All posts by Eric Posner

The cryptocurrency (and more broadly, blockchain) governance conundrum

The enthusiasm for cryptocurrencies, and blockchain more generally, derives from the sense, to enthusiasts, that an old dream is within reach, thanks to advances in computer technology: governance without (human) discretion. Consider our system of property and contract rights. Many people think these bodies of law allow us to organize our affairs in a fair and efficient way, and that the law can be reduced to a set of relatively simple rules that can, in principle, be applied mechanically. The frustration and tragedy is that we must rely on human beings—judges and other bureaucrats—to apply the law, and these human beings unavoidably make errors and, worse, may be biased or corrupt. The tension is even worse for more controversial areas of the law, such as tax law, where the suspicion that IRS officials enforce the law arbitrarily and with bias, illustrated by the Tea party scandal, is widely held.

But if the laws could be enforced by computer, using open-source software that can be examined by anyone, the problem is solved. Hence the excitement about smart contracts, for example. But more than that: what is wanted is a system of law that is entirely self-contained—made, or at least approved, by the public rather than by politicians, and enforced automatically. This is, of course, the blockchain as applied to the (theoretically) self-enclosed system of currency.

But there is a problem—the governance problem. One source of perplexity is who designs the initial software program. What ensures that he or she designs a program in the public interest? Rousseau was so stymied by this problem in the context of political theory that he believed that the lawgiver must be seen as divine. Satoshi Nakamato, who helped get Bitcoin started by shrouding his identity and achieving semi-mythical status, knows his Rousseau!

But even if this initial problem is solved, the second and more interesting problem is how the law (code) can be updated as events change. In the case of bitcoin, miners who collectively hold more than 50% of computer power can change the protocol. But this creates obvious incentives toward consolidation, which appears to have taken place. Bitcoin is a plutocracy. Other cryptocurrencies keep power in the hands of the founders and designated agents, creating, in other words, an oligarchy.

If we try to imagine democratic alternatives, we run into significant problems. It is tempting to think that we could give every (say) bitcoin user one vote. But bitcoin users are anonymous; the network can’t trace transactions to a single user (since a single user can use different keys for each transaction). Perhaps in a different version of the protocol, a vote could be attached to a bitcoin, so whoever happens to possess a bitcoin (or fraction) at any time could vote that bitcoin (or fraction). Still, the wealthy would possess most of bitcoins and hence most of the political power, and strong incentives would exist to accumulate bitcoins in order to maximize power.

A truly democratic cryptocurrency would be one in which all people (presumably, in the world, since national boundaries mean nothing in cyberspace) would possess equal voting power, including people with few coins or none at all.

Global voting seems scarcely imaginable, and also seems incompatible with anonymity. But put aside anonymity and imagine that every person in the world, or in the relevant jurisdiction if voting based on nationality or some other identity were possible, could vote on proposals to update the protocol. Formidable problems would continue to exist. Standard voting procedures—one-person-one-vote—have significant problems, and would be vulnerable to collusion. More sophisticated voting procedures—like quadratic voting—could made headway with this problem, but would still be vulnerable to the classic weakness of democracy: most people would be both incapable of, and uninterested in, making informed decisions on proposals to update a computer program, as the questions would involve technical issues of both finance and programming. Some kind of representative system might be necessary, but the representatives would necessarily have discretion, and be vulnerable to political influence, and we are back where we started.

For these and related reasons, I believe that the dream remains unattainable, at least in the near future, and with respect to currency supply and other public goods. A more realistic possibility is that relatively discrete blockchain systems would be governed based on users’ contributions in maintaining those systems, much as bitcoin is, but these systems would need to be narrowly tailored to some specific commercial problem and couldn’t be used for public goods, like currencies, that affect everyone. Even in the discrete case, however, discretion probably cannot be completely eliminated, as it is in games like chess. People seem to underestimate the extent to which even straightforward-seeming transactions, an interest-rate swap, for example, involve complex contracts with terms that are deliberately ambiguous so that they can be applied in a discretionary manner by judges if unforeseen circumstances arise. But the scope of discretion can be narrowed, and within the remaining field of decision-making, better or worse governance systems can be used. This is the area in which progress can be made.

Vitalik Buterin on Radical Markets

The inventor of Ethereum has much of interest to say about Radical Markets. An excerpt:

Radical Markets…could be best described as an interesting new way of looking at the subject that is sometimes called “political economy” – tackling the big questions of how markets and politics and society intersect. The general philosophy of the book, as I interpret it, can be expressed as follows. Markets are great, and price mechanisms are an awesome way of guiding the use of resources in society and bringing together many participants’ objectives and information into a coherent whole. However, markets are socially constructed because they depend on property rights that are socially constructed, and there are many different ways that markets and property rights can be constructed, some of which are unexplored and potentially far better than what we have today. Contra doctrinaire libertarians, freedom is a high-dimensional design space…All in all, I am optimistic that the various behavioral kinks around implementing “radical markets” in practice could be worked out with the help of good defaults and personal AIs…I particularly welcome the use of the blockchain and crypto space as a testing ground…Could decentralized institutions like these be used to solve the key defining challenges of the twenty first century: promoting beneficial scientific progress, developing informational public goods, reducing global wealth inequality, and the big meta-problem behind fake news, government-driven and corporate-driven social media censorship, and regulation of cryptocurrency products: how do we do quality assurance in an open society? All in all, I highly recommend Radical Markets…to anyone interested in these kinds of issues, and look forward to seeing the discussion that the book generates.

Sunstein wins Holberg prize

The Holberg is a kind of Nobel for fields not covered by the Nobel—arts, social sciences, law. Even before his contributions to behavioral science, everyone considered Sunstein one of the very top legal scholars by virtue of his contributions to constitutional and administrative law, among much else. His last 20 years of work, much but not all of it devoted to behavioral science and law, and star wars, has extended his influence across the galaxy. It is amazing to think that in his 40s, Sunstein was already a great scholar yet had not even begun the work that would prove his most influential. At this age, most scholars have settled into whatever groove that will take them to their grave.

I tell aspiring legal academics to read Sunstein first. It is hard to replicate his brilliance and imagination, but it is possible, by reading him, to understand that even technical scholarship can be written in a fun, stylish, and engaging way. Everyone should imitate his efforts to reach out to people he disagrees with, and treat them with respect and decency.

Is the Stormy Daniels (alleged) hush agreement legally invalid?

I’m not going to teach the Stormy Daniels / “David Dennison” contract in my contracts class. Time is short. But there is some good stuff for law students to ponder—even an integration clause!

In the end, Daniels’ case is pretty weak.* In seeking a declaratory judgment that the “hush agreement” is invalid, she makes three, or possibly four, arguments.

1. No contract was formed because “Mr. Trump [the putative real identity of David Dennison] never signed the agreements. Nor did Mr. Trump provide any valid consideration. He thus never assented to the duties, obligations, and conditions the agreement purportedly imposed upon him” (para. 38).

2. The agreements “are invalid, unenforceable, and/or void under the doctrine of unconscionability” (para. 39).

3. The agreements are invalid because “they are illegal and/or violate public policy” (para. 40).

4. Elsewhere, in the factual recitation, she argues that because Trump (or actually his lawyer Cohen) breached the agreement by disclosing his payment of $130,000 to Daniels, Daniels is no longer obligated to keep her side of the bargain.

On #1, there is no legal requirement that Trump sign the agreement, as far as I know. He can simply consent to it through his lawyer. And even if there were, there’s no reason why the contract wouldn’t be valid as a deal between Daniels and Essential Consultants, the LLC apparently created for this purpose, with Trump as a third-party beneficiary. In other words, Essential Consultants pays Daniels to keep mum, and she agrees to keep mum. The $130,000 payment, whether from Trump himself or Cohen or EC, is valid consideration. Contract? Sure.

On #2, Daniels does not allege facts that make out a claim of unconscionability. She was represented by a lawyer in the negotiations, and she seemed, if anyone, to be in the superior bargaining position. While she vaguely asserts that Trump and Cohen “aggressively sought to silence” her, she does not describe the aggression. If there was something amounting to unconscionability—significant threats, say—she would presumably have mentioned them. Moreover, the $130,000 payment would not likely be regarded by a court as unconscionably low.

On #3, public policy actually favors settlements. There has been some argument lately about whether non-disclosure agreements may violate public policy by hiding bad behavior, but the law, as far as I know, says otherwise.

On #4, Daniels would normally be entitled to damages if Trump/Cohen breached the agreement in this way. But, while I can’t say I’ve read every word of the agreement, virtually all the non-disclosure obligations are (not surprisingly) on Daniels’ part. Moreover, if, as Daniels argues, Cohen violated the non-disclosure provisions, it would seem that Trump (not Daniels) is the injured party, and that Trump would have a remedy against his attorney, rather than Daniels against Trump. Incidentally, Cohen is not listed as a defendant; and it does seem that Daniels alleges that Cohen’s disclosure was at the behest of Trump, suggesting that the breach was Trump’s rather than Cohen’s. Maybe, but the weakness of the contractual language will be a problem for Daniels; she would have difficulty showing that the disclosure was a material breach given that her major aim in the contract was apparently the monetary payment, which apparently took place; and it’s also not clear that she can prove she was injured by the disclosure.

[Additional thought: however, it is my impression that a court might refuse to enforce a non-disclosure agreement if the protected party did not take reasonable efforts to maintain the confidentiality of the information. The question then becomes why Cohen revealed the information he revealed, and whether Trump really ordered him to. If Cohen did so on his own, then that won’t invalidated the agreement though it may diminish the harm from further disclosures, depending on what they are.]

Of further interest, the contract includes a $1 million liquidated damages clause that benefits Trump alone. Law students: is this clause enforceable or illegal as a penalty? I’m inclined to think the latter because the clause stipulates the same penalty for any violation, no matter how trivial. It is also large relative to the payment to Daniels.

*Under common law principles. Maybe there are idiosyncrasies of California law, especially in relation to the public policy claim, that I don’t know about.

What is “norming” and what does it have to do with regulation?

It’s a style of regulation that has received very little comment. It may be troubling. You can read an article I wrote about it, with Jonathan Masur. Abstract below.

How do regulatory agencies decide how strictly to regulate an industry? They sometimes use cost-benefit analysis or claim to, but more often the standards they invoke are so vague as to be meaningless. This raises the question whether the agencies use an implicit standard or instead regulate in an ad hoc fashion. We argue that agencies frequently use an approach that we call “norming.” They survey the practices of firms in a regulated industry and choose a standard somewhere within the distribution of existing practices, often no higher than the median. Such a standard burdens only the firms whose practices lag the industry. We then evaluate this approach. While a case can be made that norming is appropriate when a regulatory agency operates in an environment of extreme uncertainty, we argue that on balance norming is an unwise form of regulation. Its major attraction for agencies is that it minimizes political opposition to regulation. Norming does not serve the public interest as well as a more robust standard like cost-benefit analysis.

Can It Happen Here?: Authoritarianism in America

The book, edited by Cass Sunstein, is out. Buy a copy and another one for a friend.

The book exemplifies a paradox of aggregation. Individually, most authors (including me) answer “probably not.” Yet read every essay and close the book, and the impression you’re left with is more like “uh-oh.” Perhaps the reason is that the authors bring so much energy and varied perspective to describing the threats to constitutional democracy, and draw on different historical and comparative sources that reinforce each other. However, when explaining why those threats are likely to be countered, the authors converge on a series of familiar observations about the strength of our institutions and political culture. With each repetition, these observations sound more like hollow reassurances than irrefutable truths. Well, villains are always more interesting than heroes.

What would a useful Twitter look like?

When I opened an account on Twitter several years ago, I naively made the following assumptions.

1. I could follow newspapers and other publications so I would get stories I’m interested in.

2. I could follow worthy charitable institutions, cultural organizations, and entertainment venues, which would keep me up-to-date about events and projects.

3. I could follow colleagues and other academics, journalists, commentators, and experts of various sorts, who would keep me informed about developments in areas of expertise I share or wanted to learn about. Also, specialized academic journals and institutions.

In fact, nothing worked out.

1. New organizations bombarded me with the same headlines over and over. How many times do you want to read “Longtime Trump attorney says he made $130000 payment to Stormy Daniels” on your feed?

2. Worthy charitable institutions showered me with pleas for money. Cultural organizations sent redundant notices of events I did not want to attend. Restaurants I might visit twice a year sent me their menus every day.

3. Most people in category #3 did not actually alert me to developments in their area of expertise. When not ranting and raving, they sent me links to #1 and #2 along with snippets of text expressing their outrage and indignation. Meanwhile, the tweets of people who tweeted responsibly got lost in the deluge. When you think about it, if you tweet once a day, or a couple times a week, how likely is it that people who receive tens of thousands of tweets daily will see yours? They’d have to watch their feed all day long.

As the years passed, I realized I had filtered out nearly everyone and everything, whereupon I deleted my account.

So what would a useful Twitter look like?

I would like a Twitter that, like a good personal (human) assistant, sent me an email once a week with:

(a) News related to my interests that I might have overlooked. No headlines; I see those on my own.

(b) Cultural events and entertainment options I might actually want to attend. Once.

(c) The latest academic scholarship related to my interests—this is likely to be no more than 10-20 articles or books per week.

Twitter is an enormously inefficient method for accomplishing (a), (b), and (c). Currently, it’s much easier to do periodic google searches. Maybe after years more of AI development, Twitter could give me want I want. But I’m not holding my breath. Generating content that people scan once a week is no way to make money. Twitter can’t work unless it can make itself an obsession.

The worthy tweet

My friend and colleague Will Baude writes that Twitter need not be a black hole or a planetary scale hate machine. We, or at least we academics and public-policy types, can save Twitter by adopting three simple rules:

  1. Aspire to inform, not to convince.
  2. Promote the kinds of things you’d like to see more of.
  3. Don’t promote the kinds of things you’d like to see less of.

Here’s the problem with Will’s proposal: it is entirely at variance with Twitter’s goal, which is to make money by generating content that vast numbers of people will read.

Will is one of thousands of Twitter’s unpaid laborers. Because Twitter pays Will nothing, it can’t dock his wages for producing content that few people read. But Twitter can downgrade his content in favor of the things people want to see: sarcasm, derision, humor, and images and videos rather than links to academic papers on SSRN.

Twitter figured this out years ago, when it stopped displaying tweets on your feed in the order that they arrive, and started tinkering with algorithms that promote tweets that are most likely to be read, liked, and retweeted (as well as ads and paid promotions), including tweets from people who you do not even follow. Twitter’s description of the algorithm is cagey, to say the least. But we don’t need much imagination to understand what it is trying to do.

Will’s view is a bit like that of a conscientious casino operator who worries that slot machines addict people unfairly by relying too much on noise and colors. The operator turns off the sound and replaces the colorful images of fruits and dollars with a black-and-white sign that says “win” or “lose.” He should hardly be surprised if customers disappear the next day—even though the (very bad) odds remain unchanged. The whole point of the color and excitement is to lure the customers and open their wallets. The odds are beside the point.

Twitter cannot make profits unless people use it addictively. Not only will it never create a system that a conscientious academic might design. It also cannot tolerate the content that a conscientious academic wants to produce. If you don’t believe me, look at your analytics. You can still tweet, but hardly anyone will see your tweets. What’s the point of that?

A planetary-scale hate machine

Jack Dorsey:

We’re committing Twitter to help increase the collective health, openness, and civility of public conversation, and to hold ourselves publicly accountable towards progress.

Commenter zestyping at Hacker News:

Today, Twitter is a planetary-scale hate machine. By which I don’t mean “people post hateful things on Twitter.” I mean literally generates hate, as in, put a bunch of people with diverse perspectives on Twitter and by the end of the day they hate each other more than when they started. Common ground might have existed, but they won’t find it, because Twitter, like any arms dealer, works better when they fight. It even benefits from collateral damage, when they hurt people they didn’t specifically intend to hurt.

Through its core design—short messages, retweets, engagement metrics—Twitter incapacitates the safeguards necessary for civil discussion. It eliminates context, encourages us to present each other out of context, prevents us from explaining ourselves, rewards the most incendiary messages and most impulsive reactions, drives us to take sides and build walls.

If Twitter is going to foster healthy conversation, it will have to change fundamentally. It won’t be a matter of tuning some filters and tweaking some ranking algorithms.

The best concise account of the problems with Twitter I have seen. Who are you going to believe?

Antitrust Remedies for Labor Market Power

In a new paper, written with Suresh Naidu and Glen Weyl, I explore ways that antitrust law can be used to counter labor market power. Is labor market power a serious problem? Increasingly, the answer seems to be yes. The latest research suggest residual labor market elasticities in many markets in the neighborhood of 0.5 to 3. The figure above, taken from our paper, provides a rough estimate of the cost to efficiency (DWL = deadweight loss) and workers (“labor share”).  Yes, there are assumptions galore, but you’ll need to read the paper if you want to know what they are. You can find it here.

In another (short) paper, Alan Kreuger and I argue for limits on covenants-not-to-compete and no-poaching agreements, among other things, as a way of curbing monopsony power targeted at low-income workers. Here’s the paper, and here’s an op-ed.


Twitter’s slave labor force

Imagine the editor of a respectable news website approaches you, and says he would like to hire you for a part-time job. You will surf the web in search of interesting news stories, and identify those that you think the news website should link to so as to keep its readers engaged. You might supply some accompanying text as well. You will spend 30 minutes a day, every day.

Sure, you say; you think you can fit that into your schedule. What’s the pay? The editor says: Nothing.

Nothing? Can someone really expect you to spend the equivalent of 22 eight-hour days, about a month of workdays, every year, for no compensation at all? Why yes.

Divide Twitter users into two groups. One group consists of passive consumers who use their Twitter feed as a personalized source of news and entertainment. They never tweet; they are pure customers, who (I suppose) see some advantage to this type of news aggregation. They pay by resting their eyeballs on ads and promotions, the source of Twitter’s revenues.

The other group consists of hybrid worker-consumers. Like the first group, they “consume” the Twitter feed as a source of news and entertainment. But, unlike the first group, they also labor for free, spending hours over the year dutifully tweeting and retweeting Web materials they think of general interest, along with brief snippets of text.

The first group gets something for nothing; the second group gets nothing for something. The members of the latter group are pure suckers. Twitter doesn’t compensate them with anything, not even in kind, for their labor that the first group doesn’t get for free.

How did Twitter pull off this amazing feat—of not only obtaining billions of dollars per year in free labor, but from highly intelligent and educated people—academics and journalists—who are normally hard to fool?

The answer seems to be that once Twitter was able to persuade some famous people to start using Twitter, the lure for ordinary mortals was irresistible. (This, even though the truly famous do not actually send tweets but pay their PR agents to send tweets for them, or buy up followers in the gray market.) The rest is a matter of exploiting well-known foibles of human psychology. Crystalline metrics establish a ranking system that enables you to compare yourself to your peers, lording over those beneath you while chasing after those just above you. A fairly reliable albeit radically decentralized system of obtaining followers ensures that you will progress toward an achievable goal as long as you keep sending those tweets. Positive feedback to your own tweets in the form of likes and retweets, with the occasional jackpot when your tweet goes viral, creates an irresistible variable ratio schedule of rewards that keeps you engaged. If only the work—and that’s what it is—weren’t so damn tedious!

It’s a con, but an impressive con, the sort Tom Sawyer would appreciate.

Are Russian trolls protected by the First Amendment?

Not exactly, but the First Amendment might make life difficult for government officials who want to block, deter, or at least diminish Russian propaganda during the 2018 election. In his prosecutions of Russian agents, Robert Mueller apparently will rely on statutes that prohibit foreigners from meddling with American elections. But the First Amendment protects speech, and while it doesn’t protect fraud (the focus of the indictment), the core activities of the trolls—the use of social media to propagate support for Donald Trump and opposition to Hillary Clinton—fall firmly under the First Amendment umbrella.

This may not save the Russian agents. In addition to engaging in some clearly fraudulent behavior, as non-citizens located outside the United States, they probably cannot claim First Amendment protection. But they can’t be sent to jail in any event because they lie outside the reach of American power. Russians in the United States, and Trump supporters who don’t mind spreading Russian propaganda, are protected by the First Amendment. In sum, the First Amendment protects propagandists whom U.S. authorities could reach, and national borders protect propagandists whom the First Amendment does not protect. The U.S. government is helpless.

There is another twist. Supreme Court doctrine recognizes that the First Amendment protects one’s right as an “addressee” to receive mail and other communications free of government interference. This means any law that sought to blunt the force of Russian propaganda by controlling its distribution by internet companies is unconstitutional. In the wake of the 2016 election, the idea that an unfettered “marketplace of ideas” is always good for the public lies in ruins. If the now twin danger of Russian and terrorist propaganda over social media is at least recognized, it will take a long time to overcome the constitutional legacy.

Should Facebook users organize a “union”?

Imagine that Facebook users were able to contract with an organization that placed itself between Facebook and the users (or a subset of them). When the users post cat videos on their Facebook page, the data are routed through the “union,” which sends them on to Facebook in normal times. But the union could cut off the data flow, or some portion of it, if Facebook refused to offer fair monetary compensation for the data—simultaneously a strike and boycott by the worker/consumers who use Facebook, causing double injury since Facebook’s advertisers would pay less and Facebook itself would have less access to monetizable data to use for machine learning. Is this a new dawn or dystopia? Is it technologically feasible? How might it work in legal terms? An enterprising labor law professor might want to think about this.

Glen Weyl and I discuss this issue in our book Radical Markets. It has filtered out into the general world, with the Financial Times calling our argument “a savage critique of ‘techno-feudalism’ and an idealistic appeal to share the fruits of our collective intelligence more fairly.”

On a completely different topic, some thoughts about how Congress might block Trump from firing Robert Mueller, here.

On cultural monopsonies and data-as-labor

Imagine that a group of amateur softball players start a game in a public park. An audience distributes itself on picnic blankets and enjoys the game. Question: should the audience pay the baseball players?

The answer, as a matter of culture, is no. And the audience certainly has no legal obligation to pay. We might say that the rule is: “if you play a game in the park, you cannot demand payment.” But is that a good rule?

Suppose the rule were: “if you play a game in the park, you may charge anyone who watches the dollar equivalent of the marginal product of your contribution.” This rule is, of course, impractical; but if it weren’t, it should produce social gains. Better players would migrate to the park, and consumers (that is what they are) would get a better product. A point I want to make is that the reason we have the inefficient rule is not just practicalities (of determining marginal products, regulating park usage, and all the rest). We also have a cultural norm that would frown on any player who tried to charge people who watched him play, with a partial exception for buskers, who (culturally speaking) are understood to be more in the business of entertaining, but still are not entitled to demand payment. The player, by contrast, is just having a good time. But isn’t he also “working”? A professional baseball player “works” when he engages in exactly the same activity. We don’t we say that the professional baseball player shouldn’t be paid because he’s just “playing.” What exactly is the difference between the amateur’s “work” (which we call “play”) and the professional’s “work”?

Now consider another setting: the family. Under the traditional conception of the family in our culture, the woman did not “work” in the sense that the man did. Of course, we have no trouble seeing housecleaning, dinner-making, and child-rearing as work, and even in the old days, people would sometimes resolve the cognitive dissonance by calling the work “women’s work,” thus devaluing it but not denying that it is work at all. You can even find judicial opinions where the work supplied by women in a household setting is treated as “gratuitous.” But the idea that women should not be paid for their work was entrenched. Married men, like the hypothetical baseball audience, enjoyed the benefits of a cultural monopsony.

We see this phenomenon in other settings. As Kim Krawiec points out in an ingenious article, the same cultural logic has been applied to the “gamete market”: women are expected to “donate” eggs for free, with compensation to cover only medical bills, rather than demand a fair payment. (Men, as sperm donors, are not.) We see something similar in the kidney market (for both sexes). The beneficiaries of the monopsony are not the ultimate consumer but intermediary companies, who are, by the way, (in the case of the egg market) being sued for price fixing. But there are countless examples. Sports—my original example, where the difference between “work” and “play” is so obscure—provide a long history of monopsony, mostly wiped out for now, except that universities operating through the NCAA continue to underpay “student” athletes who are essentially workers who are given room and board and a nominal education in return for extraordinary levels of labor. I suspect similar stories can be told in the area of the arts, ideas, and politics, where there have often been traditions of holding that workers should not be paid or should be underpaid. The common theme seems to be that firms have taken advantage of historical traditions and understandings that dissuade people from demanding full pay.

The latest and most interesting manifestation is the market for data labor. Starting with Jaron Lanier, commentators have pointed out that Facebook, Google, and other big tech companies have exploited a cultural understanding that when one uses internet services as a consumer one doesn’t “work” by supplying data despite the great value of the data for the internet companies, which use it to improve their AI services. This is not very different from my other examples, especially the women’s work example—since women were, in a rough sense, paid in kind for their work though not give their marginal product as they would in a market. The big tech companies would get better data if they paid people with money for their specific contributions rather than in kind through the general service provision (and, in fact, sometimes they do, but in a way largely hidden from the public, as when they hire people (as “workers”) to label photos), but very likely do not do so because they do not want to disturb the cultural monopsony from which they benefit. The result is that a huge number of people who make significant contributions to the development of AI and other services are unpaid, except roughly in kind, which not only retards the growth of technology services, but results in a massive transfer of wealth from ordinary people to the tech titans.

Glen Weyl and I explore these ideas in one of the chapters of our new book, Radical Markets, and argue that a free market in data labor would both advance technological progress and redistribute wealth to ordinary people. You can also read a discussion of the idea in The Economist.

What does the decline of democracy mean for human rights law?

By now it is unmistakable that democracy is in retreat around the world, including in the United States. Freedom House has announced that political and civil liberties have declined for 12 years in a row. While Freedom House is often criticized for its motivations and the accuracy of its ratings, these particular results seem robust, and are consistent with other measures as well as with anecdotal evidence.

The decline began in 2006, according to Freedom House, which was just about when human rights scholars began putting together studies that showed that human rights treaties have improved outcomes for countries. Interestingly, an initial set of studies in the 1990s and early 2000s had suggested that human rights treaties did not improve outcomes; the later work was more sophisticated, but in the end it was an exercise in finding correlation and calling it causation. If you extend the scope of analysis to respect for “social and economic” rights (defined usually, if not really accurately, as literacy rates, mortality, education, equal pay for women, etc.), you do seem improvement in most countries, and since nearly all countries ratified human rights treaties a few decades earlier, you have your correlation. One could also, by tinkering with the definitions of political and civil rights, find some improvement as well (though some things, like torture, seemed stubbornly resistant to statistical manipulation).

Then why didn’t human rights treaties stop the slide toward repression, in countries as diverse as Russia, Turkey, the Philippines, Hungary, Poland, Venezuela, Mexico, Honduras, and Rwanda? And we who live in the United States and Europe know things are not well even if democracy remains robust for the time being. The simple answer—which would be platitude if it were not rejected by the human rights community and legions of scholars—is that the treaties were always poorly designed, and not strong enough or taken seriously enough to make much of a difference in how governments treat the public.

The original idea of the treaties was that they would ban the very worst type of behavior exemplified by the Nazis, but as a result of mission creep, today they all but require all countries to be Denmark or Sweden. Yet at the same time, the rights they create are so vague and so riddled with exceptions, while at the same time so frequently in conflict with each other, that nearly any type of government policy could be rationalized. The United States and a few European countries took them a bit more seriously than most, but mainly to use as a cudgel against their enemies or rivals, in the most selective manner possible.

You would think that it would be a good time for scholars and those in the human rights community, government officials and NGOs, to embark on a reassessment. I don’t see one coming. There is a large industry that depends on the illusions that these treaties create; it would gain nothing by exposing them.