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The Supreme Court’s recent decisions preventing colleges from using affirmative action—Students for Fair Admissions (SFFA) v. the University of North Carolina at Chapel Hill, and Students for Fair Admissions (SFFA) v. Harvard College)—are wrong and unconstitutional. It’s a shame libertarians are in favor of this and sound like conservatives repeating dumb lines like “it should be merit oriented.” As if it was ever about merit: ever heard of legacy admissions or athletic admissions? Sure, mediocre-IQ Obama got into Harvard (racial affirmative action); but similarly mediocre-IQ George Bush got into Yale (legacy). Lower IQ football players get in and get scholarships too. So what?

It’s not about merit, or not only about merit; never was. Look at Harvard’s own website:

John Adams graduates

John Adams, future U.S. president, graduates. Before 1773, the graduates of Harvard were arranged in a hierarchy not of merit but “according to the dignity of birth, or to the rank of [their] parents.” By this rather undemocratic standard, Adams graduated 14th in a class of 24.

They also ignore federalism (the FedGov has no business regulating state universities) and constitutional problems with using the 14th Amendment to strike down state laws/actions they frown upon. 1 Libertarians sound like clueless rah rah patriotic type dumb conservatives who romanticize the past and pretend we should “return” to a merit based higher education system. Return? Sounds half-racist. I understand why Blacks sense hypocrisy when whites whine about racial preferences—when legacy admissions have been tantamount to racial preferences for whites for a looooong time.

[continue reading…]

  1. See Libertarian Centralists; Incorporation and the Fourteenth Amendment: The 140 Year Old “Riddle”; other posts about libertarian centralism. []
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A libertarian colleague asked me something like this:

Some time ago, I recall you wrote a piece on property rights where you argued (I think) that the inability to pay on a credit transaction was not a fraud because of the doctrine of impossibility. (I’m clearly paraphrasing in hopes that you will recognize the piece to which I’m referring.) I can’t seem to find it. (Perhaps it’s in the JLS or some reply to Van Dun.) 1

If you know the piece, could you direct me to it?

[continue reading…]

  1. He is referring to “Reply to Van Dun: Non-Aggression and Title Transfer,” a revised version of which will appear in Legal Foundations of a Free Society (2023) [LFFS]. []
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Federal Judges Aren’t Real Judges

[From my Webnote series]

From this facebook post, referring to this Youtube video:

Also discussed at KOL361 | Libertarian Answer Man: Oaths: With Kent Wellington): Go to around 32 minutes; from the transcript: “Just like in the US, in the federal court system, all these guys that they call judges, the federal judges, the Supreme Court judges, they’re not really judges. They’re just state agents whose job is to interpret the words written down on paper by other state agents.  That’s it.  Their job is not to do justice, which is what a real judge does.  A real judge tries to resolve a dispute between two parties based upon principles of justness and fairness.  These federal judges can’t do that because their job is to interpret the Constitution and federal law, which are just positive enactments written down on paper by a bunch of elected bureaucrats and members of the state.  So I don’t think they’re actual judges.  They’re not actually doing law.  What they’re interpreting is not law. (See Another Problem with Legislation: James Carter v. the Field Codes)

See also:

[Update: see the following comment adapted from an email to my new friend Nadia Nedzel 1 about related matters:

It’s a shame Hasnas’s small but important output is not easily accessible online, because I think his Myth piece could be improved by clarifying that his critique applies mostly to cases where the judge is interpreting artificial codes like statutes, legislation, and written constitutions (e.g. the US Constitution) and does not apply nearly so much to the normal judge in a true decentralized system whose mandate is to do justice (e.g. an arbitrator in a decentralized libertarian anarchist society, or even a judge or jurist or jurisconsult in a system like the Roman Law or English Common Law.
What is interesting for example is how Roman jurists apparently, to some extent, would develop the law not only by real cases, but by hypothetical ones: Roman Law and Hypothetical Cases; and chs. 13 & 19 of Stephan Kinsella, Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023), to-wit “Legislation and the Discovery of Law in a Free Society,” n. 147, and “Knowledge, Calculation, Conflict, and Law,” n.64. See also Hasnas: Common Law, Anarchy, etc.: Common Law Liberalism: A New Theory of the Libertarian Society and Two Great Arguments for Anarchy: Long and Hasnas]

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  1. Whom I met at a recent Louisiana civil code conference: The Louisiana Civil Code of 1825: Content, Influences and Languages; Past and Future: Returning to my Louisiana Roots[]
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What is the right inflation target?

Adapted from my recent Facebook post:

This article on Mises.org is disappointing (Daniel Lacalle, “Price Inflation Slowed to 3 Percent. That’s Still Far Too High,” Mises Wire (July 24, 2023). I guess it’s a blessing they seem to have disabled comments. Because this would be my comment:

This is not how Austrians think—at least, not Misesian-Rothbardians. The title gives it away: “Price Inflation Slowed to 3 Percent. That’s Still Far Too High.” As if there is a desired inflation rate—say, zero percent (in nominal terms).

And this line: “Inflation is caused by the constant increase in the quantity of currency in circulation well above real demand.” [continue reading…]

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Libertarian Answer Man: Property Rights, Consent, AI

From C.:

We spoke in the past, briefly, and I do appreciate that you’re open to emails. I’m not really expecting any kind of answer from this, just trying to bring to your attention a weird issue in the reasoning of a lot of pro-IP people that I’ve seen. AI has been a hot topic (though not the subject of this email), and in conversations with people about it I’ve seen the following come up time and time again. [continue reading…]

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Walter Block on Money as a Sui Generis Good

[From my Webnote series]

Sui Generis”

In 1912, in The Theory of Money and Credit [TMC], Ludwig von Mises argued that money is neither a producer good nor a consumer good, but a special type of good, which, following Karl Knies, he called media of exchange goods. 1 Nowadays, some Austrians refer to money as a sui generis good (sui generis meaning “of its own kind”), to highlight its unique character, although Mises apparently never himself used this terminology. For example, in a recent article touching on this topic, Thorsten Polleit writes:

Money is no consumption good and no production good. It is the exchange good, a good sui generis. I should also note that money is not a claim on goods, and in a free market, no one is obliged to give you something for your money. 2

[continue reading…]

  1. Mises, TMC, chap. V, § 1. []
  2. Thorsten Polleit, “Why Governments Hate Currency Competition,” Mises Wire (July 1, 2020). []
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Libertarian Answer Man: Deceptive Ads

Mr. Kinsella,

What is your view on false TV ads? Do you consider it fraud when a customer purchases a product from a TV ad but finds out that the ad lied about the product?

Like if there was a TV commercial that claimed drinking soda would make me fly, and I went to the store to purchase that brand of soda thinking it would make me fly and ends up not, is that company liable for fraud?

Kinsella:

I think we would have to wait and see how a legal system decided such matters, because they could take into account previous case law, local custom, ask questions of witnesses and experts to determine the relevant context. In short, you can’t decide everything from the armchair. Sometimes you have to wait. 1

My own view is that caveat emptor would be a reigning principle. Fools are easily parted with their money. You can’t rely on such information unless it is clearly deceptive, or you are given a clear guarantee. If you do, it’s at your own risk.

But whatever happens legally, practice would take it into account and change if necessary. If stupid customers win at such lawsuits, then vendors will start being more careful with their claims or add caveats, or maybe make the customer sign a waiver before the purchase. If the customers lose, then this would tend to spread the word of “caveat emptor” and customers would be more careful and/or buy insurance or rely more on private reputation agencies like the Better Business Bureau seal of approval. Suppose you know it’s hard to sue a vendor if they make shady claims. So you have a choice between Vendor A, who uses the BBB but whose prices are higher, but whose quality is probably higher; or Vendor B, who refuses to use BBB and thus might be more dishonest in his claims. One consumer may choose B because he’s cheaper, but now he’s taking a risk–some might say assuming the risk, and can’t complain if the product turns out to be shit. 2

  1. see The Limits of Armchair Theorizing: The case of Threats  []
  2. As for how to handle fraud, see Fraud, Restitution, and Retaliation: The Libertarian Approach and “A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability,” in Legal Foundations of a Free Society (forthcoming), Part III.E. []
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The late Doris Gordon 1 was an interesting libertarian. She was an atheist, but also pro-life, and founder of Libertarians for Life. We corresponded a bit about the abortion issue in 1996, when I was practicing law in Philadelphia (reprinted below). I cannot recall how we came across each other. We talked on the phone but never met in person.

I liked Doris; she was genuine and sincere. But I thought then, and still do now, that her pro-life arguments are flawed. In my view, they are simply semantic and simplistic—and wrong. The argument is basically this: if “humans” have rights, then fetuses do too—after all, they “are humans” (“if they are not humans, what are they? Lizards?” is the retort you often get from the pro-life types). As she wrote me, “If Adult Stephan has the right not to be killed, then prima facie why not Zygote Stephan?” [continue reading…]

  1. I am informed by her friend Richard Stevens that she passed away about twelve years ago. []
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Libertarian philosopher Gerard Casey has an excellent essay which is as yet unpublished: “Let the Poor Starve? A Libertarian Approach to Welfare.” Until it is formally published, I post it here, with permission. The text is below; here are the PDF and docx files. Casey’s note to me:

This was a talk to be given to people unfamiliar with libertarianism or, even worse, prejudiced against what they believe libertarianism to be. It is largely derivative in terms of its content, but I thought it would be a good idea to confront boldly and offensively with the biggest objection lurking in their minds. As befits an oral presentation, it’s relatively casual in style and will more than likely, despite my best efforts at emendation, still have some lurking typos. [continue reading…]

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Posted with permission of the author.

Why Elite Libertarians Failed so Miserably on COVID

Jeffrey A. Tucker
| Updated:
The Epoch Times
Commentary

A priest friend of mine has been writing for three years against his fellow clerics who went along with the COVID regime, shut their churches, masked their parishioners, and then pushed shots on those who didn’t need them. He said that they forgot the first principle: be not afraid. And the second principle too: put not your faith in princes. [continue reading…]

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Related:

I’ve been fascinated with the inter-Austrian debate on fractional-reserve banking for years. 1 My view has long been that fractional reserve freebanking (FRB) is not inherently fraudulent and should not be illegal; but that economically it makes no sense. I think Huerta de Soto’s Roman legal analysis of irregular deposit warehouse banking is correct, 2 and that there is a distinction between the savings/warehousing function and credit intermediation. (Thus, our UK banking system reform proposal from a few years back.) 3 [continue reading…]

  1. See The Great Fractional Reserve/Freebanking Debate (Jan. 29, 2016); Fractional-Reserve Banking, Contracts of Deposit, and the Title-Transfer Theory of Contract (Aug. 12, 2009). []
  2.  Huerta de Soto, Money, Bank Credit, and Economic Cycles. []
  3. UK Proposal for Banking Reform: Fractional-Reserve Banking versus Deposits and Loans (Sept. 14, 2010). []
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Bouckaert, “What is Property?” (1990)

I have profited from Professor Boudewijn Bouckaert’s insightful essay “What Is Property?”, Harv. J. L. & Pub. Pol’y 13, no. 3 (Summer 1990): 775–816, which was part of a symposium on Law and Philosophy which also included Tom Palmer’s seminal article on IP. 1

Unfortunately, Bouckaert’s article is not available online other than behind the HeinOnline paywall.

[Update: via email to me on March 2, 2012, Professor Bouckaert gave me permission to post his article: it is available here and here.]

[See also idem, “From Property Rights to Property Order,” in Alain Marciano and Giovanni Battista Ramello, eds., Encyclopedia of Law and Economics (Springer, forthcoming 2025).

Below I will briefly highlight some of the key insights that helped illuminate the IP issue for me, as can be seen by my citations to and quotations from this paper in Against Intellectual Property. I quote here a relevant passage from AIP, with endnotes: [continue reading…]

  1. Tom G. Palmer, “Are Patents and Copyrights Morally Justified? The Philosophy of Property Rights and Ideal Objects,” Harv. J. L. & Pub. Pol’y 13, no. 3 (Summer 1990): 817–65. []
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