prior probability

Note: This post (sorry for the delay), my tenth and final one on Ron Allen and Mike Pardo’s “relative plausibility” paper (available here, via SSRN), is based on my 2015 paper “Why don’t juries try range voting?,” which was published in the Criminal Law Bulletin.

Thus far, we have explored the pros and cons of Ron Allen and Mike Pardo’s relative plausibility theory of juridical proof, but as we say in academia, it takes a theory to beat a theory, so in place of plausible relativity, why not ask jurors to engage in full-fledged “Bayesian voting”? The type of Bayesian voting I am proposing here is “jury scoring” and is often called “range voting” in the literature on voting systems. (See Warren D. Smith, Range Voting, Paper No. 56 (2000), available at math.temple.edu/[tilde]wds/homepage/works.html; Claude Hillinger, “The Case for Utilitarian Voting,” 23 Homo Oeconomicus 295 (2005). See also chapter 14 of William Poundstone, Gaming the Vote (2008). For a glossary of different voting procedures, see Poundstone, at 287-89.) Continue reading →

Let’s put aside the fact that the American Southwest was stolen from Mexico in an illegal war of aggression. To a Bayesian natural law theorist (admittedly, we are a small number), the relevant question is not whether poor Spanish-speaking Central Americans are “breaking the law” in searching for a better future for their families; after all, given the problem of overcriminalization–the vast number of State and federal criminal laws on the books–, we are all law breakers now. (See below.) The real question is whether the laws being broken are just.

Ilya Somin (George Mason University): “For most people, it is difficult to avoid violating at least some laws, or even to keep track of all the laws that apply to them. For example, it is almost impossible for small businesses to fully obey all the byzantine regulations that apply to them, for home and apartment owners to fully comply with every part of the complex building codes and zoning restrictions that apply in many jurisdictions, or for almost anyone to ensure perfect compliance with our hyper-complicated tax code.”

Stephen Carter (Yale Law School): “70 percent of American adults have committed a crime that could lead to imprisonment.”

Harvey Silvergate (Criminal Defense Attorney):

Via our favorite legal blog (the Volokh Conspiracy), our friend and colleague Ilya Somin, a law professor at George Mason University (and a prolific blogger), explains why “enforcing the law doesn’t justify separating migrant children from their parents” in this excellent blog post. We agree with Professor Somin’s analysis, especially his argument based on natural law: laws cannot trump basic human decency. Here is an excerpt:

Even in the case of otherwise just laws, there must be moral limits to the means used to enforce them. The child-separation policy crosses any reasonable line. It inflicts harm grossly disproportionate to any offense. And most of that harm is suffered by children–people themselves innocent of wrongdoing. Even if their parents acted wrongly in trying to enter the United States, the children had little choice in the matter.

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Hat tip: @pickover

Shout out to the Russian Ballet of Orlando for their whimsical production of the French fairy tale “Beauty and the Beast.” I attended many of the rehearsals (my daughter had a small role in the production) and noticed that ballet is like most human activities: a mixture of rigid discipline and individual creativity. Below are my beautiful daughter Adys Ann with her instructor (and lead ballerina) Miss Jeanna:

1. Common law. On the one hand, we could apply traditional common law doctrines like fraudulent misrepresentation and breach of contract. The common law approach generally consists of “simple rules,” to borrow Richard Epstein’s term, but for better or worse, the common law can get messy, since these rules are developed piecemeal and “bottom-up,” as judges decide individual controversies on a case-by-case basis. For my part, I develop a common law approach to data fraud in my 2017 paper “Legal Liability for Data Fraud” (available here).

2. Regulation. On the other hand, we could apply a regulatory framework or a rational “top-down” approach to this problem, such as mandatory disclosure rules, flat-out prohibition, or some form of Pigovian taxes. By way of example, our colleague Omri Ben-Shahar (pictured below), a law professor at the University of Chicago, who argues for a regulatory approach, compares harmful “data emissions” to environmental pollution. (Check out his fascinating paper here.) Such an approach has the advantage of promoting uniformity but is always open to the risk of regulatory capture and the law of unintended consequences. In short, since neither the common law or regulatory approach is perfect, the real question is, which approach is “less bad”?