::Freespace::

Woo-hoo!: This was a big hit at the PLF Christmas party.

Inventions: How about forks? I understand they were invented in the twelfth or thirteenth century.

Interesting article: Beth Plocharczyk pointed to an interesting article....

Underfunding: A Kansas trial court has held that �the current school funding scheme stands in blatant violation of Article 6 of the Kansas Constitution and the equal protection clauses of both the Kansas and United States Constitutions� because

a. It fails to equitably distribute resources among children equally entitled by the Constitution to a suitable education or in the alternative to provide a rational basis premised in differing costs for any differential;

b. It fails to provide adequate total resources to provide all Kansas children with a suitable education (as that term has been defined by both this Court and the Legislature itself); and

c. It dramatically and adversely impacts the learning and educational performance of the most vulnerable and/or protected Kansas children. This disparate impact occurs by virtue of underfunding, generally, and selective underfunding of the schools where these vulnerable and/or protected children primarily attend, specifically. Those vulnerable and/or protected children, of course, are: the poor, the minorities, the physically and mentally disadvantaged, and those who cannot or nearly cannot yet speak the primary language of America and its schools.

Montoy v. State, 2003 WL 22902963, *49 (Kan.Dist.Ct.,2003).

Well no duh! It�s run by the government! What did you expect, that these people would try to satisfy their �customers� and handle their �income� in an efficient manner? You know, you can engage in all sorts of soaring rhetoric about the importance of our children, and how they�re our future and how cute they are when they do that thing with their nose, but the fact is, you are not going to solve the education problem as long as it is run and monopolized by government. Educrats get their money even when they don�t do their jobs. They can force kids to come even if they don�t teach the kids anything. They can force parents to pay even if they don�t teach the kids anything. And if parents want out of the system, they can force the parents to pay twice. Any industry that can force customers to come back, and force them to pay regardless of the quality of service�and, by the way, which systematically crushes the ambition and aspirations of their most skilled employees, while rewarding the least skilled with tenure and other union perks�is on a race to the bottom.

I get really mad when I read about public education, not because it systematically fails children but because it necessarily systematically fails children�economic law dictates it. And yet the people who preach to us about caring for our children are the people who resist change, who embrace useless and nonsensical edu-fads, and portray themselves as victims when they don�t even know the material they�re supposed to be teaching the kids. You know how you can tell something�s wrong? Because when you say to a public school teacher, �Public education ought to be abolished,� they answer �But what would we do with the kids?� They don�t ever say �But who would teach the kids history and math and science and reading?� Of course, the answer to that would be, whoever it is that�s teaching them now, because it sure as hell isn�t you! No, they always say �But what would you do with the kids?� because public education is not about teaching anyone anything�it�s about child storage.

There. I feel better now.

New Year�s astronomy: Saturn ought to be putting on a fine show for New Year�s.

Driving: Did I mention how interesting this article is? And this?

Libertarian Bookworm: One of my favorite books on economics is Free to Choose by Milton and Rose Friedman. It�s not just about economics�it�s a wide-ranging book�but it makes a wide range of economic concepts easy to understand. And, unlike many libertarian classics, Free to Choose includes some positive recommendations for reform. That�s to be expected from Milton Friedman, the man who is credited with the invention of school choice (and the withholding tax, but I forgive him for that).

The Friedmans� book was a companion volume to a PBS miniseries aired in 1980. It was, of course, a time of intense economic debate�the waning years of Carter and stagflation was causing many people to reconsider the arguments of �neo-classical� economists who argued that government intervention in the economy was at best ineffective, at worst, counterproductive.

Take the minimum wage, for instance. The minimum wage is a law that makes it illegal to hire someone for less than $X�that is, it illegalizes a group of jobs, and therefore makes it more expensive to hire people. As they say, this is not helping. The Friedmans explain:

The minimum wage requires employers to discriminate against persons with low skills. No one describes it that way, but that is in fact what it is. Take a poorly educated teenager with little skill whose services are worth, say, only $2.00 an hour. He or she might be eager to work for that wage in order to acquire greater skills that would permit a better job. The law says that such a person may be hired only if the employer is willing to pay him or her (in 1979) $2.90 an hour. Unless an employer is willing to add 90 cents in charity to the $2.00 that the person�s services are worth, the teenager will not be employed. It has always been a mystery to us why a young person is better off unemployed from a job that would pay $2.90 an hour than employed at a job that does pay $2.00 an hour.

The burden of the minimum wage falls hardest on the poor, therefore, because they tend to be less skilled�and also because the companies that pay minimum wage�say, a convenience store�will be forced to raise their prices to cover the increased costs of employing people. Thus the poor are forced to pay more for things they need. As the Friedmans conclude, �We regard the minimum wage as one of the most, if not the most, antiblack laws on the statute books. The government first provides schools in which many young people, disproportionately black, are educated so poorly that they do not have the skills that would enable them to get good wages. It then penalizes them a second time by preventing them from offering to work for low wages as a means of inducing employers to give them on-the-job training. All this is in the name of helping the poor.�

So if the minimum wage hurts the poor, why is there so much clamoring for increases in the minimum wage? Well, look at who lobbies these increases: often, it�s labor unions. But union workers don�t make minimum wage. So what do they care? Well, they want to get rich by making it illegal to shop somewhere else. They want to force employers to hire union members, and a great way to do that is to make it more expensive for employers to hire anyone who isn�t a union member. �Despite all the rhetoric about helping the poor, [unions] favor an ever higher minimum wage as a way to protect the members of their unions form competition.�

The Friedmans� book isn�t just about these basic economic arguments. They explain how monetary policy was largely responsible for the Great Depression (a subject on which Milton Friedman wrote extensively in his Monetary History, which won him the Nobel Prize), refutes those who say that private charity can�t possibly take over for the welfare state�and makes the excellent point that �The charge of [capitalist] heartlessness�is belied by the flowering of charitable activity in the United States in the nineteenth century�. Almost every charitable or public service organization, from the Society for the Prevention of Cruelty to Animals to the YWMCA and YWCA�dates from that period��and explains the basic difference between equality of opportunity and equality of result:

It is certainly not fair that Muhammad Ali should be able to earn millions of dollars in one night. But wouldn�t it have been even more unfair to the people who enjoyed watching him if, in the pursuit of some abstract ideal of equality, Muhammad Ali had not been permitted to earn more for one night�s fight�or for each day spent in preparing for a fight�than the lowest man on the totem pole could get for a day�s unskilled work on the docks? It might have been possible to do that, but the result would have been to deny people the opportunity to watch Muhammad Ali. We doubt very much that he would have been willing to undergo the arduous regimen of training that preceded his fights, or to subject himself to the kind of fights he had, if he were limited to the pay of an unskilled dockworker.

Of course, defenders of government have an answer for that: force him to!

At the end of the book, the Friedmans have a chapter called �the tide is turning.� (Judging from how things went in the decade following the publication of Free to Choose, they were right!) It includes a group of proposed Amendments to the federal Constitution, including everything from inflation protection to preventing protective tariffs, to my favorite, the �portmanteau free trade amendment�: The right of the people to buy and sell legitimate goods and services at mutually acceptable terms shall not be infringed by Congress or any of the States. (Lawyers will point out that �legitimate� is obviously a weasel word. But it might still be helpful, since it would force a national debate on what are �legitimate� goods and services.)

Free to Choose is a great education in economics, history, and politics, which perfectly balances between scholarship and popular education. I recommend it very highly.

Global demagnetizing: CNN is reporting that the Earth�s magnetic field is �fading.� I suspect it has to do with the massive overconsumption of western capitalism. It�s just not fair that Americans constitute one percent of the world�s population but use 99 percent of the world�s magnets. Think magnetically�act locally!

Ah! I see they had an earlier report that the magnetic north pole is migrating out of Canada. This is clearly NAFTA�s fault.

Tree trends: A majority of Christmas trees are now fakes? We at Freespace asked Presidential Biotechnology advisor Leon Kass for comment: Though in some respects continuous with previous holiday technologies, artificial trees also represent something radically new. The stakes here are very high indeed: nothing less than whether Christmas trees are going to remain trees, whether holiday cheer is going to be made rather than begotten, and whether it is a good thing, humanly speaking, to say yes to the road which leads (at best) to the dehumanized rationality of Brave New World. If I could persuade you of nothing else, it would be this: What we have here is not business as usual, to be fretted about for a while but finally to be given our seal of approval, not least because it appears to be inevitable. Rise to the occasion, address the subject in all its profundity, and advise as if the future of our humanity may hang in the balance. The prospect of mass production of Christmas trees, with large clones of look-alikes, compromised in their individuality; the idea of plastic needles; the bizarre prospects of a tree never needing to be watered; the creation of fake pines to be stored away in case of later need; the Frankensteinian hubris to create a tree and increasingly to control its destiny; man playing at being God. We are repelled by the prospect of fake Christmas trees not because of the strangeness or novelty of the undertaking, but because we intuit and feel, immediately and without argument, the violation of things we rightfully hold dear. I doubt very much whether I can give the proper rational voice to this horror. But please consider seriously that this may be one of those instances about which the heart has its reasons that reason cannot adequately know.

Rule of thirds: Sarah Hempel answers my question. But I�m still confused.

Mea culpa: My apologies to texasbestgrok and Pathetic Earthlings. My father, a 25 year veteran of Lockheed�s Skunk Works (20 on the SR-71 program), informs me that there are, indeed, two cool propeller-driven airplanes: the Gee Bee and the Rutan Long-EZ.

Of course, Rutan shouldn�t really count, I don�t think�his stuff is sui generis.

Also, my apologies to Sarah Hempel. She is indeed the prettiest blogger. I ought to have distinguished between bloggers I know personally, and bloggers that I know only through their blogs.

I totally rule: E. pointed the way to this site, where you can create and maintain your own nation. Some jerk took the name Freespace, so I had to go with Sandefuria, which is better anyway since it�s my name. I chose a libertarian, not an anarchic society, but the UN calls me an anarchy. Figures. Anyway, it looks like fun. But just as Sim City was programmed by a bunch of Keynesians, so that the economy never quite worked as it should have, so this one was programmed by people making the same wrong assumptions about government. Hence Sandefuria, for no clear reason, is �ruled by biker gangs.�

Should I be concerned?: Yesterday, the lovely Erin neutered a bat. No, that�s not a euphemism�I mean it literally. Someone brought a bat in to the vet�s office where she works, to be neutered. I�ve never known someone who�s neutered a bat.

State quarters: Fox News has a story about the state quarter designs...but no mention of the Paul Jackson controversy.

Did I mention: That this was an interesting article?

Help, help, I�m being repressed!: Responding to this post, a Mr. Richard Feder, of Fort Lee, New Jersey, writes �Of course, this is what kills me about that article on the new labor law private right of action...�If the employer does not employ more than one employee, 50% goes to the General Fund and 50% to the Labor and Workforce Development Agency.� Great, so employers with a single employee are subject to this. Who has a single employee? Whoever it is, it�s not people who need to be sued for oppressing the masses. Crazy.� Yes�that�s capitalism for you: oppressing the working class one prole at a time!

Working away in Margaritaville: What a great idea for a small business: �They decided on Sint Maarten/Saint Martin because Dan had always wanted to open a radio station, and he was able to get a license there. They moor their boat in the marina and operate a Kinko's-like business center that also houses radio station Island 92 (91.9 FM). �The happiest day of my life,� said Virginia, who originally hails from New York, �was the day I threw my keys overboard. I never felt so free.��

Pathetic: The Earthling only proves how pathetic he is by suggesting that a P-51 could possibly be cooler than the F-15 Eagle. Sorry, pal. If it don�t break the sound barrier, it ain�t shit. It�s just like with dinosaurs: nobody would seriously suggest that some brontosaurus or triceratops was cooler than a tyrannosaurus or an allosaurus. Why, that would be ridiculous! Not that I�ll change y�all�s minds. This is like trying to explain to grandpa that, no, Elizabeth Taylor is not pretty.

Limos: Interesting article.

Worst Supreme Court decision?: A while back I said that if I could wipe one Supreme Court decision off the books, it would be Slaughter House. It’s hard to narrow down a choice, but I think I’d stick with that one. Still, yesterday I was pondering one of the worst Supreme Court decisions of all time: Nebbia v. New York, 291 U.S. 502 (1934). If I had a second choice, I think it would be Nebbia.

Although we who believe in the Constitution frequently refer to the “switch in time” of 1937—the series of cases including West Coast Hotel v. Parrish, 300 U.S. 379 (1937), NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937), and United States v. Carolene Products Co., 304 U.S. 144 (1938)—as the sudden moment when all went wrong with the Supreme Court., that’s actually far too simplistic an interpretation. Constitutional limits on government’s power to regulate private business had been eroding since Munn v. Illinois, 94 US 113 (1877). Before Munn, private contracts were held to be beyond government’s power to regulate. Unless government was a party to the contract, or had some other special relationship to the contract, it had no authority to control it, because it doesn’t violate anyone else’s rights for me to make a contract with someone else. Therefore nobody has the right to stop me, and thus the government can’t stop me. The Populist Era saw a surge in political activism in favor of regulating—even eliminating!—private property. The Grangers managed to get laws passed regulating so-called “monopolies.” In Munn, the law regulated the price charged by grain elevators. Although the law was clearly unconstitutional, the Supreme Court held otherwise, and declared that from now on, the government could regulate private economic behavior so long as it was “affected with a public interest.”

Even that was not enough, though, for those who demanded greater government regulation. In Nebbia, the Supreme Court held that the “public interest” rule still limited government too much. 291 U.S. at 533. Reversing (sub silentio—see id. at 554-55) its great decision in New State Ice Co v. Leibmann, 285 U.S. 262 (1932), the Court held that all businesses are “affected with a public interest,” and that government can regulate anything it wants to: whenever a business “so nearly touch[es] the vital economic interests of society that the police power may be invoked to regulate their charges—no additional formula of affectation or clothing with a public interest is needed to justify the regulation.” 291 U.S. at 534. (See also id. at 536: “‘there is no closed class or category of businesses affected with a public interest’”) And again: “upon proper occasion and by appropriate measures the state may regulate a business in any of its aspects’.” Id. at 537.

It’s worse than that. See, the theory behind Nebbia was this: in a free market, competition will cause producers to cut their prices lower and lower, and eventually they will cut it so low that nobody will produce that product anymore, because they can’t make a profit, see...so then...you just won’t have the product any more at all! No, really, that was the theory that the Supreme Court called rational. If you don’t keep milk prices artificially high, people will cut milk prices so low that eventually you just won’t have any milk: “‘the conditions or practices in [the milk] industry make unrestricted competition an inadequate safeguard of the consumer's interests, produce waste harmful to the public, threaten ultimately to cut off the supply of a commodity needed by the public, or portend the destruction of the industry itself’”Id. at 538. This kind of intellectual vomit was held to be Constitutional.

Thus the Nebbia Court concluded that if the government wanted to protect a favored economic group from having to compete fairly, it could. See id. at 529 (“‘where the policy of the state dictated that a monopoly should be granted, statutes having that effect have been held inoffensive to the constitutional guarantees.’”) The problem, of course, is that there are now not only no limits to government’s power to regulate businesses—but no end to its reasons for doing so, since every businessman will tell his legislator that if he isn’t protected from competition, he’ll go out of business—and this the Nebbia Court said, is all that is necessary to give government the power to regulate.

Finally, one must not leave Nebbia without noting that the policy in Nebbia was a minimum price for milk, not a maximum. In other words, New York had decided to make it more expensive for poor mothers to buy their babies milk—and the Court that upheld that policy is the one that is called “compassionate” and “caring” and “sensitive” to the needs of the poor during the Great Depression. What an awful, awful decision.

Welcome to the blogroll: To Secular Semons. If there are folks out there who have added me to theirs, please let me know, and I will reciprocate as always. Also, I do regularly read the blogs on my blogroll�even the stupid ones (of which Secular Sermons does not appear to be one).

Hostility to Christianity?: Prof. Volokh patiently disputes with Clayton Cramer, but I think he overlooks an obvious point (more likely, it�s beneath his notice). Most religious people in this country are Christians. So if there�s going to be a violation of the Establishment Clause, it is far more likely to be from a Christian than from a non-Christian perspective. Most Establishment Clause challenges will tend to be over Christian imagery. If Christians were in the minority, and most people here were Muslims (assuming that we still had an Establishment Clause) then the Christians would be in court all the time demanding the removal of crescents and whatnot, and then someone would say �All these Establishment Clause cases are attacking Islamic symbols�it�s all just hatred of Islam!�

Do you have a right to teach your children lies?: A question that has intrigued me for a long time. The best I�ve come up with is to quote Reverend Lovejoy: �Short answer yes with an if, long answer no with a but.� Anyway, interesting permutation of the question via Dave�s extraordinarily interesting Mormon Inquiry Weblog.

2000 hits in a week: That�s about 285 a day.

Leibsohn replies: To my earlier post, rather indirectly. We�ll go point by point.

1) Leibsohn says �I�m not sure the onus was on me� to explain the difference in treatment between gays and heterosexuals in marriage laws. Of course, the principle of onus probandi is well established�he is asserting that we ought to except homosexuals from a general rule, and the burden is on him to explain why that ought to be. (If not, why did he write his post first?)

Now, he cites the

manifold rational basis reasons provided by the dissenters in Goodridge...[including that] marriage is the �very basis of the whole fabric of civilized society... and...serves many important political, economic, social, educational, procreational, and personal functions.� And, thus, one could have a rational basis for not experimenting around with such an institution knowing that other experiments on it, from cohabitation to divorce, have wreaked enough havoc already.

Yet, as I explained in my previous post, this is exactly the argument made by those who defended segregation. Need I quote the case again? Their argument was that marriage has social effects�we must protect the children against the immoral effect of seeing blacks and whites intermarry. Mr. Leibsohn may believe that this effect wasn�t really bad�but the elected representatives of the people of Virginia thought it was. If he�s going to disagree, he must explain why. And if his answer is something to the effect that marriage is a sacred bond between two people that others have no right to control, then he has to explain why that does not apply to homosexuals. He doesn�t do this. He says �there are plenty� other reasons to ban gay marriage. He provides not a single one.

2) Leibsohn dismisses my analogy to Loving by saying �So what? I�m sure lots of writing compares to lots of dicta in lots of cases....� which reminds me of Tim�s Rule of Life Number 12: It�s always easy to distinguish two cases if you refuse to think in principles. Anyway, he continues: �it�s really this simple...I dispute what the Virginia legislature did because it was a violation of our commitment to Justice Harlan�s Plessy dissent and the solid reasoning of that dissent, because distinctions by race are arbitrary, intolerable, a badge of slavery, and violative of the 14th Amendment. At least two of those reasons are found in the Constitution, that should suffice.� But as I�ve said before, this begs the question. First, Plessy, and not its dissent was controlling law at the time of Loving. So the Loving decision was what Leibsohn calls �experimenting around [sic] with such an institution� as marriage. What justified such experimenting around? Because �distinctions by race are arbitrary, intolerable, a badge of slavery, and violative of the 14th Amendment.� I certainly agree that they are all of these things. The question is, why are distinctions based on sexual orientation not these things? Leibsohn does not explain. He suggested earlier that it lies in the fact that homosexuality is a behavior, rather than a racial characteristic. But this doesn�t work, because behaviors that affect nobody else�s rights are nobody else�s business.

The real question in all of this is, does Seth Leibsohn have a right that is violated when two men get married? If the answer to that is no, then he can have no natural right to prohibit that activity, and consequently no right to tell the government to ban it. What right does he have, then, that�s violated by two men getting married? A right to a �moral society�? If that is it, then what is the limiting point? Because that alleged �right� would allow him to censor books, prohibit religions he disagrees with, and tell me how to cut my hair. Already he suggests that he would like to illegalize �cohabitation [and] divorce,� and I suspect that he thinks the Lawrence decision was wrong, too�and thus that he has the right to prohibit private, adult, consensual, sexual activity out of this alleged �right to a moral society.� I deny that such a right exists. If you want a moral society, buy your own. But don�t come to us and demand that we buy it for you.

Again, I am open to a reasoned argument for distinguishing between homosexuals and heterosexuals. I think this case is quite different from Lawrence, which was clearly rightly decided. So if Mr. Leibsohn can explain what right he has that is violated by two men getting married, I�m sure I�ll be convinced. But until then, no.

As for �plural or consanguineous marriages,� I have already answered that in another post.

God save me from people who think their arguments are profound simply because they include soaring references to Justice Harlan, and words like �onus� and �manifold,� but which, upon closer examination, turn out to be nothing more than intellectual Jello wrapped around a few disappointing grapes.

And no, I am not �Jack Kansas.�

The tort from hell: You thought � 17200 was bad? You ain�t seen nuthin� yet. Check out this article, The �Bounty Hunter� Legislation: What Everyone Should Know by Elizabeth Ison, in the Sacramento Daily Recorder. Under a bill Davis signed just before his removal, employees will be able to sue employers for any violation of the labor code. At first that sounds pretty fair, but look deeper. Under the current law, only the government has standing to enforce the labor code; now employees will�and they�ll have incentives, too:

The law encourages class action lawsuits by allowing an employee to recover the civil penalty on behalf of others. As an added incentive to class-action suits, the law provides that an employee who prevails in any action is entitled to attorney�s fees and costs. The fear among many employers is that the legislation encourages employees, unions, and activist groups to actively look for any minor violation in order to bring a class-action lawsuit.

As Ison concludes, �Employers often call attorneys for advice and counsel regarding labor and employment laws. The laws can be difficult and may be subject to interpretation. Now if a single mistake is made, no matter how minor or inadvertent, an employer can be sued. The employee does not need to show that he suffered any actual harm or damage.� I have noted previously that we must calculate the cost of such laws in terms of unseen costs: foregone opportunities; businesses that are never opened. How many businessmen, faced with the massive tort exposure that�s capped off by this ripe little cherry, will just decide that it just isn�t worth it to do business in California?

Tort reform: This neighborhood of the blogosphere is now buzzing about tort reform. I found Overlawyered�s comments on the Leibeck case very convincing. I also noticed this post, which makes the argument for a loser-pays system. I generally favor loser-pays; the argument against it is that it deters legitimate lawsuits by people who otherwise couldn�t afford to sue. I think this is probably preferable to encouraging lawsuits by those whose claims are frivolous, if for no other reason (and there are other reasons), because the social cost created by frivolous claims makes me have to pay for someone else�s frivolous lawsuit, which is more unfair than causing a person to suffer the wrongs of a tort without redress.

Weird science: Sand dunes passing through each other without changing shape? But it�s only a model. Who knows if it�s right.

Even cooler, though, is this, which I learned from John Varley�s story �In Fading Suns and Dying Moons,� which I read last night. Okay, so there�s a phenomenon in butterflies (and, I suppose, other species as well...) called a gynandromorph, which is when the butterfly �loses� sex chromosomes during development. Evidently the exact mechanism is still not understood. But the result is very striking�the butterfly exhibits the characteristics of both sexes. A bilateral gynandromorph is divided into male and female symmetrically. For instance....

Pshaw: I�ll give you the P-38 �cause it was a Skunk Works product, so it came the closest to being cool of any propeller-driven aircraft. But no, prop jobs cannot be cool. They can be spunky sidekicks of cool planes. They�re the Andys in the �Facts of Life� that is the airplane world. Cool propeller planes? Man, pretty soon you'll be saying that cars from the 50s are cool.

An amusing cartoon: Via Note-It Posts (authored by the prettiest blogger I think I�ve ever seen).

Entrepreneurs: I think the greatest people in the world are entrepreneurs. They are just amazing people. They take risks the rest of us only dream about. They face hurdles that, when they aren�t high, are still tedious enough to drive anyone insane. But they keep doing it, because they believe in their dreams and�much more nobly�they want to do something about it.

This article points out that �Minorities are more likely than European/Americans to launch new businesses in the U.S., a trend that is likely to have as big a continuing affect on the commercial landscape of Downtown and the rest of Los Angeles as anywhere else.� That isn�t surprising. America is the land of opportunity�that means, economic opportunity. The right to earn a living; the right, as our own forefathers said, of �enjoying and defending life and liberty; acquiring, possessing, and protecting property; and, in a word...seeking and obtaining happiness.� It�s too bad that burdensome regulations, such as occupational licensing, prohibit so many honest, hardworking immigrants from earning an honest living, and stifle creativity and enterprise. It�s even worse that the courts, alleged defenders of our rights, rarely do anything about it.

But in the meantime, check out this great story from Minnesota. Have I mentioned how much I love entrepreneurs?

Holy cow: Look at those eyes. No, really, her eyes.

Un-fucking-believable: Or at least, it ought to be.

Teaching: I rarely agree with Eve Tushnet, but I love the header on this post. �I educate. You indoctrinate. They brainwash.� Very true.

Dressup: Check out these photographs, circa 1860, of dressing for a ball or a wedding. Note the contraption that the woman in the last photo is using, to lean over the dress without crushing it.

Question: What�s the rule of thirds?

Tort reform: The Clerk replies to my post by saying �[t]he nub of [Sandefur�s] argument is as follows: �The problem isn't so much irrational tort lawsuits. The problem is the fear of irrational tort lawsuits.� But this begs the question. The real question is whether this fear is itself rational.� No, I don�t think so. The real question is whether the costs created by that fear are high enough to warrant reforming the system. But the problem we face is that such costs are often unseen costs�opportunities foregone, businesses never opened, money spent on overcautious accident prevention which could have been invested in productive enterprises. And the fear of litigation that the Clerk cited is indicative of just these unseen costs. Courts have recognized that fear need not be rational to justify reform. Cf. Everett v. Paschall, 61 Wash. 47, 51 (1910).

Loving: Seth Leibsohn argues against homosexual marriage in terms that could equally be applied to interracial marriage. I mean, I can easily imagine a Virginian in the 1960s saying �We must dismiss the knee-jerk explanations justifying �interracial marriage.� Listening to �interracial marriage� proponents, the argument boils down to this: if two people want to marry, whatever their race, it is right that they be able to do so, it is wrong to keep them from doing so. Their legal marriage will strengthen the institution of marriage. In this short space one cannot answer each argument in depth, but the premises can be easily dismissed as false�.� But Leibsohn senses that his attacks on the Goodridge case could also be applied to Loving v. Virginia, so he says that the �analogy to race is a calumny on the history of civil rights and those who struggled for those rights.� Why? No reason is given. Instead, Leibsohn says that laws against interracial marriage were wrong because �[r]ace�has nothing to do with behavior,� but laws against homosexual marriage are right because �[h]omosexuality defines a behavior.� Well, yes, it does. The question is whether that behavior�like a person�s race�makes a relevant difference that permits a difference in treatment by the state. Leibsohn apparently thinks that it does. Why? �[S]ex is one of the essences of marriage�.� It is unclear why this is relevant, (would he support divorce on grounds of infertility, which was indeed American common law?) or what the other �essences of marriage� are�surely there are others? But no answer to this. This is extremely important because it�s really the kernel of the debate. If the state is going to treat people differently, it must do so not just for any reason, but for a reason that justifies the difference in treatment�that is, the �behavior� must be something that affects third parties in a way that justifies different treatment. If the law prohibited people who pick their noses from getting married, that would be irrational because nose-picking doesn�t affect others. (Actually, it probably does affect others far more than private, consensual, adult sexual activity between two men!)

Anyway, having avoided that fundamental issue, Leibsohn writes that �bans on inter-racial marriage were themselves changes in the �history of our marriage law;� such bans were unknown to the common law and, for that matter, nature.� That phrase�eight words�seems to be Leibson�s entire defense of prohibiting homosexuals from marriage. We must agree�so far as I know, the common law did not ban interracial marriages. So what were the justifications for the nineteenth century statutes that were passed to prohibit interracial marriages? Examine those rationales, and they will sound eerily familiar. In Naim v. Naim, 197 Va. 80, 88 (1955), the case on which the Virginia court relied in Loving, before it was reversed) the Virginia Supreme Court held that �No [valid] claim for the intermarriage of the races could be supported; by no sort of valid reasoning could it be found to be a foundation of good citizenship or a right which must be made available to all on equal terms. In the opinion of the legislatures of more than half the States it is harmful to good citizenship�. It is the considered opinion of the people of more than half of the States of the Union that the prohibition against miscegenetic marriages is a proper governmental objective, and all the courts which so far have dealt with the question, with the one exception noted, have held that that is so.�

The Virginia court explained that marriage affected society, and therefore society had the right to regulate it to protect �the morals and civilization of a people.� Id. at 85-86. It held that interracial marriages did violate natural law, id. at 84, and concluded that

The institution of marriage has from time immemorial been considered a proper subject for State regulation in the interest of the public health, morals and welfare, to the end that family life, a relation basic and vital to the permanence of the State, may be maintained in accordance with established tradition and culture and in furtherance of the physical, moral and spiritual well-being of its citizens. We are unable to read in the Fourteenth Amendment to the Constitution, or in any other provision of that great document, any words or any intendment which prohibit the State from enacting legislation to preserve the racial integrity of its citizens, or which denies the power of the State to regulate the marriage relation so that it shall not have a mongrel breed of citizens. We find there no requirement that the State shall not legislate to prevent the obliteration of racial pride, but must permit the corruption of blood even though it weaken or destroy the quality of its citizenship. Both sacred and secular history teach that nations and races have better advanced in human progress when they cultivated their own distinctive characteristics and culture and developed their own peculiar genius. Regulation of the marriage relation is, we think, distinctly one of the rights guaranteed to the States�.

Id. at 89-90.

Leibsohn may disagree with the conclusion that race affects society in this manner. But the legislature of Virginia concluded that it does, and who is he to dispute with the elected representatives of the people? If he does dispute with them, on what grounds? And how do those grounds differ from the argument of proponents of gay marriage? Leibsohn does not answer these questions, but writes that �[b]ans on inter-racial marriage had nothing to do with strengthening or weakening marriage, they had everything to do with racism and discrimination against blacks.� That totally begs the question, in two ways. First, homosexuals assert that Leibson�s position on this issue has everything to do with discrimination against homosexuals. And second, the state of Virginia certainly believed that bans on miscegenation protected marriage. The Naim decision is replete with that conclusion: ���marriage is treated as a civil contract, but it is more than a mere civil contract. It is a public institution established by God himself, is recognized in all Christian and civilized nations, and is essential to the peace, happiness, and well-being of society�. The right, in the states, to regulate and control, to guard, protect, and preserve this God-given, civilizing, and Christianizing institution is of inestimable importance, and cannot be surrendered, nor can the states suffer or permit any interference therewith. If the federal government can determine who may marry in a state, there is no limit to its power.�� Id. at 84 (quoting State v. Gibson, 36 Ind. 389, 402-03 (1871)).

Tort reform: I hate to take issue with the Curmudgeonly Clerk,* but I feel I must. Commenting on the recent Newsweek article about tort law, he writes somewhat flippantly, �now even non-litigation is evidence of a litigation crisis? This doctor has never been sued. But the fact that unenumerated unidentified disgruntled injured laypeople have threatened to do so also threatens to paralyze the medical profession?� I think the answer to this has to be absolutely yes, for two parallel reasons. First, doctors (and certainly other professionals) are not lawyers, and are not able to form realistic opinions as to their potential exposure to lawsuits, since they don�t know the legal standards involved or the local legal climate. Like most civilians they find the legal world confusing, perhaps mindboggling in its strange terminology and seemingly unprincipled wavering. This problem is a serious one for doctors (who are frequently confused by things like rules of evidence which would make no sense to someone trained in scientific investigation) but even worse for nonprofessional businesses. These businesses could all hire lawyers to give them advice on whether and to what degree they�re exposed to tort liability, but that is yet another business cost that raises their charges to consumers. Second, even an unusually knowledgeable businessman or doctor who really knows his negligence law cannot reliably ensure against irrational tort lawsuits. Yet the tendency is to try. Fear of being sued leads businesses to take unreasonably severe measures of self-protection�things like email censorship programs, for instance, being installed by many companies nowadays�which in the end are a waste of time and money because you cannot protect yourself from being sued by a crazy person. Yet businesses must, and will, take every precaution they can (especially if being advised by a lawyer, who will tend to recommend overly cautious safeguards because the lawyer doesn�t want to get sued for malpractice!), and this can cost them an unreasonable amount, and that, again, raises costs to the consumer.

The problem isn�t so much irrational tort lawsuits. The problem is the fear of irrational tort lawsuits. The importance to businesses of a predictable and stable economic environment just cannot be overstated. I�ll prove that by saying it again: businessmen absolutely must be able to anticipate potential tort liability by knowing the rules and how reliable they are. When businesses are putting absurd warning labels on everything, that�s an indication that they�re afraid of getting sued. That fear costs society much more than the actual lawsuits.

How does it cost society? It�s important to keep in mind what Fr�d�ric Bastiat called the unseen costs�the cost to society in terms of things that are not produced, or businesses that are never opened. Not long ago I was watching a program about investing in the stock market. The experts went around the table asking what stocks folks should invest in. One was asked about a company that makes stints to hold open arteries in hearts. I�ll never forget the expert�s reply. �Great product,� he said. �It�ll save thousands of lives, then it�ll kill two people, and the company will be sued and go out of business. I recommend against buying the stock.� Now, even if this advisor is wrong, the fact that he fears the tort system enough to recommend that course of action�that�s the problem. I think this is the answer when the Clerk asks �[s]o damages stemming from emotional distress are a crock, but the emotional costs imposed on society by the very process of litigation form a compelling argument for reform of the system?� The fact is, they are at least of equal concern. The �emotional costs imposed on society� are also economic costs, if we keep in mind the unseen costs. (As Bobby Kennedy said, we should not look at what is, and ask why, but look at what is not, and ask why not.) Emotional distress damages make folks suspicious because they are so easily faked�the reason for the physical impact rule in emotional distress cases�and because it�s hard to limit the reach of such damages. Economic costs to society, in the form of foregone opportunities and over-investment in insurance against irrational litigation, are even harder to measure, but they�re real.

*�The Curmudgeonly Clerk is not to be confused with The Funky Judge.

Longest decision?: Dred Scott was over 109,000 words (not counting the attorneys� arguments, which were reprinted as part of the reports back then).

Interest rates: These articles complain about the higher rates and greater difficulty that black Americans have in getting mortgages or insurance. This is a serious problem, but I think it�s myopic to blame it on racism. The unfortunate fact is that racial minorities are at a higher risk for defaulting on loans, or having their possessions stolen or broken. That means it�s more expensive to lend them money or insure them. Now, banks would be willing to lend, and insurance companies to insure, anyway, if they could charge a higher interest rate or premium to offset the risk. But when laws prohibit that, then the banks have to deal with the risk somehow�they�re gonna get ripped off in a certain percent of cases, so they have to protect themselves�so they either refuse to lend money to racial minorities (in sneaky ways that we would all find repulsive) or they raise interest rates on everyone.

Now, that latter thing�raising interest rates on everyone. What that means, essentially, is taking more money from white customers to offset the risks created by racial minorities who are at a higher risk for defaulting on loans. Put aside for a moment the question of whether that�s right or wrong. What about this: how about subsidizing these loans directly? Pay banks an certain amount directly out of the government treasury to cover defaults. This would encourage lending to racial minorities. Now, if that offends people, and I suspect it might�then they don�t understand that it is what is already happening now�it�s just hidden. Those who pay their loan payments are already subsidizing those who don�t, under the current system. And that creates an incentive to deny loans to black Americans in the first place.

I suspect that direct subsidies might be a better idea. They would increase the pressure on people of all races to pay their loan payments, and, more importantly, they would be far more effective at actually getting people the loans or insurance that they need, since they would eliminate the incentive to refuse people loans in sneaky ways that we would all find repulsive.

Caesar: Scipio�s defense of tyranny continues.

Briefly: I confess that the Catiline connection is not convincing, although I suspect it just because I detest the man and would put nothing past him. But I admitted at the outset that it wasn�t a fair charge. Scipio writes �Until Caesar crossed the Rubicon, he was no different than any other highly successful Roman general and governor....� Yeah, that�s right. And before Benedict Arnold tried to sell out West Point, he was no different than any other highly successful American general! And yes, Cicero deserves praise for his defense of the republic against Caesar. Again, Cato was no libertarian. But I admire his rigid and impractical adherence to principle. Cicero was a more �practical� man. And it got him nowhere.

I�m more interested in Scipio�s statement that �the people, not the Senate, were sovereign.� The people are sovereign, but are bound by moral law. Erecting a military dictatorship and welfare state are outside the moral law, and cannot therefore be justified as acts of a sovereign�because force without right is not law. The sovereign has no rightful authority to do wrongful acts.

�[T]he Plebeian Assembly��that is to say, the people under the sway of a demagogue of epic proportions��later ratified Caesar�s acts. The most recent decision governs, as we know.� Ah, well, then that�s just fine. What the hell have the Christians been complaining about for 2,000 years, then? The people ratified the decision to execute that guy....

But seriously, I really love that it�s possible to have a serious and sustained discussion on a subject like this, and I commend Scipio�s very impressive knowledge of the details.... The wonders of the internet. Scipio is right that Cicero conducted himself heroically in defending the republic against Caesar. But too little, too late�the populares, beginning with the Gracchi, had long before destroyed the core of republicanism, and rendered Rome a realm of clashing gangs. (Indeed, I am constantly struck by the similarity between Roman politics and the workings of the mafia.) As Polybius wrote, �When [demagogues] have made the populace ready and greedy to receive bribes, the virtue of democracy is destroyed, and it is transformed into a government of violence and the strong hand. For the mob, habituated to feed at the expense of others, and to have its hopes of a livelihood in the property of its neighbors, as soon as it has found a leader sufficiently ambitious and daring...produces a reign of violence. Then come tumultuous assemblies, massacres, banishments, redivisions of land.�

Hostility to Doughfaces: I considered jumping in on the spat over the Doughface libertarians that started up when Bainbridge rightly called them lunatics. But Insults Unpunished has done a good enough job of that, and frankly, the Doughfaces are to libertarianism what the Creationists are to Christianity. It�s best to ignore them and let them stew in their persecution complex.

Hit counter: Tomorrow afternoon it�ll be a week that I�ve had the hit counter up. So far I�ve got an average of almost 300 hits a day�and not all of them just me, checking my own hit counter. That�s not bad for a personal blog, I think.

More on Bryan Larsen: Got a very nice note from the folks at Quent Cordair gallery, thanking me for mentioning Bryan Larsen�s fine artwork, and pointing out that the gallery has set up a weblog-style page called The Artist�s Studio, following Larsen step by step in demonstrating how he does his paintings. Readers can leave comments or questions.

Meanwhile: A tiny little bit of freedom comes to the Seattle taxi market.

Sugar exclusion: Last year, Virginia Postrel noted that �sugar protectionism and subsidies are killing the U.S. candy-manufacturing business,� and she pointed to this article on the subject. Now the news is, Congress is urging President Bush to �keep sugar out of a proposed free trade agreement with five Central American countries.�

Licensing: Here are the professions you need a license to engage in, if you live in Virginia. Compare Jay Dratler, Jr., Does Lord Darcy Yet Live? The Case Against Software And Business-Method Patents, 43 Santa Clara L. Rev. 823, 891 (2003) (�Were Lord Darcy to come back from the grave, he would find his state-granted monopoly on playing cards much better received in twenty-first century America than it was in seventeenth century England. he would find his state-granted monopoly on playing cards much better received in twenty-first century America than it was in seventeenth century England.�)

Praising Caesar: Okay, there�s no evidence that Caesar was among Catiline�s plotters. But he was a backer of Catiline before the conspiracy, and it is widely suspected that he joined those who condemned Catiline only when it became clear that he had to do so to remain politically viable himself. In any case, he was soft of Catiline, and for reason. �Sallust writes: �All who were not on the side of the Senate preferred to see the commonwealth lapse into disorder rather than lose some of their own importance.�� Christian Meier, Caesar: A Biography 167 (1982). And it�s true that Caesar did not proscribe. But he could have. And that�s the point. Anyway, had he lived, I have no doubt that Caesar would have proscribed and slaughtered.

The republic was severely weakened by the time that Caesar came along. It would have to be; Shakespeare�s Cassius rightly says that

he would not be a wolf,
But that he sees the Romans are but sheep:
He were no lion, were not Romans hinds.
Those that with haste will make a mighty fire
Begin it with weak straws�.

But that�s just the point. At such times, a genuine leader stands up and rescues the republic�he doesn�t demand his share of the carcass. The weakening of the republic (for which the populares were responsible, and their leader was Caesar) doesn�t absolve Caesar any more than the weakening of the American republic by the Progressives absolves Franklin Roosevelt. �[H]owever beneficial some of [Caesar�s] actions were, they had on the whole been destructive. He had not pointed the way to a new order, but only burdened the old with the civil war and the cost of his victory. In this way he speeded the decline of the inherited institutions.� Meier, supra at 482. It�s true�I detest Julius Caesar. I despise all enemies of freedom.

Finally, I think the most fundamental disagreement I have with Scipio is when he writes �Sandefur may argue that the choice to be enslaved is no choice at all, but I believe that people must be free to be stupid.� Yes, in their own lives, people always ought to be free to be stupid�to drink, to gamble, to take drugs, to read stupid books, to marry the wrong people and invest in the wrong stocks�but they never have the right to �be stupid� by helping to enslave others. This, incidentally, accounts for my view of the American civil war as well.

(But wait a second. Why does �the people�s choice� justify Caesar�s march�not the Senate�s war against Caesar? They passed the Ultimate Decree against Caesar, then Caesar crossed the Rubicon�which violated Rome�s most sacred law�and conquered Rome. How does that military victory change the �will of the Romans� from anti-Caesar to pro-Caesar?)

Gerrymandering: Good post on the subject; I�ve said it before and I�ll say it again�ensuring the reelection of incumbents is not a legitimate state interest!

Eh: I don�t think anything with propellers can qualify as a cool-looking plane, sorry. I don�t mean a thing if it ain�t got that supersonic swing. (At the same time, I don�t think the X-15 should qualify, since it was a rocket plane, rather than an �air-breathing� aircraft.) I will say this, though: the DC-3 was probably, taken for all in all, the best airplane ever built. Seventy years and the damn things are still flying!

SR-71: Good for annika! The SR-71 is indeed the greatest plane ever built, and if you don�t believe me, ask my grandfather, who worked on the plane from its inception in the 60s till his retirement in the 80s�he designed the cameras�or my father, who worked on it from 1977 until it was retired from service in the 90s. The plane�s practically a member of the family.

But allow me to add that the XB-70 Valkyrie, the sexiest plane ever constructed, really ought to be on any list of great planes.

I.U. Xmas Tree: Mentioned at SW Va Law Blog. For more, check out Sapere Aude.

O-bloggers: Nice list of Objectivist blogs.

Oops!: In my law review article on eminent domain I make the argument that the history of the California public use clause shows that the state constitution prohibits private takings even more than the federal constitution does. Only just now did I discover that the Washington Supreme Court accepted the same argument with regard to the Washington public use clause in 2000. From Manufactured Housing Communities of Washington v. State, 142 Wash.2d 347, 359 (2000):

During the Washington State Constitutional Convention in 1889, concern was publicly voiced over the taking of private property for private enterprise. Washington Standard (Olympia), August 9, 1889, p. 1, col. 4. Moreover, certain constitutional delegates were strongly opposed to various exceptions to the absolute prohibition against taking private property for private use. [FN9]

FN9. Delegate Turner, for instance, moved to strike �except for private ways of necessity.� �Turner said such private ways should not be made at the expense of other private property, but that such a right of way should be included in the purchase of isolated land.� Quentin Shipley Smith, The Journal of the Washington State Constitutional Convention, 1889, at 504, (Beverly Paulik Rosenow ed., 1962).

Wish I�d known that�especially since PLF filed a brief in the case arguing just this point! Wish someone had told me. Oh well, guess I have to write another article.

Artists: Another really amazing artist is Bryan Larsen, whose work is prominently featured at Quent Cordair Gallery. I love his �How Far We�ve Come,� not just for its overt message, but because it really does give you a feeling of weightlessness.

Who is here so base that would be a bondman?: So what if Caesar didn�t use the word �king�? We should not be deluded by words, but should focus on things. Caesar�s absolute power after his conquest of Rome is demonstrated by the fact that �Caesar� became synonymous with king in the succeeding years�indeed, with emperor! It�s ridiculous to say that Caesar (whose alleged �election� as dictator for life was about as reliable as Saddam Hussein�s 99 percent mandate for change) was not a king because he did not call himself a king, when he had the sort of power that kings could only dream of. To say that �Caesar did nothing unconstitutional before crossing the Rubicon� strikes me as akin to saying Benedict Arnold did nothing dishonorable until he sold out to the British; to say that there was a difference between dictatorship and monarchy�well, tell it to the victims of Sulla.

Compared to, say, Stalin, Caesar was a mild ruler. But he destroyed the pretense of republicanism in Rome, and condemned the western world to being ruled by tyrants and madmen for centuries afterward. Cato was not a nice man, and certainly no libertarian. But he was absolutely right that the republicanism of Rome had rotted at the core�thanks to the populares politicians like Caesar and his buddy Catiline*�before the crossing of the Rubicon. Cato set a glorious example in his refusal to live under the dictator�and that�s why his memory was honored by the American patriots.

Anyway, don�t try to dazzle us with references to the Tarquins, Scipio. We know all that stuff already. Let�s get to the substance of the matter. Caesar broke the most sacred of Roman laws on a trumped up charge of personal honor in order to destroy the republic and subject the greater part of the Western world to the absolute rule of one man.

*�okay, I admit this is a little below the belt.

Quote Quiz: Okay, I was just friggin� deluged with guesses as to the identity of the author of the mystery quote. The answer? Woodrow Wilson, President of the United States, who wrote this in his article �Leaders of Men,� published June 17, 1890 (reprinted in 6 Papers of Woodrow Wilson 646 (A. Link ed. 1969)).

Quote quiz: Nope, not Machiavelli. Try again.

Shootout: Taking people�s property tends to really upset them, even when doing so is legally legitimate and entirely reasonable. It is a very serious matter, and not to be taken lightly�not even in cases where people don�t start shooting.

New book: Totalitarianism and the Prospects for World Order, essays by my international politics professor, the late Alexandras Shtromas, has just been published.

Grammar: While we�re mentioning grammatical pet peeves, allow me to say that it drives me crazy when people talk of being �hauled� into court. One is haled into court, not hauled (unless one is being obstreperous).

Blog to check out: texasbestgrok points to Eternal Golden Braid, a blog I�ve enjoyed for a while.

Hmm�: Wasn�t I just talking about this?

A Rant: What do I want for Christmas? Relief from idiocy. In particular, the idiocy that makes this article somehow news. Supposedly an attack on Wal-Mart for the crime against nature called �charging people too little,� it turns out there�s no there, there, and even author Steve Lohr has to admit it. He wanted so badly to bash Wal-Mart. But his soundbytes just took it away from him.

�Wal-Mart, the juggernaut of retailing, already seems to have claimed its first victim,� writes Lohr. �The corporate owner of F.A.O. Schwarz stores said last week that it would file for bankruptcy� [T]he F.A.O. Schwarz formula of selling premium-priced toys in sumptuous surroundings could not withstand the steady advance of Wal-Mart into the toy business.� Oh! The humanity! What Lohr is saying is that Wal-Mart is bad because it doesn�t charge as much for toys as the notoriously expensive F.A.O. Schwarz. Why, how dare they! Don�t they know those Schwarz employees have families to support?

Of course, Lohr rattles through the same old litany: �Wal-Mart points the way to a grim Darwinian world of bankrupt competitors, low wages, meager health benefits�.� Blah blah blah. But what he means is this: Wal-Mart is bad because it provides people goods they want at a price they�re willing to pay. People are flocking to Wal-Mart to get jobs. It�s the largest employer in the country�except the government�and you know what? They didn�t force a single one of those people to work for them.

�There is a lot to be said for getting the best deal, economists say.� No, Mr. Lohr, it�s not economists who say that, it�s people. Buyers. Folks who have jobs and kids and wives and homes and pets and budgets and rent to pay.

Still, Lohr continues: �some economists note [that] lower prices for the kinds of basic goods on sale at Wal-Mart superstores, like food and clothes, are of the greatest benefit to the less affluent.� You can hear the �but� coming, can�t you? It�s on its way:

��The prospect of Wal-Mart amassing even more market power does not worry free-market economists�.� Note the tone�amassing. Yes, much as Darth Sidious is amassing his army of clones for war against the Republic!

�Inevitably, less efficient rivals will be winnowed, he added, and those that remain will compete aggressively for consumer dollars.� Yes, and trapped in the middle of this savage war of vast automatic murder machines? The helpless American consumer, condemned to a life of cheap abundance and pleasant homemaking.

�In the past, antitrust policy assumed that more companies meant more competition, which was good for consumers. The Robinson-Patman Act of 1936�was passed partly to protect small local retailers from the Great Atlantic & Pacific Tea Company, the Wal-Mart of its time.� Now, remember�how does a company like Great Atlantic become powerful? In a free economy, a company becomes powerful by providing consumers with goods they wants at prices they�re willing to pay. So we must prevent that from happening in order to �protect [more expensive] mom-and-pop stores.� Perhaps that�s why even New Dealer Robert Jackson later wrote that the New Deal ended up supporting the monopolies it claimed to attack.

�But the intellectual tide shifted by the 1980�s, especially under the growing influence of the so-called Chicago school of economics�.� Yes, that�s right. It had nothing to do with the almost paralyzing economic policies of the Johnson, Nixon, Ford, and Carter administrations�. And what did these monsters from Chicago do? Why, they �emphasized prices as the fundamental gauge of consumer welfare.� Overlooking such warm and fuzzy community-building aspects of shopping as, um, paying too much, and failing to find what you were looking for?

�To keep cutting costs, Wal-Mart is tough on its suppliers. Selling to Wal-Mart, by all accounts, is a brutal meritocracy.� Brutality! Oh, it figures. It�s a juggernaut, after all, that�s amassing power. Tell us about the brutality, Steve! �Manufacturers have been forced to lay off workers after Wal-Mart canceled orders when another vendor cut its price a few cents more.� Simply inhuman! Wal-Mart should have instead stuck with the first vendor and charged us all more and just screw the vendor who worked harder and met consumer needs more efficiently.

�Wal-Mart�s detractors point to�a federal investigation into its use of poorly paid illegal immigrants as janitors.� Yeah, they shouldn�t offer jobs to Mexicans, just white folks. And if they do hire Mexicans, they should pay �em double.

�Wal-Mart�s growing power has brought increased scrutiny from federal and state regulators.� (Yeah, I�ll say. Just like antelopes bring increased scrutiny from lions on the savannah.)

�The classic behavior of a predatory corporation is to cut prices to drive out competition in order to raise them later. There is no evidence yet that that is the Wal-Mart strategy.�

Then what the hell are you writing this article for, Steve?!

Quiz time: Quick, who said the following: �The competent leader of men cares little for the interior niceties of other people�s characters: he cares much�everything for the external uses to which they may be put. His will seeks the lines of least resistance; but the whole question with him is a question of the application of force. There are men to be moved: how shall he move them? He supplies the power; others supply only the materials upon which that power operates.... It is the power which dictates, dominates: the materials yield. Men are as clay in the hands of the consummate leader.... [Leaders] are early vehicles of the Spirit of the Age. They are born of the very times that oppose them: their success is the acknowledgment of their legitimacy.� Send your guesses to me here.

Rice is right!: Okay, I admit it, Rice Grad is totally right on. (By the way, Best. Picture. Ever.)

We the Living: Coming to a theater near you. (Thanks to Debbie for the pointer.)

John Varley: I am delighted to see that my very favorite writer of all, John Varley, has established a website. I�m even more delighted to see that I was wrong in thinking I�d read everything he�d ever published. I see there I made two oversights�plus, there�s a handful of brand new stories! The hunt is on! (Thanks to Erik for the pointer.)

Caesar not ambitious?: I must say I am honestly shocked at Scipio�s claims that Cato�s opposition to Caesar was �mindless,� and that �Caesar, however ambitious, had no desire to be King of Rome.� It really surprises me that, at this late date, there can be any dispute that Caesar�s act was one of usurpation, carefully timed to wrap his power-lust in a double shroud of pseudo-honor and demagoguery, and then to legitimize his rule by feeding some men bread stolen from the labor of others. Cato�s opposition to him was a defense of the freedom of Rome against a usurper and tyrant.

Fame!: Thanks to Overlawyered.com for the link.

What you missed over the weekend: Among other things... The Libertarian Bookworm focused on Areopagitica by John Milton; America proves its evil by exposing Iraqis to the free market; a dissenting view on Brandeis; and proof of the Arrow Impossibility Theorem.

What is libertarianism?: Libertarianism is a variety of liberalism which traces its modern face to seventeenth century England (although of course it can find some roots in the ancient world as well). With the accession of the Stuart monarchy, a conflict broke out between those who came to be called Whigs�Protestants who insisted on limiting the power of the crown�and the Stuarts�Catholics who believed in absolute monarchy. This conflict rose to the point of civil war, and the Stuarts lost�temporarily. The restoration of the Stuart monarchy was of brief duration, and the Glorious Revolution sent them packing for good. When John Locke returned from exile in Holland, it was on the same ship that brought the new king of England, William, and his queen Mary. Theory and practice combined, you might say.

Anyway, a �liberal� at the dawn of the eighteenth century would have been a man who defended the rights of the lower classes against the limitations imposed by traditional and class-based rules. He believed that individuals have rights, not society. He believed in the equal right of each person to earn a living without being prohibited by monopolies. He believed in the freedom of speech and even religion. Of course, this liberalism was profoundly influential in the American colonies, and triumphed with the publication and vindication of the Declaration of Independence. It held, in Jefferson�s words, that the �sum of good government� was one which �shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned.�

But then there was the French Revolution. France was a very different situation than America, because America never had feudalism (except in the South, sort of: one of the quandaries of libertarian thought, but time prevents addressing this now). Thus a political revolution was generally enough to satisfy the farmer, who got to keep the private property that was already his before the Revolution. Europe, on the other hand, had undergone generations of unequal laws, so that simply getting government off folks� back wasn�t enough�or at least, such was the argument of people like Thomas Paine (see his Agrarian Justice, reprinted in The Life And Major Writings of Thomas Paine 606 (P. Foner ed. 1993)), or Percy Bysshe Shelley, people who might be called libertarian proto-socialists. They had a good point: things like primogeniture and entail�legal presumptions which couldn�t clearly be described as �government interference in private life��as well as generations-old injustices which had become intertwined with European culture and traditions, had given the aristocracy unique social power, so just ending political oppression wasn�t going to really fix things. (Not to mention which, there was a far more plausible argument that the �initial outlay� of property was unjust, than there was in America, where the �initial outlay� had been�to the European mind�pretty much tabula rasa.) They therefore argued for a redistribution of property, and they found in the works of romantic theorists like Jean-Jacques Rousseau the philosophical ground for arguing that the concept of private property was itself one of these social impositions that oppressed people. Why, eradicate that, and people will be free and equal! Eventually you have Marxism. Of course, many Marxists were fundamentally anti-individualist, but others were drawn to Marxism for just the opposite reason�they believed that eradicating private property was the best way to accomplish the traditionally liberal (or libertarian) goal: freeing the individual from the impositions of others, so that he could accomplish his potential. This accounts for the anti-authoritarian socialists of the early twentieth century scientific community in England�enthusiasts for the Spanish Civil War and whatnot.

During the 1920s, therefore, it became possible for the term �liberal� to be applied to what had once been its exact opposite�defenders of government bureaucracy. The �Progressive� era embraced the notion that bureaucracy could help the poor to realize their potential. Nobody describes this better than John Dewey, himself a leading �Progressive�:

The emphasis of earlier liberalism upon individuality and liberty�was fundamentally a demand for freedom of the tax-payer from governmental arbitrary action�for confessional freedom in religion by the Protestant churches...[and] against restrictions placed by government, in legislation, common law and judicial action (and other institutions having connection with the political state) upon freedom of economic enterprise�. [Modern] liberalism knows that an individual is nothing fixed, given ready-made[, but] is something achieved, and achieved not in isolation but with the aid and support of conditions, cultural and physical:�including in �cultural,� economic, legal and political institutions as well as science and art. [Modern l]iberalism�takes an active interest in the working of social institutions that have a bearing, positive or negative, upon the growth of individuals�. The commitment of liberalism to experimental procedure carries with it the idea of continuous reconstruction of the ideas of individuality and of liberty, in their intimate connection with changes in social relations.

John Dewey, The Future of Liberalism, 32 J. Phil. 225 (1935).

The reversal of the term �liberal� during this period of the 1920s to the 1940s, shocked people like H.L. Mencken or Herbert Hoover, who had considered themselves liberals because they defended individual freedom and opportunity against government obstruction. (As Mencken wrote, �If [Progressivism] is Liberalism, then all I can say is that Liberalism is not what I was when I was young.� Mr. Justice Holmes, reprinted in A Mencken Chrestomathy 258, 259 (New York: Vintage, 1982) (1949)). But the older liberalism that they referred to was becoming more marginalized, and would be better described today as libertarianism.

In the end, therefore, libertarianism is a type of liberalism in that it aims at a goal that has always been called �liberal�: the liberation of the individual from restraints imposed by others. Defenders of the Regulatory Welfare State believe that it accomplishes this goal�we libertarians strongly disagree, because the state can only give people something by stealing it from someone else�but in the end, the goal is the same: freeing the individual. The fact that libertarians are often considered a type of conservative is a historical accident based on the fact that because America was based on libertarian principles, those who oppose change will find themselves allied with libertarianism. See Friedrich Hayek, Why I Am Not A Conservative, reprinted in The Constitution of Liberty 397, 399 (1960).

Conservatism is a whole nuther thing. Of course, all these definitions are complicated by the fact that many people who call themselves �conservatives� are actually libertarians (and vice versa!), but properly speaking, the primary concern of the conservative is not the individual, but society. To him, society�not the people who make it up�is the fundamental element of politics, and the goal of politics is to create a healthy society. One might say the conservative reifies society and views as a creature for whom things can be good or bad, and which has a right to defend itself against people. To the conservative, community is primary, and the purpose of individuals is to serve it. See generally Robert Bork, The Tempting of America (1990); Robert Nisbet, The Quest for Community (1953); Richard Weaver, Ideas Have Consequences (1948). While the libertarian believes that government can only have the rights given to it by its constituents�and thus that it can have no right to steal people�s property or tell them whom they may sleep with�the conservative believes that each person, as a member of the community, owes it obedience, and that the �health� of society justifies the state in interfering in private behavior. This view, often called �communitarianism,� is the essence of conservatism. Because the conservative believes that society has the right to choose its moral framework and enforce it upon individuals, and that individuals have no right to object to that framework (since society is primary), conservatives find themselves defending countries which assert a fundamental right to rule without outside interference. Also, it is for this reason that conservatives tend to be drawn toward nationalism, and the reason for the common observation that the most extreme forms of conservatism are found in Fascist parties. And it is the reason that modern liberalism finds itself increasingly allied with conservatism (as Virginia Postrel has so well demonstrated). They are both opposed to the dynamic, unpredictable, undesigned creativity of individuals.

One might, with some exaggeration, say that to the libertarian, there is no such thing as Society�indeed, you will almost never hear us use the clich� �society as a whole.� Rather, there are only individuals and groups of individuals. The fundamental principle of libertarian politics is that the individual owns himself and has the right to do with himself what he will. Thus, I believe, a libertarian, to be consistent, must be a believer in natural rights. The view that society may legitimately �choose� to deprive individuals of their rights, is incompatible with libertarianism, because it overlooks the fundamental libertarian view that, again, society can have no rights that the individual does not (or cannot) give it. This opinion is, of course, controversial within the libertarian community�many people calling themselves libertarians do not believe in natural rights theory. But, again, I do not believe they can accurately be called libertarians. A libertarian cannot regard a slave society as politically legitimate, because no group of people may subvert the fundamental libertarian principle that the individual owns himself, and that political authority, to be legitimate, can only arise as a function of this principle. (This is why I refer to the defenders of the Confederacy as �Doughface� libertarians�libertarians with slaveocrat principles.)

It should be clear now why there can be libertarians on both sides of an issue like abortion. A libertarian might say that the unborn foetus has no rights, and therefore that the woman has the right to abort it if she wishes�or might say that the foetus has a right to life and therefore a right not to be aborted. One or the other of these views might be wrong, but both are libertarian�as opposed to the conservative argument that abortion is a corrupting social phenomenon and that for the sake of our society, it should be prohibited. (Cf. Bork, supra, at 121-22 (�That view of the individual and his obligations can hardly be taken seriously.... In [Bork�s] view of morality and responsibility, no husband or wife, no father or mother, should act on the principle that a �person belongs to himself and not to others.� No citizen should take the view that no part of him belongs to �society as a whole.��)). Another example would be the drug war: both William F. Buckley and Thomas Szasz believe drugs should be legalized. But for Buckley, the reason is that the Drug War is harming society, while for Szasz it�s that the individual has the right to injest what he wishes, without anyone interfering. Buckley is a conservative; Szasz is a libertarian.

Marriage: Status or contract? An interesting perspective at Dave�s Mormon Inquiry Weblog.

Another entrepreneurial hero: At Pathetic Earthlings.

High returns on investment: According to this article, �the founder of Internet Casinos plans to establish the world�s first publicly traded marijuana company.� Good luck to him! He�ll need it.

Bar exam as barrier to entry: This article discusses the plight of people who are forced to take the bar several times before passing. It fails to ask the real question, though: how effective is the bar at protecting the consumer�as opposed to just keeping out new lawyers and thus keeping prices up for current lawyers?

Doughface Libertarians: Bainbridge is right.

Placerville: Looking for a good hyperlink for the Hangtown Bakery, I came across a great page of photos of my little town.

Human experimentation: Adam Cohen has an article about Justice Brandeis� dissenting opinion in New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) (saw it on How Appealing). Brandeis� dissent has taken on iconic status as a statement of federalism�the focus of Cohen�s article�and people today ignore not only the fact that it was a lone dissent, but that the majority�s decision in that case was absolutely right. Cohen writes that the case was �a dispute between the state of Oklahoma and a renegade ice manufacturer�.� But what were the facts (which Cohen admits �have long been forgotten�)?

As I explain in my forthcoming Northern Illinois University Law Review article, Oklahoma made it illegal to open an ice-selling business unless the owner first obtained a certificate from the Corporation Commission of Oklahoma attesting to a public necessity for a new ice provider. Anyone going into the ice business was literally required to prove he should be free from government regulation�which is, of course, an unbearable task. Such a scheme is absurd not only because it is practically impossible to meet every conceivable objection, but because it is impossible to imagine the potential of an economic behavior a priori: who could have predicted, a decade ago, that a business model offering $1.50 cups of coffee on very nearly every street corner would become the economic powerhouse that Starbuck�s is today? Moreover, the Oklahoma statute pegged a business license to proof of necessity, not merely convenience or benefit. Proving that a new business is necessary is far more burdensome than to prove that the public will like the new business, or find it preferable for reasons that even they might not be able to state. Not far from my house is the Hangtown Bakery; I find the ambiance charming and the girls pretty, and I go there often, even though I could get coffee cheaper elsewhere�indeed, I could make my own. It is not possible to prove that my coffee shop is necessary, and yet the regulatory scheme in Leibmann required the entrepreneur to prove (without actually doing the experiment!) that his business was necessary to the public. As Justice Sutherland concluded for the majority, �the practical tendency of the restriction, as the trial court suggested in the present case, is to shut out new enterprises, and thus create and foster monopoly in the hands of existing establishments, against, rather than in aid of, the interest of the consuming public.� The Court struck down the statute.

Absurd as the regulatory scheme might seem in retrospect, it is the prevailing method of economic regulation in the United States today.

It should therefore be immediately apparent how absurd it is for Cohen to claim that Brandeis �champion[ed] workers� rights and oppos[ed] monopolies.� No�he championed the power of the state. And when workers wanted to start up an ice business, Brandeis would have done nothing to protect them from wrongful government interference, because in his view, states were laboratories free to experiment on their human subjects without oversight. In Leibmann, Brandeis takes the conservative position that if the state wishes to exclude upstart entrepreneurs (�renegades� in Cohen�s word) the Court should do nothing. This Cohen calls �a more forward-looking approach to the law.�

Cohen hints at the real kernel of Leibmann when he explains that Earnest A. Leibmann had �violated Oklahoma�s Ice Act by operating without state permission.� Yes, that�s right�the state may just grant or deny permission for you to go into business and earn a living for yourself in an honest occupation. In Cohen�s eyes, as in the eyes of soi-disant Progressives like Brandeis, the state owned all the occupations and had the right to deny entry into them at will. Just as in Wonderland, the Queen could say that all ways here were my ways�so in Brandeis� world, all occupations were the state�s occupations, and it could grant or deny entry at will. The state ought to be given the power to, in Cohen�s words, �advance society� in �the rational way,� through �experimentation� by law�rather than allowing people to pursue happiness freely by experimenting on their own, without depending on the will of any other person.

And those of us who say no�who say that an entrepreneur should have the right to challenge the establishment; that a person has the right to do with his body and his talents what he wants, without the government�s permission�we�re called �conservative[s]�[who think] that Mr. Liebmann had a right to make ice.� If our view is �conservative,� then that term has lost all meaning!

Update: From a contemporary admirer of Justice Brandeis:

[H]e believes that no small part of the law�s function is to make men good.... [H]is zeal for social justice and his belief in the genuine worth of the individual sometimes cause him to favor even such drastic regulation of those very liberties which many consider it the primary purpose of the bill of rights to protect.... His conviction that [the] eighteenth century individualistic philosophy of rights is no longer a creed adequate for modern life, is now generally recognized. It is increasingly evident...[as a]n official spokesman for the Roosevelt administration observed in 1933 that �our economic life is too complicated to be run without an all-embracing plan and that government must play an important part in formulating such a plan....� If the Court were dominated by Brandeis� doctrines of constitutional law, it would be within the power of government to lay the foundation of a society offering more security as well as more leisure, broader social responsibilities as well as greater social privileges�in short, a nearer approach than men have ever thought possible to the ideal of liberty through law.

Alpheus Thomas Mason, Brandeis And The Modern State 221-44 (1933).

(That last sentence reminds me of nothing so much as a passage from Aristotle: �[Collectivist] legislation may have a specious appearance of benevolence; men readily listen to it, and are easily induced to believe that in some wonderful manner everybody will become everybody�s friend, especially when some one is heard denouncing the evils now existing in states, suits about contracts, convictions for perjury, flatteries of rich men and the like, which are said to arise out of the possession of private property.� )

Update 2: I see my fellow Lochner fan Prof. Bernstein has some comments on the Cohen article as well.

Oral argument: So Cal Law Blog�s comment about oral argument reminds me of an oral argument at the California Supreme Court that I witnessed earlier this year. Talk about a disaster. The case was a criminal case involving a murder conviction. The defense attorney gave a pretty good presentation, explaining a new rule he thought the court should adopt. The rule was a bad idea, and would have been a disaster, but the oral presentation was thorough and consistent and well presented. Then the attorney from the L.A. District Attorney�s office got up to speak. He rambled, he stumbled, he was unfamiliar with the cases. At one point he actually started making the defense attorney�s argument. It was at that point that Justice Brown interrupted him.

�Wait a minute,� she said. �You�re arguing [such-and-such] right?�

All he said in reply was, �Yes, your honor.�

Dead silence.... You could feel every click of the second hand.... He just stood there. Finally Justice Brown shakes her hands at him�

�Why?!�

�not something you ever want to hear during your oral argument.

(Oh, and the he ended up winning. Like I said, the defense attorney�s proposed rule would have been a disaster. Proof that the briefs are where it�s at.)

Democracy in Russia: Interesting article (via Southern Appeal ). This morning I read the following description of Russia. Tell me when it was written:

The great oppression over the poor [Russians], make[s] them to have no courage in following their trades: for�the more they have, the more danger they are in, not only of their goods, but of their lives also. And if they have anything, they conceal it all they can, sometimes conveying it into monasteries, sometimes hiding it under the ground, and in woods, as men are wont to do when they are fear of foreign invasion. Insomuch that many times you shall seem them afraid to be known to any Boiuren or gentleman of such commodities as they have to sell. I have seen them sometimes when they have laid open their commodities for [display to people] (as their [best] furs, and such like) to look still behind them and towards every door: as men in some fear that looked to be set upon, and surprised by some enemy. Whereof asking the cause, I found it to be�that they have doubted lest some�[official] had been � [about] to pray upon the[m]�.

The answer? It�s from Giles Fletcher, Of The Russe Commonwealth (1591) (quoted in Richard Pipes, Property And Freedom 179 (1999) (spelling modernized)).

As the great political philosophers Creedence Clearwater Revival once said, �Saw the people standing, thousand years in chains / Somebody says it�s different now, but look�it�s just the same.�