by Stephan Kinsella
on January 22, 2010
Latest notable terms from this week’s Slate Culture Gabfest and Slate Political Gabfest (feel free to email me suggestions or leave them in the comments to the main page). Dana was the host for Culture Gabfest this week, filling in for Steve Metcalf; she did a great job. It’s become my favorite podcast, overtaking the Political Gabfest (in part because I disagree so much politically with the leftish politics of the latter–though Plotz can surprise, e.g. with his “contrarian” views on gridlock, the campaign finance decision, etc., while Emily routinely takes the mainstream, statist line at the same time she adopts the superior liberal “more-tolerant” pose). [continue reading…]
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by Stephan Kinsella
on January 21, 2010
It’s widely believed–even by Nolan Chart libertarians–that the left and liberals in America are better on civil liberties than are conservatives. I’ve long believed that this is false: that both are terrible, and that if anything, the left is as bad as, or even worse than, modern American conservatives on civil liberties. (See my posts Everything you need to know about Judge Alito — Or, Good and Bad Judicial Activism; Left Socialists vs. Right Socialists; Liberals vs. Conservatives; Conservatives and Liberals; Liberals and Free Speech.) This is borne out again in a recent Supreme Court decision striking down campaign finance laws as being censorship in violation of the First Amendment. Predictably, the four left-liberal members of the Court dissented.
A better decision would have struck the federal McCain-Feingold law down without reference to the First Amendment, on the grounds that there is no power authorized in the Constitution to enact the law in the first place–after all, such a law would have been as unconstitutional in 1790 (before the Bill of Rights was ratified) as in 1791 [see The Unique American Federal Government and the work of Professor McAffee discussed in The Great Gun Decision: Dissent and in On States’ “Rights”]. [continue reading…]
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by Stephan Kinsella
on January 21, 2010
A few related older LRC posts:
Anthony–by saying the liberals are worse than the conservatives on tolerance, personal freedoms, I don’t mean to deny that the conservatives might be worse overall for liberty given, e.g., war etc. (although, most previous wars were democrat wars). I suppose I am thinking more of the personal attitudes of individuals I know and see, and the actual domestic policies they advocate. [continue reading…]
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by Stephan Kinsella
on January 21, 2010
Conservative Erick Erickson argues that, ironically, it’s Ted Kennedy’s fault that Obamacare may be dead:
Erick Erickson, the founder of the influential conservative blog RedState, is tying Republican Scott Brown’s victory in the Massachusetts special Senate election directly to the late Democratic Sen. Ted Kennedy, who held the seat.
Soon after Brown’s upset win over Democratic Attorney General Martha Coakley, Erickson said on CNN that if Kennedy, who had battled brain cancer, had not wanted to be a “martyr,” Democrats could have kept his seat.
“If Ted Kennedy had decided to resign, or retire, when he found out just how bad his health was, instead of wanting to be a martyr for the cause, the Democrats wouldn’t be in this position,” Erickson said.
HT Pat Tinsley, who writes,
I love it — Kennedy may have sabotaged his own beloved healthcare reform”!
Another irony in the Brown election is that a special election had to be held in the first place. The Democrats changed the state rule to prevent a sitting Governor from appointing the replacement to fill out the remaining term of a senator who left the Senate. Instead a Special election would be held. The change was made to prevent the then Republican Governor from filling Kerry’s seat when he left to assume the Presidency. Of course Kerry lost to Bush but the rule was never changed back and so they all had to live with the special election instead of having Deval Patrick be able to appoint a permanent replacement instead of the temporary Paul Kirk.
[LRC]
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by Stephan Kinsella
on January 21, 2010
From LRC, 2005:
Peter–the Barnett quote in your post is apt. If “judicial restraint” means a Rooseveltian judicial deference to unconstitutional New Deal legislation, then judicial restraint is not a good thing.
From the libertarian point of view, the federal Constitution as written is fairly libertarian, at least compared to the leviathan state into which the original central government has morphed. It is for this reason that we want judges to adhere to the strict text of the Constitution: because it is a way to help hold the federal government to its original, more-limited scheme. “Originalism” then–or opposition to activism–has primarily an instrumental value (as I argued in this Hastings Constitutional Law Quarterly review essay–which I wrote, coincidentally enough, after the journal approached me, at Professor Barnett’s suggestion). Because our Constitution is relatively libertarian, we want the federal government to abide by the limits the Constitution places on it. In such a context, activism is likely to be a lead to unlibertarian results because it will mean invention of new powers or relaxations on the limits placed on the state. We can hardly be surprised that the judicial branch of the state tends to decide in a pro-state manner; but to the extent judges feel bound by the text of the Constitution, the state’s growth will be somewhat impeded (albeit, one disadvantage of such as system is that giving some lip service to the “rule of law” cover or myth helps to legitimize the state’s actions). [continue reading…]
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by Stephan Kinsella
on January 21, 2010
Related:
I worked with patent lawyer Steve Mendelsohn when I practiced law in the mid-1990s at Schnader Harrison in Philadelphia. He was a witty writer; one of his funnier pieces is this one, “Confessions of a Law School Asshole,” published when he was a law student at U. Penn in The Penn Law Forum (Sept. 26, 1990). I love his description of “asshole bingo,” and his question in class, “What’s a magistrate?”
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by Stephan Kinsella
on January 21, 2010
I was interviewed yesterday by Mark Edge, as part of his “Edgington Post Interview Series,” for his Free Talk Live radio show, about my Mises Daily article, “Reducing the Cost of IP Law.” The interview is lasts about 35 minutes, and starts at 2:02:36 in the Jan. 20, 2010 show (MP3). Edge conducted an excellent interview–very informed and interesting. And, like many others, he’s come around to the anti-IP position.
[Mises; AM]
Podcast: Play in new window | Download (55.1MB)
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by Stephan Kinsella
on January 20, 2010
From LRC 2005
Thank God! The draft of the Iraqi Bill of Rights just shows America is helping to spawn liberty in the mid-east. For example, the neo-con pro-Israeli hawks will no doubt love these provision: “Any individual with another nationality (except for Israel) may obtain Iraqi nationality after a period of residency … An Iraqi may have more than one nationality as long as the nationality is not Israeli.” [continue reading…]
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by Stephan Kinsella
on January 20, 2010
From LRC 2008:
According to Lincoln idolizing, Bush-voting, Iraq war armchair general, and soi-disant libertarian Tim Sandefur:
Christopher Hitchens has a review here of Douglas Feith’s book War And Decision, which I’m currently reading. It is an outstanding book, serious, scholarly, reasoned, and fair, although of course Feith has an opinion which he makes clear. And Hitchens is right that there is something deeply dishonest about the way the President’s opponents (i.e., the press) have refused to even note the book’s existence.
This “outstanding” (and “serious,” natch) book, according to Hitchens, makes [continue reading…]
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by Stephan Kinsella
on January 20, 2010
From LRC 2007
Update: See
- KOL250 | International Law Through a Libertarian Lens (PFS 2018)
- International Law, Libertarian Principles, and the Russia-Ukraine War
- On the UN, the Birchers, and International Law
- The UN, International Law, and Nuclear Weapons
- Nukes and International Law
- In response to the simpleminded but common comment and legal positivistic sentiment that international law is not real or that international law does not exist, because there is no sovereign state and enforceable legislation, see, inter alia, Anthony D’Amato, “What ‘Counts’ as Law?,” in Law-Making in the Global Communkty, Nicholas G. Onuf, ed. (1982), Northwestern Public Law Research Paper No. 11-02, and many other treatises and papers. Also Is international law real? Professor José Alvarez weighs in (“almost all 0:18 states comply with almost all international law almost all the time. 0:22 Most people focused on the almost, but the fact is that they do comply it’s 0:28 just not front page news when they do”); International Law Explained | Kal Raustiala | Big Think; Philip Allott – The True Nature of International Law.
Re Eric’s and Anthony’s comments about Paul on international law (Anthony wrote: “The fact that even many in the audience cheered Ron’s comment on international law (the others probably ignorantly thought he meant the UN, not the great libertarian tradition of international codes of civilized behavior such as the law of neutrals and non-aggression) is heartwarming and breathtaking.”) — on a libertarian Republican email list, one of the posters criticized Paul for referencing international law–in particular Paul’s condemning the war on Iraq because it was illegal under international law. Why would any liberty-lover oppose the rules of international law as another limit on the behavior of states? The rules of international law, being based on “the general principles of law recognized by civilized nations” (as well as on international custom and treaties), and far less corrupted by legislation than municipal legal systems have become, are far more civilized and libertarian. A return to international law, just like a return to constitutional limits, would move any modern state in the direction of liberty.
So the neocons just hate international law. They hate the idea of the state being limited by anything–a constitution, international law, whatever. They seem not to understand that the United States is bound by international law. The do not recognize the limitations it places on waging war, and that this is a good thing. They apparently are oblivious to the fact that all treaties, all international relations, are governed by international law–that without the international law principle of pacta sunt servanda, for example, no treaties between nations would be binding–including treaties the US has signed. They apparently believe that a President, a country, should flout international law–that it should not abide by international agreements; that we should not recognize international law as binding.
It’s a wonder more neocons aren’t anarchists, if they believe the 200 nations of the world co-exist in an utterly lawless order.
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by Stephan Kinsella
on January 20, 2010
As I note in my article “Radical Patent Reform Is Not on the Way,” Mises Daily (Oct. 1, 2009), there is a growing clamor for reform of patent (and copyright) law, due to the increasingly obvious injustices resulting from these intellectual property (IP) laws. However, the various recent proposals for reform merely tinker with details and leave the essential features of the patent system intact. Patent scope, terms, and penalties would still be essentially the same. In the second article of this two-part series, “Reducing the Cost of IP Law,” Mises Daily (Jan. 20, 2010), I propose various reforms to the existing patent system–short of abolition–that would significantly reduce the costs and harm imposed by the patent system while not appreciably, or as significantly, reducing the innovation incentives and other purported benefits of the patent system. I list these changes below in generally descending order of importance, without elaboration, as they are discussed further in “Reducing the Cost of IP Law”:
Patent Law
- Reduce the Patent Term
- Remove Patent Injunctions/Provide Compulsory Royalties
- Add a Royalty Cap/Safe Harbor
- Reduce the Scope of Patentable Subject Matter
- Provide for Prior-Use and Independent-Inventor Defenses
- Instantly Publish All Patent Applications
- Eliminate Enhanced Damages
- Add a Working/Reduction to Practice Requirement
- Provide for Advisory Opinion Panels
- Losing Patentee Pays
- Expand Right to Seek Declaratory Judgments
- Exclude IP from Trade Negotiations [continue reading…]
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by Stephan Kinsella
on January 19, 2010
From twitter.com/shitmydadsays:
No, I’m not a pessimist. At some point the world shits on everybody. Pretending it ain’t shit makes you an idiot, not an optimist.
This guy’s hilarious, and wise. He’s better on this issue than rah-rah libertarian “optimists” who crawl into a hole when they hear a peep of realism.
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