Memorandum submitted by Eric Rasmusen
(CRU 16)
(1) I am a well-known economist, specializing
in law-and-economics, game theory, and the economic theory of
politics. Very likely any economist you ask in the UK will have
heard my name, though I am nowhere near Nobel caliber. My vitae
is up at http://www.rasmusen.org/vita.htm. I have no financial
or other relevant connection to the issue on which I am commenting.
(2) I am writing now with a comment on dealing
with Climategate. I write not on what happened at East Anglia,
but on a narrow point of law, politics, and procedure that may
have escaped your notice. My comment is on your question:
— "What are the implications of
the disclosures for the integrity of scientific research"?
— "Are the terms of reference and
scope of the Independent Review announced on 3 December 2009 by
UEA adequate (see below)?"
The implications of this case are that criminal
concealment of scientific research data in the UK is currently
nonpunishable by the government, something which no Independent
Review will solve. You need a new bill to punish nondisclosure.
This bill could be special to scientific data, and so would, I
imagine, be within your remit.
(3) It is said that a statute of limitations
prevents prosecution of people undoubtedly guilty of concealing
information. I take that as given for points (4) and (5). I am
deeply skeptical, however. I have seen The Magistrates Court Act
1980: section 127, which I do NOT think would apply. This looks
more like the kind of excuse that would fool the public but nobody
who actually looked into the law. Maybe not—but do ask the
lawyers to cite chapter and verse and explain the legal concept
of "tolling".
(4) You can change the statute and prosecute
the guilty parties. The US Constitution has a provision banning
"ex post facto" laws, which might prevent that in the
US (though not obviously—here, the change would merely involve
extending the statute of limitations, rather than making an action
illegal that used to be legal). You have no such constraint in
the U.K. You could even use a mild form of a bill of attainder—
a statute to punish one person who is morally culpable but whom
the courts for reason of technicalities or favoritism won't prosecute.
So go ahead and change the law, and make it retroactive.
(5) It may well be the case that some people—I
do not know who exactly, but I raise this as a possibility—
would like to hide behind the statute of limitations to avoid
doing their duty and prosecuting this crime. If so, their dereliction
should be vigorously publicized. Here is the general idea:
(6) "Mr. X admits that Mr. Y has committed
a crime, and ought to be punished, but he says that unfortunately
the law was drafted poorly and so punishment is not possible.
I have good news for Mr. X. Parliament can change the law, and
punish Mr. Y for doing what was already illegal and what Mr. Y
knew was illegal but which could not be prosecuted because of
a draftsman's carelessness. I trust I have Mr X's enthusiastic
support for this bill, because I would not like to believe that
he is merely hiding behind the technicality to avoid punishing
a man he admits is guilty."
(7) I am, as I said, an economist rather
than lawyer, but I have written extensively on law, bureaucracy,
politics, and the mathematics of strategy, and that is what I
am writing about today.
(8) I will mention one other point which
might be useful. The economists at the University of East Anglia
are very well regarded in the economics profession. I know a number
of them personally from my visit to Oxford a couple of years ago.
If you need a reliable, honest, person within the University you
could do worse than to search among them.
January 2010
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