21 May 2011

Fighting Back: Libertarian Essays on Resisting the State

This is a short book I put together from some things I wrote over the past several years. Hardcopy versions are available at Lulu.

Fighting Back

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24 April 2010

Last Word on the Legal Labor Cartel

"The truth is that legislatures and Courts have made lawyers a privileged class, and have thus given them facilities, of which they have availed themselves, for entering into combinations hostile, at least to the interests, if not to the rights, of the community – such as to keep up prices, and shut out competitors. The natural result of such combinations also is, that the mass of the members will do more or less to screen individuals from suspicion. The consequence is, that the people have imbibed an extreme jealousy towards them.... Now if the profession were thrown open to all, lawyers would no longer be a privileged class – they probably could no longer enter into combinations that would be of any avail to them, and the jealousy of the people towards them would be at an end." Lysander Spooner, To the Members of the Legislature of Massachusetts, August 26, 1835.

Lawyers, like doctors, are part of a class of people who must join what amounts to a labor cartel in order to lawfully ply their trade. Bar associations have territories, and they drive up the price of legal services in those territories by limiting entry by service providers. Talk of the lawyer's "
professional responsibility to provide legal services to those unable to pay" stems from guilt about this anti-competitive status quo in the legal services market. Why should lawyers owe anyone relief if they didn't first create the burden to be relieved?

Now, this is not to say that lawyers ought not engage in pro bono work--to the contrary, making a habit of being generous towards others can be an ennobling exercise. But it is hardly charitable to bang out the recommended fifty hours of pro bono work annually and then to wash one's hands of the labor cartel's negative externalities. Nothing could be more self-serving than assuaging one's own guilt.

Lawyers shouldn't have to feel guilty. The use of intercessories for dispute resolution is a hallmark of civilized societies throughout history. A careful, conscientious advocate and counselor has no reason to be ashamed of his vocation per se. The reason lawyers are resented is in large part because many people see that lawyers have special access to the engine of the State and jealously control that access.

Specialization and the division of labor are crucial in a free society of any scale, and certainly some individuals are better equipped than others to advocate a position before a judicial body. However, we are all best served when specialists are subjected to the rigors of competition: consumers are unburdened by artificial price inflation and are empowered to make informed decisions, while those practitioners with particularly sharp skills are most reliably rewarded for their excellence.

Promoting a free market in legal services, where lawyers truly compete and can fully differentiate their services from those of their competitors, is the surest way to reduce the ranks of those who are "unable to pay" for an advocate. Competition drives prices down. Cartels drive them up.

(Also published in the April 2010 issue of Dicta, the Suffolk Law newspaper and at The Libertarian Standard.)

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25 March 2010

The Feds: Too Big to Fail?

"One of the most baffling phenomena of fascism is the almost incredible collaboration between men of the extreme Right and the extreme Left in its creation. The explanation lies at this point. Both Right and Left joined in this urge for regulation. The motives, the arguments, and the forms of expression were different but all drove in the same direction. And this was that the economic system must be controlled in its essential functions and this control must be exercised by the producing groups." John T. Flynn, As We Go Marching, 1944

While the fanatics from the Left have been calling all comers either "racist" or "child-hater" over whether or not people should be forced to buy a product they don't want, their opposition is divided into two oil-and-water camps.

In the first camp are the stereotypical partisan naysayers of the political Right. Think of the football fans who spill their beer tele-heckling the referee every time the call on the field hurts "their" team. They all voted for Bush the Lesser despite his theretofore unprecedented prescription drug entitlement program and expensive and murderous imperial campaigns, and now they don't even see the obvious hypocrisy of their newly vivified, newly vocalized small-government, slash-the-budget convictions. And of course, don't take away the Department of Education, Social Security, Medicare, or the minimum wage--what do you think this is, the Old Right? Those guys who swore to fight those New Deal and Great Society abominations to the death, well, they did. And heaven forbid that we jettison the DEA and the CIA! Who would protect us from third-world peasants and their dangerous plants and headgear?

No, this is compassionate Jack Bauer neoconservatism! We need our kids lined up every morning feeling their hearts beat in pace with the rhythm of that glorious denial of the individual conscience, the Pledge of Allegience, and we need them doing it in a public school while sipping on subsidized milk! Just don't tell us where to shop for our gallbladder surgery--not while you are holding that blue campaign sign anyway.

In the second camp is every sensible human being in the United States who has ever balanced a checkbook and who has not been convinced by state apologists that math somehow functions differently when numbers get really, really big. This camp contains the people who realize that the problem with Johnny's credit card debt is not that the credit card companies refuse to expand his credit line anymore. The folks who have the free time to stand around and wave signs in DC's barren wasteland of sterile bureaucracies and cold monuments to war criminals probably aren't going to be representative samples of this population. Regardless, even these people know that more indebtedness now means more pain later.

Like most law students, I came to law school because I like to gab and wave my finger in the air and because I am not particularly interested in doing math professionally. But even with only vague memories lingering of my last math class in the fall of 1999, I can count. And I could count on Dec. 16, 2007, when I participated in a Ron Paul rally at Faneuil Hall commemorating the anniversary of the Boston Tea Party. The original occasion for the Boston Tea Party was provided by the arrival of a boatload of mercantilist East India Company tea. The 2007 event was about denouncing the bipartisan corporate leviathan state, and was full of antiwar rhetoric, talk of slashing the federal budget, and gleeful notions of a central state small enough to fit in a bread box.

All that ire was directed at the establishment, which in 2007 was the Republican establishment. While rising unemployment and despair have perhaps freed up more warm bodies for protests since then, no honest person who has done his research can claim that the tea party vitriol was brewed from partisan gamesmanship on Inauguration Day 2009. Folks who had been marching for years in step with Ron Paul on instituting a non-interventionist foreign policy and kneecapping the federal budget were called "crazy," "terrorists," and worse by the Giuliani-McCain-Romney GOP primary home team.

Now, two years later, "change" has come, but in form, not substance. And the "change" is that corporate fascism is wearing the clean raincoat of humanitarian concern for the health of the downtrodden. Add to that the fact that the dogs of the Right, licking their wounds and regrouping, have hastily worked to change their own battered facades, rebranding as Tea Party-goers in an attempt to find some campaign lifeblood, and, voila!, the Left's do-gooder conceit is confirmed by fallacy of hasty generalization: some sniveling imperialist lackeys started trying to drum up business at tea parties, and claimed to speak for "the movement." To any good, propaganda-eating Leftist this clearly meant that everyone at those events must keep a shrine to Bill Buckley tucked away with the Confederate sabers and lynching ropes out in the garage.

As Flynn observed, the snuffing out of individual autonomy is a bipartisan affair. Luckily, as with all empires, the "parasite economy" eventually drains its host and must succumb and give way to a more sensible state of affairs. Those on the Left who watched as George W. Bush spared no expense sacking Iraq and Afghanistan after complaining about Clinton's penny ante nation-building are justifiably skeptical of the cries of "freedom!" from the Right. But those on the Left and Right should consider whether or not the end result of this destructive tug of war will leave anything with which to rebuild after this whole fascist scheme cracks up.

(Also published in the March 2010 issue of Dicta the Suffolk Law newspaper.)

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18 January 2010

Obama: The People's War President?

Last week, I received news that an old friend—the son of a former Libertarian congressional candidate—had become a conscientious objector in his Army unit following an action that killed noncombatants. This was Wayne's first tour of duty, but there is no doubt that he was well-practiced in the fieldcraft and personal discipline required for good soldiering.

He grew up in a close-knit Christian family that homeschooled their children on a fifty acre plot of woods in the wiregrass region of lower Alabama. Wayne grew up reading, hunting, fishing, shooting guns, and playing paintball with his brother and sister. While working with the Libertarian Party of Alabama, I visited their home on several occasions between 2002 and 2004, and I remember Wayne as a respectful young teenager with an expansive vocabulary and his father's knack for computer games.

Around five years after the last time I saw him, Wayne's infantry unit deployed to Iraq. Having been in the Army for a couple of years already, his father reports that he was "gung-ho" about the Army life, even in a combat zone. Wayne's unit assaulted a building thought to contain "insurgents," and air support was called in from an AC-130 gunship and an AH-64 Apache helicopter. After the target was bombarded from the air with 105 mm shells and strafed with 30 mm cannon-fire, the structure was cleared, and only lifeless women and children were found inside.

After returning stateside, Wayne determined that his conscience would not allow him to kill for the United States government again. Despite ridicule and worse from his "battle buddies," Wayne, now facing another Iraq deployment, has begun openly speaking his conscience and declaring that participation in the Iraq War is participation in murder.

Barack Obama was held out by many as the most radical voice for peace among the viable Democratic presidential candidates in 2008. What a disappointment to those who voted accordingly! The peace president has broadly expanded the Afghanistan campaign, begun bombing runs in Yemen, and still maintains tens of thousands of combat troops, albeit at reduced levels, in Iraq (although my friend reports that private military contractor usage has been amped up to compensate). There have been rumblings about stepping up U.S. efforts to "stabilize" Somalia, and Xe (formerly Blackwater) mercenaries are already on the ground there. The Obama administration has also worked to move more troops into the murderous anti-coca campaign in Colombia, where "false positives" (anti-narco-gestapo-speak for "murdered civilians") continue to mount.

Fear of American operations into Colombia's neighbors has made political hay for South American political oppressors, as the socialists in power in Venezuela and Ecuador have effectively used the American regime as a foil in their own democratic socialist melodramas, working to clamp down on dissenting media outlets and otherwise centralizing control of those economies into state hands.

In total, the United States has around 394,000 troops deployed on foreign soil. In comparison, the rest of the world's governments combined have fewer than 150,000 of their military personnel on international deployment.

Like his war-hawk predecessor, the current president is pursuing a policy of perpetual war for perpetual peace. And like the Bush government, Obama's administration has moved to cover-up evidence of torture and other crimes committed by U.S. personnel.

Glenn Greenwald pointed out in a recent Salon column that this should come as no surprise to those who remember that in 2008 Obama's current head of the Office of Information and Regulatory Affairs, Cass Sunstein, advocated government operations to actively infiltrate and disrupt groups that openly questioned the truthfulness of the federal government's various organs. Sunstein pitched such actions as means for promoting public faith in the government.

Administration figures have also been up to no good in domestic policy debates, with the undisclosed bankrolling of soi disant "independent" experts like Jonathan Gruber. The MIT professor took federal money to promote the president's healthcare agenda in the media, but forgot to mention this rather substantial conflict of interests when grandstanding for his government employer. Greenwald correctly concluded that such official deception is symptomatic of yet another administration's narcissistic self-assuredness and disdain for honest debate.

If anyone doubts that government propaganda kills, look at the eighteen year-old kids who join the military because they believe they will be "protecting freedom" by serving as emissaries of the leviathan state that once used atomic weapons against civilians and which imprisons a higher percentage of its own citizens than any other modern democracy.

Rather than sending naive, trusting young people like my friend Wayne to risk life and limb committing mayhem in the name of "regional stability" and other nebulous trump cards, Obama should bring American troops home now. But he will not do so. He will simply put new window dressing on the tired old political barbarism of high-time preference foreign policy and spending for spending's sake, and will continue to show the same disregard for the individual lives irreparably harmed as a result. Where's the hope?

(Also published in the January 2010 issue of Dicta, the Suffolk Law Paper.)

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10 August 2009

Healthcare Contrarianism in an Age of Consensus

It was once hip to question authority, partisan allegiances be damned. Among those who once chanted "Hey, hey, LBJ/How many kids did you kill today?" in protest against the Vietnam War, at least a few were left-of-center types more likely to be lumped in with Johnson's Democratic party than with the Republican one. In our modern political climate, however, loose political coalitions sink campaigns. In an age when "spoiler" candidates like Ross Perot and Ralph Nader are almost universally decried as having "taken votes" from their rightful, major-party recipients, the level of intra-party criticism is ebbing ever lower.

Years after the rise of George W. Bush to the presidency, I recall seeing many proud Republicans driving cars sporting "W: The President" stickers, apparently indifferent to the fact that Bush grew government faster than Clinton had, dwarfed Clinton's military expenditures, and threatened other nations with the reckless abandon of the too-drunk friend who you try to whisk out of the bar before he gets himself into trouble. Now, well over six months into the Barack Obama administration, the new president's devotees are likewise still devoted, wearing Obama t-shirts, sporting his campaign stickers on laptops and cars, and denouncing opponents of Obama's policy proposals as partisan, possibly racist no-goods who in the words of Obama himself "created this mess" and ought not "do a lot of talking."

Just as Bush supporters did when they claimed that opponents of the Iraqi and Afghani wars were "with the terrorists," Obama and his supporters pose a false choice: either you give carte blanche to the people in power on Capitol Hill or you are a war-mongering, possibly fascist, indigent-hating Republican. This false dichotomy ignores the fact that millions of Americans have steadfastly opposed government cartelization of the healthcare industry for years, criticized Bush's approval of a massive prescription drug bill, and were just as eager to march against Republican wars in Iraq as they were to protest Democrat-led adventurism into Eastern Europe and Northern Africa.

One doesn't have to be a pro-war neoconservative to see that the further bureaucratization of the medical services industry, especially where price controls are likely, will result in fewer choices for consumers, less flexibility in treatment regimens, and another reason for our benevolent government overlords to further regulate what we eat and drink and smoke. However, by allowing a market rather than a panel of bureaucrats to set prices, shortages could be mitigated in the short term and eliminated in the long term. In a market where prices are a function of supply and demand, prices rise as supplies become more scarce. Free market prices act to prevent wasteful usage of scarce resources, like that of Medicare patients who call an ambulance scores of times for minor or imagined maladies, because such overusage would break the bank for the wasteful patient. Likewise, where there is a more fundamental supply issue, rising prices both encourage entrepreneurs to devise more efficient ways of serving patients and bring more service-providers into that sector of the market.

Although there is much wrong with the healthcare plan being pushed by the majority party right now, it is important to note that this does not mean that the status quo in the United States represents a "free market." Nothing could be further from the truth. Even without the Democratic plan, we have a medical labor cartel, the American Medical Association, in place to artificially limit the supply of medical services and raise their prices. We have lengthy pharmaceutical patents that prevent competitors from reverse engineering drugs sooner and from devising cheaper ways to bring those drugs to market. We have an incredibly onerous drug approval process that is so expensive as to frustrate the business plans of all but the largest of drug companies and keeps possibly life-saving drugs out of the hands of desperate patients who ought to be allowed to do their own risk/benefit analyses when their lives are the ones on the line. Huge entitlement programs like Medicare and Medicaid, while burning through money like almost nothing else besides the military, ensure that the poorest segments of the population will receive substandard care and annoyed looks from paperwork-hating triage nurses.

It is true that the United States has a healthcare system, at present, that is marginally more free than those of many other nations. Although there are price ceilings for certain patients under certain government entitlement programs, there is still a private market in healthcare that allows prices to adjust to their natural levels. For this reason, many foreign medical professionals immigrate to the United States, where their expertise will be better compensated and utilized than under the mess of bureaucratic red tape in their countries of origin. The fact that the United States is effectively alone among industrialized nations in not instituting a single-payer healthcare system is no argument for such a policy. Political keeping-up-with-the-Joneses is lazy and irresponsible in public policymaking.

The United Kingdom's National Health Service (NHS) is often raised as an example of a single-payer healthcare success story, but the NHS's own statistics show that the number of general practitioners per capita in Britain has fallen dramatically since the imposition of the NHS monopoly. Despite long waiting lists, substandard facilities, and doctor shortages, Britons will have to put up with their bureaucratized healthcare system until the whole British house of cards comes down, because the NHS is now the largest single employer in the United Kingdom and one of the top five employers in the world. With that many people drawing a government check from NHS, the program is entrenched, its miserable failure notwithstanding.

Here in the land of the free and the home of the brave let us actually expect a little personal responsibility. Individuals should plan financially for foreseeable medical expenses and remember that medical insurance is best reserved for catastrophic medical events. Eliminating the administrative costs associated with bureaucracy (and preventing the imposition of more such costs) means prices must fall eventually, all things being equal. Lower prices would mean that voluntary charities could better afford to serve more individuals, but without causing the distortion in the market that government bureaucracies do.

Pretending that we can totally abandon personal responsibility because we have a "right" to the labor of doctors, nurses, and hospital administrators only confuses the issue, discourages talented individuals from pursuing medical careers, and insures that the American healthcare system will continue to decline. Government monopolies didn't carry the now-commonplace heart bypass procedure from experimental to routine, the market did. There is no room for the government in healthcare.

(Also published in the Orientation 2009 issue of
Dicta, the Suffolk Law paper.)

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22 April 2009

Anarchy and the Law of the Somalis

I don't think there are any warlords in Somalia. There are war leaders, or militia leaders, in various parts of Somalia. People who defend their homes often organize militias; it is done in places as genteel as Switzerland, Texas, and Israel. You find that the mainstream media tends to call the leaders of these militia ‘officers’ in countries other than Somalia. Very often, the elders of a community choose a war leader or officer, and he chooses his lieutenants and subordinates. He provides leadership, until the crisis is past or until another officer is chosen to replace him, or until he dies. Calling him a warlord and calling his lieutenants ‘henchmen’ doesn't further a discussion of these issues.”

—Jim Davidson, Awdal Roads Company, Awdal Province, Somaliland, 2001.1

In July of 2001, after completing ROTC Basic Camp at Fort Knox, Kentucky, I refused to contract with the United States Army. When Major Hall, my company commander, asked me why I had decided not to pursue a commission as an officer, I told him that I was an anarchist, and that I could not in good conscience take a loyalty oath to fight on behalf of the United States government. I thanked the major for the infantry training and was on my way home the next day.

In September of 2007, I was asked by my legal practice skills professor to complete a questionnaire explaining what I expected from law school, why I wanted to study law, and what I hoped to accomplish with a legal education. I replied that I wanted to learn what I could about the history of the common law and the modern legal process. As for my goals after legal education, I answered to the effect that I hoped to aid in the emergence of a modern polycentric legal order2 where private insurance companies, arbitration firms, and security agencies would function in place of the present monopoly justice and security structures administered by the state.

The provision of dispute resolution services and security services by market means is not a radically new idea. With regards to theoretical arguments for market, rather than political, provision of dispute resolution and security services, Gustave de Molinari argued in 1849:

“This option the consumer retains of being able to buy security wherever he pleases brings about a constant emulation among all the producers, each producer striving to maintain or augment his clientele with the attraction of cheapness or of faster, more complete and better justice. If, on the contrary, the consumer is not free to buy security wherever he pleases, you forthwith see open up a large profession dedicated to arbitrariness and bad management. Justice becomes slow and costly, the police vexatious, individual liberty is no longer respected, the price of security is abusively inflated and inequitably apportioned, according to the power and influence of this or that class of consumers. The protectors engage in bitter struggles to wrest customers from one another. In a word, all the abuses inherent in monopoly or in communism crop up.”3

A number of radical libertarian writers in recent years have expanded on Molinari’s thesis, posing sophisticated arguments for a free market in justice and defense.4 However, there is plenty of evidence to demonstrate that people have been privately going about their own dispute resolution business for thousands of years. One strong indicator of this tendency is the fact that the government rulers who have long fought to monopolize the provision of binding dispute resolution have for hundreds, if not thousands, of years threatened criminal penalties against crime victims who independently endeavored to secure recompense from an offender. Rothbard recounts that,

“in the Middle Ages generally, restitution to the victim was the dominant concept of punishment; only as the State grew more powerful did the governmental authorities encroach ever more into the repayment process, increasingly confiscating a greater proportion of the criminal's property for themselves, and leaving less and less to the unfortunate victim.”5

As time went on, the king sought to protect his court revenues. Benson describes the development in English law:

“[R]oyal law imposed coercive rules declaring that the victim was a criminal if he obtained restitution before he brought the offender before a king's justice where the king could get his profits. This was not a strong enough inducement, so royal law created the crime of ‘theftbote,’ making it a misdemeanor for a victim to accept the return of stolen property or to make other arrangements with a felon in exchange for an agreement not to prosecute.”6

Theftbote has evolved into what is now referred to as “compounding a crime,” which is committed when a crime victim accepts restitution in lieu of punishment. As Barnett explains, “In the quest to punish criminals, whether for retributivist motivations or to protect the public, crime victims become mere means to the ends of the institutions created to punish.”7 If one takes the purpose of the criminal justice system to be the deterrence of wrongful acts and protection of victims, it is strange indeed that the very system which is supposed to offer hope for relief would instead create new obstacles to the righting of wrongs. However, this development should come as no surprise to those who remember that criminal law came into its own as a means of fattening the king’s coffers, not as a bulwark against predation by the unjust.8

Because I recognize that government courts serve primarily to advance the interests of government power, my goal as an aspiring attorney is to use what I can from my legal education to work against the State—to oppose government action where private, voluntary action would better serve the interests of justice. It is the subsequent question—“How can private actors be entrusted with the provision of public goods like defense and justice?”—that makes a book like The Law of the Somalis important.

Van Notten, a Dutch lawyer, lived with the Somali people and applied his legal expertise to learning and understanding the Xeer, the traditional Somali legal system that has developed over thousands of years. The Xeer is remarkable because it is not dependent on a central government authority, but instead relies on familial, economic, and cultural pressures to insure that justice is done. While the details of the system leave some things to be desired—equal rights for women and greater alienability of property outside of the clan, for starters—it is based on core principles which are admirable and reasonable:

1) The law is separate from politics and religion

2) The law has a built-in method for its development

3) There is a plurality of jurisdictions and norms

4) Government personnel must abide by the law

5) The law originates in the reason and conscience of the community

6) Judges are specialists, each with his own method of analyzing the Law9

These core principles are admirable enough, and familiar to those already acquainted with American law: The first protects the elevated place of rational discourse in judicial decision-making. The second hearkens to the English Common Law, which too provides for its own development. The sixth recognizes that judging legal disputes is rightfully a specialized vocation deserving of professional experts in the law.

However, number three’s legal plurality is somewhat alien to those accustomed to hierarchical, monolithic legal systems. Likewise, number four conflicts with the English concept of sovereign immunity, where as a matter of policy certain state actors are shielded from liability that would, save their position of favor with the state, otherwise leave them vulnerable to remedial action from the courts. Number five reminds one of the traditional English and American jury system before the Sparf decision that deprived the petit jury of the power to determine both law and fact,10 a power it had enjoyed since Bushell’s Case in 1670.11

The most important role of van Notten’s book, besides offering a glimpse at the legal culture of a distinctly independent people who have successfully resisted centralized government authority since 1993, is to offer one contemporary example of a legal system that is the result of spontaneous order and not the edict of a person in power. Although no utopian vision, van Notten provides us with proof positive that emergent systems arise to satiate demand for solutions to even complex social problems like inter-cultural dispute resolution.

Now it is left to experts in law and security to work to craft market mechanisms,12 to render obsolete the inexpedient government models that cost too much in terms of both dollars and individual liberty. In the meantime, I plan to apply my convictions as a criminal defense attorney who is uniquely qualified to vigorously represent any client, no matter how deserving of disdain. Imprisonment is at worst criminal and at least counterproductive. Even where a criminal defendant is guilty of wrongdoing, imprisonment frustrates efforts by victims seeking restitution. Slaves, even slaves whose enslavement falls within the Thirteenth Amendment exception “as a punishment for crime where of the party shall have been duly convicted,” tend to be slow earners, and so less capable of making their victims whole. And again, curing the damage caused to the victims is supposed to be the aim of the whole exercise. As a criminal defense attorney, I can rest assured that my opponent will always be the state, and thus that my cause will always be just, whether my client is innocent or guilty of the crime charged. More than that, though, working to put less-than-innocent people on the street gives victims a better shot at actually securing restitution.

1 Davidson, James. "Somalia and Anarchy." Formulations. Free Nation Foundation. Issue #30 (Summer 2001). [URL: http://libertariannation.org/a/n030d1.html ]

2 See generally, Rothbard, Murray N. The Ethics of Liberty. New York: New York University Press, 1998.; Barnett, Randy E. The Structure of Liberty. New York: Oxford University Press, 1998.

3 de Molinari, Gustave. "The Production of Security." Journal des Economistes. February 1849. J. Huston McCulloch, trans. 1977. [URL: http://praxeology.net/GM-PS.htm ]

4 Tannehill, Linda and Morris. The Market for Liberty. New York: Fox & Wilkes, 1993.; Hoppe, Hans-Hermann. Democracy: The God That Failed. New Brunswick, New Jersey: Transaction Publishing, 2001.; Murphy, Robert P. Chaos Theory: Two Essays on Market Anarchy. New York: RJ Communications, 2002.

5 Rothbard, Murray. The Ethics of Liberty. New York: New York University Press, 1998. p. 87.

6 Benson, Bruce. The Enterprise of Law: Justice Without the State. San Francisco, California: Pacific Research Institute, 1990. p. 62.

7 Barnett, Randy E. The Structure of Liberty. New York: Oxford University Press, 1998. p. 236.

8 Benson, p. 52–53.

9 Van Notten, Michael. The Law of the Somalis: A Stable Foundation for Economic Development in the Horn of Africa. Asmara, Eritrea: Red Sea Press, 2006. p, 34.

10 Sparf v. United States, 156 U.S. 51, 63 (U.S. 1895).

11 Parmenter, Andrew. “Nullifying the Jury: ‘The Judicial Oligarchy’ Declares War On Jury Nullification.” Washburn Law Journal. Vol. 46, p. 379. Winter 2007. p. 382.

12 Perhaps a “Subscription Patrol and Restitution” insurance model, as suggested in Guillory, Gil and Patrick C. Tinsley. “The Role of Subscription-Based Patrol and Restitution in the Future of Liberty.” Libertarian Papers. Vol I. 2009. [URL: http://libertarianpapers.org/2009/12-the-role-of-subscription-based-patrol-and-restitution-in-the-future-of-liberty/ ]

(Also published at Strike The Root on 22 April 2009 and LewRockwell.com on 28 April 2009.)

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08 January 2009

Happy New Year--Tough Times Ahead

Happy New Year. January 2009 brings with it the landmark inauguration of Barack Obama. The GOP machine that has held the executive reins in Washington will yield to the new Democrat executive. Yet, what will change? Despite his occasional antiwar rhetoric, Obama has announced that he will retain Robert Gates as Secretary of Defense. So much for "change." Gates was slippery enough to avoid criminal liability in the Iran-Contra scandal. As deputy director of the Central Intelligence Agency, Gates was a belligerent influence, encouraging covert bombing raids against the Sandanista government in Nicaraugua. However, his refusal to cooperate with the Office of Independent Counsel eventually paid off for him--his endurance in stonewalling OIC investigators outlasted that office's political capital and Gates escaped mostly unscathed, although the scandal lost him his 1987 bid to become top spook at Langley.

Obama also promises to step up the efforts of the Bush administation in hemorrhaging dollars for the sake of some ill-conceived "stimulus" program, as if more wild spending could be used as an effective salve for the pains now felt from years of carefree government excess. Even worse than the monetary helicopter that Obama plans to deploy to bribe the electorate, leading voices in the new administration and in the Democrat-controlled Congress are calling for trillions more in direct and indirect bailouts for companies either too irresponsible or too outmoded to perform efficiently in modern markets. The penalties against companies like Ford that refuse to participate in such quasi-nationalization of industry will likely continue as well. A $1 trillion plan for expansion of public works projects, which was pushed in part by steel industry lobbyists, is in the works. Numbers in the trillions are hard to fathom, but a useful point of reference is the gross domestic product (GDP) of the United States, which is somewhere in the neighborhood of $12–14 trillion, if World Bank, CIA, and IMF figures are any indication.

More central the current economic crisis is the epidemic of bank failures. As reported by ABC News last year, the Federal Deposit Insurance Corporation (FDIC) has compiled a secret list of 117 banks that are on the brink of failure. After the twenty-five bank failures in 2008, the FDIC Deposit Insurance Fund has been drawn down to roughly $20 Billion. This means that the fund could be bankrupted by as few as two of three large bank failures. Despite the looming insolvency of the FDIC, Obama has decided to retain current FDIC chair and 2006 Bush nominee Sheila Bair, probably though the end of her original term in 2011. Bair, one might recall, took unprecedented steps to extend the liabilities of the FDIC by providing unlimited backing for some kinds of non-interest-bearing accounts and backing other kinds of debt issued by at-risk banks.

All of these decisions seem to indicate that Obama's inauguration represents not a refreshing change from the irresponsible and short-sighted policies of the Bush II years, but rather a continuation of those failed policies, compounded by wild new spending initiatives and more monetary expansion from the Federal Reserve. Instead of a sober period of fiscal belt-tightening, Obama appears to be suffering from the same Keynesian delusion as his predecessor—that the answer to irresponsible, wasteful spending is even more spending, including the creation of up to 600,000 new government jobs. The same mental malaise has also taken hold of the minds behind the Wall Street Journal, which on January 6 ran an article entitled "Hard-Hit Families Finally Start Saving, Aggravating Nation's Economic Woes." While decreased consumer spending will mean slower growth, this is a good thing where we are talking about phantom growth driven by monetary policy mania rather than solid economic fundamentals. Far from "aggravating" the crisis, responsible financial decisions—choosing to live within one's means, saving, and planning for lean times ahead—are the only way to end what will otherwise blossom into America's Second Great Depression. Sadly, Washington seems set to continue on as a fount of fiscal lunacy, and the American people will suffer because of it.

(Also published in the January issue of Dicta, Suffolk Law's newspaper)

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18 October 2008

Your Presidential Choice: Two Names for More of the Same

On Tuesday, November 4, 2008, voters across the United States will take to the polls in hopes of determining their political and economic futures. Fat chance. The two major party candidates are so close in terms of policy positions that only a two-party system could produce two "opposition" candidates so nearly identical to one another. Both Republican John McCain and Democrat Barack Obama advocate managed, rather than free, international trade, although each candidate's rhetoric is expertly designed to appeal to his respective political base. Both candidates voted to again canonize Big Brother government by reauthorizing the USA PATRIOT Act in 2006. Both accept as a given the productivity-discouraging fractional slavery of the federal income tax. As best-selling author and historian Tom Woods snidely remarked in a speech on September 5,

On taxes, the Democrat favors a top income tax rate of 39.5 per cent and the Republican favors a top rate of 35 per cent. Well ain't democracy grand? We get to debate a whole four and a half percentage points. We'd better spread this system around the world!
And indeed, both candidates seem poised to continue spreading away, with each man supporting the expansion of the United States' global hegemony, already enforced by the troops manning the more than 800 U.S. military installations in 140+ countries around the world. The differences between Obama and McCain on foreign policy are nuanced and unsatisfying, especially to the radical anti-war activists that have worked for many long years to bring American service members home to their families and productive domestic lives. Both candidates advocate increasing troop deployments, although Obama's military adventurist aspirations would in part serve to satisfy the pop-interventionists who have been lusting for American involvement in Sudan and would in part show that Obama is a tough guy who can really get the arch-terrorists along the Afghanistan-Pakistan border. McCain's hawkishness, on the other hand, alternates between chest-pounding and talk of saving face by "winning," as measured by some undefined standard that, in its vagueness, may as well be synonymous with "make war for as long as possible wherever possible."

Of course, "as long as possible" just may be growing shorter, since the Federal Reserve's enaction of Ben Bernanke's brand of Friedmanite monetarism—mistakenly labeled "free market"—is likely to prolong the current recession by both preventing the full correction needed to adjust for the misallocations of the boom period and by compounding these misjudgments by luring entrepreneurs and consumers alike into even further debt. The plutocrats like United States Treasury Secretary Henry Paulson and his former financial market colleagues, along with activist central bankers, led by Chicago School true-believer Fed Chairman Ben Bernanke, are now in a position to really distort markets, thanks to the extensive new powers granted by the pork-induced congressional "bailout," a clear capitulation to the executive branch's whims.

With the current hyper-interventionist Bush regime often being incorrectly described as laissez-faire, one cannot help but be reminded of the popular but incorrect account of the Great Depression and the Hoover-Roosevelt regime change. The story goes that speculators ran amuck in a too-free market under a free-wheeling do-nothing Herbert Hoover. Then along came Franklin Delano Roosevelt, armed with his New Deal, to rescue the battered proletariat from the merciless jaws of its capitalist abusers. Of course, this account is incorrect. During the 1932 campaign, FDR actually criticized the incumbent Hoover for excessive government spending. Hoover said the following about his own policies:

We might have done nothing. That would have been utter ruin. Instead we met the situation with proposals to private business and to Congress of the most gigantic program of economic defense and counterattack ever evolved in the history of the Republic. We put it into action. No government in Washington has hitherto considered that it held so broad a responsibility for leadership in such times. Some of the reactionary economists urged that we should allow the liquidation to take its course until we had found bottom. We determined that we would not follow the advice of the bitter-end liquidationists and see the whole body of debtors of the United States brought to bankruptcy and the savings of our people brought to destruction.

Rather than being a do-nothing president, Hoover was indeed an economic interventionist of the first order. Historian Joseph Stromberg argues that FDR only extended and formalized the corporatist policies of Hoover.

Herbert Hoover was a major architect of peacetime corporatism. As Commerce Secretary he encouraged the cartelistic integration of trade associations with labor unions. As President, he pioneered most of the New Deal measures, which had the unexpected effect of prolonging a depression itself caused by governmental monetary policy. In the election of 1932, important business liberals shifted their support to FDR when Hoover refused to go over to a fully fascist form of corporatism. By contrast, the Roosevelt Administration pushed through the National Recovery Act, which openly sanctioned the cartelizing activities of trade associations, and the Agricultural Adjustment Act, cartelizing the farm sector. The Wagner Act of 1935 integrated labor into the nascent system.
Under the Hoover administration, the American people saw increased inheritance taxes, sales taxes, income taxes, public works spending, extensive stock market regulation, systematic immigration and labor restrictions and regulations, and unsound monetary policy. That last was made possible by the creation of the Federal Reserve in 1913. FDR's own interventions certainly extended beyond those of his predecessor, but it should be noted that on March 9, 1933, only five days after assuming office, one of FDR's first acts was to push through a sweeping "Emergency Banking Relief Act" that was largely drafted by the supposedly do-nothing Hoover administration. Austrian School economists such as Murray Rothbard have shown that the actions taken by both Hoover and Roosevelt actually deepened and extended the depression.

In keeping with the tradition of inaccurate portrayals demonstrated by the Hoover-FDR example, George W. Bush, who has presided over one of the largest, most interventionist governments in human history, is largely portrayed by both parties and by uninformed commentators as a champion of free markets. The present crisis is being blamed—mistakenly—on "market failure," when nothing could be further from the truth. The current financial crisis is only the natural result of the meddlesome policies of the federal government, combined with the incentivized responses of market actors reponding to manipulations of money and credit. One wonders if those objecting to the operation of economic law would be equally vehement in denouncing physics for interrupting one's upward travel by operation of that pesky law of gravity.

With "freedom" like what we've seen over the past eight years, it is no wonder that many people are seeking an alternative. Unfortunately, the American people are faced with the disconcerting certainty that the next president will preside over an America that is less free, less prosperous, and more inhibited by government intervention in the marketplace than any time since the New Deal. It isn't clear that democratic action can or will prevent the desperate actions of lawmakers who are willing to break any oath in order to appear busy in the face of a looming catastrophe, and who are even more desperate to protect the position and influence of the plutocrats who in many cases played a major role in getting them elected. When it passed the Emergency Banking Relief Act of 1933 and the $850 billion Emergency Economic Stabilization Act of 2008, the Congress leapt before it looked. Both acts were passed by a congressional body before it could fully read and understand what it was approving. Both major party 2008 presidential contenders voted in favor of the latter legislation. Regardless of which candidate succeeds George W. Bush, Americans face the very real threat of the next top executive wielding even broader emergency powers than Lincoln, Wilson, and FDR did.

(Also published in the HTML Times, at LewRockwell.com and in the October issue of Dicta, Suffolk Law's newspaper)

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03 October 2008

Is the Free Encyclopedia a Democratic Encyclopedia?

This term “democratic” gets tossed around a lot, usually in a positive, “power to the people rather than some arbitrary ruler” sense. By that meaning, Wikipedia is indeed democratic. Yet, unlike a state democracy, 51% at the polls will not necessarily trump a Wikipedia adversary. So in the sense that the word “democracy” comes loaded with a “one man, one vote” ideology, Wikipedia is not democratic at all. And it is a good thing that Wikipedia isn’t a democracy....

(Read more in the HTML Times)

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22 September 2008

Barr or Baldwin?: Comparing the Deviations

According to this release from his Campaign For Liberty website, Ron Paul has endorsed Constitution Party candidate Chuck Baldwin. How does Baldwin stack up against the Libertarian Party nominee, former Republican Congressman Bob Barr?

Baldwin is worse than Barr on:
  • Immigration (advocates punitive measures at the federal level for those who hire undocumented immigrant workers)
  • China (too adversarial)
  • Tariffs (very protectionist rhetoric; favors not so protectionist 10% uniform tariff as primary means of federal revenue gathering)
  • Veteran healthcare (panders to warhawk nation-worshippers)
  • Federal involvement in abortion (favors federal definition of life as beginning at conception, which paves the way for expansion of federal government intervention in state-level policymaking)
Baldwin is better than Barr on:
  • Income tax (abolition + low uniform tariff vs. national sales tax + abolition)
  • Social Security (abolition vs. "system of private accounts")
  • Sound money (abolition of Fed vs. "reconsidering the Fed")
  • US involvement in the UN (total withdrawal vs. "[t]he U.S. should push to roll back the UN's functions and slash America's financial contribution")
They are comparable on other issues. Baldwin is definitely more radical generally, if his rhetoric is any measure. I am not sure that either one "gets it." I don't know for certain where Baldwin is on the War on Drugs, but I suspect he would oppose federal involvement in the issue. Barr is a relatively recent convert to the anti-prohibition cause, having been a Marijuana Policy Project lobbyist for nearly two years. Libertarian radical Anthony Gregory said today, "I trust Baldwin more on the issue, since he has never actually put people in jail for drugs."

Bottom line: Both Barr and Baldwin are more libertarian than the socialist Obama, national socialist McCain, green socialist McKinney, or pop-foreign intervention socialist Nader. Both deviate from the libertarian plumbline in ways that are problematic for those seeking to cast a vote that doesn't appear to advocate aggression.

(Position comparison gleaned from Wikipedia.)

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02 September 2008

The Freedom to Import Labor

On August 25, hundreds of armed federal Immigration and Customs Enforcement (ICE) agents descended on a Howard Industries factory in Laurel, Mississippi. The fact that Howard Industries is one of the top employers in the area, where nearly 30% of the population lives below the poverty line, did not dissuade the federal government from carrying out the single largest immigration raid in United States history, arresting 595 employees and causing significant disruption and expense for one of the town's most effective benefactors. This mass arrest of undocumented workers voluntarily employed by a wealth-creating domestic company certainly did not help the Laurel economy, but it did allow the federal government to take advantage of xenophobic, anti-immigrant sentiments at large for the purpose of consolidating unprincipled political support behind certain folks in plush chairs in Washington, D.C.

The Laurel raid was not the first such endeavor this year by ICE, which has apparently decided to follow along with the Olympic spirit in breaking as many records as possible. It was only three months earlier, on May 12, that the federal immigration police set the previous arrest record, that time in Postville, Iowa. That town, from which 389 workers were taken, is still suffering from the effects of losing a significant portion of its workforce. The corporate entity involved in that dust-up was Agriprocessors, which was engaged in the mundane business of operating the world's largest kosher meat-processing plant in the small Iowa town. Like Howard Industries in Laurel, Agriprocessors was one of the largest employers in Postville.

On March 6, well before the mass kidnapping in Iowa, several hundred ICE agents raided Michael Bianco, Inc., a leather manufacturer and U.S. military contractor operating in New Bedford, Massachusetts. In that sweep, ICE arrested more than 350 workers, including the company owner and several managers. Again, the purported purpose of the arrests was to discourage illegal immigration and to punish those who hire off-the-books workers. An important threshold question that seems to have not been asked is whether immigration restrictions actually help the domestic economy. As was documented in an August 17, 2008 Associated Press article, many Postville residents characterize the May 12 raid as an unmitigated "disaster" for their town's economy. This result should come as no surprise, since the federal action disrupted an agreeable employment arrangement that benefited the workers and employer, not to mention the local community at large.

A second important question that no one is asking is whether such restrictions have any effect on the various human rights abuses and unfair trade practices associated with illegal immigration. Since the New Bedford raid in March, many former Michael Bianco employees have joined a lawsuit against their former employer, claiming that the company often cheated its workers out of overtime pay and even hourly base pay. While some would make the case that such abuses show the need for further crackdowns, such interpretations put the cart before the horse. It is the secretive, black market nature of this sector of the labor market that makes undocumented workers particularly vulnerable to such overreaching and maltreatment. If workers were free to move on to more promising employment, rather than imprisoned by their fear of government kidnapping, they would not be so willing to acquiesce to unfair employment practices. Indeed, such practices in a free, open market would quickly be penalized, as competitors would take advantage of the disparity between each worker's marginal productivity and hourly wage by hiring away the underpaid laborers. In the labor black market, as with other sectors of the black market, formal dispute resolution is either unavailable or too risky and so disputes are often not resolved in an equitable fashion.

If one's purpose is to strengthen the domestic economy while protecting human rights and promoting entrepreneurship, one must oppose the government's restrictive central planning of immigration. Such planning hurts real, productive, innocent people, is uncharitable, and is destructive of the very engines of enterprise that keep the United States running as an economic power. If we are to be a free and prosperous people, we must have free labor.

(Also published in the September 2008 issue of Dicta, Suffolk Law's newspaper.)

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06 August 2008

Packing Heat: Hard in Mass.

After moving from the Pittsburgh area to Boston last fall to begin his 1L year at Suffolk, Andrew Capone found himself in an unfamiliar new setting that sometimes seemed less than safe. When his girlfriend, a fellow Suffolk Law student, began to investigate the possibility of buying a handgun for personal protection, Capone--who is Vice-President of the Suffolk Federalist Society--decided to go through the process with her.

In Capone's home state of Pennsylvania, any law-abiding citizen twenty-one years or older who is of sound mind can visit a licensed gun dealer and purchase a handgun. Anyone who is eighteen or older can buy a shotgun or rifle. After the dealer completes the federally-mandated background check using the Pennsylvania Instant Check System (PICS), most would-be gun owners in Pennsylvania can walk out with their new firearm on the same day. No license is required to keep a gun at home, and most majority-age Pennsylvanians would qualify for the license to carry a concealed pistol after undergoing a criminal background check, being double-checked by local law enforcement, and paying a modest fee.

Other than the initial background check, which in most states is conducted using the FBI's National Instant Criminal Background Check System (NICS), the process of buying and legally carrying a pistol in Pennsylvania is fairly representative of those in most other states. Some states are even less restrictive on concealed carry--Vermont and Alaska allow their law-abiding gun owners to carry concealed weapons without any permit at all, for example, and most states that do require permits for concealed carry issue them on a "shall issue" basis, meaning that the issuing authority has little room to exercise discretion in denying or approving qualifying applications. Massachusetts, however, is a very different place when it comes to gun regulations.

As Andrew soon discovered after he began the process this past January, Massachusetts has some of the most restrictive gun regulations in the country. When it comes to buying and carrying a handgun, the process in Massachusetts is more onerous than in any state but Wisconsin or Illinois, with layers of sometimes expensive permit and license requirements that one must navigate in order to purchase and keep a handgun for defense or recreation in the Commonwealth. Even the carrying of pepper spray is illegal in Massachusetts without the proper permit.

After procuring a Massachusetts drivers license ($90), Capone then had to complete a certified firearms training course ($150), join a gun club ($150), apply for the license-to-carry ($90), and take a shooting proficiency test. By the time he finished these steps, it was the end of April. After waiting for more than a month, he again contacted the issuing authority and was informed that there had been a delay of some sort that had prevented his application from being processed. Finally, at the end of June, Capone was granted a restricted License-to-Carry that permits him to legally keep a handgun in his residence. Despite the name, the restricted LTC does not allow him to carry a weapon for defense outside of his home.

According to Capone, "The process was frustrating. It seemed like during every step of the application process someone was trying to hinder my efforts. I remember asking a woman at the police department where I would go to join a gun club, and she told me there were no gun clubs around. I later discovered that this was false."

Andrew Capone is not the first to discover that local law enforcement officials sometimes make it difficult for law-abiding citizens to acquire a gun permit. In a May 29, 2008 expose by the Boston Globe, it was revealed that local officials often unilaterally raise the bar for obtaining a permit by requiring reference letters, certification by a physician, expensive gun club memberships, requalification, and often even heftier fees than what the relevant statutes authorize. Law enforcement justifies these locally-tailored requirements and restrictions by arguing that they, not the legislature, should have the final say as to who may possess weapons in their communities. Self-defense advocates respond that these various regulatory schemes are really designed for one purpose: to discourage people from even applying for a permit in the first place.

Massachusetts has long had strict gun rules, but those regulations may soon be called into question as a result of recent decisions about what the 2nd Amendment protects. Here are some landmarks in the history of the 2nd Amendment:

  • December 15, 1791
    The Bill of Rights become law when Virginia's ratification meets the three-fourths requirement

  • March 27, 1876
    The Supreme Court declares in United States v. Cruikshank that the 2nd Amendment "has no other effect than to restrict the powers of the national government." Later affirmed by Presser v. Illinois (1886).

  • May 15, 1939
    In United States v. Miller, the Supreme Court holds that the non-military nature of the defendant's sawed-off shotgun excludes it from the class of arms designated by the 2nd Amendment's prefatory clause, which refers to a "well regulated militia."

  • October 16, 2001
    The 6th Circuit Court of Appeals holds in United States v. Emerson that an individual right to keep and bear arms protected by the 2nd Amendment was violated by a federal law that forbade the defendant--who was subject to a divorce-related temporary restraining order--from keeping firearms.

  • June 26, 2008
    The United States Supreme Court holds in District of Columbia v. Heller that D.C.'s effective ban of the possession of operational firearms violated an individual right to keep and bear arms protected by the 2nd Amendment.

  • June 26, 2008
    Alan Gura, the lead attorney for Dick Heller, files McDonald v. Chicago in the United States District Court for the Northern District of Illinois, seeking to invalidate Chicago's restrictive gun control laws by arguing that the 2nd Amendment ought to be incorporated under the 14th Amendment's Due Process Clause.

(Also published in the Fall 2008 orientation issue of Dicta, Suffolk Law's newspaper.)

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01 August 2008

Giving Up Bi-Partisan Politics

Far too often, conversations about political matters end up sounding like conversations about team sports: the party affiliation of the politician in question often has more impact on the tenor of the discussion than do policy questions. While I would certainly never criticize a fan's loyal advocacy for his local ball club, it is pretty clear that team loyalty is less admirable when it comes to politics. It happens too frequently that a policy denounced by one party as despicable one year becomes the same party's grand plan the following year.

Take for example the Republican criticism of Clinton for his military interventionism in places like Bosnia. Clinton was decried for wasting taxpayer money and sacrificing American lives at the behest of the United Nations. Clinton was again criticized for the suspicious timing and questionable policy basis for an Iraq bombing run in 1998 on the eve of impeachment proceedings. Senator Trent Lott said, "Both the timing and the policy are subject to question." In 2000, George W. Bush ran on promises of a "humble" foreign policy and no nation-building, questioning Clinton's use of American combat personnel in Haiti and elsewhere. He said, "We must be proud and confident of our values, but humble in how we treat nations that are figuring out how to chart their own course."

Yet, the opportunity to attack Iraq proved too great a temptation for Bush as well. Like Clinton's intervention in Bosnia, Bush's military activities were partially obscured from public view by the use of mercenary troops. Clinton notably hired DynCorp contractors who were later accused of participating in sexual abuse and even child sex slavery. Complaints of human rights abuses by Blackwater and other corporate troops in Iraq are still fresh in the public memory. Although Bush's heavy use of Blackwater private security details and operational teams in Iraq resulted in a greater public awareness of the use of such private soldiers, it is clear that both presidents sought to make it appear that fewer casualties were being sustained than was really the case. Regardless of the scale of these engagements, both presidents seem to have forgotten that the secession announced in the U.S. Declaration of Independence was justified in part by another head of state, King George III, "transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation."

It is only by the deceptive hand of bipartisan politics that the population has been divided against itself with each faction eagerly supporting one day policies that it ridiculed the previous day. This election season, when the need for political change seems more desperate than any time in recent memory, it is vital that we as thinking citizens drop the team politics and worry less about which self-aggrandizing politico has his finger on the button and more about whether we need that button in the first place.

(Also published in the Fall 2008 orientation issue of Suffolk Law's newspaper, Dicta.)

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21 April 2008

Civil Disobedience and the Libertarian Division of Labor

Having witnessed first hand the fruits of brutal libertarian in-fighting, I think it is important to examine the roots of such needless, yet casualty producing conflict. Libertarians believe in a legal theory based upon non-aggression--that is, a respect for the rights of others. We oppose the idea of a monolithic, ever-present state wielding arbitrary and capricious power over subjects. Where so-called libertarians deviate by endorsing some form of aggression, we should, no doubt, ferret out the incorrect position so as to prevent anyone from confusing it with a libertarian one. The evil sell-outs and the misguided retreatists, as Rothbard called them, ought to be battled on philosophical grounds. Not all inter-libertarian conflicts arise from such principled disputes, however.

Wilt Alston has previously addressed the problem here with his posited categories of "pre-lib" and "pre-con" libertarians. I think that one's previous political disposition that may be inculcated by parents, or by some other means, may color our libertarian lens like Wilt suggests. I think, though, that the way many libertarians focus their indignation may be even more obvious and primal than mere prior team affiliation. When dealing with the government itself, we each see the face of the state in the areas where we have best tasted of its evil effect.

For those of us who are successful businesspeople, the taxing power of the state that has so many times inhibited the growth and success of vibrant enterprises is the arm of the state that must be attacked. For those of us who are parenting young children and are required to jump through legal hoops to home educate them, the specter of centralized, regimented, state regulation of education is the usurpation that ought be battled first. For those of us who have a friend or relative who has been imprisoned for self-medication outside of the bounds of state approval, on the other hand, the War On Drugs is the tentacle most in need of a chopping.

It is obvious, and to be expected, that one would hate the part of the state with which he has had the misfortune to wrangle most often. Yet, it isn't obviously right to say--speaking as a libertarian strategist--that any of these branches of the state apparatus is necessarily the right one with which to start. This is because they all are. An individual soldier must defend the front that he occupies. So too must we libertarians defy the state's grasp where it reaches for us personally--an activist division of labor.

It is some small satisfaction, no doubt, to moralize about the wrongs committed against others, and to voice opposition to their oppression. This is itself praiseworthy, and can be helpful in popularizing a movement, and in guiding its participants. Yet, when we look for the heroes of any revolution that casts off one tyrant or many, we must look first for the individuals who simply stood their ground. The most lauded heroes--and thus the most effective figures for the purposes of fomenting revolutionary ideas--are those who did not seek out a fight, but rather stood steadfastly and refused to yield when assailed by the usurper.

The search for libertarian heroes is made more difficult, though, by the fact that while we libertarians nearly universally recognize an individual's inherent freedom to do with his body as he wishes, we don't necessarily find the use of intoxicants or other acts of carnal indulgence praiseworthy. For example, take the massive act of civil disobedience staged by ten thousand students and activists in Boulder, Colorado on 4/20/08. Some libertarians may find this sort of behavior foolhardy, even without the risk of arrest. With that view of the underlying drug use, they then find it difficult to praise the act of resistance to the state, even though they advocate the abolition of all drug prohibition. Yet, these college students are heroes. Whatever a libertarian may think of the wisdom of smoking marijuana, it cannot be denied that these particular pot-smoking college students--who were presumably not picking up the habit solely for this event--were engaging in what can only be called anti-state activism. Rather than cowering away from the state, hoping to be overlooked, they risked arrest in an act of defiance that brought one of the state's more ridiculous laws into greater disrepute. And what may be helpful to libertarians who are apprehensive about fully applauding such behavior is the fact that they did it without engaging in anything more or less moral than what they already do anyway.

Likewise, regardless of what one thinks of Wesley Snipes' acting abilities, his battle against the IRS is more heroic than Susan Sarandon's speeches against the war. After all, while Ms. Sarandon's antiwar position--insofar as it is a consistent one--is laudable, it is only a matter of words. Wesley Snipes acted to defend his property from federal usurpation--he stood his ground, and paid heavy consequences for it.

Now, I do not mean to say that each and every libertarian must subject himself to a scourging by the state to show his devotion to resisting it. I agree with my friend Manuel Lora that libertarianism is not an altar call for martyrs. I do not think that most libertarians ought to pull up stakes and abandon their gainful employment only to throw their bodies into the cogs of the state. However, when the state comes roaring towards your home, it is heroism to dig in, stand firm, and resist for as long as possible. Likewise, those students in Boulder were already part of a legally vulnerable class of citizens--recreational drug users. By taking their resistance outside, where others could see some indication of the strength of those in defiance, they are to be praised as having made a contribution to the cause of liberty.

Just as atheist libertarians should applaud the sentiment of Daniel's pious disobedience to Darius, so too should socially conservative libertarians applaud the revolutionary sentiment expressed by those tie-dyed students in Boulder.

(Also published at LewRockwell.com.)

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25 March 2008

Study Indicates Likely Corruption of Louisiana Supreme Court

If a study detailed in a forthcoming Tulane Law Review article is right, judicial campaign contributions talk in Louisiana's highest court. In "The Louisiana Supreme Court in Question: An Empirical and Statistical Study of the Effect of Campaign Money on the Judicial Function," Tulane Law Professor Vernon Palmer and Loyola University economist John Levendis show a substantial statistical correlation between a party's campaign contributions and favorable treatment from three of the seven Louisiana Supreme Court jurists, including current Chief Justice Pascal F. Calogero, Jr.

The study examined cases decided between 1992 and 2006, and focused on tort/negligence and constitutional law cases where justices typically have more discretion. It showed that the individual justices on the court encountered a campaign contributor in 17% of cases heard, with some 47% of all cases heard in the court involving a donor to at least one justice's campaign committee. The pair concluded that "[s]tatistically speaking, campaign donors have a favored status among litigants appearing before the Justices."

The authors examined each justice's tendencies on the bench--for example, whether she was typically a "defendant's judge" or a "plaintiff's judge." These data were collected in order to determine whether a justice's legal philosophy might be the reason for favorable treatment received from the court. A justice's shift away from his usual voting preferences in cases involving a donor, then, would lead to the conclusion that donors are not simply supporting the justice whose judicial philosophy and tendencies most favor their cases, but rather influencing the outcome through campaign contributions. The authors recorded how each justice performed when a campaign contributor was before her, and determined how the size of the party's campaign contribution affected the likelihood of a favorable verdict. The figures indicated that Justices Calogero, Kimball, and Weimer were all more likely to render a favorable verdict to the party who was a "net contributor," i.e. made a larger donation to that justice than did the other party. For example, a defendant's odds of receiving the support of Judge Kimball were shown to increase by 30% with each $1000 campaign contribution. When Palmer and Levendis factored in the timing of the gift, the correlation became even more pronounced: a donation within the prior month correlated to more than twice the likelihood of support from Justice Kimball, for example.

While the authors take pains to stress that the study shows correlation and not necessarily corruption, the reaction from the justices implicated by the study has been sharp. The justices have denied any causal relationship between campaign cash and friendly treatment by the court. Justice Kimball said, "I have never in my life made one single decision based on who the plaintiffs were or who the lawyers were," and noted that she has a hired fundraising coordinator and does not personally solicit contributions or otherwise oversee her campaign's war chest.

Palmer says that the study was originally inspired by his doubts about the propriety of elected justices sitting for their donors' cases, but Levendis has pointed out in a recent presentation at an economics conference in Auburn, Alabama that mandatory recusal in such cases would not be likely to resolve the problem. If a justice were forbidden from hearing a donor's case, Levendis reasoned, litigants might then make strategic campaign contributions in order to "knock out" the jurists most likely to be hostile to their cases. Although the remedy to this troubling problem remains an open question, one can be sure that possible solutions are being weighed in the bayou state.

(Also published in the April 2008 edition of Suffolk Law's newspaper, Dicta, and at LewRockwell.com)

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