The “Statisticization” of Death: From Stalin to “The Box”

stalinWhile discussing with other Allied leaders the potential deaths of tens of thousands of Allied soldiers during the planned invasion of France during World War II, former Soviet leader Joseph Stalin is said to have remarked, “A single death is a tragedy; the death of thousands is a statistic.”  Whether or not the quote is apocryphal (some attribute it to the writer Erich Maria Remarque), it seems to me that we increasingly find ourselves in the perhaps unenviable position of revealing more than a kernel of truth to the sentiment.

Today, the “statisticization” of death has been reduced to a regulatory art form as part of analyses that agencies undertake to determine whether the cost of a regulation is justified by its benefits, including the number of lives it might save.  This procedure is championed by legal economists such as Cass Sunstein and Kip Viscusi, and the mathematics involved can be difficult to penetrate.  The density and abstraction of the calculations is probably for the better, because few of us could rationally and openly assign a numerical value to our own life or to the lives of our friends and family.  Viewing multiple lives in the statistical abstract, as Stalin may have done, perhaps seems to us less stomach-turning.  This concept is really nothing new: over two hundred years ago, Adam Smith theorized that sympathy was attenuated by distance.

I am not uncomfortable with cost-benefit analysis as a regulatory instrument, so long as it remains one tool in the regulator’s box and not a be-all, end-all directive that cannot be countermanded. 

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Hope and Optimism

1345598329_3dd58320f2Every year, about this time, the stress level here at the law school starts to rise.  First-year students seem particularly susceptible.  I hear the word “outline” a lot in the halls.  Students talk about how much they studied over the weekend instead of how much fun they had.  Everyone gets a little bit more serious.

Serious is fine.

Frantic is counter-productive.

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Seventh Circuit Criminal Case of the Week: Of Hearsay and Bootstraps

seventh circuitThe court staked out no new legal ground in its opinions last week, so I’ll just briefly describe a case that nicely illustrates a classic problem in evidence law.  Based on information provided by a confidential informant, Milwaukee police stopped a Ford Excursion on suspicion of drug activity.  Inside were Marc Cannon (the driver), David Harris (Cannon’s cousin), $8,900 in cash (found in Harris’s pockets), and a brick of cocaine.  The cash pointed to Harris’s likely involvement in the drug-dealing operation, but, without more, the evidence still seems short of beyond a reasonable doubt. 

At trial, the government thus relied heavily on the testimony of the confidential informant, Anderson, who recounted a series of interactions with Cannon and Harris.  Perhaps most damaging to Harris was testimony that Cannon told Anderson that his cousin was coming to Milwaukee with a signficant amount of cocaine.  This testimony, of course, was hearsay: Cannon himself did not testify, and Harris had no ability to cross-examine him.  In order to overcome the hearsay problem, the government relied on the exception for statements by co-conspirators.  But this required the government to prove that Cannon and Harris were indeed co-conspirators, and the strongest evidence of that were the very statements whose admissibility was at issue.  The government’s argument thus had something of a boot-strapping character. 

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