A proposed Wisconsin law of a few years ago would have resulted in the names of delinquent taxpayers being posted on the Net. This is a good example of my argument in my stigma article that one function of punishment is publicity. This function has relatively low cost, and has a direct beneficial effect on efficiency. Here’s the Wisconsin story:
A Hawaiian reader kindly called my attention to the contract case,
HONDA vs. BOARD OF TRUSTEES OF THE EMPLOYEES’ RETIREMENT SYSTEM OF THE STATE OF HAWAII (17 June 2005). Mr. Honda made a clearly stupid election for his retirement which gave his heir about a week of benefits instead of a lifetime. The form he filled out was unambiguous but confusing, and the other party had a fiduciary duty to him. His wife did not argue her case well, since she should have been arguing “unilateral mistake” but argued ambiguity instead, but the Supreme Court brought in the correct doctrine for her. This is related to two of my papers, “Explaining Incomplete Contracts as the Result of Contract-Reading Costs,” in the BE Press journal, Advances in Economic Analysis and Policy. Vol. 1: No. 1, Article 2 (2001) (http://Pacioli.bus.indiana.edu/erasmuse/published/Rasmusen_01.negot.pdf) and “Mutual versus Unilateral Mistake in Contracts,” Journal of Legal Studies (June 1993), 22:309-343 (with Ian Ayres) (http://Pacioli.bus.indiana.edu/erasmuse/published/Rasmusen_93JLS.mistake.pdf). (more…)
A comment to an earlier post about stigma worried about false conviction, and the stigma that those who are convicted falsely would bear. It referred to the Innocence Project and cases like that of Michael Williams.
Dr. Faulkner of Terra Haute has a good website collecting links to all state and city sex offender registries and registry laws. You can look up the names of all the convicted sex offenders in your town, if your state has such a law.
What amazes me is that we don’t have such lists for all crimes, and nationally instead of by state. Even arrest data is public– it just is so decentralized that you need to hire a detective to find out about someone’s background. It surprises me, too, that no private company has compiled such a database for profit. Maybe it could not succeed without lots of cooperation from government units who have the information now.
I came across a story on Governor Huckabee of Arkansas renewing his wedding vows– and extending the terms, using the state’s covenant marriage law. I’ve written on that topic with Professor Stake– “Lifting the Veil of Ignorance: Personalizing the Marriage Contract,” Indiana Law Journal (Spring 1998) 73: 454-502.
A reader asked me
Prof Braider is a professor of French literature at U of C, and advances the argument that since the investigation into Ward Churchill was based upon his controversial comments, any evidence of lies, plagerism, academic fraud, etc cannot be used against him. Freedom of speech will void any non speech related issues that happen to turn up in the process.
Is there legal precedent for this, or is this just academic posturing?
That is false, I think, as a legal matter, and even if it were not, that would not matter in the end. This is by analogy with the exclusionary rule in criminal procedure, a peculiar rule that says that if the police search my house for drugs without a proper warrant, and find ten dead bodies rotting in my basement, they cannot act on that information to go after me for murder. I’ll come back to the desirability of that rule later, but for the moment note that if at the same time the neighbors are complaining that my house stinks of decaying flesh and other evidence points to my criminality the police can conduct a second search based on that, and use the evidence so obtained. In the Ward Churchill case, people have previously been complaining that he was an academic fraud, quite independently of the current controversy. It is legitimate for his Chancellor to start an investigation based on that– or not to start one, as the Chancellor pleases. Moreover, once an investigation starts, it certainly is not limited to misconduct of the kind that started it. Thus, even if the current 30-day investigation would be ruled improper, the Chancellor could just start a new one, to achieve the same result.
Now back to the exclusionary rule. This might be worthy my writing a scholarly article about.
There are two reasons for the exclusionary rule. One is the purely formalist idea that this is analogous to other parts of the law, where a person cannot benefit by his own bad behavior. Here, the police should not benefit from an illegal search.
The second reason is that we want to deter the police from making illegal searches. This is a good motivation, since we indeed want to avoid illegal searches. But why do we want to avoid them? Because we want to avoid searches that hurt innocent people. There is nothing intrinsically bad about the police not getting the right paperwork done before they conduct a search; the reason we require the paperwork is that unless the police can convice a judge that they have a good reason, the search probably isn’t justified because it has too high a chance of hurting an innocent person and not coming up with evidence of a crime. The reason for the paperwork is not to hinder the capture of criminals, but to prevent police from making unjustified searches. But the exclusionary rule’s cost of a few criminals who get away is worth the benefit of deterring a lot of unjustified searches.
As solution to the problem of unjustified searches, of course, the exclusionary rule does have a glaring problem: it does not punish anyone for making a truly unjustified search. If the police ransack my apartment and find that I haven’t committed a crime, the exclusionary rule just tells them they can’t use the evidence they haven’t found to prosecute me. The exclusionary rule only helps punish the police when their search was justified, because there did exist evidence of a crime.
TA more straightforward solution to the problem of unjustified searches is simply to punish police who do them. If the police want to risk cutting corners in making a search, they can, but if the search doesn’t turn up anything, they are in deep personal trouble. Since if the search *does* turn up something, they get only a mild personal reward– the career credit of having turned up some useful evidence– the incentives would still be for the police to be overly cautious. Remember, most of the benefit from catching a criminal goes to the public; the policeman gets paid the same salary whether he catches criminals or not.
I’ll mention a couple of other arguments about the exclusionary rule.
First, it gives a big advantage to expensive lawyering relative to pure justice. The rule is all about complying with legal niceties. Thus, it puts a premium on expensive legal talent, and especially benefits rich criminals such as drug dealers or white collar criminals relative to the ordinary citizen.
Second, it makes it easier for corrupt police to protect criminal allies. If the police feel they have to investigate a case because of public pressure, but they don’t want to actually convict the criminal, they can foul up the search procedure and blame the courts for the criminal staying free.
I wonder, too, if anyone’s thought about the following hypothetical. Smith is on death row, having been convicted of murder. The police make an illegal search of Jones’s car, and find a signed confession that says Jones did the murder, not Smith. Should Jones remain free and Smith die? That is the logic of the exclusionary rule.
If you like, add to the above hypothetical that the police also find a plan by Jones to murder a third person, Roe, the following week. Should the police be allowed to warn Roe that he is in danger?
The exclusionary rule has long been criticized, so probably most of these criticisms are well known. I know I was surprised when I wrote an article on the supposed “right against self-incrimination” at how little attempt there was in the law journals to justify it, and how many criticisms of its logic. The law of criminal procedure is a mess.
Suppose Smith agrees to work for BigTV at a salary of $100,000 per year. The
exposure is worth $300,000 to Smith, and Smith’s talent is worth $500,000 to the
company, so the deal splits the value equally between them. But then BigTV gets
angry at Smith, whose talent value drops to 0, and takes him off the air while
continuing to pay him. Should Smith win a lawsuit against BigTV?
Via Drudge, the
New York Observer we
find a case that is a little like this, in connection with Rathergate: . . .
Suppose a person has X genes. He will share, on average X/2 of those with his
brother. He will share exactly X/2 with his father. There is a 50% chance he
will share less than X/2 with his brother. There is a tiny chance, even, that he
shares 0 genes with his brother, because his brother got the complementary X/2
from their father and the complementary X/2 from their mother.
How many genes will our person share with the average person in the population?
Not zero, but maybe a fraction of 1. It depends on how big X is, and how many
people are in the population. What is interesting is the probability that
there is someone out there in the population who shares X/2 genes with our
person. And what is the probability there is someone with all X genes? It is not
zero.
If the population is big enough, N’, there is over a 50% chance that someone
exists with X/2 genes in common with him. The size of N’ depends on X. We will
assume an even distribution of genes– no matching of male and female by genes.
“Divorce, Chilean Style: Now, It Will Be Legal But Not Exactly Easy” says the Wall Street Journal of October 5, 2004. Here are details:…
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