Cafe Hayek

On Smuggling and Law

My colleague Walter Williams offers great good sense here.

When legislation is harmful -- such as when it attempts to restrict the carrying out of peaceful exchange among consenting adults -- it is widely disrespected.  One of the many unfortunate consequences of harmful legislation is that the disrespect it engenders risks becoming disrespect for law.  Legislation is not at all synonymous with law.

Lotts to Ponder

Here's John Lott on the Second Amendment case, out of DC, now before the U.S. Supreme Court.

Milking

I am not among those people who advocate tort reform.  Sure courts hand down lots of silly, and even sometimes obnoxious, rulings.  But beyond mandating a "loser-pays" rule, I distrust legislatures to fix whatever problems exist.

I cannot help, though, share this recent example of an absolutely ridiculous lawsuit.  I quote from the WestLaw summary of the case, Mills v. Giant of Maryland, LLC (Here):

Lactose-intolerant individuals brought class-action lawsuit against nine sellers of milk alleging that they consumed milk before they were aware of their lactose intolerance and, as a result, suffered temporary gas and stomach discomfort.

Fortunately, both the trial court and the appeals court ruled in favor of the defendant milk sellers.

(HT Roger Meiners)

Harold Berman: A Great Scholar

Probably no more than a half-dozen books have singly influenced my thinking as much as has Harold Berman's 1983 classic, Law and Revolution: The Formation of the Western Legal Tradition.  I was very sad to learn that Professor Berman died a few days ago.

In the early 1990s I spent several days with Prof. Berman and his charming wife at an Institute for Humane Studies seminar in Belmont, CA.  Organized by Leonard Liggio, the general subject of the seminar was the nature and origin of law.  Law and Revolution was the centerpiece of the readings.  And what a treat it was to have Harold Berman actively participating in all of the discussions!  I remember him as being deeply scholarly -- a man possessing as complete a command of his subject as is humanly possible and yet, simultaneously, unfailingly curious about different perspectives and open always to the possibility of changing his mind should he encounter sufficiently compelling facts or arguments.

Harold Berman was also genuinely kind, without a hint of pretentiousness.

The main lesson of Law and Revolution is that law can -- and certainly did in western Europe -- emerge unplanned from competition among different wannabe sovereign powers.  During the middle-ages and early modern era the Roman Catholic church sought absolute sovereignty.  So too, did various princes.  And these seekers of unalloyed sovereignty each had to compete for authority not only with each other, but also with the law-making processes that emerged in cities, on feudal manors, and -- importantly -- among merchants.

Sovereignty in the west, fortunately, was fractured.  The competition for absolute power -- the quests of the princes and of the church, of "caesar" and of "christ," each to wield absolute power prevented either of them from becoming absolute.  Competition is a grand thing.  And law is not so much the product of a sovereign, or of a law-giving genius, as it is the emergent outcome of countless instances of human interactions and struggles of each of us and of those who would rule us to carve out elbow room for ourselves and domains of authority.

I've yet to read the follow-up volume to Law and Revolution.  I'll do so soon.

Bob Higgs's fine tribute to Harold Berman is here.

If A Disdains B's Freedoms, B Will Return the Favor

Ross Kaminsky, who blogs at Rossputin.com, very effectively defends the dating site eHarmony.com against those who want to use government to force it to cater also to gays.

Heterosexual me says, as Ross says, that I am neither Christian nor of the opinion that homosexuality is immoral.  But -- also like Ross -- I value freedom.  No private company should be compelled to cater to any group or groups that it chooses to avoid.  eHarmony has every moral right -- and should have every legal right -- to choose its clients and customers as it wishes.

Malum in se; malum prohibitum

Bruce Charlton sensibly asks (in a comment to this post):

Isn't  illegal immigration more equivalent to smuggling than to free trade?

I would favour easier, cheaper and quicker regulation of immigration, which would need to be coupled with general reforms to cut back on welfare and making it easy to work legally, repealing the minimum wage etc.

But I find it hard to see how mass scale law-breaking can be ignored without serious knock-on problems.

I respectfully disagree with Mr. Charlton -- or, rather, I submit that he (like so many other persons) is inappropriately distracted by immigrants' "legal" status.

A critical distinction in Anglo-American law is that between actions that are malum in se and actions that are malum prohibitum.  Some actions are malum in se -- wrong in themselves.  Examples are murder, rape, theft, and fraud.  These actions are now formally prohibited by legislation, but their wrongness -- indeed, their very illegality -- exists independently of legislative prohibition.  If, say, the Virginia legislature were to repeal its statutory prohibition on murder, murder would still be wrong and criminal in Virginia.  Murderers would still be wrongdoers and criminals.  If the State government refused to punish such criminals, people would do so privately.

Other actions are malum prohibitum -- "wrong" merely because the government proclaims these actions to be wrong.  One example is avoiding taxes.  If Uncle Sam tomorrow abolishes the federal income tax, failure of Americans to send money to Washington would be neither wrong nor criminal, and persons who send no money to Washington would not be regarded by their neighbors and co-workers as despicable louts whose company should be avoided.

To attach the label "criminal" both to persons who commit actions that are malum in se and to persons whose only wrongdoing is the commission of actions that are merely malum prohibitum is to use language confusingly.  It is to dilute the scorn and loathing that true criminals deserve.  After all, if someone whose only offense is to cross the U.S.-Mexico border in search of a job is a criminal, what is a shoplifter or a child-beater or a murderer?

Looked at differently, to call "criminal" those persons whose only offenses are merely malum prohibitum is unfairly and inappropriately to tar them with the scorn and wariness that is deserved only by persons who commit genuine offenses against others.

And such language clouds and confuses the political debate.  Because most persons understand the word "criminal" to indicate an individual who, to one degree or another, is harmfully anti-social, calling immigrants who are in the U.S. without official government permission "criminal" gives the impression that these people are all harmfully anti-social.  But that impression is emphatically false (unless you include in your definition of "anti-social" the desire for a better life and willingness to compete for jobs).

There is a legitimate debate over how open America's borders should be.  But that debate today is far too soiled by those persons who think that merely calling "illegal" immigrants "criminals" settles the matter.  It does not.  "Illegal" immigrants are "criminals" only because government policy declares them to be -- in the same way that persons openly practicing Christianity or Judaism in Soviet Russia were "criminals" only because government policy declared them to be.  The contours and specifics of this policy are precisely what is at issue in the debate over how widely open U.S. borders ought to be.  This debate should be on the economics and the national-security issues raised by immigration; it should not be confused by the confusing (and often self-serving) application of the term "criminal" to persons who come to America without Uncle Sam's permission -- permission that is very difficult to get.

Flagging Unconstitutional Protectionism

Constitutional Law was not my best subject in law school, but I am pretty darn confident that the Commerce Clause was meant to strip individual states from exercising their own international-trade policies.

Shame on the Minnesota House of Reps.

(HT to Dan Rothschild.)

All Power is Dangerous

Richard Epstein is one of my heroes.

Here's his letter published in today's Wall Street Journal.

David B. Rivkin Jr. and Lee A. Casey paint with too broad a brush in seeking to discredit the litigation brought against the United States during the current war against terror ("Lawfare," editorial page, Feb. 23) -- in particular, their claim that habeas corpus is an improper form of "lawfare" that wrongly whitewashes legal claims that deserve serious judicial and public attention. Messrs. Rivkin and Casey are right that habeas corpus has never been available to ordinary prisoners of war captured overseas. But they are wrong to give all detainees at Guantanamo Bay the same brush off. Many have insisted that they are not enemy combatants at all, but persons turned over to American authorities for bounties or in family grudges, or, in the case of Ali Saleh Kahlah al- Marri, a lawful alien and citizen of a friendly nation, seized in the U.S. They need to be able to challenge their detention before neutral judges.

Messrs. Rivkin and Casey are also wrong to insist that detainee claims receive a fair hearing under Combatant Status Review Tribunals set up by the 2006 Military Commissions Act. The CSRTs neither do the work of habeas corpus nor satisfy the due process clause, because the MCA prevents detainees from presenting evidence and from having representation by counsel. Opponents of these truncated procedures do not pretend to know of the guilt or innocence of the detainees. But we do insist that using traditional procedures is the only way to get at the truth.

Finally the authors incorrectly disparage the current protests against the administration as yet another left-wing "progressive" movement. Not so. The opponents to the administration's policy include small-government libertarians like myself who believe Madisonian checks and balances are always needed to guard against government excess. Those of us who take the modern regulatory state to task for its disregard of the principle of checks and balances in economic affairs should not give a free pass to excessive government power when incarcerating innocents is, regrettably, a real possibility.

Conservatives who are leery of the state when it delivers mail and meddles in education fall into an unfathomable inconsistency when they cheer on that same state's foreign military adventures and its exercise of war powers.

Would Hayek vote for Mark McGwire?

In this ESPN column, Jayson Stark explains why he voted for Mark McGwire for baseball's Hall of Fame:

But in reality, we hardly know anything about what anyone in the sport may or may not have done during those anarchic 1990s.

So just as baseball allowed Gaylord Perry to go out and cheat his way to 300 wins -- and eventually admire his plaque in the Hall of Fame -- it allowed McGwire and a host of other players to compile their stats, break their records, earn their money and listen to all those roaring crowds.

And now here it is, Hall of Fame election time -- and cleaning up this glop is supposed to be our problem? Sorry, the only way to be consistent about this generation is to apply the Gaylord Perry standard -- and evaluate what the sport allowed to go down on the field. Either the '90s happened or they didn't. And we all saw them happen.

We saw hitters on steroids face pitchers on steroids, as hundreds of players all around them used the same stuff, looking for the same edge. But we've never heard most of their names. So I feel more comfortable voting for players like McGwire than I do trying to pick and choose who did what, and when, and why.

A lot of the steroids controversy comes down to one very ugly word: cheater. Cheaters don't belong in the Hall of Fame. But when you chew on the word for a while, you realize that cheaters come in lots of different flavors. Gaylord Perry is one of those flavors. Here are a few more:

The batter glances down at the catcher when he flashes the sign to the pitcher so the batter can know which pitch is coming.

The runner on second steals the sign from the catcher and signals to the batter wht the next pitch is going to be.

The home team has a person with a telescope hidden beneath the stands. That person steals the sign and communicates with the dugout who relays the sign to the batter.

Are any of those cheating?

The first example, where the batter steals the sign directly, is considered, I am told, against the code of baseball. What does that mean? It's simply not done. There's no rule against it, no legislation. But there's a law against it, meaning that everyone in baseball understands that it's not to be done. If you do it, the pitcher will throw at your head.

As my co-host Don points out in this podcast, Hayek makes a profound distinction between law and legislation. Law is an emergent phenomenon. It's not decided or decreed. It emerges from our culture and the behavior and the interactions of individuals with each other. Legislation is what is decreed. Sometime legislation is consistent with law. Sometimes it is not. The legislation says the speed limit is 55 miles per hour. The law says you get a 5-7 mile per hour cushion on top of that.

A batter who steals signs from a catcher breaks the law of baseball but there are no rules against it. It's considered by the players to be a form of cheating. No commissioner of baseball ever sent around a memo about it but it's against the law.

A runner on second who steals signs and relays them to the batter does something that is "part of the game." When there is a runner on second, the catcher and pitcher usually go to an alternate set of signs to prevent their theft. Stealing signs from second is allowed by the law and legislation of baseball. Stealing signs from second isn't cheating.

But stealing signs from center field with a telescope is certainly against the law of baseball. I don't know if there's a formal rule against it. But everyone agrees it's against the law and a form of cheating.  The most famous home run in baseball history, Bobby Thomson's "Shot Heard Round the World" (go to the pull down menu in the middle of the page) that clinched the 1951 pennant for the New York Giants, has been tarnished by the revelation that that the Giants that season had a man in center field with a telescope who relayed the signs to the dugout via a bell and buzzer system.

So are steroids cheating? They are now. Everyone knows it. There is random testing across baseball and if you are found to be using steroids you get suspended from the game. Do it again and the suspension lengthens.

But were steroids cheating in the 1990s when McGwire and Sosa and Bonds and Palmeiro and others were hitting so many home runs that went so far? Palmeiro tested positive. Bonds says he accidentally used steroids. Sosa and McGwire have artfully avoided the question and virtually all listeners have inferred from their artful answers that they used steroids. If true, are they cheaters?

Sort of. There were rules against it in baseball, I think, but those rules weren't really enforced in any serious way. As Stark points out in his column, perhaps hundreds of players were using steroids. He talks about "what the sport allowed to go down on the field"—meaning it was tolerated in a way that suggests it wasn't against the law of baseball, just the legislation in the sense of the formal rules.

Then again, I don't think anyone who used steroids was particularly open about it or proud of it. It was borderline cheating. Sort of cheating. It was understood that both pitchers and batters were using the pharmacy. But it wasn't totally OK.

We make our own judgments. We all understand that some people hit more home runs than they might have otherwise. Most fans have deflated the nominal home run totals of the 1990s, converting them to real numbers. But if some or most pitchers of that era were using "artificial" enhancements (as opposed to nutritional supplements and weight-lifting), then maybe even that deflation is not in order. 

If I were voting, I'd vote for McGwire. I think Hayek would too.

Private Creation of Private Property Rights (Or, Curing the Boston Commons)

Editorialists at the Boston Globe are skeptical of the plan -- for rather vague reasons of "fairness" -- but here's a neat way that private, innovative entrepreneurship might cause scarce parking spaces in Boston to be used more efficiently.

Although the details differ enormously, this idea reminds me of Fred McChesney's article on parking spaces in snow-bound Chicago.  In both cases, as a valuable commodity (parking spaces) becomes more scarce, private efforts and coordination develop ways of creating private property rights in goods that otherwise would remain free-access goods.

More on Law as Spontaneous Order

In my column in today's Pittsburgh Tribune-Review, I discuss many of the aspects of law and legislation that I discussed with Russ on a recent EconTalk podcast.

Boudreaux on Posner on Hayek

I've long admired the work of Judge Richard Posner.  I've learned much from his writings.  But in this brief essay -- published in the latest issue of the NYU Journal of Law & Liberty -- I take issue with Posner's tepid assessment of the importance of Hayek's work.

In Defense of Judicial Activism

In this podcast with Clint Bolick, co-founder of the Institute for Justice, he and I discuss the purpose of the judiciary, the importance of the Constitution for securing economic freedom, the Kelo case, Marbury v. Madison and the weird political economy of school choice. Clint actually makes the claim that the teacher's union controls the Democratic Party. I expressed skepticism but his rebuttal was pretty convincing.

All Posner, all the time

Richard Posner did not win a Nobel Prize yesterday but he probably will soon. Here is a web site that lets you search all of his decisions as a judge. (HT: BoingBoing)

Don't Bury Life-Saving Organs

Inspired by Lloyd Cohen, my colleague at GMU Law, I wrote this fourth installment in my series on freeing the market for human kidneys.  The basic idea is to treat our transplantable organs as parts of our estates, being as alienable as are other parts of our estates such as our automobiles and houses.

Kelo Turns One

This past Friday, June 23, was the first anniversary of the U.S. Supreme Court's Kelo decision.  I commemorate that somber event in this op-ed that ran in Wednesday's issue of Investor's Business Daily.

Getting Catty About the Constitution

I realize that what I'm about to ask is the intellectual equivalent of taking your date to a monster-truck rally, but where oh where in the U.S. Constitution is the national government empowered to govern the treatment of pets?

Yesterday's New York Times has some details.

Do Senators Stevens and Lautenberg -- who introduced the Pets Evacuation and Transportation Standards Act into the U.S. Senate -- and the 349 U.S. House members who've already voted for this bill, understand what they did when they pledged to uphold the Constitution? Did they read the document? Are they illiterate? Dead-dog stupid? Or are they simply, well, politicians?

(Hat tip to pet-loving Karol.)

Decriminalizing Drugs in Mexico

Is the Mexican government really this sensible?  Will it really decriminalize possession of small amounts of marijuana and other now-prohibited drugs?  I certainly hope so!

If so, I predict that urban violence in Mexico will fall.

Hat tip to Dan Polsby.

The Beauty of Law and Economics

Here's my latest column in the Pittsburgh Tribune-Review -- explaining how increasing the severity of criminal penalties would raise the murder rate.

Question for readers: does this logic help explain why drug dealers are violent?

Having the Constitution for Lunch

I'm aware that what I'm about to ask is the intellectual equivalent of taking your date to a monster-truck rally -- that is, sure evidence of low-brow benightednes and crude sensibilities -- but on what Constitutional basis does the national government in the United States regulate the contents of school lunches?

That Uncle Sam does regulate school-lunch contents is beyond question.  See this report in today's New York Times informing us that "A bipartisan group in Congress plans to introduce legislation today that would prohibit the sale in school not only of French fries but also of other fatty or sugary foods, including soft drinks."

Put aside all questions of the desirability of such legislation and ask "Is this legislation Constitutional?"

I've read the U.S. Constitution several times, and nowhere -- not remotely, not even as a penumbra emanating from its text -- does it give to the national government the power to regulate the contents of school lunches.  And yet, such a fact inspires no apparent hesitation in the typical member of Congress to regulate in this way.

Keep in mind that each member of Congress is sworn to uphold the Constitution.  This oath, however, obviously matters less than does the fact that

Senator Lisa Murkowski, Republican of Alaska, has watched what goes on in the school her two teenage sons attend.

"We talk a lot about healthy nutrition, we teach the kids about the food pyramid, and then they go down the hallway and get the high fat, high sodium and high junk available in the vending machines," Ms. Murkowski said. "We need to be consistent. People are beginning to connect the dots between rising health care costs and obesity."

Applebaum on Irving

Anne Applebaum of the Washington Post has a nice piece today on the Irving case.  The ending is eloquent:

In a world in which a Jewish man can be found tortured and murdered outside Paris, as one was last week, in which imams issue fatwas against cartoonists, in which the golden domes of mosques explode and in which religious intolerance seems to be exploding too -- it's becoming far harder for everyone else to see the value of uninhibited, unrestrained and deeply offensive free speech.

It's Good to Have a Constitution

Sometimes I despair at how little the Constitution matters in the United States as a deterrent to legislative mischief.  But then events remind me that even a little Constitutional restraint is better than none at all.

Take freedom of speech.  Polls always suggest a willingness of Americans to ban stuff they don't agree with.  President Bush and others, talking about the Muslim cartoons, say silly things about the importance of using restraint in publishing offensive material when in fact, the whole idea of freedom of speech is to make sure that people can say offensive things.  And yet, the First Amendment makes me feel pretty good about the future of offensive speech in the United States.

Look at the David Irving affair.  I have no idea whether David Irving is a Holocaust denier.  I haven't followed the trial.  What I do know is that I don't want anyone in the United States to go to jail for three years for holding a particular view of history.  I want Holocaust denial to be destroyed in the court of public opinion rather than in the public courts.

Is there any way that Austria's Holocaust denial legislation could pass Constitutional scrutiny in the United States? OK, we probably do have some hate speech ordinances that are steps in the wrong direction.  But at least in America you can deny the Holocaust and stay out of jail.

Here's the irony of putting David Irving in jail for saying something offensive.  In the 1930s, a government came to power in Germany and eventually Austria that put people in jail for what they believed or said and eventually killed people, the Jews, for who their parents and grandparents were.  If you think that's a bad thing, you want to limit the ability of government to put people in jail, not expand it.

As a Jew, it never ceases to amaze me that people think the most important lesson of the Holocaust is that anyone, even civilized Germans who love Bach and Beethoven, can become murderers.  Or that the most important lesson is that hatred is wrong.  Hatred is immortal. People say, "never again" as if saying it is sufficient to prevent future holocausts.  But saying it is not sufficient without limiting the power of government to imprison and kill people.

To me, the most important lesson of the Holocaust is that only governments can kill millions of people. Murdering millions requires absolute power. So I want governments to be weaker rather than stronger.  That's why I like the First and the Second Amendments.  And why I'm glad I don't live in Austria.

Free the Price-Cutters!

In the current issue of Regulation, law professor Daniel Crane has a well-worth-reading article on the perverse consequences of prohibitions on so-called "predatory pricing."

Here's an especially interesting part of the article:

A study by Case Western law professor Arthur Austin is telling.  Austin interviewed jurors in four antitrust trials, including Brooke Group v. Brown & Williamson, the latest predatory pricing case decided by the Supreme Court.  Austin's interviews revealed that "the jurors were overwhelmed, frustrated, and confused by testimony well beyond their comprehension.... [A]t no time did any juror grasp -- even at the margins -- the law, the economics, or any other testimony related to the allegations or defense."  Austin reports,

At no time have I encountered a juror who had the foggiest notion of what oligopoly, market power, or average variable cost meant, much less how they applied to the case....  Typical is the response I received when I asked a juror whether he remembered average variable cost.  The juror replied, 'Yes, explain it to me.  I still don't know what it means.'

Mind you, the jury found that Brown & Williamson engaged in predatory pricing, which required a finding that it had priced below average variable cost.  If the jury did not understand the legal test, on what basis did it award a $148.8 judgment against Brown & Williamson?

Fortunately, in 1993 the U.S. Supreme Court found in favor of Brown & Williamson on appeal.

The Real World

Today I listened to some of the broadcast of the confirmation hearings of Supreme Court nominee Samuel Alito. The part I caught included questioning by Sen. Joe Biden. Biden expressed great admiration for retiring Justice Sandra Day O’Connor (whom Alilto is nominated to replace). Biden kept saying that Justice O’Connor understood “the real world” and cared about “the real world.” Clearly, Biden was suggesting that good judges pay attention to “the real world” – and that failure to pay attention to the real world (say, by instead paying attention only to abstractions) is a mark of a poor judge.

I agree with Biden that the real world is important. Law grows from experience. Good law cannot be deduced logically by a genius or a committee of geniuses.

But I suspect that Biden’s concept of the real world differs from my own. What is the real world?

The real-world examples used by Biden to flesh out his conviction that a good Supreme Court justice is one who pays attention to the real world were of employees who were fired or not promoted because of alleged workplace discrimination. My guess is that Biden regards any political or judicial theory that is skeptical of granting relief for such real-world discrimination as a theory that ignores the real world – a theory that callously elevates abstractions over reality.

If I were before Sen. Biden's committee, I’d respond to Biden’s remarks like this:

Senator, I, too, believe that law is a product exclusively of the real world and should not be divorced from it. I agree with Oliver Wendell Holmes’s observation that law is no “brooding omnipresence.”  But Senator, we must be careful about what we take to be the real world. The real world is not limited to the here and now; it’s not limited to the plaintiff and defendant in whatever case happens to be in front of the court. It’s not limited to the people we can see and hear standing before us or shouting behind us.

The real world exists through time and vast space. It includes millions of people whose names and faces we don’t know and will never encounter – but each of whom is as real as you and me. The fact that we – you and me – don’t see these persons and don’t know them doesn’t make them unreal or less-real than the people we do see and hear and touch and smell in our courtrooms and in the lobbies of our legislative halls.

So let’s say we have a statute aimed at preventing employment discrimination against disabled people. I ask: Which disabled people? And I answer: all disabled people. Surely being a man committed to the real world you understand that this country contains many more disabled people beyond the one who sues a company under the statute. If the court grants relief to the plaintiff – the disabled worker who filed the suit demanding (say) that his employer build a special elevator just for his use – that real-world disabled worker might well be helped. But what if the consequence of applying the statute in this way makes it less likely that disabled people will be hired in the future and by other companies?

I realize, Senator, that judges’ scope for making policy decisions is far narrower than that enjoyed by legislators.  And I agree that judges' role is not to rewrite legislation. But please, Senator, don’t insult me or the audience listening to this political spectacle by insinuating that only persons, such as yourself, who focus only on the anecdote, only on a handful of identifiable persons, have a monopoly on caring about the real world. Don’t suggest that those of us who care about rules – who understand that rules are to be judged by their performance over time and space rather than by how they work in any one instance – are less concerned about the real-world than you are.

Indeed, Senator, because I understand that statutes and legal rulings have effects far beyond those which are seen, I dare say that I am more aware of the real-world than are those – such as you, Senator? – who typically judge a rule to be good or bad based exclusively upon how it affects a single or a few identifiable persons.

Senator Biden, the issue isn't whether or not the real world matters. We all agree that it does. What separates you and me, Senator, is that I don’t ignore that part of the real-world that is less visible than that relatively small part that attracts the attention of politicians and the press.

A Sighting of David Ricardo in Palo Alto

I'm genuinely delighted to learn that students at Stanford's School of Law are learning the meaning and benefits of the principle of comparative advantage.  This fine op-ed in today's Washington Post by Josh Sheptow, a Stanford law student, explains why the widespread practice of high-priced corporate attorneys devoting some of their time to do pro bono work for poor people is "staggeringly inefficient."

Here's the core of Mr. Sheptow's argument:

My argument is straightforward. First, note that there are nonprofits such as the Legal Aid Society that do nothing but provide free legal services to low-income clients. Their offices are not fancy and their attorneys command much lower salaries than their counterparts at large, prestigious law firms. As a result, it costs these organizations (or, more accurately, their donors) less than $100 for each hour of legal services they provide to low-income clients.

Now consider a lawyer who charges paying clients $500 an hour (roughly the going rate for an upper-level associate at a large corporate law firm). If she donated 10 hours of fees to Legal Aid, she could fund roughly 50 hours of legal service to low-income clients. That's five times the amount of service she could provide if she spent those 10 hours doing pro bono work herself. Thus it is much more efficient for her, and for high-priced lawyers generally, to donate their fees rather than their time.

Well done, Mr. Sheptow!

What About the Bedroom-men?

Proponents of immigration restrictions, and especially of the so-called “Minutemen” who police against “illegal” immigrants, often make the following argument:

Whether current levels of immigration are good or not, the fact is that many immigrants are in the United States illegally – that is, without the permission of the government.  Breaking laws is wrong.  Therefore, anyone in the U.S. illegally is a wrongdoer and should return to his own country.  If he then applies for and receives permission to enter the U.S. legally, then he’ll be welcome.

Minutemen help government enforce laws on the books; therefore, they should be applauded.

(The wording above is mine, but if you survey much of the anti-immigration, pro-"Minuteman" literature -- including some of the comments on this blog-post -- you'll find it, I believe, to be a fair rendition of a much-used argument.)

This argument is weak.

First, it fails to appreciate the fact that unjust laws deserve to be broken, or at least don’t deserve to be obeyed.  Wasn’t it noble to violate the fugitive-slave laws and Jim Crow legislation?  (I understand, of course, that there’s some danger in a decentralized system for deciding which laws are worthy of respect and which laws aren’t.  But there’s also danger in a centralized system for declaring which laws should be obeyed.)  My moral sense is that politicians, bureaucrats, and “Minutemen” have no business telling me which peaceful persons I can befriend or make love to in my own home or hire in my own factory.  My moral sense tells me also that foreigners are not morally obliged to obey American politicians who would keep them from engaging in consensual capitalist acts on these shores.

Second, the “if-government-says-it,-we-must-obey-it” mindset does not support “Minutemen” interventions.  Government determines “law” not merely by what it says (usually in the form of statutory language), but also by what it does.  If government chooses to devote an amount of resources to “immigration control” that is inadequate to prevent substantial amounts of illegal immigration, shouldn’t we – by the “Minutemen’s” own logic – respect this government decision and not interpose our own opinions about what the level of immigration enforcement “should” be?  Who are we, mere private citizens, to dare to second-guess with our actions a decision on the level of immigration control made by our leaders?  Aren’t the “Minutemen” breaking the law just as illegitimately as are persons who come to America without formal approval of our leaders?

Just because words are written on paper and subjected to hocus-pocus beneath a soaring marble dome does not mean that these words are truly “law,” or even that the government officials who wrote and voted for them want them to be taken literally.

I believe that several states still have on the books “laws” declaring sex outside of wedlock to be a criminal offense.  How many of us would applaud a private group calling themselves “Bedroom-men” snooping around our residences trying to prevent unmarried adults from having consensual sex with each other?  Would we excuse the “Bedroom-men” by saying “Well, like it or not, because Dick and Jane aren’t married to each other, it’s unlawful for them to make love to each other.  The law’s the law, and the Bedroom-men are just assisting government in upholding the law.”

How many of us would respect the Bedroom-men?  How many of us would believe that the members of such a group have no selfish, unsavory reasons for doing what they do?  How many of us would wish that any unmarried adults consenting to have sex with each other be jailed or fined simply because some statute book declares their behavior to be “unlawful”?

A "legitimate state purpose"

Read the opening paragraph of Fields, et al. v. Palmdale School District, a case handed down on November 2^nd by the U.S. Court of Appeals for the Ninth Circuit. The majority opinion – including the words below – are from the pen of Judge Stephen Reinhardt.

When parents of schoolchildren in Palmdale, California learned from their sons and daughters that they had been questioned in their public elementary school about sexual topics such as the frequency of "thinking about having sex" and "thinking about touching other peoples’ private parts," some of them exercised their constitutional right to take their grievance to the courts. The questioning was part of a survey the Palmdale School District was conducting regarding psychological barriers to learning. The parents brought an action in district court against the School District and two of its officials for violating their right to privacy and their right "to control the upbringing of their children by introducing them to matters of and relating to sex." They brought both federal and state claims. The district court dismissed the federal causes of action for failure to state a claim upon which relief could be granted and dismissed the state claims without prejudice to their right to re-file in state court. We agree, and hold that there is no fundamental right of parents to be the exclusive provider of information regarding sexual matters to their children, either independent of their right to direct the upbringing and education of their children or encompassed by it. We also hold that parents have no due process or privacy right to override the determinations of public schools as to the information to which their children will be exposed while enrolled as students. Finally, we hold that the defendants’ actions were rationally related to a legitimate state purpose.

Read again the final three sentences of this quotation.

The state – government – politicians and their henchmen and toadies – strangers specializing in duping the masses into believing that these same duplicitous strangers are capable of superhuman feats of beneficence – are ruled by a U.S. court of appeals to have a "legitimate" reason to interfere with parents’ decisions about how to expose children to "sexual matters."

As my good friend Roger Meiners remarks about this ruling by super-lefty Judge Reinhardt, it’s rather anomalous that lefties so publicly bemoan the likelihood that non-lefty judges threaten personal freedoms.  Is this ruling not deeply offensive to all who love liberty?

The Full History of Racial Segregation in the United States

Thomas Sowell fills out the important history behind Jim Crow legislation – the history that made racial segregation in the U.S. a reality. Here’s the core of Sowell’s explanation:

Those who see government as the solution to social problems may be surprised to learn it was government that created this problem. Many, if not most, municipal transit systems were privately owned in the 19th century and the private owners of these systems had no incentive to segregate the races.

These owners may have been racists themselves but they were in business to make a profit -- and you don't make a profit by alienating a lot of your customers. There was not enough market demand for Jim Crow seating on municipal transit to bring it about.

It was politics that segregated the races because the incentives of the political process are different from the incentives of the economic process. Both blacks and whites spent money to ride the buses but, after the disenfranchisement of black voters in the late 19th and early 20th century, only whites counted in the political process.

Sowell also hits an important nail on the head with this line near the end of his column:

People who decry the fact that businesses are in business "just to make money" seldom understand the implications of what they are saying. You make money by doing what other people want, not what you want.

Although Sowell doesn’t mention them by name, the scholars who supplied the important research on the roots of racial segregation in the United States are Robert Higgs (see this outstanding book) and my former colleague at George Mason University Jennifer Roback-Morse.  (Her two most important papers along these lines – but for which I cannot find links – are Jennifer Roback, "Southern Labor Law in the Jim Crow Era: Exploitative or Competitive?," University of Chicago Law Review, Vol. 51 (1984); and Jennifer Roback, "The Political Economy of Segregation: The Case of Segregated Streetcars," 46 Journal of Economic History, Vol. 46 (1986).)

John Milton on the Moral Limits of Democracy

I love this line in John Milton's essay "The Readie and Easie Way to Establish a Free Commonwealth," which is in Milton's celebrated Areopagitica:

More just it is, doubtless, if it come to force, that a less number compel a greater to retain their liberty, than a greater number, for the pleasure of their own baseness, compel a less most injuriously to be their fellow slaves.  [John Milton, Areopagitica [Liberty Fund edition, 1999; page 438.  I modernized the spelling.]

Ambiguous Lesson on Law

I have defended the possibility of a stateless society – one emphatically not anarchic; one in which order and prosperity exist, and where law is discovered and enforced decentrally rather than centrally.

I admit, though, that this is an extreme position.  I am not at all sure that it’s correct.  Perhaps minimal-state libertarianism is indeed the best that humans can possibly achieve.

Arnold Kling argues that the brutal anarchy now plaguing New Orleans is evidence in support of the minimal-state, as opposed to the no-state, position.  Post-Katrina New Orleans can indeed be interpreted in this way, and this interpretation is quite plausible.

But it’s not as clear to me as it is to Arnold that post-Katrina New Orleans points so unambiguously toward his interpretation.  The fact is that government there has failed.  Formally, government there exists – local, state, and national government, all part of history's wealthiest society.  But government is not providing law.  Despite the existence of government that claims sovereignty over the city of New Orleans, it isn’t supplying law.

What law there is in the Big Uneasy now is sparse.

So while it’s also true that there’s little or no law supplied now by decentralized, spontaneous-ordering forces (Why would anyone suppose that such law would emerge instantaneously the moment government abandons the scene?), there’s no law supplied now by the very agency universally proclaimed as the only, or at least the best, source of law.

Update: Patri Friedman says more, in a post well worth reading.

Social Creationism, Social Deism, & Social Atheism

Browsing through the August 15^th issue of Time, I came across an insightful quotation from the brilliant Harvard University psychologist Steven Pinker. Pinker is quoted in Time’s cover story on the role of religion in schools. Pinker says, defending the theory of natural selection against the idea of "intelligent design," that

Overcoming naive impressions to figure out how things really work is one of humanity’s highest callings.

Indeed so.

I don’t here write to enter my two-cents in the debate between Darwinians and creationists (although, for the record, I am solidly in the Darwinian camp). I write to record that Pinker’s insight applies to society no less than to biological beings.

Naive minds believe that social order must be created, planned, the result of intention. These minds worry that without such conscious guidance, the result will be either chaos or an order that is inferior to one that is planned and consciously crafted. In contrast, sophisticated minds understand that social order is largely "the result of human action but not of human design" – and that highly complex, productive orders that offer maximum prospect for widespread human flourishing are those that are least infected with efforts to centrally craft social order.

Of course, the above is a summary of the chief insight of Adam Smith and F.A. Hayek.

Most people who understand and accept this Smith-Hayek insight become what we might call "social deists."

A social deist assumes that sovereign power is necessary to design and maintain the foundation, but not the superstructure, of society. That is, a social deist regards conscious design and maintenance of the ‘constitutional’ level as necessary. Upon this foundation, social order grows unplanned.

Social deists are contrasted, on one hand, with "social creationists." Social creationists are members of that species of juvenile thinkers who regard conscious, central direction by a wise and caring higher human authority as necessary for all social order – not only for the foundation, but for all, or much, of what the foundation supports.

Economic central planners are prime examples of social creationists. In their view, government must not only create and enforce law (society’s foundation), it also must plan the course of the economy (society’s superstructure) – for example, which good and services to produce, and how to produce these.

Social deists are contrasted, on the other hand, with "social atheists."  What is a social atheist?

A social atheist regards even the institutional foundation of a free and complex society as uncreated – as being just as much an unplanned, spontaneous development as is the superstructure of society that builds itself upon this foundation.

Social atheism is difficult to grasp – as difficult to grasp as atheism itself. How does it all start? How can it all hang together without some prime mover, some intent-laden authority or mind imparting logic to its processes?

Unlike questions involving the material universe – where the existence or non-existence of god is a fact that disputants can only hope to discover but not control – people can at least attempt to make society one in which social creationism, social deism, or social atheism is descriptive.

But human society seems to progress the further along the spectrum it moves from social creationism toward social deism toward social atheism. How far in this direction can we move profitably?

Sen. Kennedy on the Role of Courts

Karol and I just returned from nearly two weeks in Romania (Bucharest and Transylvania).  Within the next few days, I'll likely say a bit more about our generally happy impressions of Romania.

But for now I content myself to mention this interview with Ted Kennedy on the nomination of Judge John Roberts to become an associate justice on the U.S. Supreme Court.  (We heard this interview while driving to the airport on July 20th.)  Kennedy mentions four examples of how, if confirmed, Justice Roberts should protect Americans.  One of his examples is protection of women's right to abortions.  The other three examples are protection from corporations.

While any corporation (or mom'n'pop grocery store, or NGO, or any other person or institution) that violates others' rights should be held well and truly accountable under the law, it's telling that Senator Kennedy focuses on corporations, rather than government, as the principal threat to people's rights and liberties.

Disgust at the 'Drug War'

I challenge anyone to read this column by John Tierney and not feel disgust at the disgraceful consequences of the so-called ‘war on drugs.’ (If you don’t feel disgust, then you are emphatically someone with whom I want nothing to do. And I certainly don’t want you to have any role -- not even as a voter -- in determining how I live my life.)

Tierney visited a 46-year-old prison inmate – a wheel-chair-bound man serving a 25-year sentence in a high-security Florida prison because he had the effrontery to seek relief from excruciating pain caused by an automobile accident that damaged his spinal cord.

I’ll be more precise: this man had the gall to seek pain relief that isn’t government approved.

To all those people who support the ‘war on drugs’, I ask: are the ugliness, the cruelty, and the dangers that you imagine will result from ending the ‘war on drugs’ worse than the actual ugliness, cruelty, and dangers that attend the ‘war on drugs’? I doubt that you can answer an informed ‘yes.’

Kelo and Just Compensation

Here's the Boston Globe's outstanding columnist, Jeff Jacoby, on the odious Kelo ruling.

....

Speaking of Kelo, what compensation is "just" for the homeowners in New London, Connecticut, whose property is being stolen by the government? The market value of these properties before Pfizer and other private companies set their sights on them? Nope. That figure is far too low.

The government is very sure that its theft of private property will generate ample economic benefits to citizens at large, as well as increase the City’s own tax revenues. (As Justice Stevens put the matter in his opinion for the Court majority: "The City has carefully formulated an economic development plan that it believes will provide appreciable benefits to the community, including – but by no means limited to – new jobs and increased tax revenue.") So why not base the calculation of the just compensation (owed by the thief-politicians of New London to their victims) on the City’s own estimate of the dollar value of these "appreciable benefits" that its thievery is expected to yield?

That is, if the City expects that its thievery will yield $X million in economic benefits, just compensation (given that the theft now enjoys the Supreme Court’s approval) is approximately .95 ($XM). Let the City keep about five percent of the additional value it expects to be created. Given current low interest rates and the fact that the City (ostensibly) is a not-for-profit outfit, the City should be quite content to keep a full five percent of this booty.

I thank my neighbor, the insightful attorney Ed Grass, for this suggestion about the proper magnitude of "just compensation" in Kelo.

Richman on Kelo

Sheldon Richman has this not-to-be-missed comment on the Kelo decision.

Hosannas to the Force-Specialists

Trying to identify the one thing – the one sentiment – the one perception – the one belief – the one value – that separates libertarians (and classical liberals) from others is risky. The world’s not that simple.

But I’ve become convinced that a major difference separating libertarians from non-libertarians is libertarians’ hostility to secular superstitions.

I’m not talking here about belief in spiritual deities. Many libertarians (like myself) are atheists; many others (like my co-blogger Russ Roberts) are deeply religious. But almost by definition, all libertarians reject the notion that the state is something other than a human institution deserving more credence, respect, deference, and trust than is commonly given to other human institutions such as supermarkets and bowling leagues.

Libertarians understand in their guts that flags, anthems, marble domes and columns, fancy titles, embassies, and majoritarian-voting procedures do not transform human beings and human institutions into something higher than human beings and human institutions.

There’s nothing special about the policemen who protect my house from burglars, my son from kidnappers, and my wife from rapists. There’s nothing special about the troops who protect us from foreign armies and terrorists. These activities are important and valuable when done properly. But there’s nothing special about them. Nothing about these activities gives the people who carry them out any exceptional claims upon our affections or wallets.

If the policeman or soldier agrees to render unto me a certain degree of protection in exchange for $100 of my money, neither of us owes anything more to the other as long as I pay him $100 and he performs his contractual duty accordingly. I owe him no special allegiance just because he specializes in using force to counteract force. Nor does he gain superhuman knowledge or wisdom just because he is a force-specialist.

And nor should the fact that we today choose our force-specialists collectively – mostly by voting – give force-specialists dispensation from the normal rules of decency that we expect to be followed by our friends, neighbors, and others who specialize in something other than force.

And yet secular superstitions routinely elevate force-specialists into a priestly class. Force-specialists do get special privileges; they are treated as if they are inherently more trustworthy and more important than non-force-specialists.

Consider the lamentable U.S. Supreme Court decision handed down today in the case of Kelo v. City of New London. In it, the Supreme Court (well, five of its members) ruled that local governments can seize property from private citizen A and give it to private citizen B if it, the government – the gaggle of force-specialists – declares publicly a belief that such seizures will create jobs and increase the amount of money the force-specialists will succeed in forcibly extracting from non-force-specialists.

Suppose that a majority of this very same group of nine black-robed worthies were to declare that I, a private citizen, can poke a gun in my neighbor’s nose and demand that he sell his house to me so that I can give or sell it to someone else. The only condition demanded of this ‘court’ is that I proclaim with as much sincerity as I can muster that my seizure of this house will ‘improve the neighborhood’ and generate more income for me -- mor