According to a recent article in the Wall Street Journal, the University of Colorado at Boulder acted for years in blatant violation of the Civil Right Act, hiring for positions explicitly limited to candidates of particular racial groups.
There is a problem of incentives if one does not allow significant liability for actions newly declared to be illegal but which were reasonably and plausibly thought by the actors at the time to be legal. The problem is that there is no good incentive for an ordinary plaintiff to go the trouble and expense to bring the case to obtain clarification of the law, because even if he wins the case, he personally receives no remedy for his damages. If no one can benefit if they are the first to win, then people will avoid being first, so no one will try, so actors will continue to push the edge of the law and engage in arguably illegal behavior without much concern that anyone will care enough or have backing with independent resources sufficient to fight it out in court.
Some have framed the clarification of the law as a kind of public good and in that framework - similar to the logic behind Qui Tam actions - payment of damages to the plaintiff but out of public funds (for the public benefit) instead of out of the salaries of officials is a sensible approach to the dilemma.
Interesting point. In some cases, there is an incentive from a verdict that changes actions, an employee getting the job back or the promotion she claims she was wrongfully deprived of. And there are public interest law firms such as the Institute for Justice willing to subsidize litigation in order to set precedents. Also, if the changed view applies to the executive branch as well as the judicial, as in this case it does or will, the agencies responsible for enforcement, in this case the Equal Opportunity Commission, can act.
I wonder if the history of civil asset forfeiture on the seas holds examples of bad cases where the prize taking captains lost their case. I am not in any position to look that up, but it seems like there must have been at least one case where the captain brought in a ship under claim of suspected piracy and turned out to be proven wrong. That might provide interesting examples of what could be done today.
My information on prize taking is based mostly on fiction, but I think pretty historically accurate fiction. I think the issue was usually not piracy but smuggling or evading blockade during wartime. My impression is that captains did worry about the possibility of losing at the prize court.
Possibly the appropriate punishment for universities would be to suspend their football team from league play for a year. It would be well defined, hold the institution as a whole responsible for the misbehavior, and create incentives for internal stakeholders to put the brakes on future civil rights violations lest the football program be punished again. There's some distance between the football players and fans and the administrators who committed the violation, but no more than between taxpayers and the police officers of their jurisdictions.
College athletes are now being paid as athletes and can get endorsement deals. You would punish them for things they did not do. Why not just punish the officials who actually did the deed? Fine them, jail them, whatever is appropriate.
Organizations don't do things, people do. Some executive, some official, some bureaucrat, *somebody* made that illegal decision. Punish them.
My point is that there is no circumstance where any employee, public or private should be under the delusion that taking anyone's money except pursuant to an arrest or warrant is acceptable behavior. I don't care what his superiors told him, except that if his excuse is that his boss told him it was ok, then that is two people who should be held responsible. And three if the boss's boss said so, and so on.
If I, a civilian, rob someone of $87,000, I should go to jail. If my excuse is that my boss told me to do it, and I can prove it, then he should be equally culpable, and so on up the line. My stupidity in thinking my boss can authorize me to steal without a warrant or court order might justify throwing me in a mental institution as unable to care for myself, but it does not absolve me of being responsible.
I am responding, by analogy, to our host's statement "But is it fair to hold [a cop] criminally liable for doing what his superiors told him he was entitled to do as part of his job?" and arguing toward compensation being provided by taxpayers.
In practice, they keep the money for their organization, typically a police department, not for themselves. There are state laws requiring the money to go elsewhere but they get evaded by cooperation between state and federal law enforcement.
In case it isn't obvious, it is not just that his superiors tell him that what he is doing is part of his job. They have a legal argument, civil forfeiture. It's just that they are abusing the existing law by seizing property that they have no reason to believe was used in anything illegal, taking advantage of the fact that the owner has to sue them to get it back, at the risk that they will then charge him with some crime, requiring him to face the costs and risks of a criminal case.
I am with you as to the problem. But to the narrow question of whether the police officer who makes the initial seizure should be prosecuted, I say absolutely not. Or even fired imo.
The senior official who gave the order AND who keeps the money for their department, OTOH, I am mostly on your side. Yes I am for BOTH civil and criminal penalties for that person (and/or executive chain of command), at least for clear cut cases.
Expecting the officer who makes the initial seizure to know which are and are not “correct” ones is difficult in the general case, and creates all sorts of incentives which are bad for the safety of the citizenry, IMO.
The officer knew that he had no evidence the money had any connection to a crime. He believed that what he was doing was legal but knew it was dishonest. Whatever the legal consequences should be, I regard him as a man who should not be trusted.
I don't care if they kept it or passed it along. If they took that money without some kind of legal order, that is theft, whether their boss told them to or not, whether their boss is also held accountable or not. "Just following orders" wasn't good enough for Nazis. It shouldn't be good enough for cops.
The Nazi/Hitler analogy should not be brought out, as it is an attempt to end a conversation with an implicit morality trump card, as opposed to arguing on the merits.
The officer doing the initial seizure is not (generally) the one committing “theft” here. It is the police officials / DAs / whomever who choose to keep the money who are doing so.
So while I do not deny there are / could be *some* such cases where the arresting/“seizing” officer may be committing a crime, it would be very bad incentives indeed if a street cop following orders could be criminally convicted based on what his superiors did with the money.
I did not mention Hitler. The Nazi mention refers to the Nuremberg war crimes trials where "I was just following orders" came from and was discredited. It is a perfectly appropriate reference.
As I said, unless the cop is responding to a court order, he is a thief. The excuse "my boss told me to so something illegal" is no more valid than it was at Nuremberg.
Imagine an auto mechanic finds someone wandering around the shop floor in defiance of "Authorized personnel only" signs and detains him. His boss tells him to take all the cash from the trespasser's wallet.
Is that excusable? No, it is not. The police should have no more immunity to prosecution for theft than the mechanic and his boss.
>hold the police department civilly liable ... pay damages for the violation of the victim’s rights
I don't see how holding voters responsible for the actions of the political authorities they elected is inappropriate in such a case. Of course "voters" does not exactly equal "taxpayers" and of course it's unfair to make those who supported losing candidates pay, but that's the situation with everything in the status quo system.
Re whether the individual police officer should be held responsible, it depends on exactly what she was tasked with by her employers. Unless an employee was asked to do something which a reasonable person should clearly know is illegal, generally we should give them a break.
And, yes, of course slaveholders should have been compensated. We live in a system of formal law, and even under 'natural law' slaveholding was considered legitimate by most historical societies.
I agree, although if an individual officer thinks confiscating $87k under no suspicion of criminal behavior isn't illegal, his supervisors should be held responsible, all the way up to the chief of police. If they feel they are not responsible, they should then show that they trained the officers to not do that. If you don't do that "Well, he didn't know any better" becomes an infinitely effective defense against bad actors. Someone must be responsible.
I mean, what happened to the $87k after it was confiscated? If the officer kept it, then obviously he's at fault, no one thinks that's what you're supposed to do with confiscated money. But if he turned it in to his superiors then it's their/the system's fault since the officer didn't gain anything.
That logic doesn't quite work. If I am a mafia thug shaking down store owners for protection money, but I give all that money to my bosses afterwards, that's hardly a defense. We both engaged in illegal activity in that example, unless my bosses can show they didn't know the money was stolen.
Replying to myself - Ideally, "voters" *should* be exactly equal to (net) "taxpayers". For purposes of voting to decide how to spend tax money, their votes should be weighted proportionately to the net tax paid (net of tax money received except for payment for goods or services provided). (Not for other purposes, tho.)
Yes, this would be treating the government the same as any other organization. When e.g. Apple commits a crime, all shareholders end up paying for the damages regardless of whom they voted for.
But shareholders can sell their stock at will if they disagree with actions of management. Voters can't (other than moving house out of the jurisdiction).
I think residents are equivalent to consumers, not shareholders, while the latter are equivalent to citizens. But sure, citizenships are very illiquid compared to shares in publicly traded companies, though personally I've been forbidden by a shareholders' agreement from selling my shares (in a non-public company) for longer than some countries require for naturalization, so it's all relative.
Your range in note 1 doesn’t make sense. 680-800 in math cannot be 10th to 90th. 800 is perfect and 680 very well could be top 90th percentile. Please explain. Thank you.
I don't put a lot of faith in SAT scores. When I took my SAT tests, you had to pay for them in groups of three. There were five tests I needed / wanted to take, so I signed up for Math II to not waste that sixth test. There was one question I know I answered wrong, because I asked my math teacher about it. Yet the school counselor called me in to tell me I had gotten 800, perfect. I told him about the wrong answer. He supposedly asked them to recheck my answers, they claimed yes, I had gotten every answer correct.
There were also a lot of questions I did not answer because I had no idea what they were even discussing (what is the derivative of the cosine? My high school did not offer calculus). Some people say unanswered questions should not count, which is ridiculous; I could turn in a blank answer sheet and get 800 for having no wrong answers. Or answer only the very easiest ones. Someone who answers every question should get a higher score than someone who answers only 3/4 or 90% of them.
I don't know, but I think that phrase meant that of the applicants to Harvard, those in their 10th to 90th percentile rating had math SAT scores ranging from 680 to 800.
The confusion, I believe, is in what is being modified by 10th to 90th. Overall SAT scores (which would also include verbal), some Harvard rating system of applicants, other?
At any rate, yes, 10th to 90th percentile cannot refer to those same students' scores on the Math portion of the SAT.
If more than 10% of the students got 800, then 800 is the 90th percentile. Also the 99th percentile.
I wouldn't assume that 800 means no errors. I believe the scores were originally defined in terms of the distribution of results. 800 could be defined, say, as the result that the top .1 percent of students got.
The usual approach to dealing with answers left blank on a multiple choice exam is that the score is the number of right answers minus some fraction, say 1/4, of the number of wrong answers. So it pays to guess if you think your guess has a probability of more than 1/5th of being right — four wrong answers plus one right has the same effect on your score as five blanks.
There is a problem of incentives if one does not allow significant liability for actions newly declared to be illegal but which were reasonably and plausibly thought by the actors at the time to be legal. The problem is that there is no good incentive for an ordinary plaintiff to go the trouble and expense to bring the case to obtain clarification of the law, because even if he wins the case, he personally receives no remedy for his damages. If no one can benefit if they are the first to win, then people will avoid being first, so no one will try, so actors will continue to push the edge of the law and engage in arguably illegal behavior without much concern that anyone will care enough or have backing with independent resources sufficient to fight it out in court.
Some have framed the clarification of the law as a kind of public good and in that framework - similar to the logic behind Qui Tam actions - payment of damages to the plaintiff but out of public funds (for the public benefit) instead of out of the salaries of officials is a sensible approach to the dilemma.
Interesting point. In some cases, there is an incentive from a verdict that changes actions, an employee getting the job back or the promotion she claims she was wrongfully deprived of. And there are public interest law firms such as the Institute for Justice willing to subsidize litigation in order to set precedents. Also, if the changed view applies to the executive branch as well as the judicial, as in this case it does or will, the agencies responsible for enforcement, in this case the Equal Opportunity Commission, can act.
I wonder if the history of civil asset forfeiture on the seas holds examples of bad cases where the prize taking captains lost their case. I am not in any position to look that up, but it seems like there must have been at least one case where the captain brought in a ship under claim of suspected piracy and turned out to be proven wrong. That might provide interesting examples of what could be done today.
My information on prize taking is based mostly on fiction, but I think pretty historically accurate fiction. I think the issue was usually not piracy but smuggling or evading blockade during wartime. My impression is that captains did worry about the possibility of losing at the prize court.
Possibly the appropriate punishment for universities would be to suspend their football team from league play for a year. It would be well defined, hold the institution as a whole responsible for the misbehavior, and create incentives for internal stakeholders to put the brakes on future civil rights violations lest the football program be punished again. There's some distance between the football players and fans and the administrators who committed the violation, but no more than between taxpayers and the police officers of their jurisdictions.
College athletes are now being paid as athletes and can get endorsement deals. You would punish them for things they did not do. Why not just punish the officials who actually did the deed? Fine them, jail them, whatever is appropriate.
Organizations don't do things, people do. Some executive, some official, some bureaucrat, *somebody* made that illegal decision. Punish them.
So you're in favor of imprisoning cops who abuse civil forfeiture?
My point is that there is no circumstance where any employee, public or private should be under the delusion that taking anyone's money except pursuant to an arrest or warrant is acceptable behavior. I don't care what his superiors told him, except that if his excuse is that his boss told him it was ok, then that is two people who should be held responsible. And three if the boss's boss said so, and so on.
If I, a civilian, rob someone of $87,000, I should go to jail. If my excuse is that my boss told me to do it, and I can prove it, then he should be equally culpable, and so on up the line. My stupidity in thinking my boss can authorize me to steal without a warrant or court order might justify throwing me in a mental institution as unable to care for myself, but it does not absolve me of being responsible.
So you're in favor of letting cops steal?
I am responding, by analogy, to our host's statement "But is it fair to hold [a cop] criminally liable for doing what his superiors told him he was entitled to do as part of his job?" and arguing toward compensation being provided by taxpayers.
I have no idea what point you're trying to make.
If they kept the money for themselves? Absolutely yes.
If they turned it over to the state? Absolutely not.
Senior police officials who keep it and use it for their own purposes, as opposed to putting it in the general fund? yes.
In practice, they keep the money for their organization, typically a police department, not for themselves. There are state laws requiring the money to go elsewhere but they get evaded by cooperation between state and federal law enforcement.
In case it isn't obvious, it is not just that his superiors tell him that what he is doing is part of his job. They have a legal argument, civil forfeiture. It's just that they are abusing the existing law by seizing property that they have no reason to believe was used in anything illegal, taking advantage of the fact that the owner has to sue them to get it back, at the risk that they will then charge him with some crime, requiring him to face the costs and risks of a criminal case.
I am with you as to the problem. But to the narrow question of whether the police officer who makes the initial seizure should be prosecuted, I say absolutely not. Or even fired imo.
The senior official who gave the order AND who keeps the money for their department, OTOH, I am mostly on your side. Yes I am for BOTH civil and criminal penalties for that person (and/or executive chain of command), at least for clear cut cases.
Expecting the officer who makes the initial seizure to know which are and are not “correct” ones is difficult in the general case, and creates all sorts of incentives which are bad for the safety of the citizenry, IMO.
The officer knew that he had no evidence the money had any connection to a crime. He believed that what he was doing was legal but knew it was dishonest. Whatever the legal consequences should be, I regard him as a man who should not be trusted.
I don't care if they kept it or passed it along. If they took that money without some kind of legal order, that is theft, whether their boss told them to or not, whether their boss is also held accountable or not. "Just following orders" wasn't good enough for Nazis. It shouldn't be good enough for cops.
🙄
The Nazi/Hitler analogy should not be brought out, as it is an attempt to end a conversation with an implicit morality trump card, as opposed to arguing on the merits.
The officer doing the initial seizure is not (generally) the one committing “theft” here. It is the police officials / DAs / whomever who choose to keep the money who are doing so.
So while I do not deny there are / could be *some* such cases where the arresting/“seizing” officer may be committing a crime, it would be very bad incentives indeed if a street cop following orders could be criminally convicted based on what his superiors did with the money.
Incentives matter.
I did not mention Hitler. The Nazi mention refers to the Nuremberg war crimes trials where "I was just following orders" came from and was discredited. It is a perfectly appropriate reference.
As I said, unless the cop is responding to a court order, he is a thief. The excuse "my boss told me to so something illegal" is no more valid than it was at Nuremberg.
Imagine an auto mechanic finds someone wandering around the shop floor in defiance of "Authorized personnel only" signs and detains him. His boss tells him to take all the cash from the trespasser's wallet.
Is that excusable? No, it is not. The police should have no more immunity to prosecution for theft than the mechanic and his boss.
>hold the police department civilly liable ... pay damages for the violation of the victim’s rights
I don't see how holding voters responsible for the actions of the political authorities they elected is inappropriate in such a case. Of course "voters" does not exactly equal "taxpayers" and of course it's unfair to make those who supported losing candidates pay, but that's the situation with everything in the status quo system.
Re whether the individual police officer should be held responsible, it depends on exactly what she was tasked with by her employers. Unless an employee was asked to do something which a reasonable person should clearly know is illegal, generally we should give them a break.
And, yes, of course slaveholders should have been compensated. We live in a system of formal law, and even under 'natural law' slaveholding was considered legitimate by most historical societies.
I agree, although if an individual officer thinks confiscating $87k under no suspicion of criminal behavior isn't illegal, his supervisors should be held responsible, all the way up to the chief of police. If they feel they are not responsible, they should then show that they trained the officers to not do that. If you don't do that "Well, he didn't know any better" becomes an infinitely effective defense against bad actors. Someone must be responsible.
I mean, what happened to the $87k after it was confiscated? If the officer kept it, then obviously he's at fault, no one thinks that's what you're supposed to do with confiscated money. But if he turned it in to his superiors then it's their/the system's fault since the officer didn't gain anything.
That logic doesn't quite work. If I am a mafia thug shaking down store owners for protection money, but I give all that money to my bosses afterwards, that's hardly a defense. We both engaged in illegal activity in that example, unless my bosses can show they didn't know the money was stolen.
Replying to myself - Ideally, "voters" *should* be exactly equal to (net) "taxpayers". For purposes of voting to decide how to spend tax money, their votes should be weighted proportionately to the net tax paid (net of tax money received except for payment for goods or services provided). (Not for other purposes, tho.)
Yes, this would be treating the government the same as any other organization. When e.g. Apple commits a crime, all shareholders end up paying for the damages regardless of whom they voted for.
But shareholders can sell their stock at will if they disagree with actions of management. Voters can't (other than moving house out of the jurisdiction).
I think residents are equivalent to consumers, not shareholders, while the latter are equivalent to citizens. But sure, citizenships are very illiquid compared to shares in publicly traded companies, though personally I've been forbidden by a shareholders' agreement from selling my shares (in a non-public company) for longer than some countries require for naturalization, so it's all relative.
Short answer; yep, what you done said.
Your range in note 1 doesn’t make sense. 680-800 in math cannot be 10th to 90th. 800 is perfect and 680 very well could be top 90th percentile. Please explain. Thank you.
I don't put a lot of faith in SAT scores. When I took my SAT tests, you had to pay for them in groups of three. There were five tests I needed / wanted to take, so I signed up for Math II to not waste that sixth test. There was one question I know I answered wrong, because I asked my math teacher about it. Yet the school counselor called me in to tell me I had gotten 800, perfect. I told him about the wrong answer. He supposedly asked them to recheck my answers, they claimed yes, I had gotten every answer correct.
There were also a lot of questions I did not answer because I had no idea what they were even discussing (what is the derivative of the cosine? My high school did not offer calculus). Some people say unanswered questions should not count, which is ridiculous; I could turn in a blank answer sheet and get 800 for having no wrong answers. Or answer only the very easiest ones. Someone who answers every question should get a higher score than someone who answers only 3/4 or 90% of them.
I don't know, but I think that phrase meant that of the applicants to Harvard, those in their 10th to 90th percentile rating had math SAT scores ranging from 680 to 800.
The confusion, I believe, is in what is being modified by 10th to 90th. Overall SAT scores (which would also include verbal), some Harvard rating system of applicants, other?
At any rate, yes, 10th to 90th percentile cannot refer to those same students' scores on the Math portion of the SAT.
If more than 10% of the students got 800, then 800 is the 90th percentile. Also the 99th percentile.
I wouldn't assume that 800 means no errors. I believe the scores were originally defined in terms of the distribution of results. 800 could be defined, say, as the result that the top .1 percent of students got.
The usual approach to dealing with answers left blank on a multiple choice exam is that the score is the number of right answers minus some fraction, say 1/4, of the number of wrong answers. So it pays to guess if you think your guess has a probability of more than 1/5th of being right — four wrong answers plus one right has the same effect on your score as five blanks.