily compensate for the problem that the law professor discovered.  The federal criminal code has expanded relatively rapidly.  It contains vague, general descriptions of crimes that most people do not clearly understand.  As a result, U.S. prosecutors have enormous discretion in choosing who to prosecute, what crimes to prosecute, and what sort of plea bargains to accept.  If someone did commit murder in what the professor calls the “zone of death,” the criminal justice system could easily ensure that that persons was punished for years for some crime.[5] Such action highlights some truly significant legal problems.  The legal problem that the professor identified isn’t such a problem.

The law professor has emphasized that his article creates an incentive for crime, the “perfect crime,” murder.   But nobody lives in that area of Yellowstone National Park. The idea of planning a perfect crime is mainly a figure of crime novels.  Most crime takes place without much sophisticated prior legal analysis of legal effects.[6] That the law professor’s article would spur murder is wholly implausible.  Making such a sensational claim is best understood as a tactic in competition for attention.  That sensational claim also indicates that the Yellowstone-Idaho crime problem isn’t serious enough to attract attention without such tactics.

The law professor’s article about the Yellowstone-Idaho crime problem, entitled “The Perfect Crime,” has attracted considerable attention.  The law professor observed:

I posted the article on the Social Science Research Network (SSRN) one day in March 2005. The next day, Orin Kerr made some favorable comments about it on The Volokh Conspiracy blog. That touched off a cascade of downloads, further media and blogger attention, and more downloads. For a while, The Perfect Crime was the most downloaded constitutional law paper in SSRN history.
My theory was written up in the Washington Post. I was interviewed on NPR’s All Things Considered and a similar Canadian program, As It Happens. The BBC website ran a story, as did a Japanese newspaper. Local media in Idaho and Wyoming followed suit. John Hodgman (soon to be of the Daily Show) invited me to give a public lecture on my article in Brooklyn. The crowning moment, though, was the article in the National Enquirer.[7]

The Yellowstone-Idaho crime problem also attracted notice in the Wall Street Journal and was used as a plot device in a novel that rose to 29’th place in a national best-seller list.[8] But surely for a law professor, the crowning moment must have been having a second article concerning the Yellowstone-Idaho crime problem accepted for publication in the Georgetown Law Journal. The first line of the title for this article, “Tabloid Constitutionalism,” describes well both the article’s subject matter and its rhetorical orientation.

The marketplace of ideas can perform quite badly.  The few officials who have addressed the Yellowstone-Idaho crime problem have displayed remarkably poor reasoning.[9] These officials probably aren’t stupid and probably don’t have contempt for constitutional law. But real demand for a good response to the Yellowstone-Idaho crime problem hardly exists. Legal scholarly competition, in contrast, generates intense demand for writing and publishing articles. The law journal articles on the Yellowstone-Idaho crime problem are better written, contain more original legal analysis, and more clearly display the joy and thrill of studying law than most law review articles. These articles suggest that the legal academy is failing to allocate intellectual talent to important problems and to create useful intellectual work.

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Related posts:

Notes:

[1] Kalt (2008) p. 5.
[2] Id. p. 6.
[3] Id. p. 7.
[4] Federal law first established the United States District Court for the District of Wyoming, which includes Yellowstone National Park’s fifty-square-mile area in Idaho, in 1894. See Kalt (2005) p. 5 ft. 17. The boundaries of this district, along with state lines and the U.S. constitution, create the Yellowstone-Idaho crime problem. No crimes can plausibly be attributed to the Yellowstone-Idaho crime problem, and no person has escaped criminal punishment because of this problem. See Kalt (2008) pp. 10-13.
[5] Perhaps the crime would be using mail to plan to commit a felony.  Presumable a person who planned to go to the “zone of death” to commit a crime would use the mail system or the financial system in some way prior to the trip.  That would probably be enough to generate a winning claim of criminal activity outside the “zone of death.” That could easily provide a pretense for punishment for criminal activity within the “zone of death.” Kalt (2005) pp. 13-4 addresses this issue by describing his concern in a way that gives it even less practical significance. With respect to real-world legal action, Kalt (2008) p. 12 describes how prosecutors arranged a plea bargain to avoid legal analysis of the Yellowstone-Idaho crime problem.
[6] Common sense indicates that punishment deters crime. But this effect is hotly debated in academic literature. The effect of functioning institutions of punishment on crime is likely to be much greater than the effect of a law professor’s legal analysis on crime.
[7] Kalt (2008) p. 3.
[8] Id. p. 4.
[9] Id. pp. 6-8, 11-12.

References:

Kalt, Brian C., The Perfect Crime. MSU Legal Studies Research Paper No. 02-14. Available at SSRN: http://ssrn.com/abstract=691642 ; also The Perfect Crime, 93 GEO. L.J. 675 (2005).

Kalt, Brian C.,Tabloid Constitutionalism: How a Bill Doesn’t Become a Law. Georgetown Law Journal, Vol. 96, No. 6, 2008; Available at SSRN: http://ssrn.com/abstract=1136301

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communication about administrative problems

Good government must respond effectively to administrative problems. In China, claims of wrongful government action are addressed through petitions to complaint offices (the Xinfang system) and through court cases (administrative litigation). From 1996 to 2004, Xinfang petitions were perhaps forty times as numerous as court cases.[1] How these two processes shape communication with persons not formally parties to the dispute may help to explain this outcome.

In an interesting recent paper, Taisu Zhang argues that the relatively large number of petitions doesn’t indicate Chinese reluctance to pursue court cases. About the year 2000, the Xinfang system handled about five million petitions concerning civil matters. The number of civil cases in the court systems was about four million.[2] Thus the ratio of petitions to court cases is much lower for civil disputes than for administrative disputes. Persons are not relatively reluctant to bring court cases; they are relatively reluctant to bring administrative disputes to courts.

Zhang also argues that the relatively large number of petitions occurs even though petitioning is a much less propitious action. In administrative cases in China, plaintiffs’ claims prevail in about 30% of cases. In contrast, only 0.2% of Xinfang petitions lead to “successful resolution of the dispute.”[3] For a person seeking to prevail in a dispute, the Chinese court system offers better opportunities than the Xinfang system.

Zhang proposes that the adversarial nature of administrative litigation explains the relatively low number of administrative disputes brought to courts. Chinese administrative litigation law prohibits mediation in administrative cases. According to Zhang, the Chinese public prefers “more paternalistic and less confrontational methods”: “the judge should appear as a benevolent ‘Fu Mu Guan’ (‘father figure’) who is seeking to solve problems through the least intrusive way possible.”[4] Officials in the Xinfang system appear to be much closer to such a role.

Forms of communication about the dispute to non-disputants may also favor the Xinfang system. Chinese administrative litigation law requires that all cases receive a public trial. Zhang’s paper says little about this requirement. A public trial does not necessarily make for a more adversarial proceeding. It can, however, expose the interests of the plaintiff to competitors outside of the dispute. Public, authoritative accounts of disputes and decisions fosters the rule of law. In circumstances of intense socio-economic competition not well-structured by an effective legal system, serving as a public example through administrative litigation can have considerable private costs along with the public benefits. The Xinfang system, in contrast, requires no particular written statements and no public account.[5]

The Xinfang system also gives disputants better opportunities to frame the dispute in a way that appeals to others. Litigation involves highly structured forms and patterns of communication. Petitioning, in contrast, allows the petitioner much more freedom in communicating the dispute to others. While class-action litigation requires considerable conceptual and organizational support, mass petitions naturally occur and in fact tend to be associated with mass incidents. Transforming specific administrative problems into more general problems of social unrest makes those problems less informative.[6]

Requiring Xinfang petitions to be submitted according to a specific written form and requiring responses to Xinfang petitions to be described publicly might encourage the development of law-oriented procedures for resolving administrative disputes. More generally, how to get better formed communication about administrative problems is a key challenge for good government.

Notes:

[1] Zhang (2008) p. 4.
[2] Id. p. 24.
[3] Id. p. 13.
[4] Id. p. 5.
[5] Minzer (2006) pp. 161-2 notes that petitions made as in-person visits rose from 59% of petitions in 1990 to 78% of petitions in 2001. In an in-person visit, the petitioner need not commit any information to writing.
[6] Minzer (2006) argues that Xinfang regulations encourage the politicization of grievances.

References:

Minzner, Carl F. (2006), “Xinfang: An Alternative to Formal Chinese Legal Institutions,” 42 Stanford Journal of International Law, v. 42, pp. 103-79.

Zhang, Taisu, “The Xinfang Phenomenon: Why the Chinese Prefer Administrative Petitioning Over Litigation” (February 27, 2008). Available at SSRN: http://ssrn.com/abstract=1098417

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