Category: Law

Libertarianism, slightly deconstructed

This is the old libertarian saw, stated by P.J. O’Rourke like this (only longer, better, and funnier): If your grandmother doesn’t pay her taxes, she’ll be fined. If she doesn’t pay her fine, she’ll eventually be put in jail. If she tries to escape from jail, she’ll be shot. So!: Anything that you agree the government should do, you should be willing to put a gun to your grandmother’s head and threaten to shoot her for. Something like that.

This is a pretty old libertarian saw (contrary to the folks who posted the video above, libertarianism doesn’t argue for a completely stateless society, just for a minimal state): the government should do the minimum amount necessary to keep a society functioning, and no more. This means enforcing minimal laws against harming others, and a small national defense system. Everything else, the argument goes, is better privatized. I’ve been a registered Libertarian since the day I registered to vote, so I’ve given these arguments some thought.

One day the libertarians may go off and create their dream society, maybe on a floating island. In the meantime, we have Somalia, which has been without a central government since 1991.

So here’s the solution, and it has more than a little to do with game theory. Stuff that the government does is not like forcing some one individual to contribute to something. There’s a whole range of things that, if we weren’t all contributing, it wouldn’t make sense for an individual to give any money towards. Let’s start with the Libertarian’s example of national defense. It makes sense to have a national defense system only if everyone contributes. But it ends up that there are lots of things that directly or indirectly help everyone in a society. And while there are ways that a lot of these things could be accomplished by groups of private individuals, it makes sense for the government to do them. Would you shoot your grandmother for the interstate highway system? Probably not. But the highways unquestionably help our society in ways that a privatly-funded and tolled highway system would not.

The welfare system, public education, food safety inspections, drone strikes in foreign countries, eviction of protesters from public spaces, public healthcare, air traffic control. You probably agree that some of these things are good, and that some are bad. That’s not the point, though. The point is that they’re all things that a central government is in a unique position to provide, and that arguments exist that they are a net benefit. Once we’ve agreed to create the structure of the government, we’re all in it together, and we all need to decide together what we think are appropriate roles for that government.

It’s not that we need a system to make George help Oliver. It’s that we’re all better off if there’s a system that helps all those that need help, not just those that can find someone willing to help them.

Lessig’s new fight

Copyright activist Lawrence Lessig has given up the fight — he’s realized that before anything else, there’s a more fundamental problem that has to be solved: the corruption of congress by money. In this video, he does a remarkable job of outlining the problem. He does a somewhat less then perfectly convincing job of suggesting a solution. Specifically. Since congress is unable to reform itself, he has a strategy that would — eventually — lead to a constitutional convention, per Article 5 of the Constitution. Bold stuff. This guy’s serious: there is soon coming a book, and here’s his presentation at the Conference on the Constitutional Convention, which he organized, at Harvard, where he teaches:

Doctors can’t ask their patients about guns?

EMILY: Did you hear about this? They just passed a law in Florida that says Doctors can’t ask their patients whether there is a gun in their house.

JOSH: That’s weird. Why is the government telling doctors what they can and can’t say to their patients? And why are doctors asking about guns? I could see asking someone if they’ve been shot … but asking if there’s a gun in the house? What medical relevance could that possibly have?

EMILY: They’re concerned about safety. Pediatricians often ask parents if they have a gun in the house, and if so, whether it is stored safely. Haven’t you heard of all the kids that accidentally kill themselves or their friends playing with a gun they found around the house?

JOSH: Are those doctors also trying to get the parents to stop driving? Are they talking to them about pool safety, matches, blankets and plastic bags the kids can suffocate on, stairs, and a million other things? Because all those things are way more likely to kill a kid a kid than an accidental gunshot. Seems to me that, of all the household dangers facing a kid, a gun would be the most obvious to a parent. If they’re not a complete imbecile, they’ve already got it stored properly. And if they are an imbecile, having a doctor up in their face isn’t going to help.

EMILY: Well, the American Academy of Pediatrics says, “the absence of guns from children’s homes and communities is the most reliable and effective measure to prevent firearm-related injuries.” Meanwhile, of course the legislation to muzzle doctors is written by the good ‘ol NRA.

JOSH: Oh, so the pediatricians are open about trying to get guns out of the homes? It seems that we have a right to own guns in this country whether we have kids or not. If I had a gun, I sure wouldn’t want my kid’s doctor giving me crap about it every time I take my kid in.

EMILY: It’s not necessarily to try to get rid of the gun. If they know there’s a gun in the house, and then they later become aware of some other dangerous circumstance, they’ll be informed. “There’s a gun in that house! Do something NOW.”

JOSH: What possible set of circumstances would warrant action with a gun that wouldn’t warrant action without one? If you’ve got a dangerous adult in the house, it seems to me they’re just as dangerous without the gun. Aren’t kids much more likely to be beaten to death by their parents than shot to death?

EMILY: So you’re okay with the law dictating what doctors can and cannot say to their patients?

JOSH: Well, something sure as heck dictates what doctors should and shouldn’t say to patients. Some things are useful to discuss, and some things are a waste of time. Doctors sure as heck better make the best use they can of the limited time they have with their patients, right? Traffic accidents kill 45 times as many kids as gun accidents, and four times as many as all homicides combined. So hopefully doctors are spending way more time lecturing parents about driving as safely — and as little as possible — as they spend talking about guns.

EMILY: There’s something different about guns though. ‘The possession of firearms in the home is a professionally-recognized risk factor for both gun-related homicide and suicide.’

JOSH: Well, sure. And living near a cliff is a risk factor for falling homicides and suicides. A sea-front home is a risk factor for drowning homicides and suicides. A slippery floor is a risk factor for tripping —

EMILY: OK, suppose you have a suicidal teen talking to a doctor. You’re really saying the doctor can’t bring up guns?

JOSH: Actually, it turns out that there’s an exception in the law if the doctor feels the gun issue is directly relevant to the patient’s care or safety. Suicidal teens would be a great example of that.

EMILY: What about the example of a kid being bullied at school. Can a doctor ask if the kid has a gun in the house? If he’s ever brought a gun to school? If he’s though about harming himself or anyone else with a gun? This type of law will have a chilling effect on doctors — force them to try to figure out whether the question they want to ask meets the legal standard for being directly relevant or not. Do you really want doctors to have to keep these legal distinctions in the back of their mind when talking to patients?

JOSH: Everything doctors do is governed by laws. Doctors make these sorts of decisions all the time — often wrongly, which is why we have so many malpractice suits in this country. But I don’t get the example — you can ask a kid if he’s thought about hurting himself or anyone else. If he has, you take action. At that point, telling the parents to make sure the gun is stored safely pretty obviously falls into the legal exception.

EMILY: I don’t know. It still seems wrong for a state legislature to dictate what doctors can and can’t talk about with patients.

JOSH: Look, guns are a touchy subject in our society. But it’s been legally determined that they’re permissible. Understandably anti-gun folks want to continue the fight, but should doctors really be allowed to use their position of power to promote their particular views? We have laws that prevent teachers from spreading their political views to their kids. Why not similar laws for Doctors?

EMILY: Vaccines and abortion are both touchy subjects in society. Are laws that tell doctors what they can say about those things next?

JOSH: Okay, that’s the slippery slope argument. People who are in support of those things will pass whatever laws they can. The existence of this law isn’t going to make much of a difference. But for the record, if anyone passes a law that tells doctors they can’t strongly encourage parents to get their kids vaccinated, I’m moving to Canada.

Thanks to Steve for hashing out this debate with me, and for most of the links above.

The case for charter cities


Directly, each charter city would allow millions of people to better their lives by integration with the world economy. While critics often belittle this achievement as mere “cream-skimming,” the sad truth is that much if not most of the world’s cream now curdles in backwards farms and dysfunctional slums. If the native entrepreneurs who built Hong Kong had been trapped in mainland China, most would have wasted their lives in dead-end jobs on Maoist communes or joined the Communist elite. Hong Kong gave them opportunities to use talents that otherwise would have gone to waste.

The case for charter cities as a effective way to fight third-world poverty (based on the example of Hong Kong). Interesting? From this list of “40 things I’ve learned” by Bryan Kaplan, which is actually mostly right-wing free-market dogma. (E.g., here is the republican strategy for reducing the size of government laid out as nakedly as you’re likely to find.)

Richard Prince finally looses a lawsuit

prince

Richard Prince, famous for re-photographing Marlboro cigarette ads and selling them as high-concept artwork, recently lost a lawsuit about yet more flagrant appropriation. He took photos made by Patrick Cariou of Rastafarians, and manipulated them and painted over them and just generally had a grand time. In court records, Prince was incredulous, claiming fair use and citing the history of appropriation in contemporary art.

Defendants [Prince et al.] assert that Cariou’s Photos are mere compilations of facts concerning Rastafarians and the Jamaican landscape, arranged with minimum creativity in a manner typical of their genre, and that the Photos are therefore not protectable as a matter of law, despite Plaintiff’s extensive testimony about the creative choices he made in taking, processing, developing, and selecting them.

It’s tough to know how serious Prince was with all this. The man is a prankster. He’s said of himself, “I am a liar. And I cheat too. I make things up and I can’t be trusted. It’s not my fault.” Obviously taking the work of another artist, and taking multiple pieces from the same body of work, is a new level of appropriation (and plenty of people were pretty pissed off about that). But given the way the ruling is worded, it by extension implicates a whole tradition of appropriation-based work.

I note all this mainly for its amusement value. Prince is out a lot of money, but it seems that everyone involved benefits from the notoriety, including collectors who bought the paintings which can now “not be legally displayed.” If anything, we can take it as another signal of how screwed up our copyright/fair-use law is: that sampling/appropriation, so widely practiced in so many different practices, can be so curtailed by one aggrieved party.

NYC police operations order regarding photography

New York City police operations order regarding photography:

  1. Members of the service are reminded that photography and the videotaping of public places, buildings and structures are common activities within New York City. Given the City’s prominence as a tourist destination, practically all such photography will have no connection to terrorism or unlawful conduct. […]
  2. Members of the service may not demand to view photographs taken by a person absent consent or exigent circumstances. […]

Read the whole thing. Can we issue something like this to every police officer in the country? (via)