Law – Page 37 – a sibilant intake of breath

Cell phones while driving

Over at Slate, William Saletan argues that cell phone use while driving is dangerous enough to warrant a ban. This is because the magnitude of distraction is comparable to an illegal level of intoxication, and because it arises from the mental effort involved in conversation, not the physical handling of a phone. As such, hands-free handsets do not address the problem.

As a cyclist who frequently rides in proximity to cars, it makes sense to me that driving and using a phone should be illegal. Drivers of cars are voluntarily undertaking an activity that poses a serious risk to the lives of others. As such, it is entirely proper to require them to conform to rules that reduce the probabilities of causing injuries and deaths. I am less sure about how the law could be effectively enforced. Technical measures are conceivable, but will always carry the risk of false positives and false negatives. Simply relying on police officers who spot offenders to issue tickets would not be very comprehensive. Can anyone think of a good way by which such a restriction could be enforced?

Privatizing the sea to prevent overfishing

One standard solution to overfishing offered by economists is to essentially privatize the sea by creating individualized transferable quotas (ITQs) that give individuals and firms an incentive to fish at a sustainable level. Where intellectually coherent, the approach can be criticized on a number of grounds.

This Grist post does a good job of doing so. It points out the importance and difficulty of setting an appropriate Total Allowable Catch (TAC), the enormous problem of subsidized overcapacity, as well as bycatch and social justice issues.

ITQs may well be part of a sustainable global fisheries regime, especially where it comes to well-studied coastal fisheries off the shore of a single state with a strong regulatory capacity. When it comes to dealing with the pillage of the open ocean, however, they don’t really stand a chance.

Copyright and authorship

Over at Techdirt, there is a good post about copyright and historical conceptions of authorship. The main argument is that all works are derived from other, prior examples (including the copyright laws states create and enforce) and that the notion of an author as a singular creator of an isolated work is a recent and oftentimes flawed one:

It’s nice to see more and more people recognizing and speaking out about these things. The idea that there is a single “author” or “creator” who deserves to get money any time anyone else builds upon his or her works is something that should be seen as increasingly ridiculous as people recognize that all works are created based on the works of others, and it’s inherently silly to try to charge everyone to pay back each and every one of their influences in creating a new work.

There does seem to be good reason for hoping that our present copyright system proves to be an exception that eventually gets corrected. The aim of the whole thing is to encourage creativity, by letting individuals use the might of the state to enforce exclusive claims to there work. There is nothing libertarian about this concept, unless the only kind of liberty you care about is the right to private property and the existence of a state that will defend that claim against others. There is also a growing doubt about whether the aim of encouraging creativity is succeeding. Does it really benefit the public at large to forbid non-Apple companies from using ‘multitouch’ without paying royalties? The bar above with work deserves exclusivity protection from the state ought to be raised.

Looser collusion laws for oil sands producers

Apparently, Canada’s Competition Bureau is considering loosening rules on collusion to benefit oil sands producers. Specifically, the proposed rule would permit firms to coordinate on megaprojects, without risking criminal charges for anti-competitive behaviour. Firms could do things like plan staggered construction schedules, to try to avoid the large increases in costs that accompanied the run up to $150 a barrel oil last year.

While the chaotic booms and busts of Alberta’s oil patch probably aren’t economically efficient or environmentally benign, it’s not clear that giving firms more scope to coordinate their behaviour is a good solution. Already, the government of Alberta is far too lax in the regulation of oil sands projects. Given how the interests of oil sands producers can conflict fundamentally with those of the population as a whole (especially when long-term environmental damage and cleanup costs are considered) it seems a lot more sensible to improve coordination through government policies intended to enforce the public interests, rather than giving oil giants more leverage through which to seek their own.

Environmental laws and security laws, after passage

There is an interesting difference between the basic pattern that crime and security legislation tend to follow, after passage, when compared with the development of environmental laws. In general, crime and security legislation is too strong at the outset: it exaggerates a particular risk (say, youth violence) and then creates draconian measures intended to counter it. Generally, the measures are less effective than expected and there are virtual always harmful side effects not fully anticipated by the drafters of the law. Often, the courts compel the evolution of such laws into more pragmatic vehicles that strike a better balance between mitigating a problem and creating new ones, such as abuses of authority.

Environmental laws, by contrast, often start out weak and riddled with loopholes. As they operate, people realize that they do have the power to mitigate the target problem, are they are often tightened to that effect. Usually, costs turn out to be lower than the opponents of the law claimed they would be at the outset; after all, opponents of environmental legislation know that scaring politicians with talk of economic destruction and job losses is an effective approach to blocking stricter environmental rules.

A major difference between the two, I think, has to do with the psychology of politicians. Nobody wants to be seen to be ‘soft on crime’ or insufficiently committed to fighting terrorism. In either case, there is a big downside risk if you oppose a law and then the problem it targeted gets worse. Since environmental outcomes are usually less clear (and less closely observed by voters), that is less of a risk when it comes to opposing environmental regulations.

There is also the flawed by widely accepted view that there is a trade off between economic and environmental health. You rarely hear politicians opposing tough crime or security legislation by evoking such a notion of ‘balance.’ While air pollution kills far more people than terrorism, the point is rarely raised in political forums. In order to improve environmental outcomes – and deal with the major threat of climate change – it seems necessary to improve the risk perceptions of both politicians and the public at large, as well as the sophistication of the debate about public policy issues.

WTO rules allow carbon tariffs

Helpfully, the World Trade Organisation (WTO) has made it clear that members can use border tax adjustments to deal with other jurisdictions that lack carbon pricing. For instance, steelmakers that are subject to a domestic carbon tax or cap-and-trade scheme could have their profitability protected from steelmakers in unregulated jurisdictions, through the use of an import tax.

The standard WTO position on environmental rules is that they are fine if applied equally to both domestic and international firms. For instance, you can require that both domestic fishers and those trying to sell imported fish use nets that are designed not to catch sea turtles. What you cannot do is impose the restriction on foreign firms in other WTO countries, but not impose it on domestic firms. Of course, as with all international legal issues, the practicalities of implementation and enforcement are complex.

More discussion of the statement is on the Free Exchange blog.

Hansen arrested, protesting coal

James Hansen, head of NASAs Goddard Institute for Space Studies, was arrested while protesting mountaintop removal coal mining in West Virginia. Hansen has been one of the most prominent scientists giving warning about the seriousness of climate change.

The problem of climate change is certainly serious enough to warrant civil disobedience, as recommended by Al Gore. Hopefully, such actions can help to draw attention to the myriad harms associated with coal mining and use. Increasingly, it makes sense to see coal as a densely packed form of carbon dioxide, already helpfully located underground, rather than a fuel we should be using.

Japan’s lacklustre 2020 target

People are right to say that Japan’s new commitment to cut emissions to 15% below 2005 levels by 2020 is inadequate. It is not in keeping with the ultimate goal of preventing dangerous anthropogenic climate change, largely because it isn’t compatible with a stabilization pathway and the need for per-capita emissions to contract everywhere and converge between developed and developing states. To avoid dangerous climate change, we probably need to stabilize atmospheric concentrations of greenhouse gasses below 450ppm (and possibly lower still). Doing that fairly will require deep cuts from developed states by 2020 – at least in the region of 25-40%.

Like Canada, Japan is failing to meet its domestic commitments under the Kyoto Protocol. Rather than being 6% below 1990 levels, it is 9% above. Canada is doing even worse, with emissions about 30% above where they were in 1990. This shows that even targets built into past international agreements weren’t taken seriously enough to be met. At Copenhagen and beyond, both developed and developing states will need to do better. Hopefully, an agreement will come together with the necessary key elements: a commitment from developing states to emit less than they would under a business-as-usual scenario, serious hard caps for all major developed states, measures to protect forests, financing and technology for global mitigation efforts, etc.

‘Resistance’ versus ‘abstinence’ in responding to climate change

During the course of our extended discussion on the ethics of travel, given climate change, the idea came up that living in a high-carbon society has similar ethical characteristics to living under an unjust regime. For instance, an aggressive totalitarian state that attacks its neighbours. In both cases, people are born into the society without any say in its character. In both cases, people can become aware of the harm their society is causing to others. In both cases, individuals face the question of how to respond to the injustice.

Right now, our society is engaged in harming future generations for our own personal and economic self-interest. We are doing so by emitting greenhouse gases that profoundly threaten the quality of life of future generations. In a way, it is as though we are mining the health, welfare, and prosperity of those who will come after us, so that we can continue to live in the way to which people have become accustomed.

While living in such a society probably creates moral obligations to assist those who are being harmed, and who will be harmed in the future, it does seem like the primary moral impetus is that of resistance. Given that our society operates in a fundamentally unjust way, those of us who have come to understand this have an obligation to change the nature of that society. Obviously, there are a wide variety of possible approaches – everything from working to reduce your personal impact to working to reform government from within to armed insurrection. Similarly, there are a wide variety of personal costs that may be borne by those who choose to act. They might sacrifice more lucrative careers for ones which offer more scope for promoting societal change. They might give up luxuries that they and others once took for granted. They may bear even more acute costs, if they choose to resist in less socially acceptable ways. For instance, those who climb buildings to deploy banners – or who choose to protest peacefully in places where governments have forbidden it – could find themselves facing legal consequences.

Rather than seeing the problem of responding to climate change as an exercise in personal harm reduction, it may make more sense to think about it as an exercise in driving societal reform, through whatever means seem to be effective and ethically acceptable.

Is the above a sensible framework for thinking about climate change? Is it preferable to an ethic that calls upon us primarily to reduce our own emissions? In what ways are the ethical obligations that arise from a ‘resistance’ view different from those that arise from an ‘abstinence’ perspective?

Patent reform idea

The trouble with patents is that they block people out of using the latest technologies and techniques. Sometimes, that means one manufacturer can offer things their competitors cannot. Sometimes, it means that firms can effectively block technologies that would otherwise compete with them. The question, then, is how to encourage innovation without permitting such barriers.

One idea that comes to mind is state support for innovators: invent something useful, and the state gives you a lifelong pension with a value proportionate to the value of the invention. They then distribute it for everyone to use for free. The size of the pension could be based on the number of dollars that get spent implementing your idea, with larger amounts for innovations that people really pour money into using. The state could fund the system with higher taxes on businesses and consumers. Consumers benefit because best practices spread more rapidly, and the market overall benefits because firms are less able to undertake anti-competitive behaviours.

There is, of course, the issue of pre-existing patents. One way to deal with that would be to take the age of the youngest patent holder, calculate a maximum plausible remaining lifespan, and decree that all existing patents will expire at that point, including those held by corporations. There is also the issue of dealing with international patent agreements. Indeed, that and the entrenched interests of firms that hold lots of valuable patents are probably the major forces that would block any such reform. That being said, implementation difficulties aside, it does seem possible that this would be a better system than the current practice of granting a time-limited monopoly on use to patent owners.