StephanKinsella.com

MOVED to Future of Freedom Fund, and Related Posts.

From , 2003 :

Future of Freedom Fund

LewRockwell.com, September 5, 2003

Stephan Kinsella

I recalled recently an utterly fascinating legal squabble I read about when I lived in Philadelphia. This concerns the infamous Holdeen Trusts (link 2), and a series of cases and legal disputes centered around same. An article about it in the Philadelphia Inquirer caught my notice because it concerned the efforts of an eccentric millionaire New York lawyer, Jonathan Holdeen, to set up a series of trusts that would one day totally wipe out taxes, at least in Pennsylvania. [continue reading…]

Update: See Are anti-IP patent attorneys hypocrites?, collecting various posts about this topic. And Patent Lawyers Who Oppose Patent Law, Pro-IP “Anarchists” and anti-IP Patent Attorneys (April 14, 2015)

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Mises blog and Against Monopoly blog post. Archived comments Mises post and from AM post below. Comments from Quinn’s article, Reality Check: Anti-Patent Patent Musings Simply Bizarre, reprinted below too. See related post: Patents: Horizontal vs Vertical Innovation; Update: Related posts: The Most Libertarian Patent Work; 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.

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In his post Reality Check: Anti-Patent Patent Musings Simply Bizarre, patent attorney Gene Quinn is baffled that any patent attorney would openly oppose the patent system–or be hired by anyone. He writes, in part:

But what has me really wondering is how and why a patent attorney who is openly hostile to the patent system can get any work in the industry?  Why would any inventor or company want an anti-patent patent attorney like Stephan Kinsella, who seems to be the genesis of this story, and so many other anti-patent patent stories.

Why would anyone hire me? I’ve prosecuted hundreds of patents. I’ve taught computer law as an adjunct law professor, I’ve published a great deal of legal scholarship including IP law, such as the Oxford University Press legal treatise Trademark Practice and Forms. I believe that given the patent system, tech companies have no choice but to arm themselves with patents, if only for defensive purposes. If someone went after one of my clients for patent infringement, I’d pull out all the stops to defend them from this state-backed threat. Maybe some clients like a patent attorney looking out for their interests.

Apparently Quinn thinks ideological conformity is a requirement for job competence. If you have the wrong politics, you’re out. (I just hope I don’t have the wrong religion, gender, or race.) But think about it: would you hire only oncologists who were pro-cancer? Is it outlandish to think of hiring a tax attorney to defend you from the IRS who thinks the income tax is immoral and should be abolished? Is it required of a patent attorney to be in favor of the patent system? Yes, we patent attorneys learn the patent law and how to navigate the system. Does that mean we receive special education–or is it propaganda–as to the justifiability of IP? If so, where is it? Sure, we are taught in law school that the stated purpose of the patent system is to encourage innovation, and public disclosure of inventions. Okay. So what? How does knowing the state’s line for a given law prove that it is justified? [continue reading…]

The BBC reports, in Working mothers’ children unfit, a study concluding that “Children whose mothers work are less likely to lead healthy lives than those with ‘stay at home’ mothers. … The Institute of Child Health study of more than 12,500 five-year-olds found those with working mothers less active and more likely to eat unhealthy food.”

As Gil Guillory told me,

This could easily be presented with a positive spin: children of stay-at-home moms benefit from better eating and exercise habits. Instead, insanity reigns:

“Our results do not imply that mothers should not work.
“Rather they highlight the need for policies and programmes to help support parents”

[LRC cross-post]

In Leonard Peikoff’s latest podcast (no. 81), he fields a question about a sadistic therapist who manipulates his emotionally fragile and vulnerable patient into committing suicide. Peikoff concludes that this is a form of homicide. Nothing to disagree with strongly here, if you you realize that, by virtue of nature of the doctor-patient relationship and the context, the therapist is a cause of the patient’s death. Peikoff reasons that he has contractually obligated himself to do what he can to help her achieve a happy life. That

the context is that he has accepted a relationship, knowing that she is not able to function normally on her [own]. That he has agreed to sustain her, to help her, to make her strong enough to live. And that’s why she’s there, putting herself at his mercy in total trust to reveal

things that are bothering her. If he schemes to drive her to death, he “is the agent of her death, even if she chose it,” since he knows she is highly suggestible and he took advantage of it in a relationship in which she trusted and relied on him to help her. Thus, he views the therapist as a cause of her death.

But note that similar reasoning could apply to a pregnant woman with respect to the unborn fetus inside her, and of course to children. After all, hasn’t a pregnant mom voluntarily entered into a relationship in which the fetus is not able to function normally on its own? As I wrote here:

the libertarian could argue that the parent has various positive obligations to his or her children, such as the obligation to feed, shelter, educate, etc. The idea here is that libertarianism does not oppose “positive rights”; it simply insists that they be voluntarily incurred. One way to do this is by contract; another is by trespassing against someone’s property. Now, if you pass by a drowning man in a lake you have no enforceable (legal) obligation to try to rescue him; but if you push someone in a lake you have a positive obligation to try to rescue him. If you don’t you could be liable for homicide. Likewise, if your voluntary actions bring into being an infant with natural needs for shelter, food, care, it is akin to throwing someone into a lake. In both cases you create a situation where another human is in dire need of help and without which he will die. By creating this situation of need you incur an obligation to provide for those needs.

But the Objectivist doesn’t see it this way at all. Seems inconsistent to me.

I wrote previously on the Troll Tracker case (see Update on Patent Troll Tracker; Troll Tracker Lands Job Fighting Patent Trolls!). This case concerns defamation suits filed against “Troll Tracker,” aka Rick Frenkel, by two Texas lawyers, in the aftermath of Frenkel’s identity being revealed, after bounties put up by one of the subjects of his criticism, patent attorney Ray Niro. (It’s convoluted, but all you need to know is that Frenkel is the good guy here.)

An updated is provided by Dennis Crouch on Patently-O in Troll Tracker Defamation Lawsuit: Trial Underway. As Crouch notes,

Eric Albritton’s defamation lawsuit against Rick Frenkel and his former employer Cisco Systems is underway in the Eastern District of Texas. In my opinion, the case is ridiculous. However, it should serve as a reminder that those vehemently against certain types of speech can often shut-down that speech. Frenkel has indicated that he will not revive his troll tracker blog.

Yet another example of how state law and institutions–including defamation law, state courts themselves and the hideous expense they impose and the injunctive remedies available to judges, and the admixture of IP law–chills free speech.

[AgainstMonopoly cross-post; Mises blog cross-post]

Related:

• KOL181 | Tom Woods Show: It Is Impossible to Argue Against Libertarianism Without Contradiction
• Kinsella, “Argumentation Ethics and Liberty: A Concise Guide,” Mises Daily (May 27, 2011)
• Kinsella, “A Libertarian Theory of Punishment and Rights,” “Dialogical Arguments for Libertarian Rights,” and “Defending Argumentation Ethics: Reply to Murphy & Callahan,” all in Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023)
• “Hoppe’s Argumentation Ethics and Its Critics“
• “Revisiting Argumentation Ethics“

At the Campaign for Liberty’s Northeast Regional Conference (Sep. 2009), Tom Woods gave a great overview of the Rothbardian-Lockean property rights ethic and Hoppe’s argumentation ethics approach to libertarian rights (see also Revisiting Argumentation Ethics; Discourse Ethics entry in Wikipedia; and my New Rationalist Directions in Libertarian Rights Theory). Informal video is on YouTube (see below). The argumentation ethics discussion starts arount 0:55 in video 4 of 6:

Along the lines of my Favorite Pretentious Terms of the Slate Podcast Literati, a related list: words most people don’t know; that a few learn, but only learn it through reading books, so they don’t know how to pronounce it. List to be updated from time to time on this page: Frequently Mispronounced Fancy Words.

• Ayn (they say “Ann”)
• detritus (often mispronounced as DEH-tri-tuss)
• imprimatur
• Mises (all over the map–MY-zeez, MEE-zeez)
• premises (one philosopher I know called it “preh-MY-sess”)
• short-lived (rhymes with dived, not lived)
• stare decisis (all over the map)
• Stephan (they say “Steven”)
• voir dire (all over the map)
• welsch (“welch”)

More to come…

My reply to Tom Knapp’s “‘States’ Rights’ Are Rubbish”:

Tom,

You make some good points. But a few comments.

“Most examinations of the doctrine of “states’ rights” are constitutional in scope.”

To some extent this is true. But for us explicitly anarchist, pro-decentralist libertarians, this is not completely the case. For us, clearly, states do not have rights; for us, the idea is simply a handy way to describe limitations on the power of the central, federal state. Saying a given federal action would infringe states’ rights is just another way of saying it exceeds the power granted to the federal government in the Constitution–that it is in effect ultra vires.

I do agree that constitutional arguments are largely a losing battle; for one, the Constitution is not libertarian.

You said that “states rights” is not mentioned in the 10th Amendment. True. But if you understand “states rights” to refer simply to the idea that the federal government is one of limited and enumerated powers (and it was meant to be: for more on this see the writing of Tom McAffee), and the background fact that the states were standard governments of plenary legislative and police power (like most other states in the world, but unlike the sui generis federal government [see The Unique American Federal Government]), then “states rights” is in the Constitution’s very structure. The Constitution grants only certain powers to the federal government; it was not meant to police and regulate issues such as, say, murder and contract enforcement and tort; the 13 states that created the federal government by compact, by treaty, of course retained their standard sovereign power of general legislation and police power. “States rights” then should be understood to simply mean that the federal government was created as a unique organization having limited powers, by thirteen sovereign states that retained most of their normal powers. (Another good reference on this is Kilpatrick’s The Sovereign States.)

So I would disagree that “there’s really no constitutional basis for the doctrine of “states’ rights.””

You also write, ““decentralization” doesn’t weaken the state — quite the opposite, in fact. It strengthens the state by allowing the state’s subdivisions to more specifically tailor their policies in ways that maximize their overall power.”

Sure, this is possible. The state continually tries to enhance its power over us, even when it pretends to be relinquishing it.

But the proper libertarian position is of course anarchy: that is, a society in which each sovereign is an individual. If the US were to break up into 50 separate states, this would, at least ceteris paribus, be a movement in this direction, since if you kept going, and then had each county, then city, and town, achieve independence and sovereignty, down to the individual…

Further, most anarcho-libertarian (not LP types, I’ll grant you) pro-decentralization arguments are of course not driven by any belief that states have rights, but out of a desire to shrink the state’s scope and power as much as possible, especially that of the American central state and in reaction to the pro-centralist libertarians: the incredibly naive arguments that we should rely on federal courts to “protect” our rights from the states, etc. Your fire should be directed at these centralists, not at anarcho-libertarians who oppose all states, including the American States, but especially the central state. (For more on this see Libertarian Centralists; Machan on Kelo; Healy on States’ Rights and Libertarian Centralists.) The libertarian centralists enhance state legitimacy by failing to recognize its essentially criminal nature.

“The first step toward building a truly libertarian movement — be it political or anti-political, “minarchist” or anarchist — is promoting recognition of the fact that states don’t have rights; people do.”

I agree; but this is of course very clear in the ideas of anarcho-libertarians.

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In other words, “states’ rights” is just shorthand for a concept we can presumably all identify without degenerating into nonsense about states having no rights.

As Tom DiLorenzo told me, “no one ever said a state had “rights.” Jefferson certainly wasn’t that dumb. It always referred to the rights of individual citizens protected by banding together within their respective states to oppose federal oppression. Jefferson’s Kentucky Resolve nullifying the Sedition Act is the first and best example of what is meant by “states’ rights.” Blowhards who scream “states don’t have rights, people do” are ignorant of this and are blowing smoke up their own asses. Clyde Wilson is THE authority on this. Browse his archives if you want to dig further. Don Livingston is just as big an expert.”

We non-Pollyana libertarians oppose calls for tax “reform” — as Rockwell writes, “The only tax plan anyone should trust is the most simple possible: the one that proposes to lower existing taxes.” He goes on:

But there is another danger to promoting a VAT or a NST. It might actually convince someone in Washington to give it a try. And instead of replacing the whole tax code, the politicians might try to introduce the new one at the seemingly low rate of 1 percent or 3 percent. If they ever get away with this, look out. It will inch up year by year as the political class discovers yet another way to loot us.

This points to a general danger of the idea of a replacement tax. I hear of these plans all the time. People say, let’s get rid of the tax I don’t like and replace it with one I do not pay. So people will propose getting rid of the capital gains tax and instead increase taxes on inheritance. Or they say, let’s get rid of inheritance taxes and put a higher tax on Americans working abroad. You can think of many of your own variations on this. The danger here is not in advocating the repeal of one tax. That is something we should all favor. The danger comes from advocating a new tax to take its place. If you know the way politics works, you know that the new tax will be enacted and the old one not repealed.

And here is perfect proof of this: Podesta Says Value-Added Tax ‘More Plausible’ as Deficits Grow. This is of course just yet another tax on top of others. Libertarians: stay strong. Never advocate tax “simplification”. Never advocate “replacing” any tax with another. (No offense, my naive, 23-year old self.)

[LRC cross-post]

This is a great quote. I don’t know if it’s mine, as one commentator implies, but I like it.

Here’s the post of said commentator, “Stephen”:

We’ve had quite a few threads lately that call Natural Rights into question. I stumbled onto this brilliant critique of this skeptical position by Stephan N. Kinsella, which I had read before and forgotten about.

Kinsella:
A third rationalist type of rights argument concerns the very nature of rights themselves and shows how any rights-skeptic contradicts himself whenever he denies that rights exist. It is similar to the estoppel approach outlined above, although the discourse under examination need not involve an aggressor. Instead, this argument focuses on rights-skeptics who deny the existence of rights, rather than on actual criminals who object to being punished in particular instances for a given crime.

If any right at all exists, it is a right of A to have or do X without B‘s preventing it; and, therefore, A can legitimately use force against B to enforce the right. A is concerned with the enforceability of his right to X, and this enforceability is all that A requires in order to be secure in his right to X. For a rights-skeptic meaningfully to challenge A‘s asserted right, the skeptic must challenge the enforceability of the right, instead of merely challenging the existence of the right. Nothing else will do. If the skeptic does not deny that A‘s proposed enforcement of his purported right is legitimate, then the skeptic has not denied A‘s right to X, because what it means to have a right is to be able to legitimately enforce it. If the skeptic maintains, then, that A has no right to X, indeed, no rights at all since there are no rights, the skeptic must also maintain that A‘s enforcement of his purported right to X is not justified.

But the problem faced by the skeptic here is that he assumes that enforcement–i.e., the use of force–requires justification. A, however, cares not that the rights-skeptic merely challenges A‘s use of force against B. The rights-skeptic must do more than express his preference that A not enforce his right against B, for such an expression does not attack the legitimacy of A‘s enforcing his right against B. The only way for the skeptic meaningfully to challenge A‘s enforcement action is to acknowlefge that B may use force to prevent A‘s (illegitimate) enforcement action. And here the rights-skeptic  (perversely) undercuts his own position, because by recognizing the legitimacy of B‘s use of force against A, the rights-skeptic effectively attributes rights to B himself, the right to not have unjustifiable force used against him. In short, for anyone to meaningfully maintain that A has no rights against B on the grounds that no rights exist, he must effectively attribute rights to B so that B may defend himself against A‘s purportedly unwarranted enforcement action.

More common-sensically, this demonstration points out the inconsistency on the part of a rights-skeptic who engages in discourse about the propriety of rights at all. If there are no rights, then there is no such thing as the justifiable or legitimate use of force, but neither is there such a thing as the unjust use of force. But if there is no unjust use of force, what is it, exactly, that a rights-skeptic is concerned about? If individuals delude themselves into thinking that they have natural rights, and, acting on this assumption, go about enforcing these rights as if they are true, the skeptic has no grounds to complain. To the extent the sceptic complains about people enforcing these illusory rights, he begins to attribute rights to those having force used against them. Any rights-skeptic can only shut up, because he contradicts himself the moment he objects to others’ acting as if they have rights.

And in hilarious footnote 14

Indeed, another way to respond to a rights-skeptic would be to shoot him. If there are no rights, as he maintains, then he cannot object to being shot. So, presumably, any rights-skeptic would change his position and admit there were rights (if only so as to be able to object to being shot), or we would soon have no more rights-skeptics left alive to give us rights-advocates any trouble.

funny post: 76 Words. Check it out–Karen eviscerates all the slacker gamer fanatics and other tar babies and nits who go crazy if you call a spade a spade.