Just Wonderin'

Mind you, I don't pay any credence to the rumors over presumptive Democratic presidential nominee, presumptive president, presumptive messiah and just plain presumptive Barack Obama's citizenship qualifications, but if by any stretch of the imagination it turned out after he won that he wasn't constitutionally a natural born citizen, shouldn't that mean the Republicans can run this guy in 2012?

"Be wary of strong drink. It can make you shoot at tax collectors ... and miss." *

There shouldn’t be a minimum legal drinking age, although I probably wouldn’t mind too much if it were set at, oh, say, six. If Mothers Against Drunk Driving and the rest of the Uber-Nannies out there want to keep pre-schoolers from bellying up to the bar, well, okay. After all, it’s for the children.

Syndicated columnist and (inexplicably) frequent reason contributor, Steve Chapman offers scraps of arguments against a proposal from an advocacy group called Choose Responsibility to lower the legal drinking age to 18. To date, the proposal has been signed by over 120 college presidents, predictably incurring the irrational wrath of MADD and other quasi-professional scolds.

Chapman’s arguments, such as they are, pretty much boil down to the assertion that many people under the age of 21 are too immature to drink and that more of them will drink and suffer problems as a result. As a corollary, if 18 year olds can buy alcohol, those under the age of 18 are more likely to have more ready access to booze because high school seniors will buy it for sophomores and freshmen, etc.

Here, however, is the money quote from Chapman’s lamentable column:

Why permit 18-year-olds to vote but not drink? Because they have not shown a disproportionate tendency to abuse the franchise, to the peril of innocent bystanders.

Mr. Chapman, if you don’t think 18 year olds who vote for Republican or Democratic candidates are imperiling innocent bystanders like me, you obviously haven’t been paying attention.

Seriously, though, there’s so much wrong with this mindset it’s hard to know where to begin in rebutting it. Here, however, is the principal objection:

The mere fact that something is dangerous or harmful to some members of a group is never sufficient justification to prohibit all members of a group from using or having access to it. The fact that some members of group X will abuse access such that members of the general population are harmed is equally insufficient to prohibit all members of that group from having access.

I accept the fact that institutional rights and privileges, e.g., voting, driving on public roads, necessarily involve some sometimes arbitrary regulation. Moreover, I certainly accept the fact that libertarianism is, for the most part, an NC-17 rated show. Children do require restrictions on their liberty for their own good. The question, however, is whether the default agent responsible to impose such restrictions should be the state or their parents. Admittedly, some parents sometimes fail in those responsibilities and the state must then intercede. See, however, the immediately prior paragraph as to why that fact alone does not justify depriving all parents of properly parental authority.

Serving your 16 year old daughter a half glass of wine at Thanksgiving or sharing a beer or two with your 17 year old son as you both watch the game or accepting the fact that your 19 year old college student may well get drunk on campus as opposed to driving off into the woods with friends specifically to go binge drinking, thus creating an even more dangerous situation isn’t an abrogation of parental responsibility. Imposing a universal prohibition to reduce abuse by a few and inadvertently but predictably creating such even more dangerous situations is.

Moreover, effectively arguing that it should be easier for the typical high school student to buy illegal drugs (never mind that they should be legal, too) than a six-pack of beer is, at best, a fairly odd case on utilitarian grounds as to why eighteen year olds shouldn't be permitted to drink. If Mr. Chapman doesn't understand these things, I trust the rest of the good folks over at reason do.

(* - Robert Heinlein)

Nibble, Nibble, Little Mouse! Who's That Burglaring My House?

Leda Smith heard someone breaking into her home, so she found the revolver kept by her bed, confronted the burglar and forced him at gunpoint to call 911. Then she and the seventeen year old intruder waited until the state police arrived to take him away.

Leda Smith is eighty-five years old.

"Who Can I Sue?"

Soon, you'll be just a mouse click away from the answer!

I have very conflicted feelings about this sort of thing. Feelings, I might point out, that are not widely shared by my fellow libertarians, the majority of whom I believe fail to appreciate the value in principle of a rigorous and easily accessible civil litigation system.

Still, there is no denying that the system as it is currently structured and operated is in dire need of reform. I have no problem with lawyer advertising (its frequent tackiness aside) or with the actual (and actually harmed) plaintiffs acting as unofficial attorneys-general and, when appropriate, winning punitive damages judgments far in excess of their actual damages. I do have a hard time accepting the plaintiffs' bar (aka, trial lawyers) reaping 40% of those judgments, and don't even bother with arguments about how speculative these lawsuits are and how much risk these law firms undertake. Such firms rarely take clients on a contingent-fee basis unless they have already determined that the likelihood of a settlement or judgment in their client's favor is good.

There's gotta be a better way, though I admit to not knowing what it is. Meanwhile, "Who Can I Sue," websites do not strike me as a step in the right direction.

Patent Nonsense

One of the things that distinguishes intellectual property from the more intuitively obvious tangible variety is that the very notion of intellectual property requires a justification in the sense that tangible property almost never does. Utopians of one variety or another have tried, almost always with disastrous consequences, to abolish the institution of private property, but as far as I know there has never been a society that has denied the existence or necessity of property rights of any sort at all. Typically, their alternative has been to assert some sort of collectivist or communitarian ownership; but while it may be that the clan or the tribe “own everything in common” or the “people (collectively) own the means of production,” woe be any rival clan or tribe or people who happen by and start asserting similar property rights in the same stuff. Wars have been known to start that way even in utopia.

The obvious thing about tangible property is that, being stuff, it’s there whether we call it property or not. That is, whether ♫ This land is my land (or) this land is your land ♫, this land is here whether we say so or not, let alone whether ♫ This land was made for you and me. ♫ And so are its flora and fauna and minerals and water running through it or beneath its surface, etc.

How human society has gone from the realization that the world is filled with stuff to the notion that some of it is our stuff (or your stuff or, most importantly, my stuff) is an interesting topic, but not one with which I wish to concern myself here in any detail. If you care, I’ll merely note in passing that I reject all “natural right” theories of property, personally, especially including the so-called Lockean “labor + stuff = property” theory.

Still, I constantly run across fellow self-described libertarians who believe in one sort of natural rights theory or another and a fairly large number of them believe that their theory justifies the notion of tangible personal property (whether, forgive the legalism here, real or chattel) but not intellectual property. Intellectual property – by which I mean here the usual unholy trinity of patents, copyrights and trademarks – is on this account the equivalent of a state enforced and, worse yet, state created monopoly. To which I respond:

Yes, that’s true. Exactly like the state-created and state-enforced monopoly any owner of any sort of property whatsoever enjoys versus any non-owner. To be sure, the land would still be there with or without a state enforced legal system, but it wouldn’t be anyone’s property. Not in anything like the sense we mean by property now, that is. All of our philosophical twaddle about what should or shouldn’t or can or can’t be deemed property aside, the ownership of a patent or trademark is no different from the ownership of an automobile or a condominium. They are all creatures of the state or, more specifically, of a state enforced legal system one of the principle justifications for is the sorting out of competing claims over the same resources.

Ah, say my opposition, but land and the stuff we find and trap or kill or take and make new stuff out of on the land (and sea) are quintessential examples of real resources; namely, natural resources. Patents and trademarks and copyrights are mere fictions.

I agree. But they are highly useful fictions, and if my libertarian confrères would get off their pseudo-Kantian high horses about absolute right and wrong and concentrate instead on the far more useful questions of pragmatic good or bad, I think they’d be more inclined to agree with my perspective. Which is as follows:

(1) The state of the law of intellectual property is in need of serious reform, but (2) we would all be better served by, for example, a reformed law of patents than by the entire abolition of patents. For you theorists, I will add (3) there are no serious theoretical reasons, ethical or otherwise, precluding us from, as it were, saving the baby even as we throw out the dirty bathwater here.

By way of giving an example of the sort of unnecessary and counterproductive infanticide I have in mind here, let me quote extensively from a recent Kevin Carson piece over at Art of The Possible. Carson makes his point by quoting a commenter there, and because I am too lazy to edit extensively I will do the same, as follows:

2) Eliminate drug patents. Patents are often justified by the allegedly high cost of developing drugs. But as frequent AoTP commenter quasibill observed, the main source of the expense is not developing the version of the drug that is actually marketed, but gaming the patent system. He challenged the popular misimpression, encouraged by smarmy drug company ads,

that what big pharma is researching is cancer meds. It’s not. In the rare instances that big pharma produces and markets such medicines, it has purchased them from small start-ups that themselves are the result normally of a university laboratory’s work. When big pharma cites to billions of research costs, what it is talking about is the process whereby they literally test millions of very closely related compounds to find out if they have a solid therapeutic window. This type of research is directly related to the patent system, as changing one functional group can get you around most patents, eventually. So you like to bulk up your catalogue and patent all closely related compounds, while choosing only the best among them, or, if you’re second to market, one that hasn’t yet been patented.

This work is incredibly data intensive, and requires many Ph.D’s, assistants, and high powered computers and testing equipment to achieve. But it is hardly necessary in the absence of a patent regime. In the absence of patents, (and of course the FDA), you could just focus on finding a sufficient therapeutic window, and cut out the remaining tests.

Patents also grossly distort the market, leading drug companies to focus most of their research on “me too” drugs that tweak an existing formula just enough to enable it to be repatented, and use it to replace the older version that’s about to go generic. Then the drug reps hit the hospitals and clinics, drop off some free samples and pamphlets, and (most M.D.s relying on drug industry handouts for their information on drugs that come out after they leave med school) the “me, too” drug becomes the new standard form of treatment.
The license cartels and drug patents are two examples of essentially the same phenomenon: First, the government creates a honey pot by enforcing a monopoly and making particular forms of service artificially lucrative. Then the market skews toward where the money is, as practitioners adopt the more lucrative business model and crowd out affordable alternatives.

Okay, so let’s clear the air here a bit. In the first place, whatever may be the truth about the claim that “[p]atents are often justified by the allegedly high cost of developing drugs,” the better question is whether we will have more and better drug research and development with patents or without them regardless of whether those patents go to “big pharma” or to “small start-up firms.” That is, we shouldn’t really care who the incentive of profitable patent rights is spurring on to do research, and that is true whether such research is on cancer drugs or toe fungus drugs.

If Mr. Carson or his commenter believe that there are better ways to encourage such research, they should by all means argue for them. I, however, know of no better incentive than self interest and until I am shown fairly compelling evidence to the contrary, I am not inclined to believe that removing the profit motive from drug research is likely to produce a better, more readily available or affordable pharmacopeia.

Now, that said, no one bothering to read this far should leave thinking I’m an apologist for the pharmaceutical companies. Their successful efforts some years back to retroactively extend the life of patent protection (and similar so-called “reforms” in copyright for the entertainment industry) constitutes nothing more than massive theft and the politicians who voted for such theft should all be horsewhipped. They all created and / or invented whatever they did when the state of the law provided a certain term of proprietary rights and they should enjoy the benefit of that bargain, but nothing more. If the case could be made for patents or copyrights of longer duration, whether for drugs or novels or whatever, fine. But such revised laws should take effect only prospectively. Retroactive extension deprives the public (you and me) of our rightful future expectations with regard to these properties, future expectations we have been paying for throughout the life of the original patents or copyrights. Moreover (okay, go ahead and get back on your Kantian high-horse for a moment here), fair’s fair and a bargain is a bargain.

I don’t deny that the current state of patent law should be extensively reformed (starting with repealing the patent extensions granted “big pharma” in the recent past). It is also true that, to use Mr. Carson’s phrase, patents “distort the market ... [skewing it] toward where the money is.” But, ignoring the emotive connotations of “distort,” it is true of all property schemes that they provide incentives toward certain sorts of behavior and against others.

Perhaps the current system does encourage gaming of sorts which we want to discourage, instead. Perhaps we permit new patents on new drugs that are too closely similar to previously developed drugs. I say perhaps. In fact, I don’t know whether it does or not. The point, however, is that there are all sorts of ways of changing the existing system short of simply abolishing it.

And replacing it with what? The milk of human kindness as a spur to research or, what I fear is the real intended replacement, more massive government control and funding?

Do you want more invention and innovation or less? Do you want more creative works of art or fewer? Those, I think, are the critical questions in any useful discussion of intellectual property. And at the risk of repeating myself, details aside, I know of no better means of getting more of both than by encouraging self-interest through the creation of private property interests in the fruits of such invention and creativity.

Do you?

Picky, Picky, Picky!

I don’t know about the rest of you, but I’m already in August Mode, a frame of mind common among Washingtonians, New Yorkers and other pretentious pseudo-intellectuals of my ilk during which time unless, let's say, Obama is caught in fishnet stockings chasing a sumo wrestler or McCain is discovered to actually have spent the Viet Nam war in Canada making macramé bongs while his twin brother Skippy was the real POW, I simply don’t give a rat’s ass about politics. Save it for after Labor Day.

So I was surfing for non-political news earlier today at my usual haunts and ran across this story in Slate about amateur locksmithing.

This happens to be a topic about which I actually know a little something, albeit second-hand, because amateur locksmithing was the hobby of one of my oldest school friends, a fellow who shall remain unidentified despite the statutes of limitations having long since lapsed for his various youthful indiscretions.

Of which there were many. My friend, whom I’ll call here “Jimmy” after a fairly crude lock opening technique, became intrigued as a child with the inner workings of locks and keys and, more to the point, how to open the former without benefit of the latter. As skilled trades go, locksmithing is far more about brains than brawn and Jimmy has a logical mind and a meticulous temperament exactly suited to figuring out puzzles and therefore to picking locks.

By high school Jimmy had also managed to acquire a key cutting machine – don’t ask! – various tools of the trade including illegal lock picks and tension wrenches (more about which below), shims and so forth. He had also, um, ‘borrowed’ locks from schools, churches and other public and semi-public places, dismantling them and discovering in the process how to make master keys to those entire buildings or building complexes.

I hasten to point out that Jimmy had no larcenous intentions in any of this. He simply viewed a locked door or a lock of any sort as a challenge. The fun was all in figuring out how to thwart the lock owner’s desire to keep him out, not in actually entering where he wasn’t wanted. It was, in short, simply a game.

Okay, so every once in a while there were more, um, practical applications of this skill. In the late 1960s, when the suburban youth of America (1) had just discovered the pleasures of marijuana but (2) were convinced that there were millions of ‘narcs” lurking just about everywhere, having a key that could stop the elevator between floors in a local apartment building (not ours!) long enough to smoke a joint and then wait for the ceiling exhaust fan to remove the tell-tale scent before turning the elevator back on was the perfect solution to our privacy problem. Keys to the padlocked chains barring vehicular entry into public parks where a young couple might go parking at night similarly proved handy.

Of course, that was all many, many years ago and my friend Jimmy is now a respected member of one of the learned professions and a disquietingly conservative pillar of his community. My guess is that he doesn’t even smoke pot anymore, let alone take young girls parking.

Woolgathering about my salad days (“Block that mixed metaphor!”) aside, the thing about this amateur locksmithing business is that its opposition is such a classic case of vested interests trying to protect their once largely unchallenged turf and trotting out all the usual and typically disingenuous “public interest” arguments in the process.

Case in point: I could be charged in many jurisdictions with possession of burglary tool over the fact that I have, courtesy of Jimmy, a small lock picking kit I’ve used on countless occasions when I or a friend lost or misplaced a key. At least the way the law used to be written, unless you were a bonded locksmith, such mere possession was sufficient grounds for conviction of a misdemeanor. After all, if you weren’t a real locksmith, what on earth could you possibly want with such implements except to commit a crime? Right?

[Insert “possession of rape equipment” joke here.]

I wasn’t aware that amateur locksmithing was so popular a hobby as the Slate article suggests, but I’m glad to hear it. Truth be told, I misplaced my old pick set a few years ago. Hey, maybe I can just order one online these days! To be sure, there are legitimate arguments in favor of keeping some sorts of information confidential. But knowing how to open a pin-tumbler lock, even a Medeco lock, without having to use bolt cutters hardly rises to the level of legitimate state secret. And as the enthusiasts correctly point out, the first step in building a better mousetrap lies in finding out the weaknesses in the old model. That’s what we call progress.

Forget “Taxation Without Representation” — New D.C. License Plates to Read “Money, Guns & Lawyers”

If you are an able bodied male resident of the U.S. between the ages of 17 and 45, are either a citizen or have declared an intention to become a citizen and are not already a member of the Armed Services (including the Reserves and the National Guard), Title 10 U.S.C. § 311 says you are, whether you know it or not, a member of the “unorganized militia.”

The unorganized militia doesn’t include any women nor does it exclude gay men unless Congress bought into the “gay men are sissies” (hence not "able bodied") stereotype back in 1903 when it passed the Dick Act. I know, I know!

I, by the way, served honorably in the unorganized militia without so much as a single blot on my escutcheon – and you have no idea how hard it was to keep my escutcheon blotless all those years – and yet I received nary so much as an Honorable Discharge – and you have no idea how boring an honorable discharge can be -- from those ingrates at the Department of Defense!

But to paraphrase Arlo Guthrie, I didn’t come here to talk about the militia, I came to talk about the Second Amendment. As my co-blogger and famed radio personality Jim Babka has already noted today, the Supreme Court’s 5 to 4 decision in District of Columbia v. Heller is a landmark ruling in the never-friggin’-ending struggle between individual liberties and state control.

At least one friend of mine who shall remain nameless but whose initials are RFC will probably be spending the rest of the day gloating to his many more "progressive" friends. And, indeed, notwithstanding the long, long litany of legitimate criticisms one can level at George W. Bush, lets not kid ourselves into thinking that the decision in Heller would have been the same if a Gore or Kerry nominee were sitting on the Supreme Court right now.

Of course, the reason I began with the business about the militia is because, for those of you who haven’t already memorized the Bill of Rights, the Second Amendment reads:

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

As you can readily see, the Founders seemed to think there was or should be some sort of connection between keeping and bearing arms and a well regulated militia. Then again, they also seemed to think a comma was required after “militia,” so maybe we shouldn’t always defer to what they thought.

Still, much of the palaver over gun rights since roughly 1791 has swirled around whatever the nexus between militias and individual rights is or should be, and now the Supremes have finally stepped up to the plate, or firing range as the case may be, and answered the mail. (If you like that mixed metaphor, I have many others, too!)

Here, however, is where I feel required to make a few turd in the punchbowl comments. First, as I tried valiantly but vainly to explain some years ago to an otherwise extremely bright and knowledgeable Michigan law professor who shall also remain nameless, the Critical Legal Studies boys and girls had it right, not in their actual politics (which almost universally sucks) but in their understanding that the language of the law is almost limitlessly flexible and that just about any legal result desired can be effected by those with the power to do so.

What this essentially means is that, even before Marbury v. Madison, there are no correct Supreme Court decisions, nor are there or have there ever been any wrong ones either, even including, for example, Plessy v. Ferguson and Dred Scott. They simply are what they are and the wealth of 5 to 4 decisions over the years amply demonstrate that, over and over again, but for the opinion of one person the law of the land could and would have been vastly different. Argue about the morality or the desirability of this decision or that all you want, but save your breath when it comes to whether it was decided "correctly."

Second, never underestimate the power of the state and those who would use the state to do exactly what they want while telling you what to do and what not to do. Remember that when the largely pyrrhic victory against reverse discrimination in Regents of the University of California v. Bakke was first announced, the same statists who had originally latched onto the phrase “affirmative action” to justify racial quotas now latched onto Justice Powell’s probably careless assertion that “diversity” was a legitimate state interest. Thanks to Justice O’Connor’s subsequent “reasoning” in Grutter v. Bollinger, equal rights advocates have only twenty years now to try again.

My point – and, yes, I do have one – is simply that the Supreme Court, just like the federal government taken as a whole, has been and continues to be as much a threat to individual liberties as a protector. If you really want to maximize freedom, minimize government.

Forget Money, Guns and Lawyers; Send Credit Cards, XBox and Hookers!

And speaking of promising political careers, I give you 13 year old Ralph Hardy who ordered a duplicate credit card on his father's account and used it for a $30,000 spree with friends that ended in a Texas hotel room with $1,000 hookers playing Halo on XBox.

What separates Ralph and his friends from your run-of-the-mill juvenile thieves, you ask? When the prostitutes balked because he and his friends seemed so young, they told the women they were "people of restricted growth" and that refusing them would be illegal discrimination against the disabled!

I am in awe.

Gene R. Nichol at William & Mary

I’ve said before that the values of the College are not for sale. Neither are ours. – College of William & Mary former president Gene R. Nichol

I rarely post specific biographical information on the internet, but I will make an exception today and note that I am one of the less distinguished graduates of the College of William & Mary in Virginia. I was therefore a recipient this morning of a lengthy and, in my opinion, typically self-serving letter from its now former President Gene R. Nichol. Mr. Nichol's contract the Board of Visitors has declined to renew and who has therefore resigned, effective immediately.

Along with many others, I actively opposed renewal of Mr. Nichol’s contract. I would probably have just silently applauded the BOV’s decision but for certain assertions in his resignation letter. As Mr. Nichol seeks even now to portray himself as a righteous martyr to the forces of troglodyte conservativism, I think it is necessary that some of us who opposed his continued tenure to respond to that portrayal. Mr. Nichol contends his ouster resulted from “four decisions, or sets of decisions,” as follows:

1) His removal of the cross from the Wren Chapel;

2) His refusal to prohibit a “Sex Workers’ Art Show” at the College;

3) His efforts to increase funding to attract lower income students; and

4) His efforts to “increase diversity” at the College.

Taking these in reverse order and obviously speaking only for myself, I will say first that I am largely unaware of whatever efforts Mr. Nichol actually made to “increase diversity” at William & Mary, but if it involved any sort of affirmative action style preferential hiring policy for faculty or staff, then I would have opposed it. I share to some extent Mr. Nichol’s dismay at seeing that among “35 senior administrators of the College [there were] no persons of color.” But the only morally proper solution to such situations is the removal of legal barriers which will then lead to greater diversity occurring as a matter of course over time. In any case, I am also unaware whether whatever he did or tried in this regard stirred much controversy. As far as I know, such efforts didn’t receive much coverage in the press or internet and they certainly didn’t have anything to do one way or the other with my opposition to his presidency.

I frankly applaud anything Mr. Nichol did to increase scholarship funding for low income students. I suspect that his real motives for those efforts were, as they so obviously are in so many other institutions of higher education, merely the attempted end-run around increasing legal barriers to the reverse discrimination of affirmative action. Even so, I believe it is entirely proper that the College seek out on a colorblind basis and provide adequate funding to permit academically worthy, low income students the opportunity to attend.

As for Mr. Nichol’s “[refusal], now on two occasions, to ban from the campus a program funded by our student-fee-based, and student-governed, speaker series,” good for him. If Nichol were being let go simply because of his defense of the students’ right to spend their own student activity fee money on the Sex Workers’ Art Show, I would rise to his defense. As I understand it, the show in question, pornographic or not, is political in nature and thus unquestionably worthy of First Amendment protection. But for all I care, W&M students could have Tijuana style donkey shows on campus. Hell, they could hold the shows in the Wren Chapel -- just please remove the cross first! -- and I’d support their right to do so just as readily. (I recognize, of course, that I'm almost certainly in the minority among Nichol's opponents on this point.)

Finally, in his own words, President Nichol:

altered the way a Christian cross was displayed in a public facility, on a public university campus, in a chapel used regularly for secular College events -- both voluntary and mandatory -- in order to help Jewish, Muslim, Hindu, and other religious minorities feel more meaningfully included as members of our broad community. And it was certainly motivated by the desire to extend the College’s welcome more generously to all. We are charged, as state actors, to respect and accommodate all religions, and to endorse none. The decision did no more.

Well, no. In the first place, the (oddly third person) sentence “The decision was likely required by any effective notion of separation of church and state,” is a fine bit of legal weasel-wording. "Likely required"? "Any effective notion"? No one prior to Nichol ever raised a legal challenge in the entire hundred year history of this 300 year old university’s state control. In the second place, if the existence of the cross constituted “endorsement” of Christianity, then why doesn’t the altar, itself? Whatever others may think about a Christian cross sitting on a (still consecrated) Christian altar in what was once a private university, there is scant evidence that non-Christian students somehow felt... what? That they were only meaninglessly included until Gene Nichol came along? In fact, the cross was routinely removed whenever any secular or non-Christian activity took place in the Chapel, anyway, and had been from as long as I, at least, can remember.

There were other highly questionable decisions and actions in his thankfully brief tenure, not the least being his silly and, I believe, hypocritical battle to try to preserve the school’s athletic logo (an Indian feather) and the decision to place an English professor as temporary chair of the philosophy department. Regarding the former, Mr. Nichol apparently was insufficiently concerned about the extent to which this Indian feather logo, far more prominently displayed throughout the College than the Wren cross, might make Native American students feel less than "meaningfully" included.

But it wasn’t Mr. Nichol’s substantive decision regarding the Wren Chapel cross or any particular one of his other such decisions, per se, that led me to oppose his continued tenure as president of the College. Instead, it was Mr. Nichol's leadership style and, more troubling, his character, at least as evidenced by his behavior throughout these controversies. He unilaterally had the cross removed almost literally in the dead of night without so much as a thought for those who might be troubled by his decision, let alone the manner of its accomplishment. No doubt he genuinely did not expect nearly the reaction he got. In any case, his behavior afterwards, especially including his subsequent, highly questionable account of his knowledge regarding the impact of that decision on a pending gift to the College made it more and more clear to me that Mr. Nichol was not the sort of person best suited to lead the first college in the nation to institute an honor code of conduct for students.

Moreover, it became clear that Mr. Nichol came to William & Mary apparently convinced that he and those who agreed entirely with him were in sole possession of the moral high ground against any and all opposition. At least that is the strong impression he gave to this alumnus. Here is one final example of that mindset, a paragraph from his resignation letter:

I add only that, on Sunday, the Board of Visitors offered both my wife and me substantial economic incentives if we would agree “not to characterize [the non-renewal decision] as based on ideological grounds” or make any other statement about my departure without their approval. Some members may have intended this as a gesture of generosity to ease my transition. But the stipulation of censorship made it seem like something else entirely. We, of course, rejected the offer. It would have required that I make statements I believe to be untrue and that I believe most would find non-credible. I’ve said before that the values of the College are not for sale. Neither are ours.

Stipulation of censorship? Apparently, this law professor would have us believe he does not understand the substantive legal (never mind moral) differences between a contractual quid pro quo, one that occurs in litigation settlements all the time, and censorship.

Apparently, also, Mr. Nichol believes that the BOVs decision was “based on ideological grounds.” And perhaps it was. Not being privy to their deliberations, I could not say. I’m not so naïve as to think that some, perhaps many of Nichol’s opponents are not, in fact, paleoconservatives of the first order or that some delegates in Virginia’s state legislature didn’t make untoward threats, veiled or otherwise, to the Board of Visitors. In a just world, the Commonwealth would have approximately 20% say in William & Mary’s affairs, as that is roughly the current percentage of state support. But this isn’t a just world and Nichol, who is no stranger to politics, knows it isn’t.

One more point needs to be made. Both Gene Nichol and his family were subjected to entirely unwarranted and utterly irrelevant personal attacks (e.g., crude and cruel comments about Mr. Nichol’s weight) throughout the course of his controversial administration. Such attacks and those who made them are despicable.

Parts of the blogosphere are already chattering about this turn of events and, as usual, both the Right and the Left are grossly oversimplifying the situation. Suffice it to say here that for at least some of his critics, the controversy that dogged Gene Nichol was not so much about crosses or feathers or diversity or sex workers or any of those specific issues but finally about the man, himself. It is far too facile to frame the controversy exclusively in terms of liberal or conservative politics or policies.

But if Gene Nichol now becomes a poster child for liberalism, then it is liberalism that has been most poorly served.

Barnett on Libertarianism, the War and Ron Paul

Today's online FOX Wall Street OpinionJournal includes a column by Georgetown Law professor Randy E. Barnett entitled Libertarians and the War. He is especially keen to make the point that Ron Paul's opposition to the Iraq War is not the 'official' libertarian position and that one can be, as many libertarians were and some still are, supportive of the war without grave violation to what they hold to be the essence of libertarianism.

This is certainly true, though not entirely for the reasons Mr. Barnett articulates, and the key word is "entirely." There simply is no single set of libertarian principles shared by all who define their political views as such, so Barnett's unqualified claim that "libertarians believe in robust rights of private property, freedom of contract, and restitution to victims of crime ... that ... define true 'liberty'" is not, strictly speaking, true. Some do, some don't, and that is a point at least worth making as his point that Dr. Paul does not speak for all libertarians.

There is something structurally odd about that quoted assertion (the literal text of which I have edited but the sense of which remains intact) and it is his unqualified assertion of certain rights as definitional of (the oddly scare-quoted) liberty. The strong implication here is that libertarianism rests on some sort of natural rights theory, which indeed it does for many but does not for others, and that such view is the only (possible?) theoretical foundation of libertarianism. That is certainly wrong, and for several important reasons.

First, it is always important to distinguish moral claims of rights from legal rights. Legal rights exist, if at all, by operation of government including a legal system established to enforce such rights. I may or may not have a moral right to hold you to your promise to pay me for painting your house, but it is my legal right under the law of contracts that makes commerce possible. (Whether the mechanisms of legal rights enforcement must be governmental or can be privatized is a matter of dispute among libertarians but is irrelevant here.) So, too, whatever Lockean or other natural rights in property one might argue in philosophical debate, it is the law of property, essentially a creature of the state, that gives the contemporary concept of property most of its useful substance.

Natural rights theories have been out of fashion among academic philosophers for some time now. It is true that academic philosophers have a long and notorious history of changing their minds but being wrong both before and after, but that is not to deny that they have analyzed natural rights theories down to the subatomic level and found them wanting for good and serious reasons. My own view is that any theory of natural rights weak enough to be conceptually defensible is unlikely to be sufficiently robust to get most libertarianism where they want to go. That said, I also think that if any natural rights do "exist" (I trust my use of scare-quotes makes sense here), they include the moral right under most circumstances to be left the hell alone. (That is, I take individual autonomy to be presumptively legitimate and the moral burden on those who would violate it, but that does not quite equate to a theory of natural rights.)

In any case, while one can attempt to defend libertarianism in terms of rights and duties (to use the philosophical jargon, on deontological grounds), many prefer a purely consequentialist, usually utilitarian, approach. They argue, in effect, that libertarianism, by maximizing individual liberty, results in or at least affords the greatest good for the greatest number or at least the greatest opportunity for the greatest good or some such. Barnett inches toward that justification in the same paragraph, claiming that his rights defined concept of liberty:

... provide[s] the boundaries within which individuals may pursue happiness by making their own free choices while living in close proximity to each other. Within these boundaries, individuals can actualize their potential while minimizing their interference with the pursuit of happiness by others.

This formulation, interestingly enough, is a "virtue ethics" approach; that is, an ethical justification that goes to the goal of individual self-actualization or flourishing in the Aristotelian sense rather than the objective of collective good that tends to be the focus of most political theory.

It isn't so much that I disagree with what I think is Barnett's rather muddled one paragraph justification of libertarianism (it is, after all, only one paragraph and in an opinion column at that), as that it needs to be said that libertarianism as a living political movement is more about its generally shared conclusions than its specific theoretical justifications. That said, it is certainly true that Ron Paul's current fifteen minutes of fame could well misrepresent libertarianism in general and Barnett is correct to point that out. I might add that Paul's position on abortion, which I largely share, is even less widely held by libertarians.

Finally, I suspect Barnett is mistaken in his implied belief that most of the Americans who have taken note of Paul identify him as a libertarian. Whether they do or not, the presence of an elected official and major party presidential candidate voicing libertarian themes and receiving even modestly positive reactions among the public at large is surely of greater value than the loss of any prospective converts to libertarianism because of Paul's anti-war position. On that point he happens to be in the majority at the moment, a fact that augurs well for the prospects of liberty in post-Bush America.

Ellen Goodman's Race Problem

Ellen Goodman, Pulitzer Prize winner and current resident of Brookline, Massachusetts (Estimated 2005 median house / condo value: $1,115,200. Estimated black population: 2.7%), has a race problem. Try as she might to understand Clarence Thomas as a man (and, truth be told, she doesn't try very hard), all she can see is a black man.

Goodman opens her column gladdened "that [the Supreme Court] won't do any more damage until the first week in October" and closes it by dredging up Anita Hill (remember her?) and implying that Thomas is a "rigid ideologue." In between, we find her serving up a few buckets of psycho-babble about how Thomas's Court opinions are really little more than rebellion against the sort of "black stereotypes" one suspects nicely characterize the majority of Goodman's (no doubt numerous) black friends.

It's all about race for Goodman, you see. Thomas can't really be independently conservative; that is, he can't possibly be the Court's "most predictable member of the conservative camp" because he honestly and rationally believes that nonsense. He can't possibly have rationally come to view racial discrimination of any sort as wrong despite having personally benefited from it. Could he? No, of course not. It's all about his resentments, the ingrate!

Poor Ellen, you see, didn't get a black liberal "successor to Thurgood Marshall." In Goodman's ideal world there should be a black liberal on the Court and a Jewish liberal and a female liberal, etc. That's diversity! She is outraged that Justice Thomas might seriously doubt whether forced racial integration has been the unqualified success she believes it to be.

What nonsense. And racist nonsense, at that.

I often don't agree with Thomas's opinions. But I have listened to liberals denigrate his intelligence and competence and -- Gasp! -- his blackness ever since he was appointed and I have yet to find any evidence at all of the first two claims. As to the last, I'm not a black man and do not, therefore, know what his experiences as a black man in America have been. Neither, it should be obvious, does Goodman. Then again, we will never understand Clarence Thomas or anyone else in this world if we can't ever get past the color of his skin.

Bush Commutes Libby Prison Sentence (Updated)

The Washington Post reports that President Bush has commuted Lewis Libby's prison sentence. Here are the concluding paragraphs of the President's statement announcing the decision:

I respect the jury's verdict. But I have concluded that the prison sentence given to Mr. Libby is excessive. Therefore, I am commuting the portion of Mr. Libby's sentence that required him to spend thirty months in prison.

My decision to commute his prison sentence leaves in place a harsh punishment for Mr. Libby. The reputation he gained through his years of public service and professional work in the legal community is forever damaged. His wife and young children have also suffered immensely. He will remain on probation. The significant fines imposed by the judge will remain in effect. The consequences of his felony conviction on his former life as a lawyer, public servant, and private citizen will be long-lasting.

The Constitution gives the President the power of clemency to be used when he deems it to be warranted. It is my judgment that a commutation of the prison term in Mr. Libby's case is an appropriate exercise of this power.

In other words, for political reasons the remaining pardon will have to wait until the closing weeks of the Bush presidency.

For the record, I continue to believe that the Libby prosecution was little more that raw partisan politics by other means. For that matter, I agree with Bush that the sentence was harsh. More to the point, I am inclined to think Libby should have been permitted to remain free on bail pending his appeal.

No, that isn't exactly par for the course, but damned little about this trial has been, anyway. Bush's decision will immediately be judged either as yet more arrogant abuse of power or as an act of courageous and politically dangerous loyalty. I should think by now it is well understood that any support I ever gave, however grudgingly, to Bush has long since vanished. However, I can't help but think that, on balance, he's done the right thing here.

UPDATE: Well, I never thought I'd live to see the day, but here's a post by Alan Dershowitz with which I agree almost entirely.

I'll also cross-post some (slightly edited) remarks I made at Hit & Run earlier. I think Libby lied under oath trying to shield his boss and, yeah, I think Fitzgerald pursued Libby as opposed to the others hoping to flip him to get to Cheney. I don't think Fitzgerald, himself, was politically motivated, but when you consider the context in which he was appointed as a special prosecutor, the years he spent and the indictments (or lack thereof) he finally sought, I continue to believe that the heart of the matter was partisan politics. YMMV.

Subtract the political context and what are you left with? Misleading investigators and twice making false statements under oath to a grand jury. Serious, but not 2.5 years incarceration serious when you consider the rest of the consequences that have befallen Libby.

(Here, BTW, is the indictment against Libby for anyone wishing to sort out the facts as alleged and apparently accepted as true by the jury.]

Okay, so life is unfair and lots of other people get screwed in the criminal justice system and don't get presidential clemency and blah, blah, blah. All true. Still, the most apt comparison here is to Sandy Berger.

Berger took five copies of the same classified document with him and cut up three of those documents. (Apparently he only needed one extra copy to check to see if the first one was correct. The others went to, what, classified ransom notes?) So we have an underlying case of a breach of national security, a statutory offense. Berger eventually copped to a misdemeanor, an option probably not offered Libby but which (yes, for purely partisan political reasons) Libby was not in a position to accept anyway since the price would have been to roll on Cheney.

Anyway, Berger was fined $50k, got two years probation, did 100 hours of community service and relinquished his law license. (This sentence was, btw, more severe than the recommended sentence.)

Again, I'm saying these are only roughly analogous and if you want to argue Berger should have served time, too, okay. Bearing in mind, however, the original purpose of the special prosecutor's appointment and the end results of his investigation, I'd say sending Libby to prison because Fitzgerald couldn't make his case against Cheney or Rove, etc. is unreasonable.

What the Hell? This Blog is "Rated R"?

With a hat tip to Lance over at A Second Hand Conjecture, it turns out that my little blog thingie here is "Rated R" according to a clever marketing ploy by an online dating site. The site explains, in my case:

This rating was determined based on the presence of the following words:

* hell (6x)
* crack (4x)
* cocaine (3x)
* suicide (2x)
* shoot (1x)

So, what they're doing is crawling or spidering or whatever the hip web term is for it over a site, finding instances of certain words and cranking out a rating.

That is, I am sure, a small part of how the MPAA goes about its film rating business, but knowing the film industry (even now that Jack Valenti is dead), I'm betting the MPAA comes after the site for trademark infringement. Why? Here's a picture of a "widget" they offered me:



Them movie industry boys are serious about intellectual property rights, and this dating service site didn't even have the sense to remove the MPAA logo from the picture?

Two other points. First, if Live Free or Die Hard is any indication at all, these guys have set the bar way too low for an R rating and I deserve no worse than a PG-13.

Second, as porn sites found it useful to "voluntarily" use or cooperate with filter services like Net Nanny and so forth, I sadly predict it's only a matter of time before all internet web sites do have some sort of rating category assigned to them. (I say this, by the way, as a father of primary school children who have access to the internet.) Slowly, perhaps, but surely nonetheless, the wild, wild west days of the internet are coming to a close. God forbid, after all, that some sixteen year old should land at this site and read words like "hell" and "shoot."

Could The Rule Of Law Be Making A Comeback?

Strange and perhaps even unprecedented doings at the Supreme Court, vacating an earlier order denying review and requesting new briefs from the parties in two Guantanamo Bay detainee cases. SCOTUSblog provides good commentary, but the fact is that there isn't enough public information to get a good sense of what the Court is up to. After his thoroughgoing defeat over immigration reform, there isn't much left for Bush to lose on at this point beyond his sweeping assertion of war powers. Pelosi may be right -- he may not be worth impeaching. His (and Cheney's) continued administration can do nothing at this point but aid the Democratic Party however much the nation may suffer in the meanwhile.

A Farewell to Claws?

With a hat tip to Reason's Katherine Mangu-Ward, the (U.K.) Daily Mail reports:

People could be prosecuted for being cruel to pet spiders, octopuses and restaurant lobsters under animal welfare plans being considered by the Government....

While it is illegal to mistreat a goldfish, there is nothing to stop people mistreating pet tarantulas or lobsters kept in restaurant aquariums....

While [restaurants] would still be able to boil the crustaceans alive to kill them, they would have to make sure they are kept in clean, warm uncrowded tanks up to that point.

Ah, yes, I can see it now ...

From "A Clean, Well-Heated Tank," by Ernest Lemmingway:

"What did he want to kill himself for?"

"How should I know?"

"How did he do it?"

"He plunged into a pot of boiling water."

"Who pulled him out?"

"The cook."

"Why did they do it?"

"Twenty-three dollars a pound."

A Lawyer Who Presses His Own Suit Has A Fool For a Launderer

While Supreme Court decisions are further muddling constitutional law left and right today, the big news on the legal front is that D.C. Judge Roy Pearson's $54 million suit against his dry cleaners has resulted in a decision (1) that he is entitled to absolutely no relief whatever and (2) that he is now liable to pay the defendants' court costs. He may soon face legal action to recover their legal fees and may even lose his $96,000 job as a D.C. administrative law judge, to boot.

Good.

"Wii Admitted We Were Powerless Over Video Games -- That Our Lives Had Become Unmanagable."

Given the choice between, oh, say, saving his life by fleeing a burning building or staying a bit longer to reach the next level in whatever video game he was playing at the time, I'm reasonably sure my younger son would, reluctantly, flee. Lower the stakes, however, and the video game would almost certainly win. So, is he addicted?

At least for now, the American Medical Association is saying no. That's the right call, which is no guarantee it will remain the AMA's position and that Video Game Addiction won't find itself next to alcoholism and drug addiction in the next edition of Diagnostic and Statistical Manual of Mental Disorders (DSM) in five years.

Whatever one thinks about the science underlying the notion of addiction as a medical disease or disorder, it is unlikely that the supposed Video Game Addiction "sufferer" will be affected greatly one way or the other by the medical experts' decision. What would change is that "[s]uch a move would ease the path for insurance coverage of video game addiction." Follow the money, in other words.

With the usual disclaimer about how, among the myriad other things I'm not, medical expert is high among them, here's my take. Issues of actual chemical dependence aside, and we'll get back to that later, when you strip the concept of addiction of any sort from its negative connotative baggage it reduces to little more than the notion that people like doing what they like to do and, as a corollary, when they like doing something very, very, very much it is hard for them to refrain from doing it. So hard, in fact, that in many cases those who have decided they would be better off not doing it so much find it much easier not to do it at all rather than trying to try to do it in moderation.

I'm not arguing that a life spent shooting heroin or smoking crack cocaine or drinking a quart or more of whiskey a day or gorging on food constantly or betting the rent money or even playing video games for six to eight hours a day is a life well spent. It is unquestionably dysfunctional by any reasonable objective standard. Also, some addictions are more dysfunctional than others, posing serious health and even life threatening risks.

But we don't manage our own lives by reasonable objective standards, though. We might think we do, but the best we can do is to view ourselves by reasonable subjective standards, the reasonable part being our adaptive success at learning from our own and others' experience and changing, when necessary, accordingly. I can't say how much satisfaction you get from your preferences, you can't really know how much satisfaction I get from my preferences. We can, of course, figure out what each other's preferences are and maybe even what their ordinal value to others are by how they in fact behave' but it doesn't follow that your number one preference, say, smoking crack, isn't so far ahead of number two and the rest that you're not making a rational decision by hanging out at the crack house no matter what I may think of your decision.

That said, many people who come to believe that their lives are being ruined by their alcohol or drug habits or whatever, can and do manage to stop. They probably need help doing so in most cases, but I don't know of a single person who stopped what others deemed an addictive habit solely because those others wanted him to do so. Society -- family, friends, employers, etc. -- can raise the stakes, but that's it. As the old psychology joke goes, the light bulb has to want to change.

Chemical dependency, a reality in some addictions despite what some naysayers claim, isn't really the issue. If it were, alcoholics and drug addicts could quite cheaply and quickly be detoxed and that would be that. It is the psychological dependence that is the far tougher nut to crack. No doubt that, too, is physiological. Perhaps the brain gets hard wired with "memories" of how much fun the alcohol or cocaine or, let's not forget, nicotine is. That's why the patient has to want not only to quit but to keep quit. That, too, is why there is some logic to lumping, say, a gambling addiction into the same psychiatric category as alcoholism or drug addiction. The problem is, the logic leads to precisely the wrong conclusion. What we should be learning from our ever expanding list of "addictions" is that, medical assistance with the chemical dependence aspect of certain such addictions during withdrawal aside, they are no different than the rest, which is to say that they're not really diseases or, in the medical sense, disorders at all.

Which, in turn, is why it isn't ongoing (expensive) medical treatment but recourse to Twelve Step programs and their like that tend to be the most effective method for people who want to quit and keep quit of whatever their addiction may be. My title here is a play on the First Step of such programs: substitute "Wii" with "We" and "Video Games" with "Alcohol" and you have the version of the granddaddy of all such programs, Alcoholics Anonymous. What they claim, at least for themselves, is that coming to believe that they really did have a problem and couldn't fix it by themselves was the first, essential step toward its solution. There may be many other ways for people who want to stop drinking or gambling or playing video games incessantly to do so. But at least in this one celebrated and successful (and, sure, highly criticized and controversial) way we're back to the psychologist and the light bulb; that is, it is the individual, himself, who must want to change; otherwise, all is for naught.

Meanwhile, my son is indulging his "addiction" at the moment playing some sort of video game in the other room and temporarily safe from being clinically labeled even as I type this (indulging in my, um, computer "hobby"). Just as we don't set out a big bowl of candy in the living room and tell our kids to help themselves as much as they want, we limit his access to the video games. He plays other, i.e., non-electronic, games and sports, does his homework (grudgingly) during the school year and so forth. I'm sure he'd rather play video games than do his math homework and, left to his own devices, would do precisely that. But he's a child, our home is ruled by (benign) despots and he doesn't get that choice. Not yet. Libertarianism is for grown-ups.

It would be bad enough in the case of adults that we infantilize them by telling them they can't do what harms only themselves because they have a disease that gives us power over them "for their own good," but it's worse than that. It doesn't even work until, ironically, they want to change anyway. Unlike light bulbs, there's little point in screwing with them until the light has already come on.

Science, Sanity and the Law

If you have never entertained, however fleetingly, the prospect of killing your children, you're probably not spending enough time with them. Fortunately for the species, few of us ever act on such feelings. So few, in fact, that the rare parent like Andrea Yates, who in 2001 killed her four small children, strikes us immediately as monstrous or insane or both.

Reason's Brian Doherty posts a very fine article today about our struggles as a society with the notions of sanity, responsibility, free will and the law. The legal so-called insanity defense continues to fascinate us precisely because it touches so many deep mysteries about life, typically arising under the most gruesome and horrifying of situations. "Insanity" is a term long ago abandoned by the psychiatric profession, but the relationship between what is, at bottom, a legal defense justified on moral grounds and what purports to be increasing scientific evidence against the notion of free will of any sort continues to lie at the heart of the issues raised.

It is a basic tenet of ethics that ought implies can; that is, that holding someone blameworthy (or praiseworthy) for an act can be meaningful and justifiable only if that person could have done other than he did, in fact, do. Logically, it must also hold that "ought not" implies that the person could have refrained from doing whatever was done. Those who deny the existence of volitional or intentional human agency (i.e., free will) but contend that society must nonetheless indulge in the useful fiction of contending otherwise and holding people 'responsible' for their 'acts' are not, I think, all that far removed from those who hold that belief in God is necessary for there to be any moral order. Of course, by their own theory they are incapable of holding contrary views, so perhaps we can forgive them this conceptually muddled attempt to have their determinist cake and freely eat it, too.

In fairness, one can make a case for the notion that in society at large 'pretending' that criminals could refrain from committing their crimes so to justify 'punishing' them may well have a general deterrent effect. That is to say, 'punishing' certain acts raises the known consequences of their commission and people in general respond to such incentives and disincentives, whether freely or not.

But at the fringes of "people in general" lie those whose minds are so deranged (or, if you will, whose brains are so disfunctional) that the notion of general deterrence breaks down completely. These are, ironically, the people who are the most likely candidates for the insanity defense. Put simply, punishing the truly psychotic is unlikely to have any effect on the behavior of other truly psychotic persons. Indeed, it is almost definitional that such persons do not respond to the world as you and I do.

If we are only play-acting at a belief in free will in our criminal justice system as it deals with ordinary people, then surely we must be indulging in a play within a play when we go through the motions of a criminal trial with such persons, grappling with questions such as the (in)famous M'Naghten test whether "...at the time of the committing of the act, the party accused was laboring under such a defect of reason, arising from a disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know what he was doing was wrong."

Society must, of course, remove or restrain those who, for whatever causes or reasons, pose a deadly threat. But what possible difference can knowing what one is doing or knowing it is deemed wrong by others make if one cannot act otherwise anyway?

[EDIT: The first posted version read "scientific evidence of free will" and should have read and now does read "scientific evidence against the notion of free will."]

Checkout Time for Hilton?

A while back I posted a brief comment (amazingly) agreeing with Al Sharpton that it certainly appeared Paris Hilton was receiving preferential treatment by her early release, later rescinded by her sentencing judge. Now the Los Angeles Times reports she may, in fact, be serving more time in jail than some 80% of similar cases. If so, I was wrong (hey, it wasn't the first and won't be the last time!) and she should be dealt with like the others. Having said that, her being among the top (or bottom) 20% of the curve in this case doesn't strike me as especially egregious and, in any case, we're talking a few weeks out of the life of someone who doesn't exactly have a job on the line or a family to feed. Thus, I don't see her remaining sentence as per se unjust. (I assume she's right around the 20% mark, otherwise the report would have been over 85% or 90% or whatever.)

I don't give a rodent's hindquarters about Paris Hilton, but the notion of making an example of her because of her wealth or celebrity is obscene. Arguments about the justice of the laws in question aside, she should be treated no better and no worse than the average person convicted of her offenses. That's what equal justice under law is all about; no more and no less.

Oh Lord, It Has Come To This...

I agree with Al Sharpton.