Eugene Volokh's Blog, page 2678

More on Consent, Win-Win Transactions, and Voluntary Torture

(Leo Katz, guest-blogging)

Here is another example I have found interesting in its own right but also helpful in thinking about consent. It is an admittedly completely artificial case of triage.

Al's favorite hobby is the piano. One day he has a traffic accident. As he is pulled from the rubble he notices that the dexterity of one of his fingers is somehow impaired. He is greatly worried, and goes to an emergency room, where he finds exactly one physician in attendance. It quickly turns out that time here is of the essence, if Al's finger is to be restored to its former piano-playing level. Luckily there is no other patient competing for the doctor's attention.

But as the doctor is about to treat Al, something unfortunate happens. For just then Bea is brought in, who has suffered a serious injury to one of her legs, which will turn into paralysis unless immediately taken care of. Loss of one's leg being a bigger problem than a slight loss in digital dexterity, the doctor of course immediately turns from Al to Bea.

And then something else very strange happens. Al notices that he has suffered another injury he and the doctor have overlooked so far—an injury which, if not taken care of immediately, will cause him to lose the use of both his legs. By virtue of this fact, he of course immediately regains the doctor's attention.

Then things get even stranger. For Al asks the doctor to please ignore his legs for the time being and just focus on making sure his finger is fully restored. At first the doctor refuses. "How can I possibly justify not dealing with Bea's more serious leg injury for the sake of dealing with your overly intense concern about your finger." "Never mind," says Al, "Bea is not going to be treated, no matter what. If you don't treat my finger, you will have to treat my legs. So Bea is truly out of the running. She is not going to get priority. And given that you are committed to treating me, wouldn't you do better if you did what I preferred, which is to have my finger rather than my legs treated first? Isn't that a win-win transaction?"

The doctor now has to choose among three alternatives: Treating Al's hands first, treating Bea's leg first, or treating Al's two leg injury first. Each of these seems for different reasons unacceptable.

How can he treat Al's finger when Bea's more serious leg injury needs attention? How can he treat Bea's leg injury when Al's far more serious leg injury isn't getting treated? How can he treat Al's leg injury when Al clamors to have his finger treated instead? We are in a sort of cycle.

How is it to be broken? At least one plausible way of breaking it, my own guess is that it is the most plausible, is to not let Al opt for getting his finger treated. He retains his priority over Bea only if he has is leg injury treated, not otherwise. But that means that we are rejecting a win-win transaction. For that is what the doctor's treating Al's finger rather than his legs surely is.
But why exactly is that?

Why exactly shouldn't the doctor accommodate Al's preferences? The reason, in brief, is that Al has a strong claim on the doctor's attention for his serious injury and a much weaker claim for his less serious injury. That's a common phenomenon—having a strong claim to something we care less about as compared to something else we care more about but have a less strong claim to. (We may value what belongs to someone else more than we value something that belongs to us, to pick the most rudimentary illustration.)

If the doctor were to attend to what Al has a strong preference but a weak claim to—treat his finger—Bea would rightly be able to protest: "What, for the sake of a mere finger, I am to lose the use of my leg."

A parallel example might help to clarify what is going on here. Suppose a friend asked you for help with some dental treatment he can't afford. Since he is your friend, you feel impelled to help him.

But then he changes his mind and insists that he would get much more out of using that money on a cruise. Now you will balk. Not necessarily because you don't believe him, but because he has less of claim on your help if it is for the sake of a cruise than for the sake of medical treatment. The mere fact that it would be a win-win transaction if he let him have the money for the cruise rather than the medical treatment won't necessarily lead you to acquiesce in his request.

In other words, where claims are involved, we run into problems with consent.

Now let's see how this might help with voluntary torture. Once again picture Al in the emergency room with his two-leg injury, but no finger injury this time around. And there is also Bea, with her one leg injury. But now let us add an important new twist. Let us suppose that Al is a prisoner to whom the state offers the option of escaping his life sentence if he agrees to have his two legs chopped off without anesthesia. This is something he can only do if he still has two legs to sacrifice.

You can see the difficulty: Bea will immediately protest "How can I be expected to sacrifice my leg to enable this criminal to slightly improve his position, even if that means that the state gets to save the cost of housing him?" If we want to be able to answer her satisfactorily, we might well feel compelled to say: He can't. He gets treated because he has a greater claim to getting his two legs restored than you have to getting your one leg restored. But that means it would certainly be extremely disturbing if we then allowed him to devalue that sacrifice by putting his legs on the chopping block in exchange for some other benefit to which he has a lesser claim, like a shorter prison sentence.

Although this example may seem very context-specific, there is a more general point lurking here which can be put like this: When the law—or a doctor in a triage situation—recognizes a claim, it implicitly puts a value, or price, on something.

When the law declares that a doctor may give priority to a leg injury over a finger injury, or that a driver may impose a great danger on others if he is driving at breakneck speed to get his leg treated, but not if he is doing so to get his finger treated, or that a person being attacked can use deadly force to protect against a permanent injury to his legs, but not to protect against slight damage to his finger, then the law is putting an implicit price on legs as compared to fingers.

When the owner of the leg, or the finger, then tries to enter into a transaction in which a finger is treated as of greater value than a leg, we get inconsistency and cycling. Which is something the law is uncomfortable with. Hence it tries to ban those transactions.

I will be back one more time, on Monday, with a "terminal" post in which I try to respond to at least some of the very interesting comments and reactions I have gotten.

Return of GMU Law and Econ Seminars for Law Profs and Economists

(Todd Zywicki)

For many years a signature program of the GMU Law & Economics Center was its programs in Economics for Law Professors and Law for Economists.  After a hiatus for several years, those programs are now back.

Here's the info for economics for law professors.

Here's the info for law for economists.

The two programs actually run simultaneously at the same hotel.

Yours truly, among others, will be among the faculty for the programs.

Time's Paris Bureau Chief: Charlie Hebdo Mohammed-Cover Issue "Outrageous, Unacceptable, [and] Condemnable"

(Eugene Volokh)

The post is here; here's the introduction and conclusion:

Okay, so can we finally stop with the idiotic, divisive, and destructive efforts by "majority sections" of Western nations to bait Muslim members with petulant, futile demonstrations that "they" aren't going to tell "us" what can and can't be done in free societies? Because not only are such Islamophobic antics futile and childish, but they also openly beg for the very violent responses from extremists their authors claim to proudly defy in the name of common good. What common good is served by creating more division and anger, and by tempting belligerent reaction?

The difficulty in answering that question is also what's making it hard to have much sympathy for the French satirical newspaper firebombed this morning, after it published another stupid and totally unnecessary edition mocking Islam. The Wednesday morning arson attack destroyed the Paris editorial offices of Charlie Hebdo after the paper published an issue certain to enrage hard-core Islamists (and offend average Muslims) with articles and "funny" cartoons featuring the Prophet Mohammed — depictions forbidden in Islam to boot. Predictably, the strike unleashed a torrent of unqualified condemnation from French politicians, many of whom called the burning of the notoriously impertinent paper as "an attack on democracy by its enemies." ...

It's obvious free societies cannot simply give in to hysterical demands made by members of any beyond-the-pale group. And it's just as clear that intimidation and violence must be condemned and combated for whatever reason they're committed — especially if their goal is to undermine freedoms and liberties of open societies. But it's just evident members of those same free societies have to exercise a minimum of intelligence, calculation, civility and decency in practicing their rights and liberties — and that isn't happening when a newspaper decides to mock an entire faith on the logic that it can claim to make a politically noble statement by gratuitously pissing people off.

Defending freedom of expression in the face of oppression is one thing; insisting on the right to be obnoxious and offensive just because you can is infantile. Baiting extremists isn't bravely defiant when your manner of doing so is more significant in offending millions of moderate people as well. And within a climate where violent response — however illegitimate — is a real risk, taking a goading stand on a principle virtually no one contests is worse than pointless: it's pointlessly all about you.

So, yeah, the violence inflicted upon Charlie Hebdo was outrageous, unacceptable, condemnable, and illegal. But apart from the "illegal" bit, Charlie Hebdo's current edition is all of the above, too.

As readers of the blog might gather, I don't adhere to this view, for many reasons. (If the view were simply that the magazine's criticism of Islam was substance-free or unfair in particular ways, and the view was actually supported by the facts, I'd certainly be quite open to such an argument; but the argument's talk of how the issue is "outrageous, unacceptable, [and] condemnable" strikes me as going far beyond simply that.) Just to give three of the reasons: (1) Of course lots of people — both in majority Muslim countries and in European countries — do "contest[]" the "principle" that people should be legally free to mock what they please, including religions and religious leaders. Reasserting rights that are questioned is often important to protecting them in the future, especially when adhering to demands for "civility" could be reasonably perceived as actually bowing to threats of violence or litigation. (2) Religious ideologies, like other ideologies, sometimes merit mockery, notwithstanding the fact that the mockery may offend the religions' members. (3) When a religion claims to put off limits all depictions of its key figure, and supposedly insulting discussions of that figure, that's a pretty broad swath of commentary that it tries to deny the rest of us in the name of "civility."

But in any event I thought I'd pass along the column for our readers to look at and evaluate for themselves. Thanks to Ken Braithwaite for the pointer.

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Libertarianism.org

(Todd Zywicki)

This is a cool new website on the history and philosophy of libertarianism.  Especially recommended is David Boas's essay on the history of libertarianism, which I like because of its implicit Harold Berman themes (Berman's book Law and Revolution has been a huge intellectual influence on me).  Also not to be missed, of course, is the profile of our very own co-conspirator Randy Barnett as a "Major Libertarian Figure."

I think the website looks really great too.

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New Study on Alleged Google Search Bias

(Todd Zywicki)

As I understand it, the simmering potential antitrust action against Google is premised on the idea that Google has market power in the search engine market that it exploits by biasing its search engine results in favor of its own content.  Well, according to this new study by my colleague Josh Wright, to the extent that Google's results appear to be biased they are substantially less so than Bing biases its results in favor of itself and Microsoft.

(Disclosure: I am an academic affiliate of the International Center for Law & Economics, which published the study but I have nothing to do with this particular study).

I confess that it is awfully hard for me to see any antitrust harm or consumer harm from Google and until otherwise convinced this looks an awful lot like rent-seeking by Microsoft which is turning the tables in response to being targeted by similar rent-seeking in its own case a few years ago.

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The Problem of Voluntary Torture

(Leo Katz, guest-blogging)

Let me present you with a problem I have found quite fruitful to contemplate, both because I find it intrinsically interesting and because it seems to carry a larger lesson. It is the problem of voluntary torture.

Imagine the following proposal by a wild-eyed legislator for making our criminal justice system more efficient. "The point of punishment is pain," he explains."Obviously. Without pain, we don't get deterrence and we don't get retribution. But prison happens to be a very expensive pain delivery system. There is a much cheaper one which for some reason we haven't really adequately considered. Instead of making a prisoner's life moderately painful for a prolonged period of time, which is what prison does, why not just make it intensely painful for a very short period of time: a lot of pain, but for a short duration—that should give us as much retribution and deterrence as before but at a fraction of the cost."

Seeing the astonished expression on your face, he adds, "And before you dismiss me as being stuck in the middle ages, let me point out that this is not what we had back then. This is Voluntary Torture, with the emphasis on voluntary. No one gets tortured unless he asks to be and unless we have made sure that he is really competent to give his assent. And if he ever wants to back out, of course he can. In other words, everyone is free to serve his regular prison term, but if instead he wants to opt for voluntary torture, we'll let them."

Noticing your continuing puzzlement, he elaborates further: "You might wonder why any prisoner would want to opt for torture instead of prison. But of course that only depends on our making the torture option just a smidgeon more attractive than the prison sentence. To be sure, doing so detracts a little from retribution and deterrence, but only a little. If we do things right, most prisoners will flock to voluntary torture the way a paralyzed person would to a medical procedure that promised to enable him to walk."

I view the deal the legislator is suggesting we offer each prisoner as the quintessential win-win transaction. Everyone is better off. The prisoners (though only marginally so, to be sure) and society at large which now has to pay only a fraction of what it used to have to pay for deterrence and retribution.

Nevertheless, like most other people, I would not for a moment contemplate seriously adopting the legislator's proposal. The question is why?

The reason I find the voluntary torture problem interesting to think about is that teaches a larger lesson about consent. We have here a case in which none of the standard or even the not so standard reasons for disapproving of a win-win arrangement between several parties are applicable. It is not a case involving force or fraud or incompetence or bad effects on third parties, those being the standard reasons for invalidating a mutually beneficial bargain. Nor is it a case in which paternalism ("we know better than the prisoner what's good for him"), commodification ("some things just can't be sold") or exploitation ("there just isn't any equality of bargaining power here")can really be invoked to explain why we disapprove of the bargain.

Now the law prohibits a wide range of mutually beneficial transactions—from surrogacy contracts, to organ sales, prostitution, indentured servitude, Russian roulette, gambling, to name just some of the most familiar ones—and we feel perennially uneasy about whether it really should, at least if the parties know what they are doing, and there is no force or fraud involved. Invoking paternalism, commodification or exploitation as reasons for doing so leaves many people cold.

The voluntary torture example suggests that some other as yet unidentified reason must be at work here to explain why we disapprove of certain win-win transactions. And perhaps that reason will turn out to be the true reason why the law bans the win-win transactions we are more familiar with, like organ sales and such.

But what could that reason be? For that the reader must await tomorrow's post, or if he is so inclined, take a peak at Why the Law Is So Perverse.

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French Weekly Publishes Cartoon of Mohammed, Gets Firebombed

(Eugene Volokh)

Agence France Press reported:

The offices of a French satirical newspaper that published a special Arab Spring edition with the Prophet Mohammed on the cover as "guest editor" were destroyed in a suspected firebomb attack Wednesday.

The attack came after Charlie Hebdo renamed the weekly newspaper Charia (Sharia) Hebdo for the occasion and featured a front-page cartoon of the prophet saying: "100 lashes if you don't die of laughter!"

The newspaper's website also appeared to have been hacked, with its regular home page replaced with a photo of the Grand Mosque in Mecca and a message reading: "No god but Allah". The web site was later unavailable.

From The Guardian (UK):

French politicians defended the magazine. The prime minister, François Fillon, said: "Freedom of expression is an inalienable value of democracy and any incursion against press freedom must be condemned with the utmost force. No cause justified violent action."

The interior minister, Claude Guéant, said: "You like or you don't like Charlie Hebdo, but it's a newspaper. Press freedom is sacrosanct for the French." He added that all French people should feel solidarity towards the magazine.

François Hollande, the Socialist presidential candidate, told Le Monde newspaper the incident demonstrated that the struggle for press freedom and "respect of opinions" was a permanent battle, adding that "fundamentalism must be eradicated in all its forms".

Here's the cover, so you can see it for yourself:

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Student Loan Securitization

(Kenneth Anderson)

I would be interested if anyone could point me in the direction of the documentation for a student loan securitization, online so that I can work with it on a blog or posted for classroom use.  It's strange — I study and teach securitization, but though I routinely work and have my students work through various mortgage or automobile or credit card securitizations, I just realized that I've never actually looked at a student loan securitization.

For all the time I've spent on credit derivatives from the subprime crisis, I find I don't know, for example, what derivatives are issued from a student loan securitization.  I don't even know, for example, if there was ever a CDO market built out of student loan securitizations.  In what ways, if any, are they leveraged up through CDO-type instruments? How does the student debt secondary market differ from mortgages or credit cards or automobiles, etc., in terms of kinds of securities, guarantees, etc.? How would the popping of this bubble differ from residential mortgages or other securitized assets?

More broadly, I am interested in learning about literature that explains the nuts and bolts of the student loan secondary markets — legal structures, documentation, and a description of the securities in this market.  I read the Economist's description this week of the US student loan primary products, and was amazed at how little I knew about them.  And how many kinds there were.  (Comments are open on this post. Please stay with the specific issue of the nuts and bolts of the student loan primary and second market, particularly from a lawyer's financing perspective.)

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"Taliban Toyota" Slander Verdict: $2.5 Million in Compensatory Damages, $5 Million in Punitives

(Eugene Volokh)

From the Press-Register (Alabama):

A jury awarded $7.5 million in damages to the Iranian-born owner of Eastern Shore Toyota on Monday evening after his competitor called his business "Taliban Toyota" and accused him of being a terrorist.

Shawn Esfahani, owner of the mega-dealership on Interstate 10, sued Bob Tyler Toyota in Pensacola and its sales manager for slander.... Esfahani fled from Iran in 1980, when he was 16, after the Islamic revolution.... He became a U.S. citizen and opened Eastern Shore Toyota in December 2007 after years of working in car sales....

According to the lawsuit, ... [a Tyler Toyota manager told one pair of customers] that Esfahani was "from the Middle East, and he is helping fund the insurgents there and is also laundering money for them," the lawsuit says.

Another salesman told customers that "I can't believe you are buying from that terrorist. He is from Iraq, and he is funneling money back to his family and other terrorists. I have a brother over there and what you're doing is helping kill my brother," according to the lawsuit.

The story is in the news because of its particular fact pattern, but the legal issue is quite simple: Falsely accusing someone of being a terrorist, or a funder of terrorists, without any basis for believing this, is slander (or libel, depending on the medium use), and can lead to damages. It's possible that the damages award will be reduced by the court, or by an appellate court, depending on how much strong plaintiff's evidence was of actual and likely lost business. But the underlying finding of liability thus seems quite right to me, assuming the facts about what was said by Tyler salespeople are as the jury found them to be.

Thanks to Opher Banarie for the pointer.

Colbert on OWS

(David Bernstein)

This is VERY funny. Hat tip to my colleague Chris Newman.

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