Law – Page 20 – a sibilant intake of breath

Designated whistleblowers on corporate boards

In my continuing campaign to come up with specific policy ideas for the ‘Occupy’ movement people, I had another idea: designated whistleblowers on corporate boards of directors.

Basically, they would be people who would need to attend all board meetings and who would have a specific obligation to immediately report any activity that is either illegal or a possible threat to the financial system as a whole.

They could be company insiders who are specifically charged with this role, with rewards for doing it well and penalties for doing it badly. Alternatively, they could be civil servants who are knowledgeable about the firm’s line of work.

Arguably, this would just lead to nefarious activities being orchestrated in venues other than board meetings. Even if some of that happens, it could still be useful. At the very least, it would obligate nefarious board members intent on breaking the law to arrange ways to trick the designated whistleblower, which would interfere with some kinds of bad behaviour. Also, having a designated whistleblower constantly present would be a reminder to others that you are allowed to point out unethical behaviour when it is being practiced by your employer.

COP 17 – Durban

Right now, the seventeenth Conference of the Parties for the United Nations Framework Convention on Climate Change is happening in Durban, South Africa.

Expectations are low.

The first commitment period of the Kyoto Protocol ends in 2012. States that were outside Kyoto, like the United States, seem unlikely to commit to a new treaty. Those inside the treaty but with no reduction targets for greenhouse pollution, like China, seem unlikely to accept targets. Those who have simply chosen to ignore their targets, like Canada, will probably continue on that course. The states that have made real efforts under Kyoto are dispirited by the failure of the rest of the world to build on their example.

The fact that we are at the seventeenth annual conference and have not yet gotten on top of the problem is worrisome. It is as though the world’s scientists have told us that we are all on a train heading for the edge of a cliff. After all this time, we are nowhere near stopping the train. We haven’t even begun to slow down. Indeed, through behaviours like shale gas fracking and oil sands exploitation, we are investing billions of dollars in ways to make the train go faster.

Mandatory minimums and the crime bill

Depressingly, it looks like this new crime legislation will become law in Canada – bringing with it the certainty of substantial new prison costs and little in the way of likely benefits.

One aspect that seems especially objectionable is mandatory minimum sentences. I think it makes a lot of sense for a judge who knows the law and the circumstances of a case to decide what punishment is fitting. Binding the hands of a judge by forbidding sentences of less than a set amount seems like a policy can that only produce injustice. Surely, there are cases where a literal interpretation of the law would apply to someone, but where it would be unjust to punish the guilty party severely. Letting judges keep their discretion is an appropriate reflection of the complexity of the world. I also question whether the supposed problem of excessively lenient sentencing – the basis for establishing minimums – actually exists.

I also think it is counterproductive and unjust to tighten the laws on illegal drugs. Most of the harm done by drugs arises precisely because they are illegal. It would be far better to legalize, regulate, and provide treatment. That is especially true of exceptionally benign drugs like marijuana – which is probably less damaging to the people who use it than most prescription antidepressants. Besides, it is up to properly informed individuals to decide what they want to put into their bodies – not a moralizing state that has bought into the morally bankrupt and ineffective ‘War on Drugs’ mentality.

Finally, I strongly object to the lack of personal security for inmates in prison. Even criminals deserve to have their human rights protected by the state.

‘Occupy’ protests being shut down

Various ‘Occupy’ protests around North America are being shut down on the orders of city governments, and apparently by means of police driving everyone out in the middle of the night and arresting those who remain. Regardless of the politics of the protestors, this is objectionable. While it is fair enough for cities to try to maintain safe conditions in the encampments, it doesn’t seem necessary to use such heavy-handed tactics to do so. They could correct potential fire hazards one at a time, clean the parks in segments without evicting everyone, and so on. The current approach seems unnecessarily violent and not respectful of the right of the protestors to speak and assemble – rights that trump superficial concerns like grass getting trampled.

An incoherent movement

While I object to the manner of these evictions, I continue to see limited value in the ‘Occupy’ protests themselves. There are definitely reasons to be concerned about things like the regulation of the financial sector and social justice issues generally. The way in which those in extreme poverty are treated by our society is deeply objectionable. At the same time, I think it is fair to say that the ‘Occupy’ movement lacks coherence and political savvy. While the particular democratic approach being employed seems to be gratifying for participants, it prevents the movement from articulating clear demands that can penetrate into the political system or even into the wider public discussion in a discrete way.

I also think the protestors have an inflated sense about their level of public support. They claim to represent 99% of the population, but it seems clear that 99% of the population does not want what they want – at least in terms of radical redistribution of income, or the wholesale modification of the corporate capitalist system that predominates in North America today. Most people are reasonably happy with the status quo, which is why the ‘Occupy’ movement is marginalized and confined to a few parks.

Part of the reason for that inflated sense of popularity probably comes from the ease with which the media can be captivated by the sort of stories the ‘Occupy’ movement produces: clashes between protestors and police, heated arguments within municipal politics, colourful signs and soundbites, and pundits arguing energetically. ‘Occupy’ has been all over the news, despite how there doesn’t seem to be a great deal of intellectual substance behind it.

The political situation

The political situation in North America is certainly discouraging for those who favour redistribution of wealth (a group that includes many traditionally identified as part of the political ‘left’). In Canada, the Liberal Party have been in disarray for years. It has performed poorly in successive elections and lacks an inspiring candidate for leadership or a clear sense of how to restore itself as a plausible government. The right is united and the left is a mess, which is the major reason why right-leaning governments have endured and strengthened in recent years.

In the United States, a left-leaning president has become quite unpopular, largely as a result of ongoing economic problems that are basically an accident as far as he is concerned. He inherited a big mess and has been fixated on trying to sort it out, fully aware that his re-election prospects depend more on that than on anything else. His efforts to produce growth and reduce unemployment have not been terribly successful (though you can argue that things would have been far worse without them) and he has sacrificed most of his other priorities to achieve what little he has on the economy. (Health is the only other area where he has devoted substantial effort, and it remains to be seen whether that will be picked apart.)

The state of the right-leaning party in the United States might be the most depressing thing about North American politics. The leadership candidates are mostly clowns, and the one who is most credible (Romney) has been driven to say some awfully discouraging things by his more populist rivals. It is deeply worrisome to see how little American Republicans care about empirical evidence and science, and frightening to think what policies would come out of a new Republican administration, regardless of which specific candidate leads it.

‘Occupy’ in context

The political left is a mess, so the prospects for more redistribution through the ordinary political system are poor. That may explain the effort to sidestep politics as usual through encampments and attempts to engage with the population directly.

And yet, I don’t think the general population is being convinced by the arguments the occupiers are making. They recognize that there are important problems being identified, but ‘Occupy’ doesn’t seem capable of managing and sustaining itself as a movement, much less of being the source for major political or economic changes in society as a whole. Their criticisms are more convincing than their proposed solutions, insofar as a clear set of proposals can even be discerned.

Eventually, some combination of official pressure, bad weather, and sheer exhaustion will probably lead to the end of the encampments. It is not clear to me that they will have any legacy worth pointing to. They demonstrate that people are unhappy with the state of politics and the economic order of society, but they do not seem like the start of an effective movement to alter either of those things.

For those who want to reduce economic inequality in society – a project that I do not fully endorse personally – I think the task that needs to be undertaken is the rebuilding of the left within conventional politics. The Liberals the the NDP need to be brought together in Canada, and they need to craft a set of policies that can appeal to a majority of the population. The same is true in the United States, in that the Democrats need to find their way after the disappointments of Obama.

Redistribution versus decarbonization

What worries me most is that the most necessary political project is not one that really has any popular support to speak of. I am talking about the preservation of the habitability of the planet. It is a task that is essential to the welfare of future generations, but which primarily requires sacrifice from the generation that is making decisions now. It may be that when you rank all the human beings who will ever live, including those in the past and those yet to be born, virtually everyone alive today is part of the 1% who are the wealthiest and most privileged.

George Monbiot captures this well, in saying: “[Decarbonization] is a campaign not for abundance but for austerity. It is a campaign not for more freedom but for less. Strangest of all, it is a campaign not just against other people, but against ourselves.”

The way I see it, extreme poverty and the treatment of mentally ill are major moral failings in North American society which ought to be prioritized within the political system. The simple redistribution of income from the wealthy to the poor and/or the middle class is a less important project, and one that is more morally questionable. The decarbonization of the global economy, by contrast, is a critically important project of enormous moral importance. It is more important than preventing future banking crises, and certainly more important than reducing the gap between those who travel by private jet and those who travel by Greyhound. Preventing future banking crises may be a precondition for decarbonization – since economic turmoil sucks the air out of politics and effectively forbids politicians from working on anything else – but that is an instrumental rather than a fundamental argument for increasing financial stability. Decarbonization also cannot survive as exclusively a movement of the left. It must become post-partisan. As such, the linkages between the movement to fight climate change and the ‘Occupy’ movement may be counterproductive in the long run.

Ultimately, I think our generation will be judged on how quickly we move beyond fossil fuels and how effectively we develop and deploy zero-carbon energy options. Decarbonization is the means by which we can reduce the terrifying risks associated with climate change, and zero carbon energy will be the basis for whatever level of prosperity is actually sustainable for the indefinite future of human life.

Bad economic news from Europe

The latest news about the sovereign debt crisis Europe is far from encouraging:

I have been examining and re-examining the situation, trying to find the potential happy ending. It isn’t there. The euro zone is in a death spiral. Markets are abandoning the periphery, including Italy, which is the world’s eighth largest economy and third largest bond market. This is triggering margin calls and leading banks to pull credit from the European market. This, in turn, is damaging the European economy, which is already being squeezed by the austerity programmes adopted in every large euro-zone economy. A weakening economy will damage revenues, undermining efforts at fiscal consolidation, further driving away investors and potentially triggering more austerity. The cycle will continue until something breaks. Eventually, one economy or another will face a true bank run and severe capital flight and will be forced to adopt capital controls. At that point, it will effectively be out of the euro area. What happens next isn’t clear, but it’s unlikely to be pretty.

It is depressing that politicians around the world have put so much effort (and money) into trying to stabilize the global economy all through the complex aftermath of the subprime crisis, and that they have not managed to do so yet. Certainly, Europe’s problems have additional causes, over and above those linked to the previous credit crunch. These include the domestic politics of countries like Greece, as well as the political and monetary design of the European Union and the Euro.

It’s impossible to predict exactly what will happen, but I very much hope the European Union is able to keep together. While there are many practical challenges associated with the project of European integration, it seems like a very positive undertaking from a human perspective. The European Union embodies the recognition that nation-states are too small to deal with the world’s problems and they need to find ambitious and effective ways of working together. That is especially true now, when economic factors threaten to undermine the whole enterprise.

Previously: Sovereign debt crises in the EU

Crime and pollution

The way in which many political conservatives are obsessed with crime but unconcerned about environmental degradation strikes me as strange and internally inconsistent. It seems to me that pollution and crime are generally objectionable for the same reasons, and that the justification for the state making effort to reduce both is similar as well.

The two types of crime that are most relevant here are those that involve financial harm and those involving physical harm to a person. Burglary is an example of the first sort, while assault is an example of the second. When someone commits a burglary or assault, they are choosing to assert their will on an innocent victim, who suffers either in terms of lost goods or in terms of personal injury or death. The state recognizes this assertion as unfair and something to be avoided, and creates and enforces criminal sanctions as a mechanism for discouraging these behaviours. We see situations in which groups of criminals have complex organizations that produce large revenues through crime as exceptionally objectionable, and exceptionally worthy of intervention by the state.

When a company or an individual chooses to emit toxic substances into the air or the water – or when they choose to dangerously alter the climate – they are imposing the same sort of harm on the general public that the burglar or the assailant does. The acid rain resulting from the operation of a coal-fired power plant could cause economic harm, such as when it kills fish or trees. Pollution also causes personal injury and death.

So how can many conservatives call for ‘cracking down’ on crime, while simultaneously criticizing environmental regulations and promising to scale them back for the benefit of business? The most plausible explanation seems to be an unwillingness of inability to look beyond the most immediate consequences of an action. When a man in a mask stabs another man and takes his wallet, it is clear what has taken place. The full consequences are less clear when a mine or factory seems to be producing useful products, generating profits, and producing employment – while simultaneously hurting or killing people through the production of toxic by-products or contribution to dangerous climate change.

From a more psychological perspective, perhaps the difference in intention is given undue weight by those who do not see crime and environmental damage as morally comparable. Perhaps criminals bear more moral responsibility because they recognize that their behaviours inescapably involve undeserved harm imposed on others. Of course, the same is true of educated polluters. It is no longer credible to claim that dumping mercury into the water or carbon dioxide into the air doesn’t harm people, or that people who choose to carry out these economic processes do not choose to produce these outcomes.

Perhaps the difference in viewpoint is logically connected to the way in which the recognition of interdependence undermines libertarianism. If you are determined to believe that people have an absolute right to undertake certain activities – such as driving in cars, flying in planes, or raising large numbers of pigs in industrial factory farming circumstances – then you must either deny the reality that these activities harm other people or implicitly argue that the people doing the harming have a right that takes precedence over the right that by-standers have to avoid being harmed.

Obviously, I don’t think either of these arguments are very convincing, which brings me back to my initial point. It doesn’t make much sense to get all hot and bothered about crime and to manifest that concern with tough new laws and longer sentences while simultaneously ignoring the harm that pollution causes to people and pressing for less restrictive regulations on polluting activities. If we respect the right of people not be be harmed by criminals, we should also respect their right not to be harmed by polluters.

Supreme Court supportive of InSite

The Supreme Court of Canada’s unanimous decision to support Vancouver’s safe injection site is very encouraging, particularly in the present political context. Overall, the direction of Canada’s policy toward illegal drugs is depressing and frustrating. We are choosing the emulate the country with the worst drug policy in the developed world – the United States. We are pursuing a hopeless policy of prohibition, while trying to shut down options with a better chance of success, such as those that seek to reduce the harm associated with addiction.

Politicians often choose to cater to the irrational fears and biases of the general population. Judges are a bit freer to consider the ethics and evidence that bear upon a situation. That seems to be what the Supreme Court has done in this case:

During its eight years of operation, Insite has been proven to save lives with no discernible negative impact on the public safety and health objectives of Canada. The effect of denying the services of Insite to the population it serves and the correlative increase in the risk of death and disease to injection drug users is grossly disproportionate to any benefit that Canada might derive from presenting a uniform stance on the possession of narcotics.

Hopefully, this ruling will prompt a broader rethink of how Canada deals with drugs that are currently prohibited.

Stockholm’s Dialogue Police

This seems quite interesting:

Protests in Europe against Israel’s invasion of Gaza in 2009 quickly turned violent—but not in Sweden. A special unit in Stockholm, known as the Dialogue Police, is credited with this success. “They have legitimacy in the eyes of the community,” says Clifford Stott, an expert in crowd behaviour at the University of Liverpool, “because they facilitate peaceful protest, they don’t carry guns and they can’t arrest people.”

Has anyone read anything more about this organization?

Who respects fancy degrees?

Apparently, attending a top-tier law school is more useful if you want to become a professor at a top-tier school than if you want to work for a top-tier firm. Quite plausibly, academics are impressed by people who have attended institutions they themselves respect, while law firms may be more focused on a person’s actual performance than the name at the top of their diploma.

I wonder if something like that is true about academia generally: that a doctorate from Harvard is more impressive to the hiring boards of universities than to the governance boards of major non- and inter-governmental organizations, charities, think tanks, governments, etc.

Previously:

The value of a doctorate

On recession and the value of graduate school

Rating the raters

Nate Silver of FiveThirtyEight has an interesting post about sovereign public debt default ratings from Standard & Poor’s. He argues that their ratings from five years ago did not reflect the risks that arose with the financial crisis.

Despite their potentially misleading character, the financial system relies on such ratings to be a proxy for probability of default. A bondholder with a good rating should be less likely to default than one with a poor rating, and a highly rated security should be a safe investment, If the ratings produced by rating agencies are not a good proxy for risk, it may be a mistake to continue to give them such an important role within the financial system and financial regulation.

Of course, that raises the question of what to use as a superior indicator for risk.