Afternoon roundup

More bits as I clear through the tabs. 

• Kevin Rudd's view on south Pacific security.
• 20,000 hard refusals on the 2023 census, up from 6000 in 2018.
• Andrew Heaton talks with Zach Weinersmith about space settlements.
• General Practitioners really ought to be allowed to prescribe for ADD/ADHD. 
• TVNZ in financial trouble, but still doesn't offer a subscription-version of its streaming offering for those who can't abide the ads. 
• The demographics of Parliament
• Climate Commission recognising potential for carbon sequestration through reinjection in geothermal wells. Excellent. 
• The Gods of the Copybook Headings always slouch up to explain it once more. They've been explaining it in education system results. Good that we're starting to recognise it. 
• If there's a right to be protected from the effects of climate change...
• Infrastructure Commission doesn't mince words on Auckland light rail. 

Process cost

I wonder how much this termination and associated litigation cost a Nova Scotia firm, and how much it would be likely to cost here in New Zealand. From the National Post:

N.S. arbitrator says employer was right to fire man for masturbating in bathroom — but only because it mortified co-workers

The employee and Unifor, his union, tried various unsuccessful arguments in the man's defence, including that he had a disability of sex addiction.

A company is justified in firing a unionized employee for masturbating in a bathroom stall at work, a labour arbitrator in Nova Scotia has ruled.

The arbitrator concluded that the employer, an aerospace firm operating hangars at the Halifax airport, had just cause to terminate the employee because his colleagues could hear what he was doing, and it caused “embarrassment and distress” in the workplace. The employee had also been warned about his behaviour two years earlier.

The employee and Unifor, his union, tried various unsuccessful arguments in their grievance, including that he had a disability of sex addiction. They also argued he had not been properly warned because managers were too embarrassed to directly tell him what the complaints were about and instead spoke in euphemisms about “unusual noises.”

For privacy reasons the employee is not named in the ruling, which came down last week and is publicly posted in an online legal database.

It appears to be the first Canadian labour case on the subject. “Neither (the company) nor the union’s representative had been able to find any case dealing with masturbation in the workplace,” the ruling says.

Arbitrator Gus Richardson was asked to decide whether the act of loudly masturbating in a stall justified discipline and termination, and whether a bathroom stall is a sufficiently private place.

You'd think that doing that in the washroom at work, repeatedly and loudly, and after warning, would be grounds for summary dismissal.

The case is funny, but the whole process had to have cost the firm a bundle in legal representation and hassles.

Let's stick with the funny though:

“I do not accept the grievor’s testimony that he made no sounds while performing this activity,” Richardson wrote. “Obviously if that were true no one would have known that he was doing it. But people did know. They could only have known about it because they could hear it.”

Two technicians had approached their union shop steward with complaints, but the steward “didn’t want to entertain this issue.” Instead the technicians went to management, who met with the employee but avoided directly mentioning the issue. A manager told the employee there were complaints about noises in the bathroom, such as “breathing heavily, making erratic movements and moaning,” and said management was concerned for the employee’s well-being. They told him that if he had a serious medical issue, he should alert human resources.

...

But two years after that meeting, complaints about the employee’s behaviour reached a boiling point again, with one employee complaining to human resources that the masturbation had become “more frequent and brazen.” The company conducted an investigation, and the employee was eventually fired.

Richardson considered evidence that the employee has a disability in the form of a sex addiction that should mitigate the punishment. He accepted evidence from a therapist on sex addiction despite protests from the company that the therapist’s education was from an online university that was not accredited by any national psychological association.
“In short, even if there was a condition that could be called a ‘sex addiction’ — and I was not persuaded on the evidence that there was — and even if that was what the grievor suffered from — and again I was not persuaded that was the case — there was nothing to establish that it was disabling in any way,” he concluded.

“I am accordingly persuaded that the employer had just cause not only to discipline the grievor, but to terminate his employment. The grievance is dismissed.”

Emphasis added. You'd hope in cases like this that the employer's costs could be awarded against the union.

In any case, the arbitrator's decision seems entirely correct. I would hope that a similar case in New Zealand wouldn't even make it this far, but if it did, I hope the ruling would be similar.

Suppressed

Today's Dom Post editorial on name suppression makes a lot of sense.

The murder of Grace Millane is a tragedy.

As much as a number of commentators and one justice minister like to paint it thus, the apparent flouting of a suppression order that has revealed the identity of her alleged killer is not.

Frustrating? Yes. A challenge to our slow-moving justice system? Maybe. But certainly no tragedy.

...

Many will struggle to remember both by the time of the  trial, probably at least 12 months away. Some may even have forgotten by the time the 26-year-old alleged killer makes his next appearance, when suppression is likely to be dropped.

It's worth remembering, too, that the murder of tourists in this country, and associated overseas interest, is still rare. Suppression is observed in the great majority of cases that make their way through our courts.

Those relaxed about the impact of such indiscretions on justice also have evidence to back their ambivalence.

Law expert Warren Young and others researched such influences on juries in 2001, on behalf of the Law Commission.

They concluded that "publicity both before and during the trial currently has little, if any, effect on jurors".

So there is every reason to believe that, despite the level of interest in this case, justice will be served.

Another Law Commission report, 2009's Suppressing Names and Evidence, suggested the issuing of orders to force internet providers to remove information in breach of suppression orders.

But if the internet is a new frontier, then social media is the wild, wild west: once the horse has bolted, it's next to impossible to bring it under control. Even after a person is named, officially, people may be able to track their footprints through Facebook, Google and other sites.

So the challenge is significant, perhaps even insurmountable.

One that our justice system may have to live with, but one we are confident it will survive.

Not only does the editorial make sense, it also links through to the cited work. Many kudos.

Law and regulation always has to be able to respond to large cost shifts in the underlying environment. Suppression orders were pretty easy in the 80s. Anyone who might report on the trial would know that the order was in place. The number of media outlets was limited. And when you needed to get a permission note from Reserve Bank to get the foreign currency to subscribe to a foreign newspaper or magazine that might show up a few weeks after publication - risks that way were pretty trivial.

All of that would lean toward relatively liberal use of suppression orders. If the judge thought that there was at least some benefit in it, enforcement costs weren't much worth worrying about. Enforcement was easy. So the orders could be used in a broader range of cases.

Susie Ferguson's interview this morning with Bar Association's Jonathan Eaton QC had the Bar Association wanting strong enforcement of the existing rules without regard to the tech change that's happened. Susie's questions were great. But Eaton seemed to be expecting the impossible. Google's said that they were never notified about the order; Eaton imagined a world in which Google would somehow back-check, in every jurisdiction in the world, for each and every court case ever as they came up and ongoing in case the situation changed, whether there were a suppression order in place so they could make take the appropriate measures. That seems ...nuts.

Maybe there's some tech way around it, where courts would put suppression orders up into a central repository that were machine readable and Google (and others) could have a running check on that list.

Australia currently has a suppression order out on the verdict in the trial of an Australian high-level Catholic official (he's guilty).  New Zealand media's reported broadly on it; I even got a push notification on it from the Washington Post. There'll always be a way for Australians to read that stuff. And are newspaper apps supposed to run a GPS check on where the phone's owner currently is located before running a push notification? It's just dumb to expect it. It would be completely unreasonable to expect Google's Blogger to be able to tell what the trial is at the start of this paragraph and block it for Australian readers too. And given that mess, it is an absolute nonsense that Australian media has to censor the verdict. Some folks just aren't living in the real world.

Some bottom lines then:

• Tech change means the costs of implementing a suppression order in high profile cases are very high. Courts should then be more reluctant to issue them than they were in a prior era when those costs were lower.
• If they want these things to have half a chance of working, they need to figure out the tech of getting a repository of decisions rather than expecting every platform to be watching every court case for every change in whether a suppression order is in place or not. And that's something that should be set through international cooperation so there's one repository for the things using a common standard rather than a pile of them. 
• And even if the order doesn't work, it's not much of a worry given LC's work on whether jurors are prejudiced by it. That's good, because it is impossible for an order to really work unless it is enforced globally. VPNs exist. And even if platforms like Twitter or Facebook tried to geoblock particular key words, there are a billion ways around it. China has an army of internet censors trying to keep up with the ways that social media users develop euphemisms for things they're not supposed to say.

Creating externalities

If the obese are less productive, they'll be paid less by their employers or, ultimately, fired. Consequently, externalities from obesity running through employment and productivity should not be particularly large, or at least no more worrisome than any other employee-level behaviour that affects on-the-job productivity: laziness, conscientiousness, pleasantness and so on.

Well, except if the law goes and makes it a problem. Here's Cullen Law's discussion of obesity and employment.

New Zealand law imposes similar [to the previously discussed Australian case - hit the link] obligations on employers under the good faith requirements of the Employment Relations Act which requires employers to be “active and constructive” and “responsive and communicative”. Additionally, employers must consult employees before a decision likely to have an adverse effect on the continuation of their employment is made.

In 2014 the New Zealand Employment Court case of Dunn v Waitemata District Health Board discussed the extent of employers’ obligations when dealing with an employee who is medically unfit for work. The Court stated that an employer is not required to keep a job open indefinitely where an employee is suffering from a prolonged illness. Much depends on the circumstances, including the employer's needs and what can and cannot reasonably be accommodated, and the anticipated timeframe for any return. A fair process must be followed. In the Dunn case, the dismissal was also held to be justifiable.

Alternatively it is possible that in a case similar to Parahi’s, that the law of frustration would apply. Frustration occurs when there is an unforeseen change of circumstances, through no fault of the parties, which means that the performance of an agreement will be either impossible or something radically different from that which was contracted for. Such cases are not considered dismissals but rather a termination by operation of law. The usual circumstances of frustration of employment relationships include sickness or injury.

Although the chances of being fired for obesity are very minimal and limited only to where it would impinge directly on your ability to fulfil your job, it is an interesting problem that has only recently been brought to the fore. Obesity has historically been a non-issue but as the 2015 New Zealand Health Survey found that 31% of adults in our country are obese, it is bound to be a developing area of employment law. I am sure we all, as New Zealanders, will watch with interest whilst trying to avoid being in the 31% of people at risk.

Doesn't seem a big issue thus far. But if it becomes difficult to dismiss people for not being able to do their job where obesity is to blame, then the combination of a bad law and obesity would make for externalisation of cost. And it'll be tallied as a cost of obesity rather than as a cost of stupid laws.

Email disclaimers: awesomeness edition

I love the confidentiality notice that Auckland University's Paul Myburgh attaches to the footer of his emails; I reproduce it in full below [he says it's not original to him; I can't find it online].

CONFIDENTIALITY NOTICE: No confidentiality notice here. No warnings about the terrible things that I wish would happen to you if you were to take advantage of my typing something inadvertently and sending it to you and then wishing I hadn’t, and then the cold, icy trickle of fear and shame down the back of my neck as I try to turn back time and suck the email out of the ether. No, none of that. No attempts to impose order on this fundamentally chaotic universe by using law (threats of sanctions, injunctions, or confidentiality notices) to fix the cracks in my own uselessness or your own naughtiness. And yet here we sit: me typing this nonsense and you, perhaps the bigger fool, reading it. Still. Here we are. You are a little like one of those people, me included, who sit in the cinema until the end of the credits just in case there is another scene at the end of the movie. Just a little something. Something to make sense of hanging on just a little longer. Like Beckett said: we wait here without the courage to end it or the strength to go on. So, that’s disturbing isn’t it? You thought this would be uplifting or funny or something, but instead it’s led right to the dark heart of Samuel Beckett’s bleakest moment. Well, let’s have Camus then. For him we are like Sisyphus rolling our rocks painfully uphill forever before they crash back down the hill for us to start all over again. But, just at the moment we reach the top of the hill, and as the weight of the rock is taken from us as it begins its jagged, chaotic descent to the bottom again, we have the joy of that moment of being free of our burdens and walking back down the hill, even though we know that all that awaits us is the rock at the bottom and the knowledge that we have to do this for all eternity. He thought that a life punctuated by those joyous moments really did make it all worthwhile. That’s the skill: finding those moments and relishing them, I suppose. Probably not reading this. Well, I must say how much I have enjoyed this unexpected time that we have spent together. It’s been lovely to talk to you again. Bye-bye.

It's far cooler than Canterbury's boilerplate.

Life imitates Art - Strange Brew edition

The Canadians (and Canuckophiles) among you will recall that Bob & Doug MacKenzie were shamed into giving a 10 year old kid a refund for his ticket to Mutants of 2051 A.D. - the film within the film that didn't live up to audience expectations.

Well, if you can't shame a refund out of a film-maker, maybe you can sue. Here's Mike Masnick:

Sure, we've all noted that various movie trailers may not be representative of the movie, but is that an illegal bait-and-switch? Sarah Deming apparently believes so, and somehow found a lawyer willing to sue over this awful deception (thanks to Will for sending this in). Her specific complaint? She expected the recently released movie Drive to be much more like The Fast and the Furious based on the trailer.

...The lawsuit claimed that the producers and movie theater "promoted the film Drive as very similar to the Fast and Furious, or similar, series of movies." And yet... "Drive bore very little similarity to a chase or race action film... having very little driving in the motion picture." She's arguing that this violates Michigan's consumer protection laws. 

Oh, and to make it even better, she apparently would like to turn the whole thing into a class action lawsuit, so in case you, too, felt ripped off... This whole thing is so ridiculous, you almost wonder if it isn't a bad viral marketing campaign for Drive.

I could see a case for suing the folks who inexplicably rated Strange Brew only 6.5 stars at IMDB. What's wrong with you people? At least Rotten Tomatoes gave it a 70% fresh....

From a damaged city to one destroying itself

Christchurch City Councillor Sue Wells writes:

From the bottom of my heart, I thank you, I thank you, I thank you.

If ever I question my faith in rebuilding our beautiful southern city, I will think of you and this last day and remember why Christchurch matters and why we bother doing what we’re doing.

I spent the day today at our city’s earthquake damaged stadium. Here we are agonising over how to fix the damage nature has done. You’ve spent the same day incinerating shops and homes, looting, trying hard to find new ways to burn down the place real English citizens call home.

We have fallen victim simply to gravity and we will rebuild stronger and better here. You who are striking down your cities are nasty little neanderthalic two bit muppets with too much time on your hands and pathetic hate in your hearts, the waste products of drugs, laziness and chronic dependency. You don’t have it in you to build. You only have it in you to destroy. ...

Here we are trying to rebuild our city, doing it hard, doing it together. You are trying to tear your country down, a country for which you clearly feel nothing but contempt. You don’t even know why you’re doing it. It’s just another excuse to steal. That’s all you know how to do. To lie and cheat and steal from your neighbours. You are an embarrassment to your nation. I have the right to say this because you are part of my heritage and you disgrace me. ...

You have a nasty little lesson coming your way which I believe is going to take a lifetime to learn. It’s that money doesn’t grow on trees, that you get what you work for, and that the community which sustains you in times of trouble isn’t built by burning it down. ...

Here we have the experience of a community being brought together by being brought to its knees. You have the experience of having a bunch of muppets rip your community apart. Give me an earthquake any day. I’d much rather submit to the vagaries of the earth than regret having raised a generation of vipers.

Sue would probably be more optimistic on seeing decent folks' response to the riots: a cleanup army to rival Christchurch's Student Army that shovelled up much of our mess.

Cowen's summary on the economics of riots is good.

Seeing the violence inherent in the system

Our incarceration rituals mask the violence done upon a growing segment of the population. The medicalization of capital punishment - turning it from an explicit act of public retribution to a sanitized procedure that anaesthetizes the process for the audience if not for the victim - is the most explicit form of this transformation. But so too is incarceration as compared to the forms of physical punishment that once were common.

And so Peter Moskos wants to bring back flogging. Not because he wants to beat prisoners but rather because making the punishment a more unpleasant spectacle for the voters who demand harsh sentences for minor offences might make them reduce their demand for punishment. Moskos proposes allowing convicts to choose two lashes per year of incarceration in lieu of incarceration. He writes:

When I started writing In Defense of Flogging, I wasn't yet persuaded as to the book's basic premise. I, too, was opposed to flogging. It is barbaric, retrograde, and ugly. But as I researched, wrote, and thought, I convinced myself of the moral justness of my defense. Still, I dared not utter the four words in professional company until after I earned tenure. Is not publishing a provocatively titled intellectual book what academic freedom is all about?

Certainly In Defense of Flogging is more about the horrors of our prison-industrial complex than an ode to flogging. But I do defend flogging as the best way to jump-start the prison debate and reach beyond the liberal choir. Generally those who wish to lessen the suffering of prisoners get too readily dismissed as bleeding hearts or soft on criminals. All the while, the public's legitimate demand for punishment has created, because we lack alternatives, the biggest prison boom in the history of the world. Prison reformers—the same movement, it should be noted, that brought us prisons in the first place—have preached with barely controlled anger and rational passion about the horrors of incarceration. And to what end? Something needs to change.

Certainly my defense of flogging is more thought experiment than policy proposal. I do not expect to see flogging reinstated any time soon. And deep down, I wouldn't want to see it. And yet, in the course of writing what is, at its core, a quaintly retro abolish-prison book, I've come to see the benefits of wrapping a liberal argument in a conservative facade. If the notion of tying people to a rack and caning them on their behinds à la Singapore disturbs you, if it takes contemplating whipping to wake you up and to see prison for what it is, so be it! The passive moral high ground has gotten us nowhere.

...

So is flogging still too cruel to contemplate? Perhaps it's not as crazy as you thought. And even if you're adamant that flogging is a barbaric, inhumane form of punishment, how can offering criminals the choice of the lash in lieu of incarceration be so bad? If flogging were really worse than prison, nobody would choose it. Of course most people would choose the rattan cane over the prison cell. And that's my point. Faced with the choice between hard time and the lash, the lash is better. What does that say about prison?

The essay engages and provokes throughout. Moskos argues that incarceration replicates one of the harsher historic punishments - banishment.

I'm pulled to agree with Moskos. But I worry. I worry that the best evidence seems to suggest that prison deters crime mainly through incapacitation - criminals cannot commit crimes except against other criminals while behind bars. There's good evidence for deterrent effects through things like California's three strikes legislation, but incapacitation matters a lot. Longer term crime rates could go down with a switch from prisons to flogging if those committing crimes were better able to maintain a connection to the community and if prisons encourage recidivism. But rates would almost have to increase in the short term: those viewing flogging as much cheaper than a jail term would expect a reduction in the effective expected punishment for a criminal act. I'd hope that Moskos's prescription would maintain the use of prisons as preventative detention for the really scary crazy dangerous cases.

A decade ago I would have worried that reducing the price of punishment experienced by the state would increase the total amount of punishment. If it's expensive to keep a prisoner for a year, the state might be reluctant to put marginal offenders in jail. That's not proven much of a constraint, so I worry rather less about that now.

But I do worry that the mob used to enjoy the spectacle of a public hanging.

There’s a fascination about a hanging, or a good flogging, and the first time I saw a man shot from a gun – at Kabul, that was – I couldn’t take my eyes off it. I’ve noticed, too, that the most pious and humanitarian folk always make sure they get a good view, and while they look grim or pitying or shocked they take care to miss none of the best bits.

Bonus points for those who pick the quote without Googling.

I hope men would recoil and think better of a public flogging of a cancer sufferer whose only crime was smoking a weed that stopped his chronic vomiting long enough to let him eat. But an awful lot of people enjoy watching Cops. I worry Moskos might be overly optimistic about the elasticity of public willingness to punish with respect to the unpleasantness of the display. I wonder how many would really be averse to seeing the violence inherent in the system.

Some days, you just can't get rid of a dictator

The New York Times suggests one impediment to getting rid of Qaddafi is that there's no place to which he can flee and consider himself safe from prosecution.

Qaddafi of course should be prosecuted in a first best world. But if we're choosing among second best worlds, the one where he has an exit option and lives on without being punished - and his people are freed - rather likely dominates the one where he doesn't and has to fight on 'till the end.

Wronging Rights says this is wrong as the International Criminal Courts wouldn't have jurisdiction over most of the crimes committed by Qaddafi, including the Lockerbie bombing. I really have no expertise in the nuances of international criminal law applying to dictators, but I would expect that what matters less is the letter of the law and what matters more is Qaddafi's expectation of whether he would be prosecuted. I don't think there's any way that the US can credibly tell Qaddafi that he'll be left alone if only he goes into exile anywhere other than perhaps China or North Korea.

Prosecuting Pinochet didn't help make it easier to convince other dictators to go peacefully.



...and the obvious lesson: if you've got a bomb with a lit fuse, you ought to make sure there's some place you can throw it.

Legal Entrepreneurship

The guys behind this one may be geniuses:

Calling all YouPorn watchers! Two California men, David Pitner and Jared Reagan, have filed a class-action lawsuit over the site’s practice of “history sniffing,” or checking out other porn websites that visitors have been to through exploiting a Javascript security flaw.

I probably have this wrong, but I think US class action would let Pitner and Reagan claim to act on behalf of anybody who is potentially in the class who doesn't opt out - which they could get out of basic web stats data on overall traffic - then settle for legal costs and coupons for members of the class. If this works out for Pitner and Reagan, anybody who's been damaged by YouPorn's actions would have to notify Pitner and Reagan's law firm that they're viewers of pornography who want a coupon (presumably a week's free access to some pay site), while the law firm gets to keep whatever it charges as legal costs.

Ok, hands up you YouPorn viewers who would provide evidence to the law firm that you're a member of the aggrieved class? Anybody? Didn't think so.

The filed suit is here.

Competitive law

I'm a fan of competitive legal systems - having competition in provision of law.

Of course, such competition is already happening. Arbitration has taken away sufficient business from the NZ civil courts that some are now wondering whether the government courts can maintain competence in the area. Writes the National Business Review:

Anthony Grant, of Radcliffe Chambers, was on the ball the other day when he spoke about the flight of potential litigants away from the courts.

Mr Grant reckoned more and more folk were being driven to arbitration, mediation and other initiatives to resolve disputes rather than go to court.

He is quite right. The swing towards “private courts” has been in full swing for some years.

With membership of the Arbitrators and Mediators Institute (AMINZ) now standing at 700, more disputes are being settled through this route because it is cheaper, quicker and binding.

If you don’t want your dispute picked over in a public courtroom or exposed by creepy little newsmen this is the way to go.

While AMINZ president Ann Edge couldn’t give figures on how many disputes went AMINZ’s way, Mrs Edge told Judge Jock a significant increase in membership in the last year indicated a greater use of arbitration, mediation and adjudication.

Leading lights in the “private court” system include Auckland law professor Bill Hodge and former High Court judges Sir Ian Barker, Bob Fisher and Barry Paterson and former Master Tomas Kennedy-Grant.

Anthony Grant was on the button when he noted there was hardly any High Court civil litigation outside Auckland. Some High Courts go for weeks without any civil cases.

At a recent Bar Association conference one judge was heard to wonder if the system was in a “death spiral.”

Lawyers also want judges to deal with cases within their designated specialist area. Some judges want a broader range of work.

But as Judge Jock has long campaigned, the courts do not exist for the convenience of judges – nor, for that matter, do they exist for the convenience and purses of lawyers.

Courts are for the maintenance of a credible system of civil justice, as Mr Grant rightly agreed.

But wait there’s more.

In his latest utterance, Mr Grant said he was aware of at least one enterprise that was so mistrustful of the senior courts it would not do business in New Zealand, unless the parties it contracted with agreed that all disputes would be litigated offshore.

He also reckoned other enterprises were not willing to do any business in New Zealand because of their lack of confidence in the courts.

And as a result of competition:

Chief High Court judge Justice Helen Winkelmann is so concerned she’s got together with Justices Geoff Venning and Forrie Miller to figure out how the High Court can be made a more satisfactory forum for dispute resolution.

Now, if only we could do it with the criminal law too....

Biology isn't destiny, but it affects your saving throws

James Fallon, UC Irvine neuroscientist, found he had the genetic predisposition for violent behaviour combined with ominous PET scan results:

Fallon says nobody in his family has real problems with those behaviors. But he wanted to be sure. Conveniently, he had everything he needed: Previously, he had persuaded 10 of his close relatives to submit to a PET brain scan and give a blood sample as part of a project to see whether his family had a risk for developing Alzheimer's disease.

After learning his violent family history, he examined the images and compared them with the brains of psychopaths. His wife's scan was normal. His mother: normal. His siblings: normal. His children: normal.

"And I took a look at my own PET scan and saw something disturbing that I did not talk about," he says.

What he didn't want to reveal was that his orbital cortex looks inactive.

"If you look at the PET scan, I look just like one of those killers."

...

Fallon calls up another slide on his computer. It has a list of family members' names, and next to them, the results of the genotyping. Everyone in his family has the low-aggression variant of the MAO-A gene, except for one person.

"You see that? I'm 100 percent. I have the pattern, the risky pattern," he says, then pauses. "In a sense, I'm a born killer."

...

Jim Fallon says he had a terrific childhood; he was doted on by his parents and had loving relationships with his brothers and sisters and entire extended family. Significantly, he says this journey through his brain has changed the way he thinks about nature and nurture. He once believed that genes and brain function could determine everything about us. But now he thinks his childhood may have made all the difference.

"We'll never know, but the way these patterns are looking in general population, had I been abused, we might not be sitting here today," he says.

As for the psychopaths he studies, Fallon feels some compassion for these people who, he says, got "a bad roll of the dice."

Discover comments here; Geeks are Sexy here.

I tend to think of these sorts of things in D&D terms. Fallon made his saving throw against a bad childhood, which meant he had a helpful adjustment to his save versus MAO-A, which he also made. Had he failed that throw, he would have had a strong penalty on willpower checks. If you know you have the propensity, you get an extra "self awareness" check that lets you evaluate whether your course of action really makes sense.

It will be interesting to see how this work plays out in court decisions over the next few decades. We can reasonably model folks with particular gene variants as having higher costs of avoiding illegal behaviour: their supply of illegal behaviour is more inelastic. So it will be more costly to deter them from engaging in any particular act. Recall Friedman's argument in Law's Order:

Net damage = damage to victim - gain to criminal.

For the marginal offence, the one that will be deterred if we raise the punishment just a little more,

Gain to criminal = expected punishment

hence

Net damage = damage to victim - expected punishment.

For the optimal punishment,

Cost of deterring one more offense = Net damage = damage to victim - expected punishment.

Rearranging gives us

Expected punishment = damage to victim - cost of deterring one more offense,

or, in the more compact notation of mathematics,

(P) = D - MC

Suppose we have two groups of individuals sorted by genes: the first whose supply of criminal activity is relatively elastic, the second whose supply is relatively inelastic (warrior gene or other predispositions). A fixed penalty across both groups won't be efficient: it's cheap to deter the former and very expensive to deter the latter and so we'll be overpunishing some of the latter and underpunishing some of the former relative to an efficiency norm. If penalty schedules varied by genotype, we'd have harsher penalties for folks without the genetic predisposition to crime as their supply of criminal activity is elastic and lighter penalties for folks with the genetic predisposition. Yes, it takes a stronger penalty to deter the inelastic; but, because it's more expensive to deter folks with the higher crime genotype, we should spend less on deterring them, not more.

This of course leaves to one side the potential benefits of incapacitation, which could tilt things towards longer punishments for folks whose genetic predisposition makes it likely that they'd re-offend.

But, I rather expect that the political debate will be framed more around (US) liberals arguing for treatment programmes rather than jail for folks with genetic predispositions to crime (regardless of any evidence of effectiveness) and (US) conservatives arguing for harsher punishments for criminal monsters (regardless of whether the incapacitation benefits outweigh the higher deterrence costs).

Check also parts two and three of the NPR series. Part 3 suggests juries are finding the genetic evidence to be exculpatory rather than incriminating: murder turns to manslaughter.

Marriage prohibitions

No Right Turn argues for the adoption of his marriage equality bill, which would have New Zealand follow Iceland in allowing not just civil union but also gay marriage. My first preference is of course to get the state entirely out of the business of sanctifying unions, but if it's going to be in that business, I'm with NRT.

In his proposed bill, though, I found a surprising bit: Schedule 2, Forbidden Marriages. But it follows entirely from the current legislation. Here's the full current list of forbidden marriages:

1. A man may not marry his
(1) Grandmother:
(2) Grandfather's wife:
(3) Wife's grandmother:
(4) Father's sister:
(5) Mother's sister:
(6) Mother:
(7) Stepmother:
(8) Wife's mother:
(9) Daughter:
(10) Wife's daughter:
(11) Sons' wife:
(12) Sister:
(13) Son's daughter:
(14) Daughter's daughter
(15) Son's son's wife:
(16) Daughter's son's wife:
(17) Wife's son's daughter:
(18) Wife's daughter's daughter:
(19) Brother's daughter:
(20) Sister's daughter.

2 A woman may not marry her
(1) Grandfather:
(2) Grandmother's husband:
(3) Husband's grandfather:
(4) Father's brother:
(5) Mother's brother:
(6) Father:
(7) Stepfather:
(8) Husband's father:
(9) Son:
(10) Husband's son:
(11) Daughter's husband:
(12) Brother:
(13) Son's son:
(14) Daughter's son:
(15) Son's daughter's husband:
(16) Daughter's daughter's husband:
(17) Husband's son's son:
(18) Husband's daughter's son:
(19) Brother's son:
(20) Sister's son.

There's some clarification later on noting that wherever husband or wife is used, the prohibition extends also to civil union partners.

Now, some of these prohibitions will be in place because of heightened risk of foetal abnormalities when parents are close relations. But, we don't forbid marriage of those who are both carriers of the gene for other abnormalities: otherwise, we'd require carriers of the sickle-cell gene to check whether their partner were also a carrier. Moreover, none of the genetic arguments would continue to hold for same-sex unions.

And, a whole lot of the forbidden marriages seem entirely odd: you're forbidden from marrying your wife's mother. Now, I don't find that a binding constraint [nor do I now or have I ever found any of these to be binding constraints]. But it still seems really odd.

The best argument for some of these prohibitions would be the threat of undue power: a sicko raising a child to be his future wife. But the regs do seem rather overbroad for that. You're a single adult, your rich grandfather marries a nice young lady before dying a year later. You're forbidden from marrying her: she was your grandfather's wife.

I can imagine an argument that a bright line rule is efficient in that relatively few legitimate unions (by legitimate, I mean consenting adults) would be prevented while the costs of checking for undue power may be high; but surely an alternate rule of the form "forbidden if either party is under the age of 21" would achieve the same purpose. Is there any sense to the list of prohibitions beyond "some of these could be yucky"?

Shouldn't NRT be going a bit further in his recommended changes?

Professional juries?

Today's Dominion Post helps build the argument for professional jurors over our current conscription system:

The Court of Appeal has talked of jurors consulting a ouija board during a trial and leaving deliberations to have sex.

Another juror who left the jury room screaming that they would not go back was grabbed and drawn back into the room, according to three judges.

The unusual legal discussion came up yesterday after the court was told that a juror had complained of being bullied while deciding the verdict against Auckland prostitute Dionne Liza Neale, who stabbed her some-time partner to death.

And we'd expect otherwise when jury duty pays next to nothing, is compulsory unless you have a good excuse, and ability to come up with a good excuse is g-loaded?

Kiwiblog pithily notes:

The sex breaks for jurors is quite novel. Does the Ministry of Justice supply the sex also, or do jurors have to find their own?

The use of the ouija board was the fault of the Judge with his instructions. He told the jury not to discuss the case with any living person. So obviously they concluded seeking guidance from dead people was fine.

And physically restraining a screaming juror who wants to leave is obviously just modelled on the Catholic method of selecting a Pope.

So there’s really nothing to worry about at all.

New Zealand legal bleg

Late last year, the University started attaching a disclaimer, copied below, to every outgoing email sent from a University account to a non-University account. I've not noticed it on email from any other university in New Zealand, and I can't recall ever having seen it on an academic email from outside of New Zealand. I have seen similar things attached to emails from some civil servants from various countries and on emails from some corporates.

I hate the email disclaimers. If you have an email exchange with somebody else who's stuck with a disclaimer, and it's a quick back and forth, the disclaimers take on an ever-increasing proportion of the sent mail (and shouldn't we be conserving electrons for our grandchildren to use?).

The questions: Has any company or agency in New Zealand ever gotten out of a legal mess by pointing out the existence of the disclaimer? Anywhere else? To what realistic legal risk is the University exposed in the absence of such a disclaimer? Does the law currently hold that any email sent from any random University employee can reasonably be held as constituting the official views of the University? That any employer, as an ISP for its employees, can be held liable if an email has a virus attached? Does the disclaimer's prohibition on dissemination by unintended recipients place any legal and enforceable obligation on them? If so, why can't I also demand that anyone reading an email from me owes me a fee of $1 for having read the email?

Here's the disclaimer:

All emails sent from the University of Canterbury may be confidential and subject to legal privilege. If you are not an intended recipient, you may not use, disseminate, distribute or reproduce such email, any attachments, or any part thereof. If you have received a message in error please notify the sender immediately and erase all copies of the message and any attachments. Any views expressed in any message are those of the individual sender and may not necessarily reflect the views of the University of Canterbury.

The University of Canterbury does not guarantee that any email or any attachments are free from computer viruses or other conditions which may damage or interfere with recipient data, hardware or software. The recipient relies on its own procedures and assumes all risk of use and of opening any attachments.

The second sentence says that, if I'm not the intended recipient of the email, I cannot do anything with the email. The third sentence says that I should notify the sender. But the second sentence says that I can't use the email. To reply to the email requires that I use the email, at least to manually transcribe the email address. All very perilous.

Disclaimer: Nothing in this blog posting should be read as bringing the University's reputation into disrepute. It is purely an academic question about the legal status of email disclaimers in New Zealand.