Just published: Libertarian Papers, Vol. 1 (2009), Art. No. 30: “Mercantilism, Corporations, and Liberty: The Fallacies of ‘Lochnerian’ Antitrust,” by James Rolph Edwards

Abstract: Progressive legal theorist Daniel Crane has argued that libertarians who believe that monopoly results from government intervention should accept antitrust law because the monopoly problem is a result of state government passage of General Incorporation Acts after the Civil War. The resulting corporate consolidation and control of industry necessitated federal antitrust law as a corrective. Crane has all of this wrong. State permission for incorporation was an ancient tool of mercantile grants of monopoly still in practice by state legislatures in the early 19th century, and the General Incorporation Acts were a major expression of a successful Jacksonian antimonopoly policy.

To be added to my favorite quotes collection:

“If there is any society among robbers and murderers, they must at least, according to the trite observation, abstain from robbing and murdering one another.” —Adam Smith

“It’s so wonderful to see a great, new, crucial achievement which is not mine!” —Ayn Rand

Update: See also

• The Libertarian Case for Gay Marriage
• Is Gay Marriage a Constitutional Right?
• Libertarian Answer Man: Promise and Marriage Contracts

In Marriage’s shifting status…and gay marriage today, Wendy McElroy posts an original essay on gay marriage by Jim Peron which “We may wish to return marriage to its original, private status, but until that happens, basic principles of justice require that gay couples have equal access to the flawed state system.” Wendy’s view is:

I am among those who argue for privatization rather than the inclusion of more people within the current statist framework of marriage but I see the logic and good intentions of those who wish to have gay marriage legally recognized. This is an honest disagreement between people who wish to protect human rights and dignity… In the process of exploring this disagreement, Jim raises excellent points in a fascinating essay.

My own view is here: The Libertarian Case for Gay Marriage.

Update: See Are anti-IP patent attorneys hypocrites?, collecting various posts about this topic.

***

Following up on An Anti-Patent Patent Attorney? Oh my Gawd!, I was chatting with a friend about the following. I’ve argued that merely filing for patents is not inherently unlibertarian since patents, like guns, have both legitimate and illegitimate uses. The former being defensive use to ward off patent infringement suits or to countersue someone who sues you first. Still, there’s an … icky … feeling involved in getting a patent. The following may be a bit inside baseball for patent lawyers but I thought revealing some of the innards of how the process works may be of interest to some readers.

Laymen may not be aware of this but patent “prosecution” work (as filing the patent and interacting with the patent office to get it allowed, is called) is fairly fungible, low-dollar work, compared to other types of IP. To prepare and file a patent application, the patent attorney might charge anywhere from $7k to $15k or more. But patent litigation is much more lucrative (or can be), since the lawyers can get a cut of, or be paid based on the hopes of, multil-million or billion dollar judgments.

Patent lawyers also are often called on to prepare patent opinions. The good thing about these is they are more lucrative than patent prosecution—the attorney can often charge a good $25k or more to prepare one—and they can be completely libertarian. The typical usage is this. Company A is minding its own business and then becomes aware of a patent owned by company B that they are accused of, or otherwise concerned that they might be, infringing by selling a certain product that appears to be described by the claims in the patent. Quite often the issue is not clear cut—the patent language is ambiguous and there are a variety of possible legal defenses one might have, that might or might not succeed at trial. If the risk seems high and the product is not important, the company may (a) design around the patent—that is, modify the product’s design so that it doesn’t infringe the patent; (b) stop making the product; (c) approach the patentee for a possible license. If the risk is low or the product is essential, sometimes there is option (d): keep making the product and pray that you are not sued (and one reason you might not be sued is if you hold your own patents that the other company might be infringing). Option (a), designing around, sometimes employs an opinion of an attorney that the new design doesn’t infringe, or relies on input from patent attorneys as to how to increase the chance that the new design doesn’t infringe.

But when option (d) is invoked, then here is the dilemma companies face. If you go to trial, and lose, you may have to pay damages for past infringement—some kind of “reasonable royalty”; and the patentee may be able to get an injunction to force you to stop making the product going forward (which may result in a license with a royalty provision). However, the patent statute also provides for enhanced damages—”the court may increase the damages up to three times the amount found or assessed”, in certain cases—which the courts have found to be cases of “willful infringement”.

Now, the courts hold that if you get an unbiased opinion from a professional that says you do not infringe the patent, and you rely on this, then even if you lose at trial (and the attorney turns out to have been wrong), then you have a good argument that, although (it turns out) you were infringing, it was not willful since you “sincerely” believed (hoped) that you were not infringing, because you were “relying” on an attorney’s opinion.

Thus, when patent litigation is threatened or a possibility, the potential infringer will often pay patent attorneys tens of thousands of dollars to exhaustively research the problem patent(s), and to prepare an opinion that “concludes that the patent is invalid, unenforceable, and/or not infringed.” (One of the most recent cases on this is the Seagate case (discussed here), which reduces but does not eliminate the need for such opinions.)

In other words, potential patent victims are so desperate to keep selling their product, that they in effect pay tens of thousands of dollars to get a patent opinion that buys them “insurance”—it basically reduces the risk of treble damages being awarded in the event they lose at trial.

Anyway—I can’t see any possible libertarian argument that preparing such a purely defensive opinion is unlibertarian. Indeed, it’s heroic, much like income tax defense or criminal defense work.

[Against Monopoly cross-post]

Update: Related posts: Advice for Prospective Libertarian Law Students; Are anti-IP patent attorneys hypocrites?; An Anti-Patent Patent Attorney? Oh my Gawd!; The Morality of Acquiring and Enforcing Patents; A collection of recent blogs about patent hypocrisy and “success” stories.

Latest Libertarian Papers article: 29. “The Rocky Road to Paradise: Why Economic Liberalization is Interrupted” by David Barker

Abstract: Despite evidence that free market policies improve overall welfare, much of the world is making little progress in reducing state economic controls. Short-term transition costs may be the reason. A simple model demonstrates that it may be rational to weight these costs more heavily than the long-term bene?ts of economic freedom.

very cool video.

On episode 70 of Objectivist Leonard Peikoff’s podcast (which I listen to from time to time and often enjoy), he informs us that it’s rational to mourn the death of a celebrity like Michael Jackson, even though (or even if) he also did terrible things, if he was a musical genius and if that matters to you. Whew.

He also responds to a question about someone filming an interview where there is a painting hanging over a mantle in the background. The questioner, an anarchist, asks if this is right; and if so, why shouldn’t the director also have to pay royalties to the person who painted the wall itself over the mantle.

In Peikoff’s reply he denigrates anarchists as those who don’t believe in rights (see his weak Anarchism is evil, claiming that anarchism is a form of “subjectivism”); he cavalierly dismisses the “ridiculous” notion that the painter of the wall deserves royalties–after all, he does nothing original; he just uses methods and paint invented “by others” (one wonders why he is entitled to paint the wall at all, according to Objectivist notions on IP). But he never answers the question of why, or even whether, the documentary maker should have to pay royalties to the artist who painted the painting. And he sets out a typically confused justification of IP as having to do with people who invent something “original” that “has” “marketable value.” Whatever. Here are some other notes on earlier shows, adapted from emails to friends about this.

On Attending Church and Being a Bridesmaid, Tenure, and Drugs for Grief; and the Morality of Show Notes

On the podcast around May 20, 2009–although he previously said it’s okay to be a bridesmaid at a religious wedding, he now says it’s immoral to play an instrument for money at a wedding–you are aiding and abetting immorality!  Harumph. Also: he claims tenure to be “immoral.” He said in another one around this time that it’s moral to take psychotropic drugs to help you deal with extreme grief. A listener wrote in to ask if he could add show notes on his site, but Peikoff said he’s doing the show for free and has no time; and doesn’t trust anyone else, since they might make a mistake.

Is it Irrational to be Fat? Masturbation; Attending Church

On episode 51 or 52, I think, he answers the question of whether you can be an Objectivist if you are very fat; and then he answers another one about masturbation, opining on its philosophical benefits.

Peikoff also says that it’s okay for an Objectivist to go to a religious ceremony, even do the kneeling, following along in saying prayers, etc.

They have an answer for everything!

Abortion

On another podcast, he or his participants discuss abortion–and make the standard offhand Randroid comment that you can never outlaw abortion even at late stage, even if fetus is viable, because it’s inside the woman–and “dependent” on her. Note that they also think it’s okay to kill civilians in bombing their enemy government, and presumably to kill a hostage held by a bad guy, to save yourself. But it seems to me this is inconsistent. If we assume the baby is late-stage enough to clearly have rights, then what is the relevance that it “is” “dependent” on the mom? So what. It seems to me the mom is analogous to the hostage: you have to kill the hostage to save yourself (or some loved one).  Likewise, what if you have to kill the mom (actualy, do less: just restrain her actions, prevent her from aborting) to save the baby?

Update: see Objectivist Hate Fest

Objectivism hates God more than gays; prostitution and sex

Around Nov. 2008, Peikoff pontificates on the gay marriage vote in California. He says both sides are wrong, but if forced to choose he would choose the pro-gay-marriage side, since letting gays marry is trivial, but the religious types are a serious threat, blah blah blah.

He also repeated his bizarre claim that there is no purpose to prostitution since (a) the purpose of sex is some intimate sexual union; and (b) if all you want is physical pleasure, you can just “take care of that yourself”.

What is bizarre IMO is his repeated insistence in several podcasts that the purely physical pleasure derived from masturbation is “as good as” that derived from, say, sex with a call girl. “The orgasmic climax is the same.” Uhh, okay.

Peikoff on Circumcision (whim-worshipping!), Down’s Children (Immoral!), and dualism (ehhh, depends); Lying

On the 10/27 podcast Peikoff comments about circumcision that he’s against it, it’s mutilation, (see around 5:19-).  There is no legitimate reason–it’s either “primitive religion, abject conformity, or the evil of destructiveness.” Uh, the evil of destructiveness…??

At 11:25 he addresses free will and dualism. He says that he rejects dualism in the Platonic sense of “opposing” realms. But he also rejects monism if it’s the type that makes you choose–either the material world is real (materialism) and the conscience is just an illusion; or the idea that only consciousness is real (idealism). rather, they are “dualists” in the sense of agreeing that there are two things (matter, causal things; and consciousness, or the will, teleology), but they are integrated, and not opposed to each other, and have “different characteristics–gravity will make your body drop, but not your “mind”. Now note that this is eerily similar to Hoppe’s own dualistic approach and his realistic reformation of MIsesian epistemolgoy–basically the same thing. Of course Hoppe would not say the teleological and causal realms are “opposed” to each other. ¹

Note also then Peikoff, after saying that the faculty of perception is a different “kind of thing” than “matter,” and has “different characteristics” (it doesn’t fall due to gravity like a ball would), he says that “and ONE of the attributes of consciousness is that it has free will”.  Wow, how easy! This is very similar to Machan’s “ontological” argument regarding this issue (and Kelley too), when they just assert downward causation; and also Machan’s approach to IP. After all, there are “ontologically” different types of “entities,” each having different “attributes.” We “create” some of these “things,” and “therefore” “own” them, just as you own material things you appropriate. Why not just let there be ownership rights in all “kinds” of ontological “things”? What’s it harm? (In my view, this is similar to liberals’ rights-inflation–how inventing new, positive rights is not free; it comes at the expense of negative, natural rights.)  It’s a way of brushing the problem under the table.

BTW in the 11/3 podcast, Peikoff (at about 6:25) declaims it to be immoral to carry a Down’s Syndrome baby to term–based in part on the idea that it is not self-supporting (productive).  He thus adopts the Provenzo-Hsieh horrible quasi-euthenestic approach they share.

At 4:58: Peikoff justifies his view that lying is okay to protect your privacy–the reason being that if you just refuse to answer or say “none of your business” in some contexts, that is tantamount to an admission. This reminds me of Randy Barnett’s view that it’s not fraudulent or vitiates an agreement if one party lies about some aspect of the purchase–in his Rational Bargaining Theory and Contract: Default Rules, Hypothetical Consent, the Duty to Disclose, and Fraud:

Once again the issue involves the meaning of silence. To fail to disclose some fact is to remain silent about it. Those who favor a duty to disclose contend that sometimes such silence can constitute a fraudulent misrepresentation. This implication of silence is graphically highlighted in the Laidlaw case by the buyer’s silence in the face of the seller’s direct question concerning whether the buyer had any information that would affect the price of tobacco. The buyer’s silence conveyed a false representation that the buyer had no such information. Was this intentional misrepresentation fraudulent? I say no.

On the Patriot Act:

In the podcast around Sept. 13, 2008 he seems to oppose the PATRIOT act and spying on civilians… and offhandedly criticizes Bush for the way he’s fighting the war on terror, in part because Bush he hasn’t “declared” the war. If he had, that woul be different, … but “you have to do that”… a bizarre legalistic viewpoint I’ve heard other Randians make.

On Masturbation (around Sept. 3, 2008):

On this one, asked him about going to a prostitute for pure physical pleasure, or for conversation. Peikoff says that you can’t have real conversation with her, so that’s not the reason. And he says, as for pure pleasure, self-pleasure should suffice. Well, okay then! He had some dismissive comment that masturbation is as good as “rubbing on someone else” if you just want “mere” physical pleasure. Incredible.

On Ethics for Terminal People (Aug. 18, 2008):

In this one, he has some bizarre comments about ethics for dying people. Someone asked him about someone, say, with a tumor and months to live–why shoudln’t he take a huge loan out that he can’t repay, or kill an enemy. (Peikoff also does a decent job criticizing Aristotle’s idea of the “mean.”) Peikoff says that ethics is not for the dying. It’s for the living who have long-range projects. Then he tries to weasel out of it by saying why would the guy want the money anyway. Well, okay, maybe he wants it for a kid. And maybe he wants to kill some scoundrel who is dating his daughter and sure to ruin her life. He also says that society itself would still have a justification in stopping the a-moral ethics-less terminal guy from committing crimes.

Peikoff says that most of the time since you led a moral life, being moral is ingrained so you would not wan to do it. But then he says, bizarrely, that in some cases, e.g. where you could kill some bad person–no time to wait for the justice system to operate, or someone you really want to help–then you “should take advantage of the inapplicability of morality, he can get away with it”. !!! You “should” “take advantage of the inapplicability of moraltiy” ?! To “get away with it” to achieve what you want? This is just so screwed up on so many levels.

On Bridge and Philosophy (around Aug. 13, 2008):

Peikoff says bridge is a lot more difficult mentally than philosophy.

Other

Other Peikoffiana: I recall that one of his audiotaped debates or lectures from years back, he stammered for a term to use for some vile person, and said “these …. these …. entities.”; and see my posts Rand on Collateral Damage; Objectivism Schism Form Letter; The Ignoramus Division of Randianism; Centralist, Pro-War Objectvists on Paul; Trouble in Paradise: Objectivists on Voting for Democrats; see also Diana Hsieh’s post Leonard Peikoff’s Podcasts.

Not all bad

Peikoff is good on some things too, such as the rise of the Nazis and Hitler, e.g. see p. 15 et pass of The Ominous Parallels; also excerpted here; on axioms etc., pp. 11-12 of OPAR. And I think he said once in response to a quesiton about when we were gonna respect the rights of mosquitos–“when they ask for them”!

He also tells a funny joke in one episode:

Q: What do you get when you drop a piano down a mine shaft?
A: “A Flat Minor.”

1. See Remembering Tibor Machan, Libertarian Mentor and Friend: Reflections on a Giant, the section “Free Will/Downward Causation”: Harris: “The illusion of free will is itself an illusion.” [↩]

Objectivism and War by Neil Parille

Re Charles Featherston’s LRC blog post:

This is sick and incredible. Look, I understand the Objectivist logic behind the right to abort. Sick though it is… unprincipled though it is (Rand herself waved off the crucial question of late-term abortion by saying that was “another matter”). But look at this vile stuff. They actually seem to believe there is a moral obligation to abort–to “squelch”–an “unhealthy fetus”–unless you are very rich, I guess. Look at this!! It’s incredible:

Provenzo:

So in the anti-abortion advocate’s eyes, a parent’s desire to raise healthy children by squelching unhealthy fetuses while the are still in the womb is little more than a pernicious quest, but it is not considered a pernicious quest to knowingly bring severely disabled children into this world. On the contrary, such a choice is held out as an great example of upstanding morality.

Diana Hsieh says it’s the “worship of retardation” (?!):

they want to create more mentally defective and perpetually dependent children by outlawing abortion.

The people who worship retardation reject human reason as a value. They’re as anti-man as the deep ecologists who regard mankind as a cancer on the earth.

Frankly, one wonders why such people don’t lobotomize themselves, if retardation is such a boon to their fellow man.

Update: In a recent Peikoff Podcast he says that if you have a retarded son and a normal son, you should love the normal one more:

Should a father love equally a son with mental retardation and a normal one?

Update:

The Truth about Craig Biddle vs. Smears by Some at ARI

“Onkar’s hostility toward Craig intensified in April 2010, when Craig privately criticized an article that Onkar had published at Division of Labour. In the article, Onkar attempted to apply Ayn Rand’s philosophy to Adam Smith’s thought experiment about whether “a man of humanity” in Europe would cut off his pinky finger to avert an earthquake in China that otherwise would kill a hundred million Chinamen. Onkar said that according to Objectivism the man should not cut off his pinky, that he should instead let the earthquake kill the hundred million Chinamen:

Rand’s ethics would pronounce the action [cutting off his pinky] immoral…. Rand argues that a morality that denigrates the individual and demands his sacrifice for the “greater good” is responsible, more than any other single factor, for the bloodshed and destruction of millions of individuals throughout Western history…. Rand knew that in rejecting self-sacrifice, she would be smeared as advocating sacrifice of others to self. Reject the ideal that you should slice off your finger for the sake of others, and you must be claiming that you should slice off other people’s fingers for your sake. “Man was forced to accept masochism as his ideal—under the threat that sadism was his only alternative. This was the greatest fraud ever perpetrated on mankind.””

Update:

• “Objectivists on Positive Parental Obligations and Abortion“
• Abortion Correspondence with Doris Gordon, Libertarians For Life (1996)
• Block on Abortion, Mises Blog (Oct. 2, 2006)
• comments in “How We Come To Own Ourselves,” in Legal Foundations of a Free Society (forthcoming 2023)
• KOL130 | Bad Quaker: Kinsella and Tucker on Abortion, …
• Block, “Does Trespassing Require Human Action? Rejoinder to Kinsella and Armoutidis an Evictionism”

As mentioned on episode 53 of Leonard Peikoff’s podcast, this poem, by Badger Clark, was one of Rand’s favorites:

The Westerner

My fathers sleep on the sunrise plains,
And each one sleeps alone.
Their trails may dim to the grass and rains,
For I choose to make my own.
I lay proud claim to their blood and name,
But I lean on no dead kin;
My name is mine, for the praise or scorn,
And the world began when I was born
And the world is mine to win.

They built high towns on their old log sills,
Where the great, slow rivers gleamed,
But with new, live rock from the savage hills
I’ll build as they only dreamed.
The smoke scarce dies where the trail camp
lies,
Till the rails glint down the pass;
The desert springs into fruit and wheat
And I lay the stones of a solid street
Over yesterday’s untrod grass.

I waste no thought on my neighbor’s birth
Or the way he makes his prayer.
I grant him a white man’s room on earth
If his game is only square.
While he plays it straight I’ll call him mate;
If he cheats I drop him flat.
Old class and rank are a wornout lie,
For all clean men are as good as I,
And a king is only that.

I dream no dreams of a nurse-maid state
That will spoon me out my food.
A stout heart sings in the fray with fate
And the shock and sweat are good.
From noon to noon all the earthly boon
That I ask my God to spare
Is a little daily bread in store,
With the room to fight the strong for more,
And the weak shall get their share.

The sunrise plains are a tender haze
And the sunset seas are gray,
But I stand here, where the bright skies blaze
Over me and the big today.
What good to me is a vague “maybe”
Or a mournful “might have been,”
For the sun wheels swift from morn to morn
And the world began when I was born
And the world is mine to win.

From an Objectivist blog. This demonstrates that the Objectivists will even grant you that all states are criminal, but this doesn’t phase them from their pollyana belief that we still need states:

Epistemological Anarchy

By Don: If you have ever debated the issue of limited government versus anarchy with an anarchist, you have undoubtedly run into this argument: “Every government in history has violated individual rights, so what grounds do you have for believing there could be a government that doesn’t?”

In fact, our own Stephan Kinsella raised this point in his current discussion with Dave Harrison. He said, “All of our experience and history shows all states to ride roughshod over citizens’ rights.”

(Dave’s response was perfect: “To some extent or another, depending on the state. And therefore what?”)

You may have heard that Obama’s TelePrompTer–or TOTUS–fell and crashed during a speech by POTUS. TOTUS reports on his blog that he’s doing fine.