COURTS ARE A SCAM – You already knew that, but the reason why is not what you think.

CHAPTER 1

You probably expect I am going to say courts are a scam, because they don’t serve the people by doing what the people want. I am going to say the exact opposite. Courts are a scam because they do what the people want, and the people are a terrible decision maker.

It’s popular to say communism doesn’t work. Communist governments can’t invent new products or even feed everyone. And no matter how many times you vote that they should make more food or housing or whatever, at the end of it there is bad housing or a housing shortage. So the idea goes that individual businessmen, out of greed, will make their own decisions to build housing. We have to leave it to “the free market” to figure out how to supply housing.

The general error people make, is a perception that there is a second, free, infinite layer of decision making, that can review every other decision in the world, and make sure it is being made correctly. So that voters can look at what factories are making bread, can examine which medicines are safe, can see why housing is so expensive, and can then vote to build houses here, bake bread there, and use one medicine while avoiding another.

An example of this mirage of misguided thinking can be found in the opinion of Supreme Court Justice Antonin Scalia in Kansas v. Marsh:

“Even if the innocence claims made in this study were true, all except (perhaps) the 1984 example would cast no light upon the functioning of our current system of capital adjudication. The legal community’s general attitude toward criminal defendants, the legal protections States afford, the constitutional guarantees this Court enforces, and the scope of federal habeas review are all vastly different from what they were in 1961. So are the scientific means of establishing guilt, and hence innocence — which are now so striking in their operation and effect that they are the subject of more than one popular TV series. (One of these new means, of course, is DNA testing — which the dissent seems to think is primarily a way to identify defendants erroneously convicted, rather than a highly effective way to avoid conviction of the innocent.)”

Antonin Scalia, Kansas v. Marsh, 548 U.S. 163, 190-91 (2006)

Guilt is supposed to be decided by the jury. But according to Scalia, this is dependent on “the legal community’s attitude toward criminal defendants”. So if the legal community wants to convict the innocent, juries will convict the innocent. If the legal community wants to only convict the guilty, juries will only convict the guilty. So Scalia imagines juries work because there is this second layer of oversight – “the legal community” – making sure juries do the right thing, and make the right decisions. Not just making sure juries have all the information. But actually overseeing the process to make sure the right outcome is achieved, like managing industry to make sure there is enough bread.

Like communism, the idea is that the success of the decision maker is dependent on the attitude – the good will – of the overseer monitoring his work. So that the overseer can make sure the decision makers are doing the right thing, by using their own knowledge of what that right thing is. According to this line of thinking, people starving is from a lack of want to feed them, by the overseers monitoring the businessmen. But if voters instead have the attitude that people should not go hungry, then they will vote for government overseers, to make sure factories make the right decisions to feed everyone.

Scalia imagines that if the system gives lawyers this unchecked freedom to decide whether to do good or evil, they will choose to do good, and this will result in correct outcomes. Like businessmen who are not regulated by prices or laws, but are altruistic.

All that is needed is an attitude that government officials want everyone fed, and they will oversee that bakers bake enough bread for everyone. Like maybe Kim Jong Un will have a change of heart one day that everyone in North Korea should have a nice house, and so he will oversee the nation’s builders to make sure it happens.

Scalia also mentions habeas review. This is a second layer of decision making, where people who are able to prove their innocence with hard evidence, and who are competent enough or are popular enough to have a public interest to provide lawyers to do so, have this second layer of decision making, to make sure the jury got it right.

The reality is the jury is the only chance to avoid being wrongfully convicted. If the jury trial does not provide due process, very few people will be rich or competent or politically popular enough, much less have the evidence, to prove innocence. But Scalia imagines there is this second free infinite layer of decision making, where wrongfully convicted people can prove their innocence outside the jury. The reality is that the political process freeing the wrongfully convicted, leaves most people starved of justice (as much as does the political process making sure juries make the right decisions in the first place).

Scalia also mentions the science of DNA solving a large part of the problem. As if all we need is the scientific knowledge of how to bake bread, and everyone will be fed. DNA evidence is the easiest evidence to fake. Because it is invisible and is not corroborated with a physical object like a bullet or a fingerprint tape, and it is the easiest to lie about where and when it was obtained and what the scientific result was. And because testing of DNA swabs is rationed selectively and results are introduced last in the process after all the other evidence is known, DNA results can be conformed to the other evidence and used to fill in holes in the case, to prove whoever you want is guilty like a witch-pricker. And nobody can disprove years later, where the CSI said she got a swab.

So again, DNA will produce terrible decisions, if the person using it is supervised to reach the outcome preferred by the overseer or the public. In other words, if the correct outcome is decided above the CSI, the CSI is then rewarded or penalized depending on whether her work produces the outcome preferred by the overseers, not based on whether she followed the rules so that the jury could decide the outcome.

Throughout his opinions, Scalia imagines there is some political mechanism making sure CSI’s don’t lie about where they got DNA swabs or their results. Just like in the Soviet Union, there were higher managers making sure factory managers didn’t lie about their production capacity, to create the impression they were doing a great job. So in the mirage in Scalia’s mind, there is this infinite layer of managers, that ultimately comes back to the people deciding what is good and making sure everyone does what they should do, to achieve the good result.

So it is not the jury which decides guilt, but the local political process which rewards or penalizes CSI’s. And not for lying or telling the truth, but for whether the evidence they produce, results in the “right” decision of guilt as externally decided by the infinite time and wisdom of the political process. In Scalia’s mind, jury trials work not because jurors are independent and provided with information, but because layers of overseers have perfect information and infinite time, and can double-check that the jury got it right.

In reality voters will never sit a day in court or look at the evidence in any criminal case. They will reward the CSI for lying to convict whomever the local papers have been immunized to say is guilty (immunized against defamation lawsuits, to tell the public that anyone police point the finger at is guilty). So if it depends on the voters, or on the attitudes of CSI’s or The Bar association, the innocent will be convicted. Just like factory managers in the USSR provided fake statistics to the central planners. Because the second layer of decision makers is totally uninformed, and easily tricked.

The only chance to make a good decision, is adding another independent institution (i.e. checks and balances) aggressively investigating and prosecuting CSI’s who lie to the jury. Even when that lie obtained the politically popular outcome. Or by telling the jury the reality that CSI’s face a reward and no penalty for faking evidence. The monitor doesn’t monitor the decision, but oversees whether the prosecutor and CSI followed the rules.

No other secondary decision maker, can substitute for the jury being fully informed. The more layers of secondary decision makers you add monitoring the decisions of the first decision maker, the worse decisions you get. Secondary decision makers who monitor whether primary decision makers made the right decision, rather than whether primary decision makers followed the rules, result in terrible decisions made by politics and the madness of the crowd agitated and manipulated by demagogues, like with communism.

To process all the information that needs to be processed, to make all the decisions that need to be made to benefit society, requires distributed decisions made by independent local specialist decision makers. The more things are decided by a single social collective, the less information and expertise they will use, and the worse the decisions will be. The general properties of a distributed decision maker is one that brings together 1) knowledge of the domain, e.g. farming, 2) information the knowledge is applied to, e.g. the precipitation in a certain tract of land, and 3) incentives and constraints that convey public costs and benefits to decision makers, e.g. the price system.

The problem with courts (and many other decision institutions), is that you cannot turn deciding who is guilty over to the price system and “the free market”, to create independent decision makers. You have to make the decision using some combination of voters and government employees. That is where judges and juries come in, which are supposed to function like independent businessmen, making private decisions which nobody else will ever have the information to know if they were right. Checks and balances provide a limited form of competition, where different departments make sure other departments are following the rules to reach their decisions (deter breaking the rules with occasional severe punishments), even though they can never have the resources to double-check whether each decision was right.

For jury trials, the judge brings the domain expertise by instructing the jury, the decision-specific information is provided to the jury by the prosecution and defense (needing separate institutions to make sure they don’t lie), and the public benefit is conveyed to the jury in the rules of the laws themselves, rather than by prices. And the interest of the prosecutor to convict the innocent for votes, or of the public to decide who is guilty based on gossip – the human impulse for the collective to decide – is removed, by handing the decision on guilt over to this independent decision maker.

The purpose of due process is to manufacture such an incentivized and informed private decision maker without the price system. The attitudes of lawyers or the science of DNA, are relatively unimportant compared to the basic properties that jurors are provided all information (and are cured of biases and preconceptions), are independent, and that they follow the law.

Without such an independent decision maker with the right knowledge, information, and incentives in the form of rules, all the science and good intentions will come to nothing, like communism. In fact, adding influence by a second layer of monitors – by overseers who decide whether the outcome is good and attempt to manage decisions, such as by deciding whether to reward witnesses who lie – replaces independent decisions with collective ones, and destroys the quality of outcomes.