An acquaintance said this to me in an email:
The left “libertarians” lack the brains to be libertarians, the balls to be full-fledged socialists, and the integrity to kill themselves.
Needless to say, this quote is overboard and brutal (many of them have brains; they should of course not kill themselves), but it helps to highlight the possibly growing communications chasm between standard- and left-libertarians.
Someone did a reading and sort of slideshow version of the Spanish translation of my Against Intellectual Property and put it on Youtube… with heroic introductory music!
An LRC post last year:
Huebert has, in the latest Liberty, an excellent review of Robert Levy and William Mellor’s recent book The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom. Choice excerpt:
It’s nothing short of bizarre to think that courts would start protecting liberty because of brilliant libertarian legal arguments. To believe this, one would have to take the naive view — which, incidentally, animates much of the Cato Institute’s work — that government officials are really reasonable, serious people who are just waiting to have the right ideas put in front of them. But how silly is it to think you can make the government want liberty before many or most of the people want it?Granted, all the federal judges I’ve known have been genuinely nice people on a personal level — so perhaps our D.C.-based lawyers’ views have been skewed by exchanging pleasantries at a few too many beltway cocktail parties.
They may be hopelessly deluded, but the rest of us should keep in mind that the important work to be done is in the realm of education, not the halls of government. When people understand and want liberty’s benefits, they’ll cast off their government entirely, or at least elect representatives who will respect their rights. When that happens, no bad Supreme Court precedent will stand in their way.Until then, “The Dirty Dozen” offers a mostly decent education on the harm the Supreme Court can do — but shouldn’t lead us into thinking the Court could somehow become an equivalent force for good.
Writes Huebert: “In each of these cases, liberty lost and the government won in some precedent-setting way. (Except, arguably, in the affirmative-action case, as Richard Epstein points out in his foreword.)” Huebert tells me that Epstein’s view seems to be that there’s no reason why government schools should have to do something different from private schools with their admission policies (similar to my argument in my LRC article “Supreme Confusion, Or, A Libertarian Defense of Affirmative Action“).
Huebert also notes that the authors “seem to think that restoring liberty is really only a matter of overturning a handful of bad court precedents. If we can just get in front of judges and do that — apparently through the irresistible power of our arguments and our lawyers’ outstanding legal skills — we can finally achieve liberty across the land.” This reminds me a bit of the fascinating Reason article by Brian Doherty, “It’s So Simple, It’s Ridiculous”, about the income tax protestor types who seem not to realize that the state is just a band of thieves, and who believe that if you only pronounce the right incantation or spell to a tax-paid government judge, you can avoid prison or taxes. (See also Doherty’s Five Reasons You Don’t Owe Income Tax, Dammit!)
Update: See Are anti-IP patent attorneys hypocrites?, collecting various posts about this topic.
***
A friend of mine was asked by a patent attorney he knows how I can be a patent attorney and against IP. The assumptions behind the question are odd; here was my reply.
First, when there are tax laws, there is a need for tax lawyers. When there is cancer, we need cancer doctors. There is nothing wrong with advising people or companies as to how to navigate the positive law in society.
Second, just as having a gun is not a crime since the gun can be used for good or evil, so having a patent is not in an of itself evil–there are both legitimate and illegitimate uses of them. For example if I am sued for patent infringement I will use my patents in a countersuit. In fact most patents are held for defensive purposes–to ward off suits.
Third, it could be that being a patent lawyer has helped me to see why patent law is unjustified.
Fourth, this kind of assumption reminds me of what annoys me about criticisms by liberals and blacks of any black such as Clarence Thomas who opposes the standard liberal crap on affirmative action etc. It’s as if they think the unwilling “beneficiary” of their liberal policies should also shut up about it and toe the line. Do the advocates of IP want those most able to oppose it to be muzzled? Can only those ignorant of how IP works complain about it?
Fifth, I have yet to see a sincere or informed pro-patent opinion by a single patent attorney. The few I know who are cynics like me are resigned to it; the patent lawyers who promote the system invariably repeat the tired and pathetic arguments in favor of it. I have yet to find a single patent lawyer who promotes IP who has a sincere or serious argument in favor of it. (For more on this see There’s No Such Thing as a Free Patent, Yet Another Study Finds Patents Do Not Encourage Innovation, Patent Attorney Admission, Miracle–An Honest Patent Attorney!) I don’t mind patent attorneys doing their jobs, to put bread on the table. But when they start trying to justify their profession by repeating the bankrupt arguments of utilitarians and statists, they open themselves to criticism.
Finally, these pieces of mine might be of interest (available also here): The Morality of Acquiring and Enforcing Patents and Letter to an Anonymous Patent Attorney.
Update: See my post, The Most Libertarian IP Work.
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.
In an email someone mentioned to me a particular key invention from a few decades ago, which was responsible for a number of other high-tech innovations that we now enjoy, and asked me to “show us how any of that could have happened if there were no patents.” My response is below.
Why is the burden on me to show how it could have happened without patents? The question is itself question-begging, as it assumes the patents played a causal role, which must be either explained away or for which a substitute incentive effect must be found.
I’d say that almost any invention that comes will come eventually–maybe even sooner, absent the patent system, absent the state (see Yet Another Study Finds Patents Do Not Encourage Innovation). In my experience, this view is almost universal among inventors and engineers. We would have had transistors by now without Shockley, Planck, and Schrödinger; we would have had light bulbs without Edison; and one-click purchasing on web sites without Jeff Bezos. Maybe a bit later, but eventually. And maybe even earlier–patents slow things down too, after all.
And we cannot forget that a huge factor in innovation is wealth. Wealth is needed to provide spare time and resources to engage in research and development. And wealth is no doubt hampered severely in a society that has a state, which any patent society must. Without a state there would be no patents, but a far richer world, and more innovation because of that factor alone.
Finally–so what if we wouldn’t have had invention X, Y, Z, as early, or even ever, without a patent system? After all, a patent system undeniably has costs in terms of both rights and money. How can it be shown that having invention X is worth the violation of rights incurred as a result of the patent system necessary to generate X? Utilitarianism is a bankrupt doctrine, after all. And even if you approach it from a utilitarian, wealth-maximization angle: how can it be shown–who has shown?–that the cost of the patent system that generates X is less than the value of X?
[Mises cross-post; Against IM cross-post]
I confess: I am an avid listener of various Slate magazine podcasts, mainly the Slate Political Gabfest, Slate’s Culture Gabfest, and Slate’s Spoiler Specials. I’ve noticed that the liberal artsy hosts repeatedly employ certain terms–usually with the correct foreign accent, where necessary–that are not often used (or even known) by normal people, with a certain breezy, blithe liberal arts smug pretentiousness. Here are some I heard or remembered this morning–I’ll supplement this list from time to time (and see also my list of Annoying & Pretentious Terms; feel free to email me suggestions or leave them in the comments to the main page):
On the last Political Gabfest, all 3 were bending over backwards to pronounce Medvedev so it sounds like med-yee-uh-dev.
Manuel, great points. Maybe the libertarian centralists who naively trust the federal leviathan to define and protect our rights will be given pause by how the Newark Mayor explicitly relies on Heller to authorize his double-crime: the use of stolen taxpayer funds (crime 1) to bribe citizens into aiding and abetting the state in taking guns from other citizens (crime 2). The Mayor’s words are highlighted below:
In District of Columbia v. Heller, the United States Supreme Court affirmed an individual’s right to bear arms, effectively striking down the ban on hand gun ownership enacted by the District of Columbia. In its decision, the Court clearly recognized and affirmed a government’s right to take reasonable measures to limit gun ownership in order to ensure community safety. It is within this space that we must now act.
[LRC Cross-post]
My comment on a Mises blog post:
Epstein is brilliant, but his work is marred and limited by a deep and flawed utilitarianism. Re the utilitarianism of his IP views and how it leads him to unlibertarian conclusions, see Richard Epstein on “The Structural Unity of Real and Intellectual Property”.
In fact Epstein’s very theory and defense of (“limited”) government, as set forth in Takings: Private Property and the Power of Eminent Domain, is utilitarian. It is based on the idea that government action can “increase the size of the pie” by overcoming various free-rider or public goods costs; and that from this extra wealth produced, it can fund the state actions that lead to it. (He tries to use this utilitarian pie-production metric as a filter to reject state policies that do not clearly lead to growth in the pie, and while an admirable try, it is unrigorous and can’t really limit government.)
Published: July 10, 2009 7:39 AM
As Roderick Long notes, An LP Anarchist Caucus has just formed. Its “5 key points of libertarianism”:
1. The right of day care owners to install crack cocaine vending machines.
2. The right of all sovereign individuals to the ownership of nuclear weapons.
3. The right of all individuals to secede from the oppression of fiat authority such as governments and parents.
4. Principled opposition to any and all forms of non-consensual slavery, such as taxation. Consensual slavery between sovereign individuals is perfectly enjoyable.
5. F*ck the government!
I’m sure they’ll flourish.
Just got A People’s History of the United States: 1492 to Present after Lew Rockwell’s endorsement — already finding great stuff in there. From pp. 74-75:
When the Declaration of Independence was read, with all its flaming radical language, from the town hall balcony in Boston, it was read by Thomas Crafts, a member of the Loyal Nine group, conservatives who had opposed militant action against the British. Four days after the reading, the Boston Committee of Correspondence ordered the townsmen to show up on the Common for a military draft. The rich, it turned out, could avoid the draft by paying for substitutes; the poor had to serve. This led to rioting, and shouting: “Tyranny is Tyranny let it come from whom it may.”
But fellow libertarian devotees of the Declaration assure me there was no connection between the Declaration and the War and conscription. Well, four days is a long time, I guess! I’m sure the conscriptees were just in love with the Declaration.
This reminds of Shay’s Rebellion in 1786-87, which ended this way: “Several of the rebels were fined, imprisoned, and sentenced to death, but in 1788 a general amnesty was granted. Although most of the condemned men were either pardoned or had their death sentences commuted, two of the condemned men, John Bly and Charles Rose, were hanged on December 6, 1787.” Well, at least they got to see the Constitution ratified three months earlier in September! How lucky for them!
Another great Zinn passage, from the opening to Ch. 4:
Around 1776, certain important people in the English colonies made a discovery that would prove enormously useful for the next two hundred years. They found that by creating a nation, a symbol, a legal unity called the United States, they could take over land, profits, and political power from favorites of the British Empire. In the process, they could hold back a number of potential rebellions and create a consensus of popular support for the rule of a new, privileged leadership.
When we look at the American Revolution this way, it was a work of genius, and the Founding Fathers deserve the awed tribute they have received over the centuries. They created the most effective system of national control devised in modern times, and showed future generations of leaders the advantages of combining paternalism with command.
Starting with Bacon’s Rebellion in Virginia, by 1760, there had been eighteen uprisings aimed at overthrowing colonial governments. There had also been six black rebellions, from South Carolina to New York, and forty riots of various origins.
By this time also, there emerged, according to Jack Greene, “stable, coherent, effective and acknowledged local political and social elites.” And by the 1760s, this local leadership saw the possibility of directing much of the rebellious energy against England and her local officials. It was not a conscious conspiracy, but an accumulation of tactical responses.
After 1763, with England victorious over France in the Seven Years’ War (known in America as the French and Indian War), expelling them from North America, ambitious colonial leaders were no longer threatened by the French. They now had only two rivals left: the English and the Indians. The British, wooing the Indians, had declared Indian lands beyond the Appalachians out of bounds to whites (the Proclamation of 1763). Perhaps once the British were out of the way, the Indians could be dealt with. Again, no conscious forethought strategy by the colonial elite, hut a growing awareness as events developed.
With the French defeated, the British government could turn its attention to tightening control over the colonies. It needed revenues to pay for the war, and looked to the colonies for that. Also, the colonial trade had become more and more important to the British economy, and more profitable: it had amounted to about 500,000 pounds in 1700 but by 1770 was worth 2,800,000 pounds.
So, the American leadership was less in need of English rule, the English more in need of the colonists’ wealth. The elements were there for conflict.
The war had brought glory for the generals, death to the privates, wealth for the merchants, unemployment for the poor. There were 25,000 people living in New York (there had been 7,000 in 1720) when the French and Indian War ended. A newspaper editor wrote about the growing “Number of Beggers and wandering Poor” in the streets of the city. Letters in the papers questioned the distribution of wealth: “How often have our Streets been covered with Thousands of Barrels of Flour for trade, while our near Neighbors can hardly procure enough to make a Dumplin to satisfy hunger?”
… We have here a forecast of the long history of American politics, the mobilization of lower-class energy by upper-class politicians, for their own purposes. …
[LRC Cross-post]
In response to this post:
Stephan, these detailed taxonomies are just sand in the eyes. There are only two kinds of libertarian, much as some would like to obscure it: Rothbardian and non-Rothbardian. But even that can be a distraction in our everyday work. As Murray noted — minarchist or anarchist, constitutionalist or monarchist — there is really only one consideration: Do you hate the state?
Stephan Kinsella is a libertarian writer and retired patent attorney in Houston, Texas. He has published widely on various areas of libertarian legal theory and on legal topics such as intellectual property law and international law. His publications include Legal Foundations of a Free Society (Papinian Press, 2023), Against Intellectual Property (Mises Institute, 2008), International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide (Oxford, 2020), and The Universal Principles of Liberty (2025).
My Failed Libertarian Speaking Hiatus; Memories of Mises Institute and Other Events, 1988–20192025
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