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