Disinvited From Cato

Here comes a lot of background, just to lead up to a few final paragraphs that get to what I want to say.

As I’ve recounted before, ¹ I started my legal vocation and libertarian avocation ² around the same time, almost twenty-five years ago, in 1992. That year, I started practicing law, and also published my first scholarly libertarian article. ³ In 1994 my wife and I moved from Houston to Philadelphia for a few years, and around that time I started attending Mises Institute and other libertarian conferences. The contacts I was making with various libertarian thinkers and organizations started to increase, partly because of the rise of email and then the Internet around that time. At the time, I would devour everything libertarian-related that I could get my hands onto—The Freeman from FEE; Liberty magazine; Reason magazine; The Free Market, the Journal of Libertarian Studies, and the Review of Austrian Economics from the Mises Institute; Cato Journal; Reason Papers; Objectivity; Jeffrey Friedman’s Critical Review; various other newsletters and journals; and so on. In college I would go to the LSU library and photocopy old Ayn Rand related newsletters. In grad school in London, 1991–92, I found a copy of Rothbard’s Ethics of Liberty in the University of London library. It was then out of print and hard to find. So I paid something like 10p a page to photocopy it by hand, vellum bound it, and for years that was my main marked-up copy of that classic text, until the 1998 edition was released by the Mises Institute with an amazing introduction by Hans-Hermann Hoppe. ⁴

Yeah, I was that kind of geek. Copying Ayn Rand newsletters and Rothbard books from college libraries. But I somehow got a normal woman to marry me anyhow.

From the late 1980s to the mid 1990s, I talked with a large number of libertarian thinkers, by email, phone, in person, or even by regular snail mail. As I noted in The Genesis of Estoppel: My Libertarian Rights Theory, in law school I had become fascinated by Hoppe’s “argumentation ethics” defense of libertarian rights. This led to my exploring related material by a number of thinkers, including libertarians like Tibor Machan and Roger Pilon. ⁵ Hoppe had developed his argumentation ethics defense of libertarian rights, in part based on the work of his PhD advisor and mentor, the brilliant and famous (and socialist) German philosopher Jürgen Habermas, and fellow German philosopher Karl-Otto Apel, along with some insights from Rothbard and Mises, plus some original insights, and a libertarian spin, by Hoppe. It was an original and brilliant new spin on libertarian rights theory that Rothbard enthusiastically adopted. Rothbard became the mentor, Hoppe his protege and intellectual colleague from the mid-1980s to Rothbard’s death in 1995.

Interestingly, Roger Pilon, a libertarian philosopher-lawyer newly-ensconced at Cato, had studied under the famous American socialistic philosopher Alan Gewirth and, like Hoppe, had re-worked his mentor’s dialectical argument for (socialistic-welfare) rights into a libertarian version. I found the Gewirth/Pilon material fascinating, although I agreed with Hoppe that the Gewirthian approach had some serious defects in comparison to the Hoppean/Misesian/Habermasian approach. ⁶

Pilon and I corresponded a bit and ended up talking about philosophy on the phone, perhaps around 1995 or so when I was still in Philadelphia. I had seen connections between his work and that of Hoppe, and I mentioned that. Pilon shut me down—Hoppe is nothing but a “poor man’s Gewirth,” he said. It stunned me. Here was a PhD philosopher/lawyer type at a major American libertarian think tank (Cato), who had developed a libertarian theory of rights, based on the work of his mentor, the socialistic Alan Gewirth—like Hoppe, who had developed a libertarian theory of rights, based or modeled in part on the work of his mentor, the socialistic Jürgen Habermas (and his intellectual comrade Karl-Otto Apel)—and the libertarian Pilon was utterly dismissing the libertarian Hoppe’s “similar” argument and praising his own socialistic mentor Gewirth in comparison. I was stunned. I think I did not quite understand at the time how libertarian intellectual politics and inter-think-tank competition and back-biting worked. ⁷ I think I still do not, and am glad I don’t. In particular, at the time, I don’t think I appreciated the hostility between the Mises Institute and the Cato Institute (which feuding had roots in Rothbard’s being ousted from Cato and helping to found Mises).

Anyway, Pilon and I continued to correspond—such as this letter he wrote me in 1997, proposing possibly commissioning a study about how to improve property rights in the international arena (probably in response to some of my recent legal writing in that area, e.g. my book Protecting Foreign Investment Under International Law: Legal Aspects of Political Risk (Dobbs Ferry, New York: Oceana Publications, 1997) ⁸ and related articles). ⁹

A couple years later, in 1999 or so, I distinctly remember, I was on a vacation with my wife and brother in beautiful Capri, Italy, and was checking my work email from a laptop from the hotel room (yes, apparently it was possible back then, somehow—I think via long-distance dial-up modem), and received an inquiry from Pilon as to whether I was interested in a new position Cato was creating, editor of a Supreme Court law review. It would involve a career change, a move to DC, being a talking head on TV on occasion, and a generous salary (but still, for me, a cut in pay, since I was by then a successful large firm patent attorney), and so on.

It was never even a question for me. I did not hesitate or agonize about it. I didn’t even run it by the wife. I immediately said “no”—politely, but decisively. I didn’t want to move to DC or take a pay cut or be beholden to non-profit bosses.

I’m so glad I said no, and that I’ve remained intellectually independent since. I never wanted to be a “kept” or “house” intellectual, and am glad of my decision, and related ones in years following, to this day. I like keeping my libertarian intellectual interests as an avocation and being my own benefactor from my normal job, thank you. ¹⁰ That way, one can maintain independence and integrity. My mind is my own, man.

But I digress.

I became more involved over the years with the Mises Institute, from about 1995, when, after Rothbard’s death and Hoppe’s assuming editorship of the Journal of Libertarian Studies, and I became that journal’s book review editor, until about 2012, after Jeff Tucker left. Since 2012 I’ve gone my own way, but in that 17 year period I attended and spoke at countless Mises Institute conferences, created a new journal for the institute, Libertarian Papers (in 2009), co-edited the Hoppe festschrift, Property, Freedom, and Society: Essays in Honor of Hans-Hermann Hoppe (Mises Institute, 2009), and so on. I was even a Senior Fellow of the Mises Institute for a number of years, maybe 2009–2014 or so. I also started becoming widely known (in libertarian circles) for my anti-intellectual property views, starting mainly with a LewRockwell.com article, In Defense of Napster and Against the Second Homesteading Rule (Sep. 4, 2000) and a 2001 JLS article, “Against Intellectual Property,” later published as a Mises Institute monograph. Interestingly, one of my major influences on this topic was Cato’s scholar Tom Palmer, as I noted at the time and since. ¹¹ Nonetheless, the enmity between Cato and its scholars like Palmer, and the Mises Institute, persisted. ¹² Even though Cato at the time housed one of the leading anti-IP pioneer scholars (Palmer), who has since moved on to greener pastures, Cato has rarely promoted the IP abolitionist line. Instead, it usually features moderates/empiricists/utilitarians or pro-IP types like Richard Epstein and Adam Mossoff, which I have noted many times. ¹³

So, in view of all this history and internecine libertarian in-fighting—I was pleasantly surprised to receive an invitation from a very nice gentleman at Cato in early December 2015 to speak at a Cato policy forum on intellectual property in February 2016. The forum was to feature two pro-IP speakers, Richard Epstein and Randy May from the Free State Foundation (author of the recent The Constitutional Foundations of Intellectual Property: A Natural Rights Perspective), and two anti-IP speakers: me and Eli Dourado. I noted that Dourado was not really anti-IP, ¹⁴ so that it was really 3 against 1, but I was used to worse odds, so it was fine by me. In fact I was very honored. I understand what probably happened—I’m the world’s leading IP law and policy expert from a free market/libertarian perspective, the topic has been of increasing interest to libertarians in the last 15–20 years, since the advent of the Internet, so naturally, they would want at some point to include me. So Cato invited me, despite the political problems. I think the invitation was good-willed yet, it came from the left hand. In the sense that the left hand doesn’t know what the right hand is doing, that sort of thing.

The only hitch was Cato could not offer to reimburse my travel expenses (the reason for mentioning this will be made clear at the end of this story). I accepted the invitation anyway and purchased my own airfare, at my expense. Again: I was surprised Cato had invited me, despite my previous association with its bête noire, the Mises Institute, and my previous written criticism of Cato ¹⁵ and some of its thinkers, such as Pilon ¹⁶ and Epstein ¹⁷ (I had met Epstein in person when I spoke at his law school on an IP panel in 2011, where he was the keynote speaker). ¹⁸ I was looking forward to presenting, for once, at Cato, a strong, principled, uncompromising, libertarian argument against IP. Even if it was one against three, in effect. Even if I was the “Mises Institute” guy going into the lion’s den.

Alas, it was not to be. Near the end of December my contact at Cato wrote me to disinvite me. Very politely. But no explanation. Why I was disinvited—I do not know. The right hand realized what the left hand was up to. I suspect Epstein scuttled it, or maybe someone higher up at Cato, once they realized Kinsella or a Mises Institute guy was being invited to their lair. I don’t know. Don’t really care. If I’m not palatable to the powers-that-be at Cato, there are others who would argue the anti-IP position—Jeff Tucker, David Koepsell, Roderick Long, Jacob Huebert, ¹⁹ Sheldon Richman, ²⁰ Wendy McElroy, ²¹ or perhaps Boldrin and Levine from the empirical perspective, or maybe even their former colleague Tom Palmer if he is still really anti-IP.

Cato ended up holding the conference, with Epstein, May, and Dourado, as planned, and with Cato’s Jim Harper in my place: Intellectual Property and First Principles (2). An interesting symposium, to be sure, but no principled anti-IP voice. At a leading libertarian think tank. When the tide is turning against IP. ²² Sad.

But at least they reimbursed my airfare. Which they were not initially going to pay. So it turns out—Cato paid me not to attend an event.

Coda: A few friends whom I ran a draft of this by cautioned me not to publish this, not to burn bridges etc. I figure the bridges done been burnt and, in any case, Cato burnt its bridges with me. Their loss, not mine. I don’t need any of these groups or think tanks, in fact don’t want to be associated with any group that doesn’t want to associate with me. Further: I have been nothing but objective and honest, and my thought is that recounting these experiences might someday help some budding libertarian scholar or academic understand the nature and possible perils of the libertarian think-tank world.

Update: Facebook discussion.

1.  How I Became A Libertarian; The Genesis of Estoppel: My Libertarian Rights Theory; My Failed Libertarian Speaking Hiatus; Memories of Mises Institute and Other Events, 1988–2015. [↩]
2. See my post, Career Advice by North, discussing the distinction and interplay between career and calling, vocation and avocation. [↩]
3.  Estoppel: A New Justification for Individual Rights, published in Reason Papers No. 17 (Fall 1992). [↩]
4. See Murray N. Rothbard and the Ethics of Liberty, Introduction to Murray N. Rothbard, The Ethics of Liberty (New York: New York University Press, 1998) . [↩]
5.  See links in “Argumentation Ethics and Liberty: A Concise Guide”; The Genesis of Estoppel: My Libertarian Rights Theory: namely: Pilon, “A Theory of Rights: Toward Limited Government“; Gewirth, “The Basis and Content of Human Rights“; Pilon, “Ordering Rights Consistently: Or, What We Do and Do Not Have Rights To.” [↩]
6.  As Hoppe wrote, in note 117 to ch. 7 of his Theory of Socialism and Capitalism:

   “Methodologically, our approach exhibits a close resemblance to what A. Gewirth has described as the “dialectically necessary method” (Reason and Morality, Chicago, 1978, p.42-47)—a method of a priori reasoning modeled after the Kantian idea of transcendental deductions. Unfortunately, though, in his important study Gewirth chooses the wrong starting point for his analyses. He attempts to derive an ethical system not from the concept of argumentation, but from that of action. However, this surely cannot work, because from the correctly stated fact that in action an agent must, by necessity, presuppose the existence of certain values or goods, it does not follow that such goods then are universalizable and should thus be respected by others as the agent’s goods by right. (On the requirement of normative statements to be universalizable cf. the following discussion in the text.) Rather, the idea of truth, or regarding morals, of universalizable rights or goods only emerges with argumentation as a special subclass of actions but not with action as such, as is clearly revealed by the fact that Gewirth, too, is not engaged simply in action, but more specifically in argumentation when he tries to convince us of the necessary truth of his ethical system. However, with argumentation recognized as the one and only appropriate starting point for the dialectically necessary method, a capitalist (i.e., non-Gewirthian) ethic follows, as will be seen. On the faultiness of Gewirth’s attempt to derive universalizable rights from the notion of action cf. also the perceptive remarks by M. MacIntyre, After Virtue, Notre Dame, 1981, pp. 64–65; J. Habermas, Moralbewusstsein und kommunikatives Handeln, Frankfurt/M., 1983, pp.110-111; and H. Veatch, Human Rights, Baton Rouge, 1985, pp. 159–60.”

   [↩]

7. Not that Pilon is consistently libertarian; I’ve criticized him in the meantime, for his libertarian centralism and defense of the Police America Act. [↩]
8. Followed up later by .International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide (Oxford University Press, 2005). [↩]
9. Such as: An International Framework for the Protection of Investment, Philadelphia Lawyer, p. 20 (Fall 1997); Lithuania’s Proposed Foreign Investment Laws: A Free-Market Critique (text file), Russian Oil & Gas Guide p. 60 (Vol. 3, No. 2, April 1994); “Political Risk and Petroleum Investment in Russia,” Currents, International Trade Law Journal, Summer 1993, p. 48; Reducing Political Risk in Developing Countries: Bilateral Investment Treaties, Stabilization Clauses, and MIGA & OPIC Investment Insurance (original version), 15 New York Law School Journal of International and Comparative Law 1 (1994); and others. [↩]
10. See Francis Ford Coppola, copyfighter, about being one’s own benefactor. [↩]
11. See “The Four Historical Phases of IP Abolitionism”(April 13, 2011) and “The Origins of Libertarian IP Abolitionism” (April 1, 2011). [↩]
12. Google is your friend, but see, e.g. David Gordon, The Kochtopus vs. Murray N. Rothbard and Why the Koch Brothers Went After Murray Rothbard. [↩]
13. See, e.g., Does Cato’s New Objectivist CEO John Allison Presage Retrogression on IP?; Classifying Patent and Copyright Law as “Property”: So What?; Cato, “Derby Pie” ®, the “Super Bowl” ® and Trademark Law; Federalist Society Panel: Undermining or Preserving Property Rights? The New Administrative Patents; Cato on Drug Reimportation; Demented Cato “Doctor” Wants to Strengthen Patent Law. [↩]
14. See Reason and “R Street” Libertarian IP Discussion; Dourado, The True Story of How the Patent Bar Captured a Court and Shrank the Intellectual Commons, and my comments. [↩]
15. What Kind of Libertarian Are You? [↩]
16.  Private Discrimination, Rand Paul, and the Civil Rights Act of 1964. [↩]
17. Richard Epstein’s Takings Political Theory versus Epstein’s Intellectual Property Views; Huemer vs. Epstein on Intellectual Property; Yet more disanalogies between copyright and real property. [↩]
18.  KOL071 | “Intellectual Property Law and Policy” at NYU School of Law Symposium (2011) . [↩]
19.  Jacob H. Huebert, “The Fight against Intellectual Property“ [↩]
20.  Sheldon Richman on Intellectual Property versus Liberty; Sheldon Richman, Intellectual “Property” Versus Real Property: What Are Copyrights and What Do They Mean for Liberty?, The Freeman, 12 June 2009. [↩]
21.  The Last Gasp of Copyright Dies Within Me;  On the Subject of Intellectual Property; Copyright and Patent in Benjamin Tucker’s periodical Liberty; Contra Copyright, Again; “The Origins of Libertarian IP Abolitionism”. [↩]
22. See “The Death Throes of Pro-IP Libertarianism,” Mises Daily (July 28, 2010); “The Four Historical Phases of IP Abolitionism” (April 13, 2011); and “The Origins of Libertarian IP Abolitionism” (April 1, 2011).  [↩]