Pur Autre Vie

I'm not wrong, I'm just an asshole

Wednesday, October 18, 2017

Nemo Dat

Law can be fun! This post should not be considered legal advice, it is simply an exploration of a interesting topic. Also, it is very high-level, and the results in any particular jurisdiction could be quite different.

"Nemo dat" is (possibly ungrammatical) Latin for "no one can give." It is a legal principle that has been part of Anglo-American law for a long time. In essence, the principle states that you generally can't give greater title to property than you have. I'll give an example and then look at some exceptions.

Let's say I check out a library book, remove any indication that it belongs to the library, and then sell it or trade it to a friend as a used book. The nemo dat principle focuses on my property rights, so let's start there. What I had was not outright ownership of the book, but rather the right to possess and use it for a limited period of time. Under the nemo dat principle, that's the most I could possibly transfer to someone else. So depending on the rules of the library, I could maybe give the book to my friend for the remainder of the check-out period.

What I couldn't do, of course, is give my friend what I purported to: outright ownership of the book. Therefore if the library were able to track the book down, the library could recover it from my friend. (Maybe not until the due date! However, defacing the book would probably have terminated my right to keep it until then.)

This brings us to an important point. Imagine that my friend is innocent. He didn't know the book was stolen, and he paid good money for it. The law is therefore confronted with two innocent parties: the library that owns the book and a good-faith acquirer of the book. The nemo dat principle is simply the decision that in this dispute, the library should win and should get the book back. (Both the library and my friend have a good cause of action against me, and the law will never let me defeat either of them in a lawsuit over the book or the sale price. But quite often, it turns out, the dishonest party has fled the jurisdiction by the time the duplicity has come to light, and the only thing the law can do is allocate the losses between two parties who have done nothing wrong.)

There is a second important point here. Imagine that my friend sells the book to another friend, who sells it to someone else, and so on. Subject to an exception we'll get to shortly, the nemo dat principle still applies. The library can theoretically recover the book from the 20th or 200th or 2,000th buyer. By that time, of course, it would have been virtually impossible for the buyer to research the book's "chain of title," but it doesn't matter. Nemo dat, to the extent it applies, means that not one of those sellers was able to give a purchaser greater title to the book than he had, and so the library still wins. As a result the "chain of title" matters tremendously (although in practice, of course, it is often very difficult to track down stolen property and it can also be difficult to prove that it is the same property that was stolen).

Over time a number of exceptions to the nemo dat principle took root. One important exception is that someone who buys property from a retailer in good faith can take good title to the property even if it was stolen at some point. So if a truckload of radios is stolen and then sold, and one of the radios somehow ends up on the shelf in an electronics store, someone who buys it with no knowledge of the theft gets to keep it, even if the original owner later tracks it down. Again there are two innocent parties, but for a variety of reasons the law now awards the property to the good-faith purchaser.

Of course that's another way of saying that a retail store can give better title than it has. The original owner of the radio could have recovered it from the retailer without compensation, as a straightforward application of the nemo dat principle. But the innocent customer was able to take good, clean title to the radio. By the way, that extends to every subsequent owner of the radio (except maybe someone who, coincidentally, was culpable in the original theft). Now that any defect in title has been scrubbed away, the nemo dat principle allows full ownership of the radio to be given to subsequent purchasers or even gratuitous transferees (people who get the radio as a gift).

Why is this? I don't know exactly. The law wants to protect retail customers, or it wants to encourage open commerce, or something. Bear in mind, in the retail store the radio was sitting there on the shelf for all the world to see. The retailer may be dishonest, but his dishonesty is inherently limited by the nature of his business. Anyone, including the original owner, can walk in and examine the merchandise. And if the original owner does so and sees the stolen property (and can prove it is hers), the retailer is out of luck.

You may be wondering about pawn shops—the answer is that pawn shops must generally submit to extremely intrusive government oversight because they are such an obvious vector for stolen property. I do not know whether they can give clean title, but I suspect they can (that is, I suspect they are eligible for the retailer exception to nemo dat). But they have to provide lists of their goods to the state, which can check stolen goods reports and identify any matching property.

Paper currency is another important exception to nemo dat. In the United States, each dollar bill has its own serial number, and you could theoretically prove that a particular bill was stolen from you. Nevertheless, the only person you can recover the bill from is the thief himself (or maybe his collaborators). Note that I'm not talking about monetary damages—I'm talking about the actual piece of paper money that was stolen from you. Someone can obtain good title to a dollar bill simply by taking possession of it lawfully. Doesn't have to be a retail transaction, doesn't have to be a commercial transaction at all. It's extremely important for money to be trustworthy, for it to be worth its face value, and money changes hands so often that if title could be clouded by the nemo dat principle, it could barely function for its intended purpose.

Similar exceptions have been made for certain financial instruments, including securities. Again, the logic is that "negotiability"—the ability to give good title to something regardless of anything that happened in the past—is justified because it facilitates important commercial activity. One share of IBM stock must be exactly the same as another, so people can transact easily and anonymously. And so the policy decision underlying the "nemo dat" principle—to favor the original owner of property over an innocent acquirer—is flipped, and the original owner is out of luck.

The punchline here—and there is a punchline—will have to wait for my next post.

Thursday, October 12, 2017

Responding to Weinstein

In the wake of the Weinstein story, I have seen two basic proposals for social change. They can be pretty well summed up by these tweets:

I won't pretend to be neutral here—I think Barro has the better side of this argument—but I'll try to present both sides fairly.

Barro's approach might be called "architectural." He wants patterns of social behavior to be designed to make it more difficult for people like Weinstein to harass people. By analogy, you can imagine a city responding to assaults in a city park by installing lights, or even by closing the park at night. It is hard at first to see what could be objectionable about that. You can't imagine a city resident responding, "Oh sure, we could install better lighting, or men could just not be predatory dicks."

[Updated to add: Maybe an even better example is instituting policies like body cams or civilian review boards meant to reduce police brutality. You can't imagine Jeffery opposing those policies on the grounds that police officers should "just not be predatory dicks."]

To understand where Jeffery is coming from, consider this idiotic tweet:
Pence's rules are, if memory serves, that he never eats a meal or drinks alcohol one-on-one with a woman unless his wife is present. What this means, of course, is that the men he works with probably have much better access to him than the women do, and it's hard to imagine this doesn't put women at a disadvantage when it comes to career advancement.

So what I think concerns Jeffery is how the burden of reducing sexual harassment gets allocated. The Upshot (part of the New York Times) ran a good piece on this, noting that men sometimes respond to sexual harassment scandals by reducing their contact with women in the workplace. You can see why this is morally outrageous, since it requires women to pay twice: first by being harassed and assaulted, and second by being cut off from professional advancement. Men should just not be predatory dicks!

Now in fairness to Barro, he specifically cited the New York Times piece and argued that it would be unfortunate for men to respond in such a way. Barro's suggestion is to clear away the vast gray area that currently allows sexual harassment to proliferate in the workplace. He wants to draw bright lines that eliminate ambiguity, which often serves as a hiding place for harassers. He also wants to purge professional spaces of activities that lend themselves to bad behavior, like excessive drinking with coworkers.

And as I indicated earlier, I think that's basically right. Men will try to harass women in any social context, and some will get away with it. But by defining acceptable behavior in such a way that harassers can't make plausible denials or claim ignorance, we can make it harder to harass and easier to punish harassment when it happens. This isn't moral abdication or Gorka-style stupidity, it's a responsible way to address a real problem.

Sunday, October 08, 2017

Ambivalence in an Ambulance Hurtling Toward Annihilation

So, this happened:
(I'm embedding this tweet, rather than the tweets themselves, in case someone decides to delete them. Also, for the record, it appears that Trump is lying about Corker begging for his endorsement.)

My feelings about this are a little complicated. On the one hand, I genuinely think Corker deserves credit for standing up to Trump. Corker is not running for reelection and doesn't have to care about anything anymore, but I'm sure it's still seriously unpleasant to stand up to Trump and incur the wrath of his idiotic supporters. Also, what Corker is saying here seems pitched at the correct level. It's not that Trump is a hypocrite on deficits or a bad person in general. It's specifically that he's a fucking child who can't be trusted for even a few hours without adult supervision. I feel a lot of criticism of Trump failed because it failed to capture the essence of his shittiness. Corker seems to be able to land blows that other pugilists haven't been able to.

On the other hand... what Corker is highlighting has been obvious to everyone since 2015, and Republicans were happy to put the country's nuclear arsenal under the control of this racist man-child and his avaricious, morally bankrupt children. The damage is done! The time to go public with your honest assessment of Trump was as early and as often as possible, to deny him the nomination or, failing that, the presidency. But very few Republicans did so—in fact, the only Republicans holding elected office who criticized Trump in honest terms were the Republicans running against him for the nomination, and most of them ended up endorsing him anyway.

So I guess... very partial credit? The other point here is that when I said "the damage is done," I was exaggerating slightly. The lion's share of the damage has been done. But Trump is being bottled up legislatively, and that's no small thing. Again it's very hard to tell how to allocate the credit. Obviously the Democrats have done a good job staying united against him so far (this hasn't been very difficult since Trump has only proposed massively unpopular legislation... if he had started with infrastructure things might have gone very differently). But I actually do give the Republicans who have stood up to him some credit. Again there's the timing issue. But it sometimes feels as though there is a tacit understanding that Trump gets judicial nominations and he gets to turn the executive branch into a racist hellhole, but that's it. Beyond that, Republicans and Democrats are trying to keep him from having any imprint on this country's laws, and they are succeeding.

That last sentence gives the Republicans too much credit—most of them voted for his shitty health care bills. Also, Republican leaders such as Paul Ryan and Mitch McConnell are allowing Trump's racist rhetoric to spread into their day to day messaging, which belies any notion that they are personally disgusted by Trumpism.

Anyway it's all a quandary, but if we don't all die in a nuclear holocaust, and if Trump signs no major legislation while he is President, then in 2021 we can hopefully pick up and start rebuilding the country. And Collins, Murkowski, McCain, and maybe Rubio and Corker, will deserve some modicum of credit for growing spines—too late, but not without some positive impact on the country.

Wednesday, October 04, 2017

The Pareto President

A quick observation. A sign of a weak leader is that he or she cannot withstand opposition even from relatively weak factions. A weak leader is therefore forced to seek changes that practically no one opposes. In principle this can be done, but it takes skill and luck. A strong leader is not constrained in the same way.

Of course whether this is good or bad depends on the merits of the legislation. But to use an analogy from economics, a strong leader can push through legislation that is "Kaldor-Hicks efficient," meaning that the people who gain from the change could theoretically compensate the people who lose. A weak leader, by contrast, is constrained to settle for "Pareto efficient" legislation, meaning legislation that produces no losers (or, equivalently, legislation that actually provides for some kind of compensation for the losers).

(Note that a strong leader could also push through legislation that isn't efficient at all, costing the losers more than it benefits the winners. This would be an argument for inserting lots of "veto points" so that just about everyone has to be bought off in order for legislation to pass. The counterargument is that veto points are themselves subject to severe abuse. It's not an argument I care to address right now.)

Anyway this is what we see with Trump. Every time he proposes something, whatever group is hurt by the proposal kills it. A stronger President could push things through, forming a coalition of the groups that stand to gain and then rallying them to get the bill passed. But Trump is weak. Alternatively, Trump could design legislation that doesn't impose material losses on anyone. But this is difficult even for very smart people, and Trump is stupid.

I'm not making any predictions about the tax cut legislation. Tax cuts should inherently be pretty easy since no one actually cares about the debt. But in general I expect the Trump administration will continue to struggle to get even mildly complicated legislation through Congress.

Monday, October 02, 2017

Senators in Hospitals, Democracy in the Balance

When Graham and Cassidy conceded that their bill seeking to repeal the Affordable Care Act didn't have the votes, they were merely acknowledging a reality that had been apparent to most observers since the previous Friday, when John McCain announced that he would not vote for the bill. Susan Collins waited to announce her "no" vote until the CBO had weighed in the following Monday (though not with a full score of the bill, which would have taken weeks), and the next day Graham and Cassidy acknowledged defeat. (People had speculated that the bill might not be pulled until the voting was done in the Alabama primary for the Republican nomination to replace Jeff Sessions in the Senate, but in fact the bill was pulled in the middle of the day on that Tuesday, September 26.)

So it was startling when President Trump suggested that the latest effort had failed only because a key senator who supported the bill was hospitalized. Trump said this several times, forcing the senator in question, Thad Cochran, to clarify that he was recuperating from medical treatment but was not hospitalized.

Putting aside any quibble about Cochran's health status, the simple fact is that his vote would have made no difference to the bill's fate. With three Republican senators announcing that they would not support the bill (and with the Democrats unwavering in their opposition), the bill was dead whether or not Cochran voted. Trump's lie was an insult to the intelligence of his audience.

Now for all I know Trump is simply very incurious, and someone mollified him by telling him that Cochran's illness was a factor in the bill's defeat. In fact that seems like the likeliest explanation to me. Of course he also might have made a conscious decision to lie. Either way, it shows a shocking disregard for the truth. Either Trump is happy to say false things, or he's happy to run a White House in which he is routinely told false things and then repeats them. I actually don't know which would be worse.

But this brings me to my depressing conclusion, which is that all of those "Trump supporters are standing by him" stories actually do (or at least could) serve a purpose. What I would like to see is an interview in which a Trump supporter is shown irrefutable evidence that Trump lies constantly. My suspicion is that it would make no difference whatsoever. If anything, it would present another occasion to rail against the media. One of Trump's big innovations is that he doesn't bother to lie convincingly, or at least, he doesn't bother to try to convince anyone who is remotely intelligent or well-informed. And what has thrown so many of us for a loop is that we expected this behavior to come at a very high price. Maybe it has, maybe his low approval numbers really do reflect a kind of national revulsion.

But maybe not. Maybe we are entering a time in U.S. politics when adherence to the truth is only occasionally helpful, and tribal affiliations dominate everything. At least, that's the impression I get when I see something like the "hospitalized senator" lie, which I doubt 5% of voters could identify as such.

Wednesday, September 13, 2017

Absolving Nader

Just a quick observation about this useful tweet:
As Sargent notes, causality is a concept that trips up even very intelligent people. I remember being very puzzled when I first ran across the following line of argumentation. The argument goes: "Democrats like to blame Gore's loss on Nader. But Gore didn't lose Florida because of Nader. He lost because he didn't campaign well enough in Florida, and therefore didn't get enough votes." There are various ways of "proving" that Gore ran a bad campaign, from the fact that he lost his home state of Tennessee to the fact that many self-identified Democrats in Florida voted for Bush.

The implicit theory of causality here is that there is exactly one cause for any phenomenon. Once you've identified that cause, all other possible causes have been logically excluded. So to prove that Nader was blameless for Gore's loss, all you have to do is identify a non-Nader reason that Gore lost.

(As a quick aside... I seem to remember that Matt Yglesias got into an argument with a fairly prominent leftist over this issue on Twitter. But either he deleted the tweets or Twitter's search functionality is poor. You'll just have to trust me that seemingly intelligent people make exactly the argument I've described, almost word for word. Oh... it might have been Matt Bruenig. He's deleted his old tweets. I can't say for sure who it was, but I distinctly remember there being more tweets from Yglesias on this issue that I cannot now find.)

Now in fairness there is a germ of a coherent idea here, which is that everything has infinitely many causes, and it is often useful to make judgments about the relative salience of them. And at that point there really is a certain amount of "rivalry," so that attributing additional salience to one cause tends to reduce it for others (though of course it is more complicated than that). But the thing to recognize is that if you take this approach, then you have to engage with the actual considerations that go into determinations of salience. There is no easy logical proof along the lines I outlined above. If you want to absolve Nader, you have to explain why we shouldn't attach blame to a person whose actions were an obvious and predictable but-for cause of the election of George W. Bush. Simply identifying other causes is not the category of argument that you need to make.

Anyway just an observation. I wish people weren't so unreasonable about things like this.

Wednesday, September 06, 2017

Anonymous Sources and the Media Landscape

This post by Benjamin Wittes, explaining how to interpret anonymous sourcing in news stories, is very helpful, and it reminds me of something I've long believed. The gap between an "ordinary" consumer of the news and an educated reader is vast, and in between are countless layers of sophistication and pseudo-sophistication. In many ways we are living in different worlds and have no way to understand each other.

And there's really no way around this. We can do better and worse, but the vast majority of people simply aren't equipped to navigate the media without guidance. This leads to various pathologies, and it's sort of pick your poison. Once upon a time, people got their information from network news and local newspapers, and it was fairly trustworthy but also slanted in certain ways, and laughably inaccurate in some areas. Now the filters have largely been removed, and people get news from everywhere. It is not nearly as trustworthy overall, but its ideological slant has been scrambled, and certain truths are easier to find now.

A key point is that the effect has not been the same across different levels of education and intelligence. For smart, reasonable people, it's now very easy to get information from dozens of excellent sources. Twitter, especially, gives people remarkable insight into how journalism is done, if you are paying attention. I wouldn't say recent developments are unambiguously good for smart, educated people, but it's close.

For people at the other end of the spectrum, everything is hugely dependent on what they happen to see and whom they happen to trust. Someone who simply listens to NPR while driving to and from work every day is going to do okay. Someone who tunes into Fox News or (God forbid) gets news from conservative Facebook or Twitter sources is going to be inundated with endless tendentious crap.

And that's pretty much the whole game. Just as alcohol producers make the vast majority of their revenue from people who drink too much alcohol, ideological news organizations make their biggest inroads among people who lack the tools to assess what they are reading/seeing. Probably the vast majority of news consumers can't even be bothered to think about journalistic sourcing at all, much less with the degree of sophistication that Wittes suggests. The propaganda on Fox News, which seems laughably inept to anyone who knows what is going on, is in fact terrifyingly effective. The point has never been to reel in smart people. They are not swing voters.

So as with so many things, it's increasingly a two-track world, with the "elites" going one way and the masses going another. And the distances are vast.