Law & Justice: October 2003 Archives

I haven't really seen anyone else discuss this (surprisingly), but if terrorists wanted to attack Southern California setting forest fires would be one of the easiest and most effective methods. Even if our current blazes were set purposefully, I doubt it was done by Islamic terrorists though, because no one has come forward to claim credit.

Furthermore, it just doesn't seem like such an attack would fit the "style" of Islamofascist death-cultists. A lot of damage has been done, and the fires are a major disruption to California's economy, but there have been fairly few deaths. As such, the threat of arson just doesn't create the type of "terror" that Bin Laden and his cronies go for. Setting forest fires isn't a direct attack on the economy or on symbols of the economic system, doesn't target democracy or democratic institutions, doesn't make people afraid to leave their homes; in general, fires don't have the sort of widespread emotional impact that the terrorists long to foment.

Nevertheless, these fires will still cause property damage on the same order-of-magnitude as the 9/11 attacks, though with far fewer deaths.

I just discovered that October is Domestic Violence Month, so I want to take this opportunity to mention a problem that isn't very widely recognized: in 40%-50% of domestic violence cases, men are the victims of violence committed by women. A great deal of attention is given (justifiably) to violence that men perpetrate against women, but the fact of the matter is that men are almost as likely to to be victims of domestic violence as women are.

I have some sources here to back up this claim, and they have interesting statistics (that mostly agree with each other). The most comprehensive data appears to come from a study performed by Straus & Gelles, which concludes that some degree of violence occurs at a rate of 113 man-against-woman incidents per 1000 couples per year, and 121 woman-against-man incidents per 1000 couples per year. As well, men and women are both about equally likely to strike the first blow. Overall, men and women were victims of violence at about the same rates, but the violence against men was 50% more likely to be "severe" -- a level that includes being attacked with an object (as opposed to fists), being "beat up", being threatened with a gun or knife, and being attacked with a gun or knife.

Two other sites with similar themes but slightly different numbers: Oregon Counseling, and the Equal Justice Foundation. The later claims that:

1. Women are three times more likely than men to use weapons in spousal violence.
2. Women initiate most incidents of spousal violence.
3. Women commit most child abuse and most elder abuse.
4. Women hit their male children more frequently and more severely than they hit their female children.
5. Women commit most child murders and 64% of their victims are male children.
6. When women murder adults the majority of their victims are men .
7. Women commit 52% of spousal killings and are convicted of 41% of spousal murders.
8. Eighty two percent of the general population had their first experience of violence at the hands of women.

Update:

FoxNews cites a study which claims that female sex offenses are much more common than people realize, but that men who are victimized rarely report it. Perhaps they're ashamed, or perhaps they don't think it's a big deal, even though the behavior they are subjected to qualifies as a sex offense.

Samizdata gets the following email:

Dear Mr Micklethwait

I am writing a concise statement of ancient rights as part of a longer publication.

I want to include all the most important Common Law rights: life, liberty, property, family life, fair trial in open court, Habeas Corpus, trial by jury etc.

I cannot find a comprehensive list anywhere. Do you know of one please?

Regards,

Richard Marsden

I started writing a lengthy comment, but then realized that I've got my own blog! So, let me take a crack at it.

I think that most of our civil rights can be derived from the right to own property -- when you "own" something, you have the right to use it, and the right to exclude others from using it at will. Property rights (and the ownership of our own bodies) can cover almost everything we like as Americans:
- freedom of speech,
- freedom of thought,
- freedom of religion,
- freedom of self-defense,
- freedom to work,
- freedom to trade,
- freedom of association,
- and, in some ways, the right to privacy (though not as it is often believed).

Naturally, my exercise of my rights can interfere with your exercise of yours, and the details need to be worked out. How do we do that?

Criminal law is the system that society has at its disposal when it needs to curtail your civil rights because your exercise of freedom is impinging unacceptably on others. Under commonly recognized principles, the important aspects of criminal law revolve around the understanding that depriving someone of his civil rights is a serious matter, and should not be done lightly or easily. Taking away someone's rights should be be difficult, but civilization has recognized that such power is necessary in order for society to function.

So we've got:
- trial by jury (perhaps the most important),
- the right to be presented to the court (habeas corpus),
- the right to a speedy trial (and the duty to enjoy that right),
- the right to confront the accuser (even in rape cases),
- the right to the presumption of innocence,
- the right to commensurate punishment,
- the right to remain silent and not testify against yourself,
- &c.

Notice, there's no right to vote, although democracy is a good way to protect our rights. All that common law really comes down to is "leave me alone, and I'll return the favor."

Partial-birth abortions will be illegal, as soon as Bush signs the bill that the Senate passed 64-34 yesterday (the House passed it a month ago). In theory, this law will prevent up to 5,000 abortions of convenience each year (since, as Bill Hobbs notes, the AMA says the procedure is almost never medically necessary; Donald Sensing says that physicians have testified for years that the procedure is never medically necessary).

Considering that I view abortions of convenience as murder, I would have preferred if the federal government had stayed out of it and left it to the states (which generally prosecute murderers), but my affection for federalism is outweighed by the thousands of lives that will potentially be saved. Furthermore, many similar state laws have been struck down:

The measure is similar to, but somewhat more detailed than, a Nebraska state law that the Supreme Court struck down by a 5-4 vote three years ago. That ruling had the practical effect of nullifying 30 state laws. Up to that time, Congress had been trying unsuccessfully for five years to enact a similar proposal at the federal level.

My lamentable Senator, Barbara Boxer, has this to say:

California Democratic Sen. Barbara Boxer, who helped lead opposition to the bill, called it "a very sad day for the women of America."

But, of course, she's only considering women who are already out of the womb, and has little concern for the women who will now not have their brains sucked out by vacuums and their bodies dismembered.

Along the same lines,

But an abortion rights supporter said the ban "will bring an end to providing the best and safest health care for women."

It will bring an end to the mass-murder of thousands of children. Physicians all seem to agree that this procedure was never medically necessary, so it certainly can't be required for the best and safest health care for anyone. Congress concurs:

In drafting the new national measure that has now passed, Congress wrote lengthy findings that contradict the Supreme Court's conclusion that abortions using the procedure banned by the bill are sometimes medically necessary to protect a woman's health. "Congress finds that partial-birth abortion is never medically indicated to preserve the health of the mother," the bill's preamble says.

The problem is that the abortion-rights people don't seem to understand that they're arguing a different point than most people are conerned with.

"This dangerous ban prevents women, in consultation with their families and trusted doctors, from making decisions about their own health," said Gloria Feldt, president of the Planned Parenthood Federation of America.

Most Americans don't see abortion as a private issue that only affects the mother, no matter how much abortion-rights advocates want to spin it that way. They purposefully misstate the pro-life position, which is that an unborn baby is a human being, and that as such the medical privacy concerns of the mother are inconsequential compared to the right of that other human being to live. As I wrote in that earlier post:

2. Michelman states that the position of pro-life advocates is that the government should be involved in people's private medical decisions, when that isn't the crux of the matter at all. To an opponent of abortion, the critical issue is that a fetus is a human being, and as such should not be killed without a cause more substantial than mere convenience. It has nothing to do with a lack of respect for the privacy of the mother, or with a desire to interfere with her private medical decisions. To a pro-lifer, the decision to have an abortion isn't private, because it necessarily involves another person: the unborn baby.

For a really excellent scientific explanation of why unborn babies (from conception) are alive, and are "real" human beings (without any reference to religion), I highly recommend "Life: Defining the Beginning from the End".

And finally, "Who, after all, could consider a fetus as life unworthy of living, once they've held its hand?", asks Sydney Smith, a family physician, and author of MedPundit.

Eugene wrote a little bit about Martha Stewart's legal predicament, and points out some errors in a Slate piece about the issue. What's of real interest to me, however, is that he writes near the end that:

Finally, it turns out that the core issue -- whether false statements of fact are unprotected when they're not fraudulent attempts to make money, defamation of particular people, or false statements to the government (e.g., perjury) -- is indeed not fully resolved. ...

Rather, the strongest First Amendment argument for some protection even of knowing lies is that in some contexts (a) courts shouldn't be trusted to decide what's true and what's false, and (b) the risk of error in such decisions might be enough to deter even true speech. See New York Times v. Sullivan, which suggested that even knowing lies about the goverment can't be punished at all; compare State v. Davis, 27 Ohio App.3d 65 (1985) (affirming conviction for knowingly making false statements in a political campaign) with State ex rel. Public Disclosure Comm'n v. 119 Vote No! Committee, 135 Wash. 2d 618 (1998) (striking down a law banning false statements said with actual malice in election campaigns).

So, I'm not clear on the issue. Does the 1st Amendment protect "harmless" lies, or would a federal law prohibiting all lies (in a content-neutral manner) be constitutional? It would be unenforcable, sure, and bad policy, but even aside from those issues I would be astounded if such a law would be allowable.

A few weeks ago I was talking to Michael about intellectual property (specifically, patents and copyrights) and proposed that these things are artificial and probably completely unnecessary. Unfortunately, when challenged at the time I was unable to formulate any kind of an argument, other than, in effect, "just because something seems to have always been a certian way, or because you can't really concieve of how else it would work, doesn't mean it's correct or even necessary." Pretty weak, and not at all descriptive of how we would expect things like "innovation" or actual investment in new technologies to happen without patents, or for art and other activities, copyrights.

I've thought about the issue quite a bit more, and have not come up with any definitive answers. I have, however, put together some points of focus, questions that need to be asked, etc - organizing the problem and, I think, making the solution to the problem of "no IP" a bit easier to eventually get to.

Copyrights and patents are not that old. I believe the first patent law wasn't enacted until 1623, and the Statute of Anne was enacted in 1710. To say there was no innovation, or investment, or creation of works that would today be worth copyrighting before 1623 or 1710 seems to be incorrect. These facts don't really make any statement about the validity of copyrights or patents; You could just call them "advances in business technology" or something similar if you wanted, but I think it does demonstrate that the advance of technology does not grind to a halt without these concepts in place.

In effect, copyrights and patents are a state-created monopoly for a set period of time. But the necessity of this action has yet to be proved in any way. No one seems to think monopolies are good, so why would ones created by the state be different? Companies that create original products or works still have a period of monopoly - however long it takes for someone else to copy everything about it. In some cases, they are uncopyable - you can distribute all the CDs you want of a band, but you'd be hard pressed to form your own band, performing the songs off the CD, and draw the same crowd to your concert. For businesses, your monopoly would last as long as you could keep your invention secret, through obsfucation or trade secrets or anything other than government coercion. While I don't think that would last very long for most things, that doesn't mean that there would be no profit to be made, even after someone tried to copy you. Plenty of companys continue to compete in businesses where nothing they produce or do is covered by any IP laws, but they still find a way to profit.

I think a good (or at least popular) example of what may happen in the modern age without patents would be the software industry. Software patents are a very recent invention, and have been fraught with problems since their inception. Before their conception (at least in the US), we didn't have a shortage of creativity, new algorithims, etc, and the industry flourished. Perhaps it was just a young industry that, once it "matured" needed stronger IP laws. And of course they still benefited from copyrights if not from patents. But there is still no evidence that these things are needed. You do not need a copyright to sell people support for the software you make, nor do you need a patent on one-clicking or something equally ridiculous to compete in the marketplace. These are small examples and there may be a flood of instances where nothing would have been done without strong patent or copyright law, but I haven't heard of it.

Patents and Copyrights are, (unfortunately?) not universally recognized. The US has worked hard to push our IP laws on other countries, but it is far from complete. One statement Michael made was that places like China, who have weak to nonexistant copyright laws and patent laws, don't create anything. In regards to art, or other copyrightable material, that seems wrong. But most asian artists are forced to make their money through tours, personal appearances, and corporate sponsorship as opposed to CD sales. I cannot say if this is "good" or "bad", but I do not see a lack of innovation. With patents in china, while it is obvious they are behind technologically, I do not think it is fair to blame a lack of patent IP when looking at a huge, largely rural still communist contry in comparison to the western world. Historically, china produced a ridiculous amount of important technology, well before patents were in place. 40 years of communism, not patents, seems a much easier target for any blame on Chinas technological development.

The point of all this is really just an intellectual exercise, of course - plenty of people have said the same things I say here better. But they need to be said, and said again. Intellectual property is completely artificial, a relatively new concept, and, I'd say, unproven in its merits. The experiment to prove its merits is beyond me at this moment, but suffice to say development and creativity happened on a large scale before copyrights and patents, and I'd be hard pressed to believe it would cease if they went away tomorrow.

Although the methodology looks questionable to me, Harris Interactive conducted an "online" survey of teens and asked them what they thought about file sharing.

ROCHESTER, N.Y., Oct. 9 /PRNewswire/ -- Results of a new Harris Interactive® survey show that two-thirds (66%) of American teenagers (13-18 years old) oppose fining individuals who offer copyrighted music online for other people to download while about one in ten teens (13%) believe that people who offer copyrighted music on their computers for others to download should be fined. Half of teens (52%) strongly oppose such fines and two in ten teens (21%) neither support nor oppose the fines. ...

In addition, the poll found that most teens believe that sharing and downloading of copyrighted music should be legal. Three quarters (78%) of them feel that sharing (letting other people download music from them) should be legal. Additionally, 74% of teens said that downloading copyrighted music files from the Internet without paying for it should be legal.

Why am I skeptical of the results? Well, online surveys tend to be bogus, since the respondents are self-selected (only people who are interested tend to answer polls they come across online), but near the end of the article it says:

This Harris Interactive survey was conducted online within the United States between September 17 and 22, 2003 among a nationwide cross section of 642 respondents aged 13-18 years old. Figures for age, sex, race/ethnicity, education, urbanicity and region were weighted where necessary to bring them into line with their actual proportions in the population.

I don't know what this means; if the sample isn't self-selected, and the survey just happened to be done online with an actual random sampling of teenagers, then maybe the results are ok. It's not clear, however.

But, if the results are meaningful, then the modern concept of copyright is doomed, because these kids will be making policy in 20 years. I'm not saying this is good or bad, but it seems inevitable to me.

(Thanks MD.)