Showing posts with label libertarian. Show all posts
Showing posts with label libertarian. Show all posts

Monday, May 18, 2009

Unconventional Thinking, Congress, and Facebook: the War against the Average American

I love these paragraphs from a recent New Yorker article on basketball (Malcolm Gladwell, May 11, 2009, "How David Beats Goliath"):

This is the second half of the insurgent’s creed. Insurgents work harder than Goliath. But their other advantage is that they will do what is “socially horrifying”—they will challenge the conventions about how battles are supposed to be fought. All the things that distinguish the ideal basketball player are acts of skill and coordination. When the game becomes about effort over ability, it becomes unrecognizable—a shocking mixture of broken plays and flailing limbs and usually competent players panicking and throwing the ball out of bounds. You have to be outside the establishment—a foreigner new to the game or a skinny kid from New York at the end of the bench—to have the audacity to play it that way. George Washington couldn’t do it. His dream, before the war, was to be a British Army officer, finely turned out in a red coat and brass buttons. He found the guerrillas who had served the American Revolution so well to be “an exceeding dirty and nasty people.” He couldn’t fight the establishment, because he was the establishment.
T. E. Lawrence, by contrast, was the farthest thing from a proper British Army officer. He did not graduate with honors from Sandhurst. He was an archeologist by trade, a dreamy poet. He wore sandals and full Bedouin dress when he went to see his military superiors. He spoke Arabic like a native, and handled a camel as if he had been riding one all his life. And David, let’s not forget, was a shepherd. He came at Goliath with a slingshot and staff because those were the tools of his trade. He didn’t know that duels with Philistines were supposed to proceed formally, with the crossing of swords. “When the lion or the bear would come and carry off a sheep from the herd, I would go out after him and strike him down and rescue it from his clutches,” David explained to Saul. He brought a shepherd’s rules to the battlefield.
The price that the outsider pays for being so heedless of custom is, of course, the disapproval of the insider. Why did the Ivy League schools of the nineteen-twenties limit the admission of Jewish immigrants? Because they were the establishment and the Jews were the insurgents, scrambling and pressing and playing by immigrant rules that must have seemed to the Wasp élite of the time to be socially horrifying. “Their accomplishment is well over a hundred per cent of their ability on account of their tremendous energy and ambition,” the dean of Columbia College said of the insurgents from Brooklyn, the Bronx, and the Lower East Side. He wasn’t being complimentary. Goliath does not simply dwarf David. He brings the full force of social convention against him; he has contempt for David.

I am citing this New Yorker piece in-depth because it perfectly summarizes my own mentality ("tremendous energy"). The "outsider" mentality may be one reason few people can tell I'm a lawyer. Like the immigrant basketball coach, I wholeheartedly agree with playing unconventionally to win, and I'd like to think my own outsider status causes me to act differently than 99% of lawyers. Like the New Yorker-profiled basketball team, I fight corporate Goliaths on a more-than-average basis, and I've gained the ire and disapproval of several of the ultimate insiders--judges. Why should you care? Because, as I will show you, America's legal and political systems are tilted in favor of the establishment and against the middle class.

The problem with the author's basketball/war analogies is they don't emphasize an unfortunate third party--referees. In a large athletic conference, in court, or in war, the bigger entities tend to get the benefit of the call (i.e., a favorable appellate court reversal or the ability to escape war crime prosecution) as well as the benefit of being repeat participants. The author mentioned that in one game when the referees didn't like the coach's style, they called fouls against the team at a 4-1 ratio, causing the unconventional team to lose. The same bias sometimes happens in court.

In court, the big firms and companies sometimes get "assists" from the legal system, even if neither side will ever admit it. Part of that is due to the convoluted evidence code and the expense in admitting certain documents, which are much easier to handle for corporations with large litigation budgets. But even removing the evidence code's rigors, bigger firms and companies are repeat players in court, which builds a familiarity with judges, clerks, and other government workers. For example, I had a case where my client had sued a county. The judge's office was in the same building as the lawyers representing the defendant/government. Whom do you think is going to get the benefit of the doubt in that case?

Making matters worse, many judges tend to be former D.A.s or city/county attorneys. Thus, in many modern day governments, workers in the legislative, executive, and judicial branches tend to know each other. Instead of breeding contempt, this familiarity tends to create an implicit "scratch-your-back and I'll scratch yours, and we'll all retire with our government pensions" culture. Such a culture is against the idea of America itself, which was created with three separate, independent branches so that various factions would fight each other if one branch attempted to increase its power. The founders may not have envisioned a situation where all three branches were riding high on government pensions, automatic payroll deductions from government employees via taxpayers, and lobbyist funding, thereby creating fewer incentives to look out for individual constituents. Indeed, when politicians have lobbyist money, who needs actual voters, except on one day every few years?

In short, corruption doesn't have to involve quid pro quo to result in public harm. All that's necessary is to align interests so no one in power wants to rock the boat. If you look at what's happened with gerrymandering--where the Dems and Republicans have carved up easy-to-win voting districts (in the name of racial justice, no less), it's an easy example of incentives causing corruption.

Consider defense spending. The defense budget is massive--easily one of the largest sources of government expenditures, i.e., taxpayer dollars. Many defense projects involve systems that will not be used more than a few times--making them questionable expenditures--or systems that will not be functional until 2017 and beyond, meaning such projects can afford to have further delays until America has a better balance sheet.

The defense contractors realized that they had to align incentives to keep the money coming, so they started building different pieces of their systems in different states, spreading the wealth and guaranteeing Congressional votes. Some of these projects are unnecessary, but no Senator wants to be the one who tells his district Lockheed Martin is taking its business to another state. So who wins? Defense contractors and defense employees. Who loses? The people--who have to pay the bills for these systems, which requires America to print more money, which weakens the American dollar, restricts future flexibility in spending, and/or causes inflation. Thus, taxpayers, our children, and the country suffer while defense contractors and employees run to the bank. It's not corruption per se, but another case of misaligned incentives.

There are numerous instances of these kinds of misaligned incentives, and the legal system is especially rife with them. First, who makes the laws? You think your Senator and his/her staff are in a D.C. office typing up the next draft of legislation? Usually not. Typically, it's the lobbyist who pays money to get the Senator's ear and then who gives the Senator a proposed bill of law. Who can afford lobbyists? Megacorps and large organizations (such as national unions), not Joe the Plumber or Matt the Small Town Lawyer. Can you see the problem of misaligned incentives yet?

Let me make it even more clear. Congresspersons rely on donations for re-election campaigns and happy constituents. These factors tend to favor the status quo and rich people. For instance, whom do you think has the most money to donate to political campaigns? Joe Six-Pack, Big Labor, or Big Corp? If you think Congress spends its days trying to help the little guy, just remember this: politicians still have to get elected, and to get elected, they need the majority and/or money; thus, Congress can't realistically force the majority to give anything substantial to the minority. In other words, as long as Congress makes the laws, the laws will rarely help minorities who lack substantial assets, such as people of color (generally speaking), the average American family, most small business owners, etc.

One example of corporate America's obvious influence over Congress is copyright law. The internet companies managed to get Congress to pass a law (Digital Millennium Copyright Act, or DCMA) protecting them for hosting copyrighted material on their sites. To summarize, YouTube, Google, Yahoo, Craigslist, and other internet companies get a free pass as long as they follow some guidelines. Now, you'd think Congress would try to protect the end user, i.e., the internet user, who tends to vote. Not at all. If you download a copyrighted song or TV snippet on your PC that belongs to Viacom, Viacom can come after you and sue you and receive statutory damages. If it has filed for a copyright, it may ask for its attorneys' fees, even if it hasn't suffered any actual monetary loss (it's hard to prove that companies actually lose money, because many people wouldn't necessarily have bought the song or TV show they've downloaded for free). [See 17 USC 505 for attorneys' fees provision.]

The attorneys' fees provision is especially terrible for the consumer because it creates an incentive to go after the casual internet user, even if this person hasn't caused the company more than de minimus financial loss. It's also unnecessary, because corporate America has plenty of lawyers on call it can afford to pay out of pocket--it doesn't need a fee-shifting statute to protect its rights.
But what about the small town author who writes a book, only to see someone put it online for free? I've thought about this issue, and I can't come up with a reasonable compromise involving attorneys' fees, but I'm still inclined to just remove the attorneys' fees provision. Without such a provision, copyright holders would leave individuals alone and only sue entities or individuals that caused them major damages or that had enough money to pay damages. (If readers can think of a way to allow copyright holders attorneys' fees in a way that doesn't provide an incentive to sue small-time infringers when damages are de minimus, please add your comments.)

In any case, Congress gave corporate America a sweet deal when it came to copyright laws. Why didn't Congress make some effort to protect the average internet user? Well, the people who drafted the DCMA legislation were affiliated with major internet companies. They wrote what the internet companies wanted and helped get it passed. Congress rubber-stamped the proposal and didn't seem to care enough to protect the average American. Copyright is an issue that impacts almost every average voter. If Congress didn't care enough to protect the average American on this issue, what do you think happens when other laws are passed?
Here's another quick example that shows Congress passes laws to help corporations, not consumers. Facebook users, by using Facebook, have to consent to this provision (as of the time of this publication):

"If anyone brings a claim against us related to your actions or your content on Facebook, you will indemnify and hold us harmless from and against all damages, losses, and expenses of any kind (including reasonable legal fees and costs) related to such claim."

In other words, if you post a music video on your wall, and Facebook gets sued because you posted copyrighted material, you have to pay Facebook's legal fees and damages if it loses in court. Facebook has made you, the average American, an insurer for its business. Will Facebook actually utilize this provision against one of its users? Probably not. Still, the lesson remains the same: Congress clearly cares about corporations and their lobbyists, not the average American; otherwise, it would have made such one-sided indemnification provisions illegal, or at least placed a cap on indemnification reimbursement. In the end, people who think they can change society through new laws are naive. Most of the time, a new law just gives a power-hungry lawyer who happens to know the state Governor or legislator the power to interfere in your life.

I will talk more about the legal system another time. For now, I'll just say that if more non-lawyers knew how the legal system actually worked, more Americans would be libertarians. You want to make America a better place? Start with the tax code. The tax code may be a set of laws, but it's really a system of financial incentives that happens to be codified. Right now, the tax code favors big corporations, nonprofits, large banks, and housing speculation. It doesn't help small businesses much. It doesn't help families enough. That's a shame, but at least it shows who Congress is looking out for these days--mortgage lenders, developers, insurance companies, and big corporations. Where's the anger?

Saturday, April 11, 2009

Reason #3745 to Be a Libertarian



This video makes my blood boil. Bruce Babbitt is an idiot. First, he talks about retaliating against an employee for creating more transparency into his department; then, he refuses to answer any questions about how his department is using taxpayer funds. Didn't we fight a war to get away from people who acted like high and holy kings?

Update: Babbitt has not been Secretary of Interior since 2001. It's an old video.

Wednesday, February 11, 2009

Tuesday, January 13, 2009

2006 Interview with Milton Friedman

I just saw this excellent Imprimis interview with Milton Friedman. It took place in 2006, but the issues Mr. Friedman discusses are relevant today. He talks about reforming the Middle East, reforming medical care (which he calls a "socialist-communist system"), and extending school vouchers. My favorite quote: "Self-interest, rightly understood, works for the benefit of society as a whole."

Here is my book review of Capitalism and Freedom, Milton Friedman's short, seminal book on economics and freedom.

Sunday, November 9, 2008

Reason #3947 to Be Libertarian

The price of freedom is eternal vigilance--not just against foreign influence, but also against our own government agents. Our government has spent our money going after a man, Sayed Mousavi, who wanted to promote cell phones in Iran. He also did not report a portion of his taxable income (for which he should be punished financially). The government used a law called the International Emergency Economic Powers Act (IEEPA) to convict him. Yet, no one believes this man is a terrorist except perhaps the American government and their lawyers. The most distressing detail is that our government removed Seyed Mahmood Mousavi's American citizenship by claiming he lied on his citizenship application. They apparently used mis-translated documents as evidence. 

To those would say America is a place where all citizens can breathe free post-Obama, the government's prosecution of Mr. Mousavi is a harsh lesson that vigilance must remain high. Even if Obama issues executive orders nullifying enforcement of the Patriot Act, such as canceling Executive Order 13224, more laws exist to harass citizens and non-citizens in America. 

Laura Donohue, a Stanford fellow, once said that counterterrorism activity increases "executive power both in absolute and real terms. This changes the balance of power at a federal level between the branches of government. It changes the relationship between the citizens and the state." Executive Order 13224, mentioned earlier, gave the White House and the Treasury the power to freeze assets of those they suspect of being terrorists and those they suspect have associations with terrorists. In other words, citizens "can have their assets frozen without being found guilty in any court of law for actually having any association with terrorism itself." "Between October 2001 and April 2005, 743 people and 947 organizations had their assets frozen underneath this order. 98% of the people, and 96% of the organizations, appeared to be Arab or Muslim." (Laura Donohue, Commonwealth Club speech, 9/11/08, page 20-21 of the November 2008 The Commonwealth magazine). 

Unfortunately, Obama is not proof that this country has progressed past its religious intolerance. Obama is Christian. Bobby Jindal, another political up-and-comer, converted to Catholicism. If you are not some form of Christian in America, and you have innocuous ties to Middle Eastern countries, the government is apparently willing to charge you with a crime. I realize Mr. Mousavi may have violated a trade embargo, and if he knowingly violated the law, jail-time is warranted. What terrifies me is our government, rather than prosecute him specifically for his violation of the trade embargo, actively expanded its prosecution to remove his citizenship--despite no evidence that he was a terrorist or danger to his community. 

Also, I've never heard of International Emergency Economic Powers Act (IEEPA). It seems that so many laws have been passed, the government can classify any transaction with a Middle Eastern country or charity as illegal. Overly broad laws effectively intrude on personal associations and the right of peaceful assembly guaranteed under the First Amendment. For example, if I believe that my association with others can be used against me in the future, I may alter my behavior and self-banish myself from others who share minority religious or political views. Thus, the Patriot Act and other laws similar to it--which apparently do not require any malicious intent or actual damages--have the effect of violating the First Amendment by their mere existence. 

If you are interested in more information on domestic surveillance laws and activity, get the November 2008 edition of The Commonwealth magazine. One section of Donahue's speech is titled, "Better than the Stasi," referring to domestic law enforcement activities.

Tuesday, September 2, 2008

David Boaz, Libertarian

David Boaz, Executive VP of the Cato Institute, spoke at the Commonwealth Club recently. His speech was reproduced in The Commonwealth Magazine, September 2008 edition. I haven't been able to find a free online link, but it's a wonderful speech, and you should make the effort to find the speech. Here is an audio file of the speech:

http://search.everyzing.com/viewMedia.jsp?res=0&dedupe=1&index=117&col=en-all-public-ep&sort=rel&e=20501629&channelTitle=Ron+Paul&num=16&start=112&ci=43&expand=true&match=none&channel=236&bc=90&filter=1

Boaz's best line is about Everything I Need to Know I Learned in Kindergarten and how libertarianism has the same simple rules:

Don't hit other people, don't take their stuff, and keep your promises...if you apply those rules, you get civilization and freedom.

Here's another great line:

Always love your country, but never trust your government.

Boaz makes the great point that while we may feel less free today because of excessive government intervention and power, we are certainly more free when compared to a distant past involving slavery, 70 percent income tax rates (1977), fascism, feudalism, and communism. Boaz reminds us, "We had a monopoly phone company, strict regulations on interest and investing, sodomy laws in most states, and, at least briefly, generalized wage and price controls."

Boaz also takes on the question of how to define liberty and arrives at three factors: one, widespread wealth; two, an open society (less racism, no signs stating "No Blacks Need Apply"); and three, actual political and economic liberty (no more military conscription, no Jim Crow laws). He boldly states, "On balance, Americans today are more free than any people in history." He also says we should still be wary of those who seek to curtail our freedoms, suggesting,

Just speak up when somebody says there ought to be a law. There's no magic bullet. There's never been a golden age of liberty and there never will be.

Wise words from a man who strikes the perfect balance between optimism and fear. For more from David Boaz, check out the following link:

http://www.libertarianism.org/reader.html

Saturday, July 19, 2008

Government's Role

A friend sent me a postcard that reminded her of me--it was very kind of her, and absolutely up my alley:

It is not the function of government to keep the citizen from falling into error; it is the function of the citizen to keep the government from falling into error. -- Justice Robert Jackson (Nuremberg Trial Judge)

The key point here is good governance is a two-way street. Citizens should be wary of government attempts to solve problems, because in the absence of omnipotence, unintended consequences will arise from government intervention. One recent example occurred around 1992, when Bill Clinton promised to limit CEO pay by placing a cap on salary deductions. Although it sought to limit CEO pay, Congress's one million dollar cap on the tax deductibility of salaries ended up with corporate boards increasing CEO pay to just under a million dollars. The result was that the middle class got their taxes hiked while the executives got more stock options.

Also, rarely does Congress pass a law with a view towards long term consequences. Such consequences could include the creation of a new enforcement agency (e.g. Homeland Security), more taxes diverted or raised to support the agency, and a broadening of power. Given this natural predilection to increase rather than decrease jurisdiction and scope, most laws ought to have sunset provisions that subject them to more debate down the line about whether they are still necessary. The way Congress currently passes most laws and regulations, they stay on the books forever and spawn new enforcement measures, whether they are necessary or not.

Friday, August 31, 2007

Capitalism and Freedom, by Milton Friedman

Milton Friedman's Capitalism and Freedom packs so much wisdom in such concise language, I felt like my IQ rose 50 points after just four hours of reading. Mr. Friedman is a polarizing figure. His views on some subjects, such as eliminating Social Security and legalizing drugs and prostitution, are radical; however, Friedman makes the underlying rationale behind these proposals seem bulletproof when he explains their libertarian foundation. Some passages show the inherent reasonableness of his arguments:

"Freedom to advocate unpopular causes does not require that such advocacy be without cost. On the contrary, no society could be stable if advocacy of radical change were costless, much less subsidized...Indeed, it is important to preserve freedom only to people who are willing to practice self-denial, for otherwise freedom degenerates into license and irresponsibility... Freedom is a tenable objective only for responsible individuals."

Friedman's main motif is that freedom requires self-evaluation and self-policing, which is preferable to government interference. The alternative, state-sanctioned coercion, necessarily leads to less freedom--a theme Friedman patiently hammers into the reader.

If there is a flaw in Friedman's analysis, it is the missing link of how to prevent citizens with less self-control or citizens who are more susceptible to temptation from interfering with other, more reasonable citizens. Friedman may answer that this is where government is useful. He writes, "The existence of a free market does not of course eliminate the need for government. On the contrary, government is essential both as a forum for determining the 'rules of the game' and as an umpire to interpret and enforce the rules decided on."

Although government is a necessity, Mr. Friedman wants readers to ask, "How much government is necessary," and "What form should government take"?:

"Political freedom means the absence of coercion of a man by his fellow men. The fundamental threat to freedom is power to coerce, be it in the hands of a monarch, a dictator, an oligarchy, or a momentary majority. The preservation of freedom requires the elimination of such concentration of power to the fullest possible extent and the dispersal and distribution of whatever power cannot be eliminated--a system of checks and balances."

Thus, Friedman escapes any contradiction by making the point that while government is necessary, it is necessary only in the most minimalist form possible. Friedman also promulgates several broad principles to support his philosophical framework, namely,

1. The scope of government must be limited.
2. Government power must be dispersed.
3. "The power to do good is also the power to harm; those who control the power today may not tomorrow; and, more important, what one man regards as good, another may regard as harm."

The last principle is stunning in its beautiful, simple logic, and there are gems like this on almost every page.

Friedman's other point is that the "great advances of civilization...have never come from centralized government. " FDR's New Deal is one counterargument, but Friedman indirectly addresses this potential hole by stating that the Depression was a unique instance in history that could have and should have been avoided: "The Great Depression in the United States, far from being a sign of the inherent instability of the private enterprise system[,] is a testament to how much harm can be done by mistakes on the part of a few men [i.e., the Federal Reserve] when they wield vast power over the monetary system of a country." Friedman says that had the Fed provided money to the banking system through its discount window, the Great Depression might have been avoided. (It is interesting to note that Bernanke, in the face of widespread economic fear, recently opened the discount window to banks, which is an interesting development, because he is known in academic circles as favoring inflation targeting.)

Perhaps Friedman's most salient point is that we forget the short history of mankind's relative affluence. He states, "Because we live in a largely free society, we tend to forget how limited is the span of time and the part of the globe for which there has ever been anything like political freedom: the typical state of mankind is tyranny, servitude, and misery." In other words, there is no such thing as a free lunch, and freedom is a goal worth striving for.

I will leave you with an interesting passage that is relevant to the recent subprime mortgage mess in the markets and the lack of financial liquidity:

"The result [of the banks lending money and keeping only 15 to 20 cents of each dollar deposit] is that for every dollar of cash owned by banks, they owe several dollars of deposits. [Thus,] any widespread attempt on the part of depositors to 'get their money' must therefore mean a decline in the total amount of money unless there is some way in which additional cash can be created and some way for banks to get it. Otherwise, one bank, in trying to satisfy its depositors, will put pressure on other banks by calling loans or selling investments or withdrawing its deposits and these other banks in turn will put pressure on still others. This vicious cycle, if allowed to proceed, grows on itself as the attempt of banks to get cash forces down the prices of securities, renders banks insolvent that would otherwise been entirely sound, shakes the confidence of depositors, and starts the cycle over again."

It looks like Bernanke made the right decision, at least in the short term, by opening the discount window. If, however, he lowers interest rates in September, his reputation as an inflation targeter may not be deserved.

In any case, read Capitalism and Freedom. It's an incredible education to be had, and in just 202 pages. I recommend the 40th Anniversary edition, with the year 2002 introduction by Friedman.

Note: the picture above is of Mr. Friedman's son and myself at Santa Clara Law School.