Archives: 12/2006

Posner’s “Avatar” Talks Law

Seventh Circuit Judge Richard Posner’s “avatar” recently engaged in an online discussion in “Second Life,” a virtual online world.  A transcript is now available at New World Notes here

For those of you who aren’t familiar with Posner, he is perhaps the most influential, and certainly the most prolific, federal judge alive.  For those of you who aren’t familiar with avatars or virtual worlds–and, to be quite honest, I fall in this camp, having only heard about this phenomenon secondhand (in Larry Lessig’s great book, Code and Other Laws of Cyberspace)–see these descriptions

Here’s a taste of the sometimes surreal discussion (“JRP” is Posner, SL stands–I think–for “Second Life”):

Ludwig Swain: Copyright question: would you consider the “cloning” of a copyrighted real world architectural work into SL to be infringement or fair use?

Ben Solomon: No fair. That’s Bill Patry’s question

JRP: I think Patry is in here somewhere– maybe he’s the raccoon.

Basman Kepler: I believe Patry has described his avatar as looking like Swiper the Fox from the Dora cartoons.

JRP:  Great question on cloning a copyrighted real world architectural work into SL– probably infringement, on the theory that the SL counterpart is a derivative work, hence the property of the copyright holder.  These are excellent questions!

Say what you will about Posner, he has a sense of humor.

N.C. Police Shooting Results in Murder Charge — Or Not

Police shootings have come under sharp public scrutiny in recent weeks following incidents in New York and Atlanta that led to the deaths of, respectively, an unarmed bridegroom and an elderly woman. Not only have the involved officers been chastised for their actions, but so have internal affairs investigators whom critics claim are moving too slowly.

That criticism didn’t seem to apply to the investigation of a Dec. 1 police shooting of an allegedly unarmed community college student in Wilmington, N.C. Within two weeks, one of the involved officers was fired and charged with murder.

Or not.

Within 24 hours of the indictment, the foreman of the grand jury told the court that he accidentally checked the wrong box on the indictment form. The murder charge has since been rescinded.

For the latest developments in the N.C. shooting, visit Wilmington attorney Tom Kerner’s civil rights blog.

It is unclear what lesson should be drawn from the N.C. indictment/undo. Does it show that investigations need to move slowly to prevent errors? Does it mean the cops involved really were blameless? Or does it indicate that it’s difficult to hold law enforcement officers accountable for wrongful actions, even if those actions result in the death of one of the citizens that officers are forsworn to serve and protect?

One thing that is clear is that reports of questionable police shootings are becoming far too frequent, as followers of Radley Balko and Tim Lynch’s work already know. Here’s Radley’s excellent report on the militarization of American police units. And here is Cato’s map of botched police raids, which apparently may soon include new pushpins for Atlanta and Wilmington.

Bovard on the Military Commission Act

Jim Bovard has a piece in the American Conservative

Excerpt:

The MCA awarded Bush the power to label anyone on earth an enemy combatant and lock then up in perpetuity, nullifying the habeas corpus provision of the Constitution and “turning back the clock 800 years,” as Sen. Arlen Specter (R-PA) said. While only foreigners can be tried before military tribunals, Americans accused of being enemy combatants can be detained indefinitely without charges and without appeal. Even though the Pentagon has effectively admitted that many of the people detained at Guantanamo were wrongfully seized and held, the MCA presumes that the president of the United States is both omniscient and always fair.

Read the whole thing. 

Thanks to Andrew Sullivan for the pointer.

WTO Membership Promotes a More Open China

Each year the U.S. Trade Representative’s Office issues a report on the status of China’s compliance with its obligations as a member of the World Trade Organization to open its market further to global competition. Mandated by law, the most recent report was issued yesterday, all 109 pages, and it is generating media buzz (check out this New York Times story, for example) for its critical comments about China’s failure to fully comply with its commitments.

The report was certainly well timed to make a spalsh. This week, a high-powered U.S. delegation is heading to China, led by U.S. Treasury Secretary Henry Paulson and including Federal Reserve Chairman Ben Bernanke. The delegation aims to cajole the Chinese to speed up not only trade liberalization but the flexibility of their currency.

This week also marks the 5th anniversary of China’s accession to the WTO as its 143rd member after 15 years of negotiations. As a condition of its entry, the Chinese government agreed to lower tariffs on imports and open its market further to foreign investment and services trade. After five years, the phased implementation process is officially over.

I’ve been reading through the USTR’s report today and I think the news media have been somewhat hyping its negative aspects (surprise, surprise). It does rightly criticize China for not doing enough to stop piracy of intellectual property and to freely allow certain imports and services. But the report also notes impressive progress.

China’s market is significantly more open today than it was even five years ago. For example, before its accession, China did not allow foreign-owned companies to freely import, export, and distribute goods within China. Today those so-called trading rights are widely permitted. China’s tariffs on goods of the greatest importance to U.S. industry have fallen from an average of 25 percent in 1997 to 7 percent. Tariffs on information technology goods from the United States have fallen to zero. Overall U.S. exports to China are up 35 percent so far in 2006 compared to last year and are up 158 percent since 2000.

My Cato colleague Daniel Ikenson goes beyond the USTR report in an op-ed titled “Toasting China: Why Their WTO Membership is a Blessing,” to show that China’s entry into the WTO has been good for the U.S. economy.

All in all, this should be a happy anniversary for everyone who supports freer markets and expanding trade.   

apoCOWlipto

According to a report out last week from the UN Food & Agricultural Organisation, the humble cow (all 1.5 billion of them) is responsible for more greenhouse gas emissions than all the world’s planes, trains, and automobiles combined.

If I have to choose between shutting down coal-powered power plants and cleansing the earth of cows, I’ll give up Mayor McCheese.  But would that mean another jihad - this time, with the Hindus?  Life is never easy …..

The Utilitarian Calculus and Rawls

I appreciate Will’s taking the time to explain his position in even more detail, and he clearly has an exceptional grasp of Rawls’ position and its implications.  I may not be as eloquent at explaining Rawls’ position, but I’m pretty sure I do in fact understand it, and I reject his premises, his arguments, and his conclusions. Also, I’m afraid, in so far as Will’s views reflect Rawls’, I reject his as well. 

Phrases like “equal freedom,” “concern for persons,” and “optimally well-ordered society” have an enticing ring to them, but what do they really mean?   “Will writes:  His [Rawls’] libertarian First Principle of justice–basically Spencer’s principle of equal freedom–embodies this concern for persons.”  He goes on, “An optimally well-ordered society is one whose members positively affirm and are motivated to comply voluntarily with its principles of association. A society that fails to do as well as possible for the least well-off is unlikely to gain the endorsement of the least well-off, who will then have little reason to voluntarily comply with its fundamental rules, and this can have a devastating destabilizing effect on the social order. An unstable society–one out of dynamic equilibrium–is not well-ordered, and therefore cannot be just.”  What a beautiful image –A society of equal freedom where everyone voluntarily agreeing to care for others and work together to optimize a well-ordered society.  Beautiful yes, but totally unrealistic.

I apologize for my crassness, but such utopian images make my skin crawl. If a group of people who shared Rawls’ or Will’s vision went off and started their own community on their own island, that would be fine with me, but that isn’t what Rawls’ has in mind, and I don’t think that is what Will is saying either.   Rawls’ believes he is elucidating the rational underpinnings of our existing social order.  Will agrees with Rawls but believes Rawl’s theory logically leads to a more “libertarian” vision than Rawls himself envisioned.  I respectfully disagree on all counts.

First, dreaming up utopias is fine, but trying to implement them is not.  Can you think of any utopian dreams which when implemented didn’t involve coercing those who didn’t quite get the idea?  I gave up on the notion of utopia building when I realized my personal utopia would have a population of one. 

Second, all appeals to utilitarian principles are essentially flawed because of our inability to agree on, rank, or calculate the goods in question.  What do the worst off need – equal freedom, food, money, shelter, respect?  Who decides?  My feeling is that people can really only decide those things for themselves, not for others.

Third, the goal should not be to create a society that provides for the worst off – it should be to create a society where everyone, the worst off, as well as all others, have the most say possible in determining their own fate in accordance with their own image of the good, not anyone else’s.

Fourth, we don’t want total chaos, but I don’t see “an optimally well-ordered society” as a worthy goal if it means restricting individuals in their various pursuits of happiness.  It is historically evident that homogeneous societies are more stable, more peaceful, function more smoothly, and have lower crime rates than heterogeneous societies, so the choices are 1) create homogeneous societies, or 2) accept and deal as best we can with the strife inherent in allowing diversity in a pluralistic society.  Government attempts to create homogeneous societies have generally been disastrous, but individuals associating with others like them voluntarily seems a viable solution, at least on the small scale.

Finally, I will tip my hand on what I see as a just society, not my ideal society, but one that I believe is realistically possible, and not too bad given the alternatives.  Of the choices listed in the above paragraph, I choose the second.  It would be boring to live in a homogeneous society.  I like the idea of a pluralistic society where people pursue many different visions of happiness, and I am more than willing to deal with the political and social strife inherent in such a system. Actually, I can’t image trading it for any single vision of the good – that is unless I can convince at least a handful of people to invest in my own personal utopia, but so far no luck on that front.

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