The problem of political authority - 11. Criminal justice and dispute resolution

the integrity of arbitrators

if two parties have a dispute they cannot resolve, they can agree on a neutral third party that is perceived as neutral.
an arbitrator has one critical asset: his reputation of honesty

why won't companies include a clause of agreeing to their biased arbitrator in contracts?
any provision in a contract regarded as unfair adds an extra cost
- other companies can provide the same service without that extra cost

if you reject having your dispute arbitrated, it is most likely that you are in the wrong since you expect the arbitrator to decide against you
protection agencies will not defend people who reject arbitration
in anarchy, unethical outcomes result if most members of society have incorrect values
- in government, unethical outcomes result if legislators have incorrect values

security agencies would not defend you
criminal-record-reporting agencies would maintain a list of individuals who violated arbitration
- others would not enter into business relationship with you

property owners could specify the body of law governing interactions occurring on their property
arbitrators themselves
- judges would look to similar cases for guidance
advantages to bottom-up approach:
- judge-made law is more closely tied to the problems that ordinary people encounter
- judge-made law is more flexible than statutory law
- common-law system makes smaller cognitive demands on the individual maker, since they only have to decide one case and not anticipate every single issue
common law already works in some countries

criminal might be housed indefinitely in a prison-labor facility, to pay as much of his debt as possible
a crminal whose behavior is so heinous he can not be safely released, can be executed

wouldnt firms compete to offer higher and higher awards to victims?
- theyd eat all the market and then go bankrupt
no, because:
- normal human beings do not see criminal victimization as an opportunity to get rich
- arbitration companies would carefully select their judges for their reputation for fairness
  - overpunishment occurs in governmental systems anyway
- innocent people are sometimes convicted
  - this would promote restraint in judges
- excessive compensation awards tend to be more difficult or expensive to collect
- a criminal can file a lawsuit against that court in a different court if it was unjust
- even extreme increases in penalties would not eliminate all crime
- arbitration would not cease to exist because non-criminal disputes would still exist