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Notes -
New executive order just dropped.
This seems, on first glance, wildly better by my libertarian sensibilities than anything I ever expected out of the Trump administration. I am slightly in shock, which is not unusual following an EO, but this time it is a good shock, which is unusual.
So a couple of things
wrt strict liability, there is a whole 60 page lawcomic arch about it.
I am mostly on board with Nathan there. Strict liability for regulatory offenses seems bad, and relying on luck / selective enforcement / prosecutorial discretion to keep people who collect a few feathers out of jail seems bad.
My main disagreement with that arch is DUI. For one thing, the offense is not hidden in some law about fishery regulations that nobody has read, you get told about it when you train for your driving license. For another, when driving a car we actually expect people to pay close attention to stay within the regulations which they were trained on. "Yes, I should have stopped on that left-yields-right intersection, but you see, I just assumed that there was no car coming from the right and did not look, so I clearly lack mens rea" or "Officer, my speedometer is broken. I thought I was within the speed limit" will not fly, then why should "I know that DUI is a crime, and I know that I had a few drinks, but I was under the impression that I was slightly under the BAC limit"?
A similar objection could be made to the argument against statutory rape. Everyone knows that people presenting as young adults come in two flavors, "jailbait" and "legal". Anyone who has sex with such a person without verifying their category is taking a calculated risk. There might be other arguments against that law, but the fact that the person committing the offense could not possibly have known rings hollow to me.
I think the theoretically proper way to do this is to make driving laws the "terms of service" for road use. Ordinary contracts can impose all sorts of conditions without mens rea, but punishments would be limited to monetary and losing your license.
That said, I dont think strict liability is really a problem, and its more so just bad- and overregulation in general. I mean, the feathers example doesnt turn on strict liability at all - ignorance of the law is no excuse in either case, and she clearly did intentionally take possession of those feathers. Its just that a ban on possession irrespective of provenance is appropriate to uranium, not bird feathers.
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Yeah, that comic seems like a solid enough statement of the problem that it is going to join the ranks of "documents I point at to explain a problem".
Are either DUI or statutory rape regulatory offenses, or am I misreading the executive order and it's actually targeted at all strict liability crimes?
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Partially: I'm opposed to strict liability crimes, in principle, but business regulations are the application for which they make the most sense, in that 1) if you're doing something for a commercial purpose, there's a rationale for holding you to a hire standard 2) perverse incentives + plausible deniability of mens rea = bad time.
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You know, in my casual reading of history, legal reforms of this sort usually go down as "Best thing since sliced bread". They rarely stick, and a few generations later the law has recomplicated itself to a point where it's just a mechanism of abuse and corruption. But for 20-100 years upright industrious people can breath a sigh of relief, content that some petty tyrant can't conjure up some obscure bureaucratic incantation to seize all their wealth and throw them in a rape cage.
I'm of the opinion that most countries, most of the time, are just coasting off a good run of 20-50 years for 100-200 years at a time. You get one good run, and the momentum and institutions and values created carry a civilization for decades.
Even when you have a multi-century run like the Roman Republic or the 20th century United States where the line goes up and to the right for a long time, there are a lot of crises that we barely remember, and a lot of mediocre leaders mixed in with the studs. You see a jump from a generation of great leaders, and then a long dwindling, until another great generation jumps up.
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I mean it's not exactly the Napoleonic Code Civil just yet. But given how incomprehensible and vague US law has become, it's high time for this kind of jubilee.
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Damn, Trump actually did something good. Here's hoping this doesn't get bogged down by the courts.
OhYou.jpg
To quote Hawkeye/Ronin: "Don't give me hope."
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The classical liberal chamber of my heart grew three sizes today. A move that simultaneously targets overregulation, the illegibility of the administrative state, and strict liability? I hope that the president can find a way to parlay this into lasting change.
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Am I wrong in reading there seems to be reasonable wiggle room built into the EO?
There's built in discretion to maaaybe adopt a different mens rea standard for criminal regulatory offenses. One hopes that the AG only accepts reasonable defenses of different standards of criminal enforcement, but there are probably many reasonable, wiggly exceptions.
"Excuse me, AG Bondi, in 98% of cases the US Forest Service targets Big Criminal Forestry-- these jerks are always finding ways to wiggle out of their illegal logging. If we lose strict liability standards for this enforcement they will claim ignorance every time, in every forest, and likely get away with their illegal logging. By the way, Mrs. Bondi, I have it on record we protested this. We aren't going to eat this story when the time comes."
Apply that to less reasonable, but similarly wiggly enforcement. Requiring a defense of different standards is good, but there's got to be thousands(?*) of these, and a safe political decision would be to defer to the agency if they request a different standard. This EO wasn't blasted out with political vigor. It was dumped on a Friday with barely a peep, so there may not be a big Trump backing to hide behind any unpopular decisions.
I may just be negative. This seems good, generally. If done intelligently, better. There are likely real trade offs in losing flexibility with higher burdens for enforcement, but still seems amenable.
** Many, many thousands. Hundreds of thousands. I forgot we don't actually know-- which is why step one makes agencies plainly list them. Yuge!
Federal regulations are codified, although you are probably right that nobody has explicitly tagged the criminal provisions. DOGE would do this by having an AI parse the CFR, and it would work.
...about as well as Full Self Driving - good enough for you to put your guard down, and then drive you right into a truck it misidentified as a bridge.
Is full self driving more dangerous per mile than having a human drive? Otherwise it might be the case that having an AI parse the CFR would work better across the board than having humans do it, but would fail a few times in highly surprising and attention-grabbing ways.
Waymo has a lot of data, and claims a 60-80% reduction in accidents per mile for self-driving cars. You should take it with a grain of salt, of course, but I think there are people holding them to a decent reporting standard. The real point is that even being 5x safer might not be enough for the public. Same with having an AI parse regulations/laws...
Waymo is an order of magnitude better than Tesla FSD.
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Is AI safer per mile than a slightly above average driver?
It's a legitimate question because it's entirely possible that the vast majority of traffic accidents are caused by unlicensed drunk drivers texting behind the wheel. AI does not do that, and it's kind of hard to see how it even could.
Yeah, it's a good question that I can't answer. I suspect if all humans somehow held to a (not perfect but decent) standard of not driving impaired or distracted, signaling properly, and driving the speed limit or even slower in dangerous conditions ... that would probably decrease accidents by at least 80% too. So maybe self-driving cars are still worse than that.
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I'm pretty sure it is, yes. Provably beating the average human, or even reaching the same level would be a huge milestone that Elon would be shouting from every roof. That ancient rationalist prophecy about truck drivers getting replaced by AI would have already come true.
Eh, it takes time for change to percolate, and truck drivers are sufficiently selected that we can assume they're better drivers than average- the average driver, after all, includes averages from lots of people who insist on driving drunk/high, texting while driving, etc.
Ok, are you actually saying FSD is as safe as a human driver right now, or are you just pointing out reasons why being as safe doesn't necessarily mean wide scale adoption? The former is an interesting conversation, but the latter strikes men a zero stakes one about angels dancing on a pin.
Same question @jkf.
Both. I think the following things can be true- trucking is (understandably) highly regulated and it will take a long time to get major changes like self driving trucks into the mainstream, truckers are above-average drivers and so self-driving software will need to improve massively to replace them, driving a semi truck is a different problem from driving a car and needs beefier software, and liability reasons don’t affect the calculus much because the trucking industry is structured around making insurance companies pay for accidents anyways.
If you add it all up, I think this points to ‘robot Uber’ before it points to ‘self driving trucks’. After all, Uber drivers do not go to school and get a special license and take regular drug tests. These are also regular cars in a far less regulated field.
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I'm saying that the truly "average driver" as reflected in accident statistics does not really exist -- the famous "paradox" about how 80% of people think they are better drivers than average is actually kind of true. There are a certain amount of really bad drivers out there, and quite a lot more who are pretty good -- and they would be scared shitless by driving with a robot who drove like them 80% of the time, but like a drunken maniac the other 20%. (which would be as safe as the "average driver", statistically)
IDK whether FSD is even that safe at the moment -- I don't think it's knowable right now due to lack of adoption and/or public testing. Seems worse to talk about than dancing angels to me, unless somebody wants to bring some stats -- but if you insist, wouldn't people be, like, using this in prod if that were the case?
As I recall Elon promised to FSD from San Francisco to NYC 5+ years ago -- why hasn't he done so by now?
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And yet still insufficient -- the set of human drivers includes a lot of people who are drunk/stoned/distracted/angry at any given moment -- perhaps unsurprisingly, these people cause a lot of accidents, which brings the average performance down substantially.
All you need to do to be much safer than average is not do those things; for me to feel safe sleeping (for example) in a robot car, I'd want a couple std deviations better than human average at least. I imagine trucking companies feel the same way (maybe even less risk tolerant) -- particularly considering that with automated trucks they no longer have a human to throw under the bus when he does something dumb.
All you need to be much safer than average is not live near certain low iq/low conscientiousness/high time preference populations, and yet if you attempt to do that it's the second coming of the apocalypse and the libs cry foul to the moon.
Perhaps we need segregation for the roads, have an AI and Emergency vehicles only lane. Anyone else caught driving there unless they are gunning it for the hospital gets cited/jailed.
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While truckers who get in an at-fault accident will be immediately fired and not hired by any trucking company ever again, ambulance chasers don't go after them because they don't have the money to give a big payday. Trucking lawsuits usually hinge on getting a big insurance payout on the basis of 'you should be liable for hiring/overworking/undermanaging him'. There's no inherent reason a trucking company wouldn't prefer to have an ambulance chaser fighting Tesla's lawyers than State Farm's.
I'm more thinking of assuaging the public's lust for blood when a truck takes out a schoolbus or something -- the driver still wears the criminal penalties for any mistakes in a way that I don't think Tesla will be prepared to accept.
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My fantasy of a lowkey-good Trump administration that is ultimately restrained from doing anything really stupid is back in play. Tariff's are minor, if silly. There's a deal with Iran on the table that simply allows Iran a nuclear program. Ukraine and Russia are apparently on their way to a real meeting in Turkey. The shambolic disassembly of the government and NGO infrastructure has been accomplished in such a chaotic way that it will be difficult to put back together and impossible to restore faith in.
I mean 3.5 years to go…. I would say that things are probably going to be fine, but the real question mark is over the response to any black swan events (very major terror attack, major financial crisis, something weird/new happening with AGI) that could happen.
There's a reason I called it a fantasy.
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I certainly did not have "total formalist victory" on my agenda. What the hell.
This will probably end up fizzling out, but having a well defined list of all crimes is a good principle. It's what the law is supposed to be in the first place. Some seem to think that ambiguity is the necessary font of power. It's not. It's the font of a certain kind of power. One that America, a top 10 laywers per capita country, scarcely needs more of.
Down with foxes, up with the lion.
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Almost all regulatory complexity is the result of closing loopholes lawyers found in earlier, simpler regulation. Congratulations to them, because all the legal specialists in each regulatory area will be poring over any new, ‘simplified’ regulation with the religious fervour of a leading Talmudic scholar to find out exactly what is implicitly allowed until enough bad news comes out that the current regime is restored.
Take two of the regulatory and legal standards that libertarians hate most - the definition of tax evasion and the definition of wire fraud. Detractors are completely correct that both are extremely vague (the former is essentially ‘anything that violates the spirit of paying your fair share of taxes’ and the second is ‘lying about anything that might lead to any gains for yourself through any medium of communication’), but their vagueness is largely organic and downstream from the fact that any stricter standards would make the enforcement of the rules pointless because any intelligent lawyer or other actor could rules-lawyer their way out of it.
Any standard of tax evasion or anti-bribery law or anti-corruption enforcement regime that does not effectively rely on ‘the spirit of the law’ (a thousand year old standard in common law anyway) is doomed to fail. This was the big tax revolution for rich people in the 90s, by the way. All those articles about how ‘despite top tax rates being 70/80/90% in the 1960s, rich people actually didn’t pay very much tax at all’ are true. What changed tax from something nobody smart paid to something most rich people pay at least some of (even if you disagree with how much) was an IRS (and other national tax agencies) that had the power to go after people solely for spirit of the law type violations.
I feel like we need something roughly equivalent to a doctrine of "oh come on". I realize I'm only gesturing vaguely towards a large area of idea-space, but it seems plain at this point that humans will game any system made of rules made of words until it's completely corrupted.
I'm not a believer in the ability to computerize law, so the only way forward seems to be to rely on the restraint of lawyers...
...ok, well that's obviously not going to work. We need to give them some sort of skin in the game. Something to lose when it goes wrong. As such, I propose, roughly, the following system:
Whenever an argument is deemed "clever", either by a judge or a panel that reviews cases, it goes in front of a jury of 10 randomly selected people from the voting public. If less than 50% of them respond with "oh come on", nothing happens. If more than 50% of them say "oh come on", the lawyer making this argument is shot. Less than 70%, they're shot in the foot. Less than 90%, they're shot in the chest. If it's unanimous, they're shot in the head.
I'd be down for that only if the jury can vote to recommend this law to be stricken down, then the govt is forced to put it into a proposition so the public gets to vote the law out. No amendment, no copy paste this article into that article. Removed.
The entire law itself, or are we trying to throw out the precedent that was set with the clever argument? I suppose that's a little more important in common law countries.
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Ah yes, the classic we can't tell them the rules because then we wouldn't be able to jail/ban/disappear the people we don't like. It's bullshit when forum mods/jannies do it and it's bullshit when the law does it (a lot more so) too.
If the intent of the EO is to focus on strict liability regulatory crimes, then it will be a move away from straightforward application of the letter of the law and towards first a prosecutor's and then a jury's impression of your internal mental state at the time you did the actus reus.
For lesser regulatory offences (like speeding), strict liability and modest fines works very well in practice, as long as the rules are sufficiently simple relative to the complexity of the regulated activity that all drivers can know what the speed limit is with ordinary effort.
You still need an actus reus. If you remove “strict liability” you are just adding a new element government must prove; not changing the predicate to something wishy washy.
If there's a high and specific mens rea requirement like "corruptly" or "willfully," you can get away with less specificity in describing the actus reus
Sure of course. But if all they are doing is adding a mens rea requirement, then there is less chance of randomly being jailed.
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I mean if you want arbitrary power and think that's necessary to maintain your society, at least have it say in black and white that's how it goes, don't go about pretending you have limited government. That's the worst of both worlds, you don't even get the benefit of unquestionable authority.
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Does this EO touch either of those? I am pretty sure that crimes of wire fraud already require mens rea, unless someone has invented exciting new forms of emergent autonomous wire fraud recently.
That said, the other regulatory standard that libertarians hate the most is KYC/AML, and those do seem to me like they fall squarely in the crosshairs of this EO. Those are the primary reason I'm tentatively excited/optimistic about this order.
The EO says that
If I were a bank regulator, I would assume absent explicit instructions to the contrary that the entire money laundering/terrorist financing apparatus (at a regulatory level there is no distinction between the two) is out of scope of the EO because related to national security. In any case, the EO doesn't really help as applied to money laundering regulations, because the authorising statute includes a catch-all section (31 USC 5322) making all willful violations of money laundering regulations criminal.
The enforcement/investigation for KYC/AML looks like a 4th amendment violation or at least looks like its structured to do something that would be a 4th amendment violation if the government directly did the thing.
Although SCOTUS has fairly consistently ruled that that type of search (accessing a third party business's records about you without your knowledge or consent) is not a 4th amendment violation, including specifically in the case of bank records with Miller in 1976.
I am neither an American nor a lawyer, but even I can see that 4th amendment doctrine is a hot mess. I don't know what a sensible set of rules looks like from a policy perspective.
Here's one. Make it illegal for the government to store any data about a citizen including meta-data, which is not publicly accessible to that citizen. While you're at it make it illegal for companies to "share" data with the government in a non public way unless it's with subpoenas. (And subpoenas for all data for everyone who ever searched for google.com in google's search box doesn't count)
Also if you've been a really good boy for a set amount of time have the capability to request deletion of said data, (granularly)
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