Category Archives: law

Feb 25 2010
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Economics, law, politics, pop culture

The National Security Argument for Legalizing the Use of Performance Enhancers for Professional Athletes

I note first we are willing to make distinctions as far as enhancement is concerned for athletes that we don’t make for soldiers (ref: Dexedrine use by Air Force pilots) or for students (who increasingly use performance enhancing substances like adderall and coffee).

Second, I note that there are possible invasion scenarios for which we face a shortage of soldiers with highly specialized physical abilities. I claim first that we have a natural pool of these kind of recruits in professional athletes and second that in doomsday invasion scenarios where there is a premium to be placed on the physical skills and endurance necessary to perform highly specialized tasks we want to have the ability to select for specific traits and want to absolutely maximize the expressions of those traits. Under these circumstances there is no counterargument for legalizing and using performance enhancers and indeed much depends on the state of the scientific knowledge base that we can access to inform those efforts.

That’s why we should legalize performance enhancers. There are several parameters that need to be set, for instance, the nature of the optimal regulatory framework, and how professional sports leagues should react to chances in these laws. But note that this policy carries a positive externality for athletes: it allows them access to the legal and scientific remedies that they don’t have access to in a world where they necessarily and exclusively bear the totality of the physical, emotional, and financial tolls that come with using illegal performance enhancers now.

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Feb 24 2010
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Economics, law

How Legalizing Performance Enhancers in Major League Sports Might Benefit Athletes

At the outset, let me note that I have an visceral dislike of the idea that the sports that I follow, or at least that I admire, should be populated by athletes willing to use performance enhancers of all kinds. But after thinking about performance enhancers more generally I found some incongruities in my own thinking and this series of posts will be my attempt to flesh out the meaningful arguments to the debate. So here goes.

I start by noting that athletes are often the people most likely to be injured meaningfully by sports. This is because they’re the ones risking their lives to make a payday or to win a medal. Coaches, team organizations, and the corporations that utilize the human capital of skilled athletes only face the costs of having poor outcomes in competition and seek to maximize profit. In this world athletes have substantial incentives to use performance enhancers to attain even marginal competitive edges because marginal differences, especially at the top, come with disporportionately larger payoffs. The organizations that support them face incentives to maximize athlete performance both continuously over time and in specific, critical situations.

But performance enchancers come with dangers. I don’t know the state of the literature, but I hypothesize that the illegality of consumption has some dampening effect on investment and research, so in an general sense we’re constricted to a limited and diffuse body of knowledge. That is to say, the typical things that people do to hedge against risk, specifically risk assessment, are a lot more limited in this arena and athletes have to bear the risk of unknown and poorly understood outcomes from specific enhancers without the prospect that time will be of much value. Additionally, the constraints on research and legality also constrain the knowledge of the medical professionals who illicitly provide enchancement services to athletes.

And athletes rarely have real recourse. In the case of death, perhaps there are liability issues that can be mediated through the legal system. It seems logical however that most athletes who use enchancers have to hide their use, even years after retirement. For athletes who have been injured through the direct or indirect use of performance enhancers, there is little to no recourse. There is no mechanism that holds medical professionals in this black market accountable, or even to separate negligent quacks and charlatans from real professionals. Moreover, teams and coaches who pressure and exploit athletes don’t face financial penalties or real sanctions from their actions, regardless of outcomes. Worse, athletes who aren’t stars are routinely undercompensated for the risks they face.

So here’s the argument as to why performance enhancers should be legal and athletes who consume them should be allowed to participate in sports. In a world where performance enhancers are legal, there are a lot more protections, legal and otherwise, for players. Legalization of performance enhancers means that players don’t face the real legal sanctions that the status quo holds and it’ll be politically easier to institute mandatory testing and disclosure of players who take performance enhancers. Players will face payoffs relevant to how consumers in the aggregate evaluate their decisions, though I doubt that consumers will really change their behavior too much.

Where this really pays off for players is where insurance companies and other market-based regulatory mechanisms get involved. Because legalization means that markets and market actors get access to more information. Performance enhancers become things subjected to rigorous scientific risk assessment and players have access to medical professionals who they can vet for quality and honesty. Treatments and procedures are documented and now athletes have access to legal remedies against people who exploit them for their talent and health.

I don’t like the thought of sports being poorer for not being pure. But it seems to me that as a spectator who is part of a system that ultimately victimizes a lot of athletes I should be willing to consider ways to end the exploitation of athletes.

I don’t know if there are empirics to support this argument, but I thought it was worth at least hypothesizing.

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Feb 23 2010
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law

Today at the Missouri Supreme Court

Got the email about the latest at the Missouri Supreme Court from communications counsel Beth Riggert, and thought that I don’t know of any Missouri blogs that blog Missouri Supreme Court decisions, so I thought I’d at least post the decisions:

1. Orla Holman Cemetery and Susan Rector vs The R. Plaster Trust, Stephen Plaster, Village of Evergreen:

The undisputed facts establish that Laclede County owns Row Crop Road. Because the Village of Evergreen did not annex the road, it is not within the Village’s boundaries, and the Village has no authority to regulate it. Because Orla Holman Cemetery has not proven it is entitled to judgment as a matter of law to an easement over the parking area, this Court reverses that part of the judgment and remands the case. In all other respects, the judgment is affirmed.

2. Manion vs. Elliott: The court decides in favor of a defendant in a probation revocation action where the presiding judge denied a request for a change of judge.

3. Akins vs. Director of Revenue: The court decides that 3 convictions stemming from one drunk driving incident meets the criteria for a ten-year license revocation.

4. Engel vs. Dormire: A rather sordid tale of government agents bribing informants and an innocent man’s 26-year struggle for justice.

5. Missouri vs. Brooks: Prosecutors use a defendant’s post-Miranda silence to impeach the defendant’s credibility. The court agrees with the defendant that this is unfair, reversing the decision and remanding the case back to the trial court.

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Feb 19 2010
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law, politics

On the Honduran Constitution

Michael Dulick, a former teacher of mine, now retired and living in Honduras doing charitable work among the poor, writes to me Sept. 30th:

Then, suddenly, another turn, for the worse. Previously so proud of the freedoms he “preserved” by deposing Mel, Micheletti went a little crazy in the head á la Dr. Strangelove and decreed martial law–no assembling, no dissenting, no talking, no warrants, no warning. Not a lot different, really, from the police-state tactics in the streets of Pittsburgh during the recent G-20 Summit. But even Micheletti’s loyalists think he’s lost his mind. He’s certainly lost his trump card, his vaunted legality (see next paragraph). Panicked, the ‘presidenciables’ abruptly changed their tune from “We Are the World” to Megadeth. They fell all over themselves to condemn this latest threat to “democracy,” that is, to their own slim hope of legitimacy. Micheletti, for his part, said the crackdown was necessary to counter Mel’s continuing calls for “revolution.” Indeed, when Mel sounded the alarm for “the final push,” even his host President Lula of Brazil cautioned Mel to simmer down. And the U.S. State Department advised that Mel’s dramatics were “foolish.” Then, another little miracle: Micheletti quickly repented and promised to reverse the restrictions, begged forgiveness of “the people,” and he sent Lula a “big hug.” Jim Carrey plays more stable characters!

A legal study just published by the U.S. Library of Congress found Mel’s removal from the presidency constitutional, according to Honduran law, though not his removal from the country. You know, some readers have been confused by my reports–the result both of my glancing blows and even more because of the insane situation–but let me summarize. Unlike the U.S. constitution, some articles in the Honduran constitution cannot be amended, especially its strict one-term limit for the president. Furthermore, the constitution declares even the attempt to amend this provision an act of treason that automatically separates an official from their office. Mel forced the issue when he insisted on a sham balloting scheduled for June 28 to extend his term. The Supreme Court judged that Mel had crossed the line and they ordered his arrest, for treason. The army grabbed him and flew him out of the country. So the presidency was vacant, and Roberto Micheletti, president of Congress, next in constitutional succession (Honduras has no Vice-President) was sworn in. So there you are. Easy as pie. Very neat, on paper. Now, back to the real world, where, as the protesters at the G-20 in Pittsburgh would have noted, the poor should have had their say, too. In fact, conditions are so desperate here that maybe all the poor will say, “I’m going to America!” You already have a million Hondurans up there, what’s a few million more? Very inviting, especially with “Obamacare” in view…!

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Nov 20 2009
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law

More Problems With The GOP Socialist Narrative

It seems to me that if conservatives really cared or really understood what they were standing against when they drag out Soviet imagery at teabag parties, they would also care very much about placing checks on the government’s power over life and death by promoting the use of an independent judiciary for criminal trials. Specifically they should advocate using jury trials in federal court to try alleged terrorists or grant them access to the rights stipulated by things like the Geneva Convention.

You don’t have to reach my conclusion (that military tribunals for alleged criminals are wrong) to realize that this is a major gap in the conservative narrative, which now has become “We don’t trust government to do anything because that leads to gulags”.

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Oct 12 2009
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Economics, law, politics

A Theory On Repealing Don’t Ask, Don’t Tell

My theory on President Obama is that he views the military as a potentially dangerous place for his Presidency. The US military is a unique institution in America and one of the great successes of this democracy have been establishing fundamental parameters on the ability of the military to act that keep it firmly under civilian control. As Commander-in-Chief, he faces a difficult route to successfully utilizing the world’s most powerful force in the conflicts abroad, particularly in Afghanistan; as a Democratic President he faces a conservative faction of the population who is not convinced of his ability to successfully protect the homeland. Not to mention his workload, which is as impressively stacked as as the cords of firewood former President Bush cut on vacation.

The objection is utterly simple: Why can’t the President just sign an executive order circumventing DADT? I suspect that the answer is that the President manages through coalition-building; as a President elected during wartime he fears that signing an executive order directing the military to disregard DADT without directly engaging the chain of command would undermine his effectiveness as Commander-in-Chief and provide his political opponents with profoundly damaging political ammunition that’s amplified by poor outcomes in Afghanistan or Iraq. Better to step slowly and surely than risk aggravating relations with the military. The evidence for this is his very careful engagement of the military and especially his retention of Robert Gates as Secretary of Defense.

The endgame here is to make sure change permanent. It would be disastrous, for instance, if Sarah Palin or any number of potential other Republican presidential nominees won the 2012 elections and proceeded to re-institute DADT. The odds of that re-institution are vastly smaller with a 2012 Obama win; policies tend to be path-dependent in the sense that they create a culture invested in their own existence and the longer that a certain institutional culture has been in existence the the stronger it is. This argument allows us to flesh out the argument more fully: the President believes in transforming the institutional culture of the military with the permanent repeal of DADT as the endgame, not the catalyst.

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Oct 07 2009
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Economics, law

Some Thoughts on Scalia’s Comment About the Supply of Lawyers

Ilya Somin over at the Volokh Conspiracy discusses Justice Scalia’s comments that many of our best and brightest minds end up wasted in the practice of law. Somin notes one serious argument against this claim, specifically that high prices for legal services are indicative of the high demand for those services. I think that there are two things that need to be added: first, as a tangent, that Say’s Law applies here (supply creates its own demand) and second, that the market for legal services is huge and the market clearing price for legal services is often way to high for many consumers. This interview with Jay Moses of the Center for American Progress details some elements of the supply and demand for legal services amongst the poor; this article in McClatchy details, among other things, an 11 million jump in the number of people eligible for free legal services since 2007. And this piece of advocacy from Diller and Savner is rich in detailing the extent of current legal services. Diller and Savner interestingly suggest that subsidizing legal aid for the poor also increases the quality of democratic representation, since it reduces the search and transfer costs of information about that sector of the population, allowing politicians to be more informed about the policy preferences and needs of their constituency. In shorter, more precise language one could say that subsidizing legal services for low-income users has positive informational externalities that increase the quality of democratic government (a public good).

But the second half of Somin’s argument is all too true: we have way too many laws. I recall a statistic (in a Krugman editorial perhaps?) noting that the massive body of federal criminal law implies that over half the population are de facto felons. Certainly the most egregious example is the terminally useless War on Drugs but there are far more insidious examples; there are plenty of excessively broad laws and regulations that felonize trivial things like failing to appropriately label chemicals or animal parts.

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Sep 14 2009
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law, Literature

On Deodands and JFK Arcana

I came across this word ‘deodand’ in Leonard W. Levy’s License to Steal: The Forfeiture of Property (1996). I’m attaching the passage, which I found to be interesting and well written:

…The term”deodand” derives from the Latin phrase “deo dandum” and means “given to God”. A deodand is a thing forfeited, presumably to God for the good of the community, but in reality to the English crown. Deodands are commonly attributed, especially by courts, to a passage in the Bible: “If an ox gore a man or a woman that they die, the ox shall be surely stoned and its flesh shall not be eaten” (Exodus 21:28).

…

The case in which this statement appears has the silly byt revealing name of United States v. One 1963 Cadillac Coupe de Ville Two Door. That is, the government sued the automobile as if it were personally guilty of a crime. In an especially strange case, United States v. One 6.5 mm. Mannlicher-Carcano Military Rifle, the government sued the rifle that was used to assassinate President John F. Kennedy, on the theory that it was “a species of Deodands”….

Here is the wiki for deodands. Here is a poem from Pulitizer laureate Anthony Hecht titled “The Deodand“. Here is Sir William Blackstone explaining the concept in Volume 1 of the Commentaries on the Laws of England. A google search for the word provides 126,000 results.

Sep 08 2009
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Economics, law, politics

Against Marcus Bowen on Missouri’s Texting While Driving Law

University of Missouri law student Marcus Bowen addresses recent legislative efforts to curtail texting while driving in his latest Missouri Record column. At first glance, the column looks like an intelligent effort to discuss the issues surrounding this latest driving hazard; a second reading reveals that Marcus, a Republican, has a clear ideological agenda here that clouds his thinking and leads him to some intellectually specious conclusions.

Let me start with the first argument that caught my attention in Marcus’s column. He strongly implies that Missouri Governor Jay Nixon’s signature on a bill prohibiting people under 21 from texting while driving is a ‘publicity stunt’ and not a ‘substantive stand against distracted driving’. The warrants for this argument are that Nevada legislators rejected an age-based ban earlier this year because ‘everyone texts, not just teens’, and that the median age for people who text is 38.

There are some major gaps in the story that Marcus assumes away here. First, an aside: Missouri is the 23rd state implement some kind of texting while driving ban, and one of nine to implement an age restriction. Suddenly, Governor Nixon doesn’t look like he’s after a maverick publicity stunt here; actually, it seems like Nixon realized that Missouri was a little behind a national trend that was worth latching onto. The second problem Marcus runs into here is in how he interprets the statistics available. Since Marcus doesn’t provide a citation for the research studies he cites besides ‘Nevada researchers’, I was forced to use the old trusty Google to verify the numbers. The most likely source of the median age statistic actually comes from a Pennsylvania-based company called Cellsigns; aside from their own research, they also cite Nielsen Mobile as a data source. And it’s true that their research show that the median age of texters is in fact 38. But Marcus fails to ask a key question: does the statistic describe the median age of texters, or does the statistic describe the median age of those people texting while driving? There is nothing to indicate that the study was designed to answer that latter question, meaning that for the purposes of this discussion, the evidence is useless. And what is the use of knowing the median age of texters, anyway? We’re concerned with those most likely to text while driving and discouraging that behavior.

Fortunately, Cellsigns has some useful data that we can extrapolate from. This blog post gives us an age-based breakdown of texters. Most notably, the average number of text messages in the 13-17 demographic is 1742 a month; for 18-24 it is 790; for 25-34 it is 331; and for those 35-44, it is 236. What does this tell us? Most importantly, it tells us that people around 15-17 years old who are just starting to legally drive text an average of 58 times a day. For those median texters who are 38, that number is about 8 texts per day. Those are the meaningful numbers Marcus needs to be looking at. We can continue here and draw some further conclusions. People texting 58 times a day instead of  roughly 8 times a day are far more likely to be texting while engaged in other activities, including driving. And that’s before we even note the massive difference between these two demographic groups; teens and young 20-somethings grew up with technology and feel far less concerned about texting all the time; people who are 38 right now are far less likely to make decisions that fragment their attention span because that’s how their preferences and habits have evolved over time. Additionally, the under-21 demographic is distinguished by worse driving; drivers are less experienced and more likely to make bad decisions. It’s why drivers under 21 are more likely to be in accidents. Sanctioning reckless and imprudent behavior is likely to have some deterrent effect at the margin here which is why it’s a good idea.

Next, I take issue with Marcus’s final conclusion: that banning texting while driving will suck up police resources and provide us with a false sense of security and that a real solution is a ‘comprehensive education program’. The first argument I make is that police resources are already heavily vested in the arena of traffic safety and that passing a law that enables them to write another specific ticket will not materially detract from their ability to enforce traffic laws. Second, Marcus fails to appreciate the nature of economic tradeoffs and opportunity costs. The resources necessary to implement Marcus’s unspecified  ‘comprehensive education program’ have to come from somewhere; that means that we have to choose between funding comprehensive text messaging education services and funding other things, like for instance better crime labs or the license plate scanners that the local Columbia Police Department have been requesting. Where exactly will that tradeoff happen, Marcus? Perhaps you should do a cost-benefit analysis of your proposal before you present it next time. Not to mention that the only two examples of such educational programs you cite are the Welsh police video that’s made the rounds on YouTube and the US Dept. of Transportation video of Governor Corzine advocating seatbelt use. Can you provide me with data indicating how successful these education programs were? I can at least give you an example of where people’s habits are stronger than government warnings and educational programs: cigarette education has been around for decades and there are warnings everywhere, yet as far as I can tell annual smoking related deaths are still in the millions.

And finally, let me leave you with this piece of advice. One of the great conclusions that economists have come to in the past few decades is that incentives matter. Government education is intrinsically a less incentive compatible way to solve a problem than by changing the incentive structures that they face. Not to mention, Republicans seem to take issue with government educational or motivational efforts; anyone who is familiar with the right-wing furor over President Obama’s speech to schoolchildren will understand that Marcus’s idea is much more likely to generate conservative opposition than acceptance.

Edit: I have advocated for a long time that a statistics course and a good economics course be required for law students. I’ve had far too many conversations with otherwise extremely intelligent law school graduates who didn’t understand basic statistical principles and as a result made some rather egregious mistakes in their thinking.

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Aug 31 2009
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Economics, law

Welfare as a Property Right

Thomas Ross, professor of law at the University of Pittsburg, writes this in the June 1991 edition of the Georgetown Law Journal (.79 Geo. L.J. 1499). Hat Tip: Shawn Borich.

From the late 1950s through the early 1970s the Court decided cases that, both in result and in rhetoric, expressed a new respect for the poor. Justice William Brennan, writing for the majority in Goldberg v. Kelly, expressed this new vision of the constitutional status of poverty.

From its founding the Nation’s basic commitment has been to foster the dignity and well-being of all persons within its borders. We have come to recognize that forces not within the control of the poor contribute to their poverty. . . . Welfare, by meeting the basic demands of subsistence, can help bring within the reach of the poor the same opportunities that are available to others to participate meaningfully in the life of the community. . . . Public assistance, then, is not mere charity, but a means to “promote the general Welfare, and secure the Blessings of Liberty to ourselves and to our Posterity.”

Thus, the Court held in Goldberg that welfare benefits were a form of constitutionally protected “property” and could not be terminated without notice and the opportunity for a hearing. The Court’s decisions during this period that broke down some of the disparities in effective access to the courts on both criminal and civil matters are further evidence of the Warren Court’s new respect for the poor.

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Aug 14 2009
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law, politics, pop culture

Line of the Day: Fem IR and Hillary

“We have our own work to do at home,” Verveer told me. “We trivialize the importance too often of these issues: the ‘women’s issue’ — you put it in quotes, that little category over there, the box you check. What we have to do is realize these are the issues; if we want societies to prosper and if we want our own security, we have to raise the status of women.”

Women’s issues are being framed by this administration in terms of realpolitik: U.S. security depends on women’s empowerment. Global economic growth depends on women’s participation.

Women’s empowerment won’t be delivered at the end of a gun or through economic sanctions or even overt criticism, if it cuts into accepted cultural practices. This is messy stuff; some of our most sensitive allies have horrific records on women’s rights. Programs that show success tend to be slow-moving and incremental. Can all this complexity attract — much less sustain — the attention of the public?

Maybe — if we stop viewing everything Clinton does as entertainment.

From the NYT, here.

Jul 30 2009
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law

Line of the Day: Delong on Sotomayor

Brad Delong has a long and winding post with lots of digressions (which I appreciate, being a chronic digressor myself). He has this to say regarding former Supreme Court Justice Oliver Wendell Holmes:

And this then led me to Justice Oliver Wendell Holmes in Buck v. Bell (1927):

Carrie Buck is a feeble-minded white woman who was committed to the State Colony…. She is the daughter of a feeble-minded mother… and the mother of an illegitimate feeble-minded child…. An Act of Virginia, approved March 20, 1924, recites that the health of the patient and the welfare of society may be promoted in certain cases by the sterilization of mental defectives….

The attack is not upon the procedure [i.e., due process] but upon the substantive law…. We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Jacobson. v. Massachusetts, 197 U. S. 11. Three generations of imbeciles are enough.

Google Image Result for http://www.hsl.virginia.edu/historical/eugenics/assets/Holmes.jpg

Just as young men can be drafted and compelled to give their lives for the health of the state (or is it the volk?) in war, so feeble-minded women can be drafted and compelled to give their fertility for the improvement of the genome.

Let me say that this is a case where I suspect that a wise Latina justice might have been more able to consider the proper equities than Justice Holmes was.

It would have been perhaps politically risky but I also shared the thought that Sotomayor should have defended her statement. Perhaps it was a poorly worded sentiment but in the light of American legal history it is certainly defensible. Can you think of other landmark legal precedents where Sotomayor’s statement might well have been true? I can think of at least five.

Jun 25 2009
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Economics, law

The Law and Economics of the World Cup

If you didn’t see the world’s top-ranked soccer team, Spain, lose yesterday’s semifinals game of the Confederations Cup 2-0 to no. 14, the United States, you missed out. It was definitely a close match, with the Americans mounting brilliant counterattacks to counter a typically dominant Spanish side. The key to victory here  was a motivated and energetic American defense that caught the right breaks to shut the Spanish out. Despite earlier tournament losses to Brazil and Italy, this victory establishes the US as a contender in next year’s World Cup in South Africa.

But there’s more. I was particularly reminded of a 2002 paper by Mark West (U. Michigan Law) called ‘The Legal Determinants of World Cup Success‘ (non-gated through SSRN). Here is the abstract:

The “law matters” theory advanced in a series of empirical works by Rafael La Porta, Florencio Lopez-de-Silanes, Andrei Shleifer, and Robert Vishny (“LLSV”), has become a centerpiece of recent corporate law debate. Using LLSV methodology, this Article examines the relation between legal protections and soccer success, using as the dependent variable the number of points each country has in the FIFA/Coca-Cola World Rankings. The statistically significant findings reported herein may or may not have implications of momentous import for various aspects of the human experience.

For those looking for further (and more serious) background, here is the article, ‘Law and Finance‘, published in the 1998 Journal of Political Economy and co-authored by Rafael La Porta (Harvard), Florencio Lopez-de-Silanes (Harvard), Andrei Shleifer (Harvard), and Robert W. Vishny (U. Chicago).

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Jun 09 2009
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law

Following Up: More Shame from the Bush Legacy

I’m working on a post about commodity-backed monetary standards, but in the interim, here is an article from ABCNews about the former Guantanamo prisoner at the center of Boumediene vs. Bush. The article details his narrative of 7 years of torture while at Guantanamo, with no evidence to warrant his detention nor the brutal treatment he apparently received at the hands of the US military and intelligence services. I am astounded that former President Bush and his administration continue to reiterate what are now obviously lies about the ‘necessary things’ they did in the name of the people they served (us) and more astounded that there are still people who continue to believe these narratives of fear, hate, and intolerance. Boumediene’s narrative is a powerful argument against the politics of fear and for an informed citizenry that is willing to demand transparency and accountability from government.

Link here.

May 27 2009
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law, politics

On Humanity

Ralph Peters in the New York Post writes:

WE made one great mistake regarding Guantanamo: No terrorist should have made it that far. All but a handful of those grotesquely romanticized prisoners should have been killed on the battlefield.

The few kept alive for their intelligence value should have been interrogated secretly, then executed.

Terrorists don’t have legal rights or human rights. By committing or abetting acts of terror against the innocent, they place themselves outside of humanity’s borders. They must be hunted as man-killing animals.

I would say that the reverse is true. It is precisely because we show mercy to prisoners and dispense justice fairly that the concept of humanity means anything.  That is why not torturing people means so much. And why we should call extra-legal execution of a prisoner without a fair trial what it is: murder. This outcome might be unpalatable: it is offensive that prisoners can enjoy all life, even in prison, while their victims molder in the ground. But it is none the less important because laws are designed precisely to ensure that punishment is meted justly. Because shooting first and asking questions later is a good way to kill a whole lot of innocent people.

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