Just last week the West Memphis Three were released, finally bringing an end to a well-known miscarriage of justice, nearly two decades too late.

In 1994 18 year old Damien Echols, 17 year old Jessie Misskelley and 16 year old Jason Baldwin were convicted of the murder of three eight year old boys who had been found murdered in the Robin Hood Hills area in West Memphis, Arkansas some months earlier. The case got a lot of publicity because of an HBO documentary about it, Paradise Lost, and a number of celebrities taking up the case of the dubiously convicted boys. The attention only served to highlight the shoddy investigative practices of the police and the practically nonexistent evidence connecting them with the murder.

The prosecution's case mostly relied on the testimony of one of the boys, Jessie Miskelley, who claimed that he had witnessed the murders, though he hadn't participated. But his confession had a number of problems. For one, he claimed the whole killing occurred at the creek bed where the bodies were eventually discovered, despite that physical evidence at the scene, indicated that the boys were probably killed, or at least assaulted, elsewhere and then taken to the scene where they were dumped (there was almost a complete lack of blood at the scene). Secondly, Miskelley also said the boys were tied with brown rope, despite that they were tied with their own shoelaces. Thirdly, Miskelley initially claimed that the boys were killed on the morning of May 5, 1993, when the killing occured, despite that the three victims were still alive at the time, and had to have been killed some time in the evening. Miskelley changed his confession several times before he finally latched on to a time late enough for it to be possible.

The only other evidence the prosecution had was a knife, which they found deposited in a lake near Baldwin's residence, and some fibers found on the suspects' clothes that were at least similar to fibers from the clothes of the victims. However, the knife couldn't be connected with the killing, nor could it be shown to have belonged to any of the boys. And the fibers were similar to a great many common products, and thus could have easily come from any number of sources.

The police struggled to find anyone who would claim that the three boys actually were well acquainted, finally turning up one witnesss, despite that Miskelley really only knew the other two boys through school and wasn't friends with them. Additionally, they found a witness that could put at least one of the boys near the scene of the crime near after the time of the murder. And, to the benefit of the prosecution, some children even stepped forward claiming that the boys had confessed to the killings afterwards. All of these testimonies were riddled with problems and strained credibility, but they were persuasive to a jury eager to convict the boys.

But most of the case relied on the fact that Echols was a devotee of neo-paganism, being interested in the Wicca, and the other boys were at least tangentially connected with such practices. The police had initially believed that the case appeared strongly to indicate satanic ritual killing. The charge that this was part of a Satanic ritual caught on in the religiously conservative West Memphis, especially since this was a time when the moral panic over Satanic Ritual Abuse was still hot concern in some corners of the country. The whole panic over Satanic Ritual Abuse eventually died down as investigators started to realize that probably all reported cases of it were due to urban legend and hearsay or "memories" falsely recovered under hypnosis. In other words, despite that the prosecution even brought in a witness at the trial who claimed to be an expert on Satanic Ritual Abuse, the whole thing was hogwash and the expert was worse than ignorant.

Nonetheless, despite an absence of evidence, the boys were convicted, probably mostly due to their perceived association with satanism (they weren't satanists, but the prosecution went to great lengths to demonstrate this, with evidence such as their tendency to wear black and listen to heavy metal) and neo-paganism.

The case seems similar to other cases of high-profile killings where pressure from the public has led police to follow highly dubious evidence in order to get a conviction, no matter the strength of the evidence, such as in the cases of William Heirens, The Boston Strangler and the Monster of Florence.

Finally, in 2007 DNA evidence from the victims was failed to connect any of the boys with the crime and the case was scheduled to be retried in light of this new evidence. In light of such an upcoming trial, this new deal has been struck. The boys have pleaded to a lesser crime, which will get them released immediately, but doesn't exonerate them. The boys will surely continue to fight for complete exoneration, but at least they can now do so from outside of a jail cell. Though at this point it's hard to see how such a miscarriage of justice can be reversed: the boys have sat in jail for far too long, and the true murderer or murderers may no longer be discoverable.

Just last week the West Memphis Three were released, finally bringing an end to a well-known miscarriage of justice, nearly two decades too late.

In 1994 18 year old Damien Echols, 17 year old Jessie Misskelley and 16 year old Jason Baldwin were convicted of the murder of three eight year old boys who had been found murdered in the Robin Hood Hills area in West Memphis, Arkansas some months earlier. The case got a lot of publicity because of an HBO documentary about it, Paradise Lost, and a number of celebrities taking up the case of the dubiously convicted boys. The attention only served to highlight the shoddy investigative practices of the police and the practically nonexistent evidence connecting them with the murder.

The prosecution's case mostly relied on the testimony of one of the boys, Jessie Miskelley, who claimed that he had witnessed the murders, though he hadn't participated. But his confession had a number of problems. For one, he claimed the whole killing occurred at the creek bed where the bodies were eventually discovered, despite that physical evidence at the scene, indicated that the boys were probably killed, or at least assaulted, elsewhere and then taken to the scene where they were dumped (there was almost a complete lack of blood at the scene). Secondly, Miskelley also said the boys were tied with brown rope, despite that they were tied with their own shoelaces. Thirdly, Miskelley initially claimed that the boys were killed on the morning of May 5, 1993, when the killing occured, despite that the three victims were still alive at the time, and had to have been killed some time in the evening. Miskelley changed his confession several times before he finally latched on to a time late enough for it to be possible.

The only other evidence the prosecution had was a knife, which they found deposited in a lake near Baldwin's residence, and some fibers found on the suspects' clothes that were at least similar to fibers from the clothes of the victims. However, the knife couldn't be connected with the killing, nor could it be shown to have belonged to any of the boys. And the fibers were similar to a great many common products, and thus could have easily come from any number of sources.

The police struggled to find anyone who would claim that the three boys actually were well acquainted, finally turning up one witnesss, despite that Miskelley really only knew the other two boys through school and wasn't friends with them. Additionally, they found a witness that could put at least one of the boys near the scene of the crime near after the time of the murder. And, to the benefit of the prosecution, some children even stepped forward claiming that the boys had confessed to the killings afterwards. All of these testimonies were riddled with problems and strained credibility, but they were persuasive to a jury eager to convict the boys.

But most of the case relied on the fact that Echols was a devotee of neo-paganism, being interested in the Wicca, and the other boys were at least tangentially connected with such practices. The police had initially believed that the case appeared strongly to indicate satanic ritual killing. The charge that this was part of a Satanic ritual caught on in the religiously conservative West Memphis, especially since this was a time when the moral panic over Satanic Ritual Abuse was still hot concern in some corners of the country. The whole panic over Satanic Ritual Abuse eventually died down as investigators started to realize that probably all reported cases of it were due to urban legend and hearsay or "memories" falsely recovered under hypnosis. In other words, despite that the prosecution even brought in a witness at the trial who claimed to be an expert on Satanic Ritual Abuse, the whole thing was hogwash and the expert was worse than ignorant.

Nonetheless, despite an absence of evidence, the boys were convicted, probably mostly due to their perceived association with satanism (they weren't satanists, but the prosecution went to great lengths to demonstrate this, with evidence such as their tendency to wear black and listen to heavy metal) and neo-paganism.

The case seems similar to other cases of high-profile killings where pressure from the public has led police to follow highly dubious evidence in order to get a conviction, no matter the strength of the evidence, such as in the cases of William Heirens, The Boston Strangler and the Monster of Florence.

Finally, in 2007 DNA evidence from the victims was failed to connect any of the boys with the crime and the case was scheduled to be retried in light of this new evidence. In light of such an upcoming trial, this new deal has been struck. The boys have pleaded to a lesser crime, which will get them released immediately, but doesn't exonerate them. The boys will surely continue to fight for complete exoneration, but at least they can now do so from outside of a jail cell. Though at this point it's hard to see how such a miscarriage of justice can be reversed: the boys have sat in jail for far too long, and the true murderer or murderers may no longer be discoverable.

Strategic Pricing

I just finished reading Traffic by Tom Vanderbilt and he has an interesting discussion of free parking. On the one hand there's the idea that more parking encourages more driving (since more people will drive to an area where they have a better chance to find parking), but also, on the flip side, that a shortage of parking is an indicator of underpricing. Especially as I've been recently taking a few trips to Chicago by car, I've noticed that there are some parts of the city that are flush with parking, and others where it's incredibly scarce, and that there's a mix of free parking and pay parking, but all the street parking that costs, costs the same (so far as I saw). Another author (Donald Shoup) had suggested, as a rule of thumb, that parking should be priced such that you're always 85% full. Areas where there are chronic shortages of parking, should have their prices raised, and places with there is excess supply should have prices dropped or parking spaces eliminated. This also suggests that you adjust pricing for time of day, such that it's more expensive during high traffic times (for most places, during business hours on weekdays) and cheaper during low traffic times.

Now, while I was reading about this, I was waiting for him to apply the same idea to highway traffic. Sure enough, he did. This being a book about traffic, it would seem inevitable that he would talk about solutions to congestion and excessive traffic. Just building more roads is not the answer, since it always runs up against the "if you build it, they will come" phenomenon, whereby more people drive and those people drive more if they have less traffic to contend with (meaning new roads will almost always be filled to capacity and beyond). You've got to think of it as if providing free roads to drive on is like subsidizing driving, and providing more roads is subsidizing it more, and if you want more of something, the best way to do it is to subsidize it. Additionally, more roads just exacerbates the problem that most roads are underutilized during times of the day that are not rush hour (especially late at night and early in the morning).

The solution is "congestion pricing." You charge people for using a road during high traffic times, and perhaps charge them even more during really high traffic times. This forces people to make price/value calculations: "Is it worth it to drive now, or can I wait a few hours until it's cheaper?" Some people will decide it's worth it to go during high traffic times, some that it's worth it to go earlier or later, some that it's worth it to use another form of transportation. The ultimate result is that, if the pricing is done well, traffic will be lower and will be more spread out throughout the day.

This type of strategic pricing is used in other industries: airlines charge more for more popular times of day (early morning and late at night are usually the cheapest), more popular days of the week (Tue-Thur is usually the cheapest), more popular times of year (Thanksgiving and Christmas/New Years are super expensive), and charge usually less for early purchasing. But I think it's surprising that many other industries don't do it more. For example, though movie theaters have modest matinee discounts, they don't charge even more for high traffic Friday and Saturday evenings and don't lower prices more to fill up theaters during less popular times; not to mention lowering prices for less popular movies, and raising prices for more popular movies. I'm surprised how concert tickets sell out quickly, when the venues could've sold them for much higher prices, leaving tickets available even for people who buy them last minute and virtually eliminating any secondary market (ticket scalping). It's not a solution for every industry, but it should be used more.

Pricing can be a good way to adjust human behavior, and in fact really helps us make decisions, giving us a tangible prices with tangible numbers that can really help us evaluate whether something's worth it. Free parking genuinely costs money (since that space could be otherwise utilized) just as highways genuinely cost money to build. Additionally, more in demand times and places are genuinely more valuable to people, and thus would demand higher prices. Giving a tangible price to something and forcing them to pay it forces upon them decisions that help further a more efficient allocation of scarce goods.

I just finished reading Traffic by Tom Vanderbilt and he has an interesting discussion of free parking. On the one hand there's the idea that more parking encourages more driving (since more people will drive to an area where they have a better chance to find parking), but also, on the flip side, that a shortage of parking is an indicator of underpricing. Especially as I've been recently taking a few trips to Chicago by car, I've noticed that there are some parts of the city that are flush with parking, and others where it's incredibly scarce, and that there's a mix of free parking and pay parking, but all the street parking that costs, costs the same (so far as I saw). Another author (Donald Shoup) had suggested, as a rule of thumb, that parking should be priced such that you're always 85% full. Areas where there are chronic shortages of parking, should have their prices raised, and places with there is excess supply should have prices dropped or parking spaces eliminated. This also suggests that you adjust pricing for time of day, such that it's more expensive during high traffic times (for most places, during business hours on weekdays) and cheaper during low traffic times.

Now, while I was reading about this, I was waiting for him to apply the same idea to highway traffic. Sure enough, he did. This being a book about traffic, it would seem inevitable that he would talk about solutions to congestion and excessive traffic. Just building more roads is not the answer, since it always runs up against the "if you build it, they will come" phenomenon, whereby more people drive and those people drive more if they have less traffic to contend with (meaning new roads will almost always be filled to capacity and beyond). You've got to think of it as if providing free roads to drive on is like subsidizing driving, and providing more roads is subsidizing it more, and if you want more of something, the best way to do it is to subsidize it. Additionally, more roads just exacerbates the problem that most roads are underutilized during times of the day that are not rush hour (especially late at night and early in the morning).

The solution is "congestion pricing." You charge people for using a road during high traffic times, and perhaps charge them even more during really high traffic times. This forces people to make price/value calculations: "Is it worth it to drive now, or can I wait a few hours until it's cheaper?" Some people will decide it's worth it to go during high traffic times, some that it's worth it to go earlier or later, some that it's worth it to use another form of transportation. The ultimate result is that, if the pricing is done well, traffic will be lower and will be more spread out throughout the day.

This type of strategic pricing is used in other industries: airlines charge more for more popular times of day (early morning and late at night are usually the cheapest), more popular days of the week (Tue-Thur is usually the cheapest), more popular times of year (Thanksgiving and Christmas/New Years are super expensive), and charge usually less for early purchasing. But I think it's surprising that many other industries don't do it more. For example, though movie theaters have modest matinee discounts, they don't charge even more for high traffic Friday and Saturday evenings and don't lower prices more to fill up theaters during less popular times; not to mention lowering prices for less popular movies, and raising prices for more popular movies. I'm surprised how concert tickets sell out quickly, when the venues could've sold them for much higher prices, leaving tickets available even for people who buy them last minute and virtually eliminating any secondary market (ticket scalping). It's not a solution for every industry, but it should be used more.

Pricing can be a good way to adjust human behavior, and in fact really helps us make decisions, giving us a tangible prices with tangible numbers that can really help us evaluate whether something's worth it. Free parking genuinely costs money (since that space could be otherwise utilized) just as highways genuinely cost money to build. Additionally, more in demand times and places are genuinely more valuable to people, and thus would demand higher prices. Giving a tangible price to something and forcing them to pay it forces upon them decisions that help further a more efficient allocation of scarce goods.

Strategic Pricing

Spoilers

Wired points to a new study looking out how much people enjoy books when the ending twists are spoiled and when they're not spoiled and discovers that: "Spoilers Don’t Spoil Anything." Actually, that's not exactly what the study found. The study found that when comparing people's enjoyment of a story with or without a spoiler, on average, people tended to enjoy the spoiled stories more, in some cases significantly more. In a minority of cases, the subjects preferred the story unspoiled. In short, spoilers usually don't really spoil most types of stories, though they do spoil some.

To me this isn't really all that surprising, and I've discussed before the utility of "revealing surprises much earlier to create anticipation." The prototypical example is Romeo & Juliet, where the surprising twist ending is actually revealed in the Prologue. The anticipation of the tragic ending puts a pall over the whole play, giving it a certain ambiance, and as the tragic end approaches, the viewers begin feeling the sadness for the sad ending.

Nonetheless, there are times when a twist ending is best and a writer should try to withhold information. The question is when is a twist ending desirable and when not. Though I can't say I know the answer to this question, I have some thoughts.
1) It's probably worth it to hold out for a twist ending only if it's a really good twist, something really surprising. If the information isn't that earth-shattering, reveal it as soon as it's convenient.
2) If the audience can too easily guess the twist, it's not worth withholding.
3) A good twist should bring insight, not confusion. If things that didn't make sense, suddenly make sense after knowing the twist, then that's good. If things that previously made sense, suddenly don't make sense after knowing the twist, that's bad.

I'm sure there some other good rules of thumb, and there are exceptions to these rule. But they are a good starting point for thinking about when it's worth it to employ a twist ending. Though, most of the time it's probably best to reveal information when it's convenient throughout the course of the story.

Wired points to a new study looking out how much people enjoy books when the ending twists are spoiled and when they're not spoiled and discovers that: "Spoilers Don’t Spoil Anything." Actually, that's not exactly what the study found. The study found that when comparing people's enjoyment of a story with or without a spoiler, on average, people tended to enjoy the spoiled stories more, in some cases significantly more. In a minority of cases, the subjects preferred the story unspoiled. In short, spoilers usually don't really spoil most types of stories, though they do spoil some.

To me this isn't really all that surprising, and I've discussed before the utility of "revealing surprises much earlier to create anticipation." The prototypical example is Romeo & Juliet, where the surprising twist ending is actually revealed in the Prologue. The anticipation of the tragic ending puts a pall over the whole play, giving it a certain ambiance, and as the tragic end approaches, the viewers begin feeling the sadness for the sad ending.

Nonetheless, there are times when a twist ending is best and a writer should try to withhold information. The question is when is a twist ending desirable and when not. Though I can't say I know the answer to this question, I have some thoughts.
1) It's probably worth it to hold out for a twist ending only if it's a really good twist, something really surprising. If the information isn't that earth-shattering, reveal it as soon as it's convenient.
2) If the audience can too easily guess the twist, it's not worth withholding.
3) A good twist should bring insight, not confusion. If things that didn't make sense, suddenly make sense after knowing the twist, then that's good. If things that previously made sense, suddenly don't make sense after knowing the twist, that's bad.

I'm sure there some other good rules of thumb, and there are exceptions to these rule. But they are a good starting point for thinking about when it's worth it to employ a twist ending. Though, most of the time it's probably best to reveal information when it's convenient throughout the course of the story.

Spoilers

Democracy in Degrees

Many governments and NGOs have focused on bringing democracy to developing countries on the belief that democracy is a road to prosperity. I can't say I disagree with the general idea, but such efforts have proven to be largely unsuccessful, I think, because such organizations confuse democracy with elections. "Democracy," of course, just means rule by the people, but it really comes in degrees. The more the people of a state are in control of the actions and destiny of that state, the more democratic it is. Just giving people an election, gives them some degree of democracy, but not necessarily very much, if the person or persons that are elected, use that power to aggrandize themselves or their friends, push through unpopular initiatives or in general abuse their power, that's not very democratic. Though a representative democracy is not the only way to empower a people, we can say that in such a system, when officials are elected to make decisions on behalf of the people, the country is democratic to the degree that such officials are beholden to the interests of the people. Elected officials are human, and they are going to be guided, to a greater or lesser degree, by self-interest, inevitably. When that self-interest leads them to push through unpopular laws and favor well-connected friends or special interests at the expense of the broader public, that wouldn't be described as terribly democratic.

Now, whether the more democratic a country is, the better or rather whether there is some optimal point where making a country more democratic would actually tend to make things worse, is an open question. It certainly can be said, though, that many countries could benefit from being more democratic. Perhaps even ours. If, for example, you have a survey that asks "Does the Federal Government have the consent of the governed" and only 17% say yes, you can imagine that many people are not thinking the government is too democratic.

Many governments and NGOs have focused on bringing democracy to developing countries on the belief that democracy is a road to prosperity. I can't say I disagree with the general idea, but such efforts have proven to be largely unsuccessful, I think, because such organizations confuse democracy with elections. "Democracy," of course, just means rule by the people, but it really comes in degrees. The more the people of a state are in control of the actions and destiny of that state, the more democratic it is. Just giving people an election, gives them some degree of democracy, but not necessarily very much, if the person or persons that are elected, use that power to aggrandize themselves or their friends, push through unpopular initiatives or in general abuse their power, that's not very democratic. Though a representative democracy is not the only way to empower a people, we can say that in such a system, when officials are elected to make decisions on behalf of the people, the country is democratic to the degree that such officials are beholden to the interests of the people. Elected officials are human, and they are going to be guided, to a greater or lesser degree, by self-interest, inevitably. When that self-interest leads them to push through unpopular laws and favor well-connected friends or special interests at the expense of the broader public, that wouldn't be described as terribly democratic.

Now, whether the more democratic a country is, the better or rather whether there is some optimal point where making a country more democratic would actually tend to make things worse, is an open question. It certainly can be said, though, that many countries could benefit from being more democratic. Perhaps even ours. If, for example, you have a survey that asks "Does the Federal Government have the consent of the governed" and only 17% say yes, you can imagine that many people are not thinking the government is too democratic.

Democracy in Degrees

A spoonful of Sugar

A new study in the Journal of Psychoactive drugs from Researchers at the University of California, Santa Cruz shows that the legalization of medical marijuana in California has led to a lot of people seeking marijuana prescriptions for an increasing variety of ailments (via Norml):

[R]elief of pain, spasms, headache, and anxiety, as well as to improve sleep and relaxation were the most common reasons patients cited for using medical marijuana.

...

Compared to earlier studies of medical marijuana patients, these data suggest that the patient population has evolved from mostly HIV/AIDS and cancer patients to a significantly more diverse array. ... This suggests that the patient population is likely to continue evolving as new patients and physicians discover the therapeutic uses of cannabis.

This reminds one of the rise of medical alcohol during prohibition. During the 19th century many doctors had believed that alcohol had a number of medicinal benefits. But as medicine advanced into the early 20th century, skepticism about the benefits of alcohol were on the rise, such that the AMA issued a statement discouraging the use of alcohol as a "therapeutic agent." But nothing like some good old prohibition to make doctors reconsider:

Alcohol was prescribed for a variety of ailments including anemia, high blood pressure, heart disease, typhoid, pneumonia, and tuberculosis. Physicians believed it stimulated digestion, conserved tissue, was helpful for the heart, and increased energy.

Medicinal alcohol grew popular enough such that eventually, "Over a million gallons were consumed per year through freely given prescriptions." Even though medical alcohol was confined to hard liquor, congress held hearings in 1921 considering whether it might be possible to permit medicinal beer.

In the case of both medicinal alcohol and marijuana, the distinction between medical and non-medical drugs is becoming blurred, and the authors of the study note that this is on the rise (via Jacob Sullum):

Prozac and other SSRI-type antidepressants, for example, are often prescribed for patients who do not meet DSM criteria for clinical depression but who simply feel better when taking it. Such "cosmetic psychopharmacology"...is likely to grow as new psychiatric medications come to market. The line between medical and nonmedical drug use has also been blurred by performance enhancing drugs such as steroids, so-called "smart drugs" that combine vitamins with psychoactive ingredients, and herbal remedies like mahuang (ephedra) available in health food stores.

This is a circumstance that may be on the rise, but it's hardly new. Beyond medicinal alcohol we can also consider the case of the vibrator, which was first introduced as a medical device in the late 19th century. Since doctors, during the Victorian period believed that the way to relieve the bogus ailment of "female hysteria" was through orgasm (they thought this hysteria was caused by the buildup of "female semen" which was apparently released during orgasm) this meant that the manual stimulation of a woman's nether region was an established medical treatment. Doctors apparently welcomed the introduction of the first steam-powered vibrator as something much easier than fingering their patients to orgasm. As more affordable models of vibrator were introduced for the consumer market, its popularity rose sharply. We can imagine that a great many women discovered that they quite liked taking their medicine (some medicines don't need a spoonful of sugar to go down; they are the spoonful of sugar) and vigorously applied themselves to treating their hysteria.

The common thread through all of these is a sanction against something that people want to do (be it alcohol consumption, marijuana consumption or masturbation) and a plausible medical reason to skirt that sanction. In such cases the distinction between medical and recreational use becomes unclear and people take advantage of it to do what they enjoy.

A new study in the Journal of Psychoactive drugs from Researchers at the University of California, Santa Cruz shows that the legalization of medical marijuana in California has led to a lot of people seeking marijuana prescriptions for an increasing variety of ailments (via Norml):

[R]elief of pain, spasms, headache, and anxiety, as well as to improve sleep and relaxation were the most common reasons patients cited for using medical marijuana.

...

Compared to earlier studies of medical marijuana patients, these data suggest that the patient population has evolved from mostly HIV/AIDS and cancer patients to a significantly more diverse array. ... This suggests that the patient population is likely to continue evolving as new patients and physicians discover the therapeutic uses of cannabis.

This reminds one of the rise of medical alcohol during prohibition. During the 19th century many doctors had believed that alcohol had a number of medicinal benefits. But as medicine advanced into the early 20th century, skepticism about the benefits of alcohol were on the rise, such that the AMA issued a statement discouraging the use of alcohol as a "therapeutic agent." But nothing like some good old prohibition to make doctors reconsider:

Alcohol was prescribed for a variety of ailments including anemia, high blood pressure, heart disease, typhoid, pneumonia, and tuberculosis. Physicians believed it stimulated digestion, conserved tissue, was helpful for the heart, and increased energy.

Medicinal alcohol grew popular enough such that eventually, "Over a million gallons were consumed per year through freely given prescriptions." Even though medical alcohol was confined to hard liquor, congress held hearings in 1921 considering whether it might be possible to permit medicinal beer.

In the case of both medicinal alcohol and marijuana, the distinction between medical and non-medical drugs is becoming blurred, and the authors of the study note that this is on the rise (via Jacob Sullum):

Prozac and other SSRI-type antidepressants, for example, are often prescribed for patients who do not meet DSM criteria for clinical depression but who simply feel better when taking it. Such "cosmetic psychopharmacology"...is likely to grow as new psychiatric medications come to market. The line between medical and nonmedical drug use has also been blurred by performance enhancing drugs such as steroids, so-called "smart drugs" that combine vitamins with psychoactive ingredients, and herbal remedies like mahuang (ephedra) available in health food stores.

This is a circumstance that may be on the rise, but it's hardly new. Beyond medicinal alcohol we can also consider the case of the vibrator, which was first introduced as a medical device in the late 19th century. Since doctors, during the Victorian period believed that the way to relieve the bogus ailment of "female hysteria" was through orgasm (they thought this hysteria was caused by the buildup of "female semen" which was apparently released during orgasm) this meant that the manual stimulation of a woman's nether region was an established medical treatment. Doctors apparently welcomed the introduction of the first steam-powered vibrator as something much easier than fingering their patients to orgasm. As more affordable models of vibrator were introduced for the consumer market, its popularity rose sharply. We can imagine that a great many women discovered that they quite liked taking their medicine (some medicines don't need a spoonful of sugar to go down; they are the spoonful of sugar) and vigorously applied themselves to treating their hysteria.

The common thread through all of these is a sanction against something that people want to do (be it alcohol consumption, marijuana consumption or masturbation) and a plausible medical reason to skirt that sanction. In such cases the distinction between medical and recreational use becomes unclear and people take advantage of it to do what they enjoy.

A spoonful of Sugar

Black Swan Laws

Wendy McElroy criticizes the newly emerging Caylee laws on the grounds that they're "Black Swan Laws." She defines a "Black Swan Law" as

a law created in response to a highly unrepresentative situation or legal case, which is typically rushed into effect and then used to regulate everyone's daily life.

These Caylee laws are laws that many states are trying to institute that basically require parents to notify authorities, within a certain short amount of time (usually about 24-48 hours) that any child of theirs below a certain age is missing. They also usually requires that if parents discover their child is dead, they notify authorities, again within a short amount of time (usually only a few hours).

The laws are entirely in response to the July 5 verdict of Casey Anthony. After Casey Anthony's daughter Caylee wasn't reported missing until a full month after the child had last been seen, and not even by Casey Anthony herself, but by her mother, Casey Anthony became suspect. Casey Anthony had in fact frequently lied on numerous occasions to keep her parents from knowing that their granddaughter was missing. When Caylee's remains were found, Casey Anthony was quickly arrested, charged with murder and put on trial.

Unfortunately, when the case went to trial, the prosecution simply wasn't able to build a strong enough case. Though most everyone was convinced the Casey Anthony had murdered her daughter simply because her actions were highly suspicious, the prosecution wasn't able to actually connect her with the murder and prove the case beyond a reasonable doubt. Casey Anthony was merely convicted on some minor counts of providing false information to police and was promptly released for time served and good behavior.

These has led to a nationwide call for such laws, with many petitions, and some laws starting to be drafted in many states. The problem with such Black Swan laws is that they're directed at unusual circumstances. What makes cases like Caylee Anthony's so newsworthy and thus well known is precisely that they are unique. Well-crafted laws are directed at genuine problems, that are persistent and widespread enough to justify the costs and unintended consequences of a law. To all appearances, parents failing to promptly report children missing is not a widespread problem. Thus, the law will impose significant costs and create numerous unintended consequences merely to prevent a situation that is fleetingly rare.

The Caylee's laws have had their share of critics. And these critiques note many of the problem cases that could potentially arise. In fact, the basic complaint is that these problem cases (such as a parent failing to notify authorities about a missing child because they assumed the child was staying with a friend) will be vastly more common than the actual cases the law is meant to address (parents killing their children). Not to mention that authorities may be overwhelmed by reports from parents reporting children gone for short stints, when the child has a habit of regularly disappearing for such short stints.

In fact, this particular Black Swan Law seems to be even worse than usual. Usually Black Swan Laws are supposed to try to prevent the particular event from recurring. For example, Megan's Law and the Amber Alert were passed on the theory that if the law had been in place, the tragedy would've never occurred. In this case, though, the logic of the law seems to be to prevent Casey Anthony from getting away without being punished. Certainly it wouldn't have prevented Caylee's death, since the reporting of a child missing would only take place after the deed is done. In fact, if you look through cases of parents killing their children, it's quite normal for parents who've just killed their children to report them missing. Parents do so in order to try and avoid suspicion. The fact that Casey Anthony failed to report Caylee as missing and tried to mislead her family into thinking her daughter wasn't missing is what makes this case unique. The Caylee laws instead seemed to be focused more on preventing Casey Anthony's short prison term. The theory seems to be that if a child's death is reported more quickly then investigators will be better able to gather forensic evidence (thus increasing the chances of finding the true killer), and if a parent fails to report it promptly, then they can punish them for that. Thus, the theory seems to be that if a Caylee law was in place, then Casey Anthony would've served more jail time. Thus, we seem to have a law aimed at an even more fleetingly rare case of a clearly negligent (if not outright murderous) mother getting away with a rather light prison sentence.

In short, if such Caylee laws get passed widely, we'll probably be hearing about all of the unintended costs and negative effects of these laws, just as we've heard about Megan's Law and other similar named laws. Perhaps people will realize the problems of such black swan laws and will realize that tragic events need some sort of cooling off period between the tragedies and the passage of hasty laws meant to address them.

Wendy McElroy criticizes the newly emerging Caylee laws on the grounds that they're "Black Swan Laws." She defines a "Black Swan Law" as

a law created in response to a highly unrepresentative situation or legal case, which is typically rushed into effect and then used to regulate everyone's daily life.

These Caylee laws are laws that many states are trying to institute that basically require parents to notify authorities, within a certain short amount of time (usually about 24-48 hours) that any child of theirs below a certain age is missing. They also usually requires that if parents discover their child is dead, they notify authorities, again within a short amount of time (usually only a few hours).

The laws are entirely in response to the July 5 verdict of Casey Anthony. After Casey Anthony's daughter Caylee wasn't reported missing until a full month after the child had last been seen, and not even by Casey Anthony herself, but by her mother, Casey Anthony became suspect. Casey Anthony had in fact frequently lied on numerous occasions to keep her parents from knowing that their granddaughter was missing. When Caylee's remains were found, Casey Anthony was quickly arrested, charged with murder and put on trial.

Unfortunately, when the case went to trial, the prosecution simply wasn't able to build a strong enough case. Though most everyone was convinced the Casey Anthony had murdered her daughter simply because her actions were highly suspicious, the prosecution wasn't able to actually connect her with the murder and prove the case beyond a reasonable doubt. Casey Anthony was merely convicted on some minor counts of providing false information to police and was promptly released for time served and good behavior.

These has led to a nationwide call for such laws, with many petitions, and some laws starting to be drafted in many states. The problem with such Black Swan laws is that they're directed at unusual circumstances. What makes cases like Caylee Anthony's so newsworthy and thus well known is precisely that they are unique. Well-crafted laws are directed at genuine problems, that are persistent and widespread enough to justify the costs and unintended consequences of a law. To all appearances, parents failing to promptly report children missing is not a widespread problem. Thus, the law will impose significant costs and create numerous unintended consequences merely to prevent a situation that is fleetingly rare.

The Caylee's laws have had their share of critics. And these critiques note many of the problem cases that could potentially arise. In fact, the basic complaint is that these problem cases (such as a parent failing to notify authorities about a missing child because they assumed the child was staying with a friend) will be vastly more common than the actual cases the law is meant to address (parents killing their children). Not to mention that authorities may be overwhelmed by reports from parents reporting children gone for short stints, when the child has a habit of regularly disappearing for such short stints.

In fact, this particular Black Swan Law seems to be even worse than usual. Usually Black Swan Laws are supposed to try to prevent the particular event from recurring. For example, Megan's Law and the Amber Alert were passed on the theory that if the law had been in place, the tragedy would've never occurred. In this case, though, the logic of the law seems to be to prevent Casey Anthony from getting away without being punished. Certainly it wouldn't have prevented Caylee's death, since the reporting of a child missing would only take place after the deed is done. In fact, if you look through cases of parents killing their children, it's quite normal for parents who've just killed their children to report them missing. Parents do so in order to try and avoid suspicion. The fact that Casey Anthony failed to report Caylee as missing and tried to mislead her family into thinking her daughter wasn't missing is what makes this case unique. The Caylee laws instead seemed to be focused more on preventing Casey Anthony's short prison term. The theory seems to be that if a child's death is reported more quickly then investigators will be better able to gather forensic evidence (thus increasing the chances of finding the true killer), and if a parent fails to report it promptly, then they can punish them for that. Thus, the theory seems to be that if a Caylee law was in place, then Casey Anthony would've served more jail time. Thus, we seem to have a law aimed at an even more fleetingly rare case of a clearly negligent (if not outright murderous) mother getting away with a rather light prison sentence.

In short, if such Caylee laws get passed widely, we'll probably be hearing about all of the unintended costs and negative effects of these laws, just as we've heard about Megan's Law and other similar named laws. Perhaps people will realize the problems of such black swan laws and will realize that tragic events need some sort of cooling off period between the tragedies and the passage of hasty laws meant to address them.

Black Swan Laws

Overly Broad Patents

I talked a few days ago about software patents, and that one of the problems with software patents is that they're frequently overly broad, giving patent-holders fairly excessive power to sue similar, independent inventions. It turns out that this may not be an at all new phenomenon.

Reading through Mark A. Lemley's paper "The Myth of the Sole Inventor," this problem seems to have existed since the beginning of the patent system, and fairly describes many famous inventions.

For one, Lemley notes that the invention of the steamboat was by no means the sole work of Robert Fulton, who ultimately received the patent. Instead:

While Robert Fulton is acknowledged by the popular imagination as the inventor of the steamboat, in fact the historical evidence suggests that many different people developed steamboats at about the same time. Indeed, in the aftermath of the Revolutionary War, when the
Articles of Confederation left patent rights to the states, different states issued patents to different claimants to the steamboat. The conflict between these inventors over patent rights issued by different states was one of the driving forces of assigning patent rights to the federal government in the U.S. constitution.

Fulton is remembered as the inventor of the steamboat primarily because he was successful in writing a broad patent to cover it, albeit one patented decades after other claimants.

A similar case can be seen with the telephone. Many separate inventors were working on transmitting sound via telegraph wire simultaneously, and most of the pieces necessary to make a telephone work were invented by others before Bell. We only remember Bell because he ultimately got the patent:

Bell‘s ultimate invention put together a transmitter, a fluctuating current, and a receiver. But so did others. Elisha Gray filed an application in the patent office on the same day as Bell, following on other Gray applications that predated Bell‘s, and their inventions were ultimately put into interference. The resulting case went to the United States Supreme Court, and the Court‘s opinion takes up an entire volume of U.S. Reports. Despite the fact that Gray‘s independent invention was different and in some ways better than Bell‘s, and despite the fact that Bell actually got his invention to work only in March 1876, well after his filing date, Bell won the case. The Court ruled for Bell despite the breadth of his patent claim, which covered any device "for transmitting vocal or other sounds ... by causing electrical undulations, similar in form to the vibrations of the air accompanying the said vocal or other sounds."

Similarly, George Seldon was granted an unfortunately broad patent in 1895 on the combination of an internal combustion engine with a four-wheel carriage, even though he didn't invent the internal combustion engine (merely created a lighter version of it) nor did he create the four wheel carriage, nor was he the first to combine the engine with a wheeled carriage. He made some significant design improvements, but others subsequently developed better designs, but he was nonetheless effective granted a patent on the automobile. It took an eight year long legal fight, for Henry Ford to finally have Seldon's patent invalidated in 1911.

The same goes with the invention of the airplane. Gliders had been developed before the wright brothers; the airfoiled wings they used were invented by Horatio Phillips; adding a tail for stability was developed by Alphonse Penaud.

The Wrights invented only a particular improvement to flying machines, albeit a critical one: they came up with a way of warping a wing to control the direction of flight while turning a rear rudder to counterbalance the effect of bending the wing, maintaining the stability of the plane. The Wrights solved the stability problem by having a single cable warp the wing and turn the rudder at the same time. Their patent, however, was not so limited, and they successfully asserted it against subsequent inventors such as Glenn Curtiss. Curtiss improved the design of the wing by using ailerons, movable portions of the wing that had been developed years before by a consortium of others, including Curtiss and Alexander Graham Bell. A frustrated Curtiss was reported to have said that the Wright brothers believed their patent was so broad that anyone who jumped up and down and flapped their arms infringed it.

In short, the Wrights made an important improvement on the existing flying machines, but were basically granted a patent that covered all engine-powered flying machines.

These examples don't exhaust the instances of overly broad patents, but the highlight the most famous examples, and show that issuing overly broad patents has long been an issue with patent law. One of the main flaws of a patent system is that it relies on human beings can err in ways that can be very expensive to correct.

I talked a few days ago about software patents, and that one of the problems with software patents is that they're frequently overly broad, giving patent-holders fairly excessive power to sue similar, independent inventions. It turns out that this may not be an at all new phenomenon.

Reading through Mark A. Lemley's paper "The Myth of the Sole Inventor," this problem seems to have existed since the beginning of the patent system, and fairly describes many famous inventions.

For one, Lemley notes that the invention of the steamboat was by no means the sole work of Robert Fulton, who ultimately received the patent. Instead:

While Robert Fulton is acknowledged by the popular imagination as the inventor of the steamboat, in fact the historical evidence suggests that many different people developed steamboats at about the same time. Indeed, in the aftermath of the Revolutionary War, when the
Articles of Confederation left patent rights to the states, different states issued patents to different claimants to the steamboat. The conflict between these inventors over patent rights issued by different states was one of the driving forces of assigning patent rights to the federal government in the U.S. constitution.

Fulton is remembered as the inventor of the steamboat primarily because he was successful in writing a broad patent to cover it, albeit one patented decades after other claimants.

A similar case can be seen with the telephone. Many separate inventors were working on transmitting sound via telegraph wire simultaneously, and most of the pieces necessary to make a telephone work were invented by others before Bell. We only remember Bell because he ultimately got the patent:

Bell‘s ultimate invention put together a transmitter, a fluctuating current, and a receiver. But so did others. Elisha Gray filed an application in the patent office on the same day as Bell, following on other Gray applications that predated Bell‘s, and their inventions were ultimately put into interference. The resulting case went to the United States Supreme Court, and the Court‘s opinion takes up an entire volume of U.S. Reports. Despite the fact that Gray‘s independent invention was different and in some ways better than Bell‘s, and despite the fact that Bell actually got his invention to work only in March 1876, well after his filing date, Bell won the case. The Court ruled for Bell despite the breadth of his patent claim, which covered any device "for transmitting vocal or other sounds ... by causing electrical undulations, similar in form to the vibrations of the air accompanying the said vocal or other sounds."

Similarly, George Seldon was granted an unfortunately broad patent in 1895 on the combination of an internal combustion engine with a four-wheel carriage, even though he didn't invent the internal combustion engine (merely created a lighter version of it) nor did he create the four wheel carriage, nor was he the first to combine the engine with a wheeled carriage. He made some significant design improvements, but others subsequently developed better designs, but he was nonetheless effective granted a patent on the automobile. It took an eight year long legal fight, for Henry Ford to finally have Seldon's patent invalidated in 1911.

The same goes with the invention of the airplane. Gliders had been developed before the wright brothers; the airfoiled wings they used were invented by Horatio Phillips; adding a tail for stability was developed by Alphonse Penaud.

The Wrights invented only a particular improvement to flying machines, albeit a critical one: they came up with a way of warping a wing to control the direction of flight while turning a rear rudder to counterbalance the effect of bending the wing, maintaining the stability of the plane. The Wrights solved the stability problem by having a single cable warp the wing and turn the rudder at the same time. Their patent, however, was not so limited, and they successfully asserted it against subsequent inventors such as Glenn Curtiss. Curtiss improved the design of the wing by using ailerons, movable portions of the wing that had been developed years before by a consortium of others, including Curtiss and Alexander Graham Bell. A frustrated Curtiss was reported to have said that the Wright brothers believed their patent was so broad that anyone who jumped up and down and flapped their arms infringed it.

In short, the Wrights made an important improvement on the existing flying machines, but were basically granted a patent that covered all engine-powered flying machines.

These examples don't exhaust the instances of overly broad patents, but the highlight the most famous examples, and show that issuing overly broad patents has long been an issue with patent law. One of the main flaws of a patent system is that it relies on human beings can err in ways that can be very expensive to correct.

Overly Broad Patents