StephanKinsella.com

“You know the world is off tilt, when the best rapper is a white guy, the best golfer is a black guy, the tallest basketball player is Chinese, and Germany doesn’t want to go to war.”

–(attributed to) Charles Barkley

I’m used to people pronouncing nuclear “nuke-ya-ler” (hey, as long as you are for nuclear power, I don’t care how you pronounce it). But it’s always bugged me that people pronounce realtor “re-luh-ter”. Uhh, do you pronounce real “ree-la”? And of late, I’ve notice journalists, reporting on the Iraq war, referring to the Army’s Cavalry division as the “Calvary”–i.e., the hill on which Jesus was crucified. Well, I guess I’ll always have a job.

Thanks to my good buddy Russ Lindenfeldar, patent lawyer with Engelhard, who was in town the other night and with whom I did some carousing, along with another patent lawyer buddy, Mark Gilbreth, I’ve discovered a new beer: Chimay, made by the Trappist monks in Belgium. Comes in three flavors, red label, blue label, and triple, and are top fermented and refermented in the bottle. The large bottle has a champagne type cork that pops when you uncork it. Meant to be served in a wide-mouthed glass, it’s wonderful. (Okay, this has little to do with law or IP, but I love beer so much I had to tell.)

While I’m on the topic of alcohol, my former patent-lawyer boss Bill Norvell introduced me to the truly fine Blanton’s bourbon (and several varieties of tequila, but that’s another story). The Mises Institute’s Joe Stromberg gave me my first Elijah Craig bourbon experience. And my PhD EE former co-worker, Jim Baillargeon, initiated me into the world of scotch, especially his favorite, Lagavulin. My fellow patent lawyer Warner Delaune of Baton Rouge gave me some additional cigar and scotch tips.

And while I’m on this topic–I love the politically-incorrect site SmokeThis!, by “Cigar Dave”, who hosts the Smoke This! radio talk show. I particularly like his sense of humour and the Cigar Dave Motto:

“Live the good life. Drink, smoke, gamble, feast, joke, fornicate and be tolerant of those who do. Take risks and thrive for the good challenge. Work hard and play hard without going over the edge. Live in the moment. Believe in moderation in all things, including moderation. Live it up!”

You gotta love this guy. He calls cigars “sticks,” his female fans his “harem,” his listeners “Cigar Lieutenants,” and opens his show with the greeting “Long Ashes.” His site has features like Cigar Dave’s “Babe Magnet” Cologne Selections, Living Like Bond (Interview with author of the “Complete James Bond Lifestyle Seminar”), and Top 10 Cities for the Hottest Delicious Dames. His message to a “whiney” email that complained he “advocates” cigars: “My show does not ‘advocate’ cigar smoking. My show advocates enjoying life’s great pleasures. Amongst them: cigars, spirits, dames, diversions, and the right to be politically incorrect. I advocate treating yourself after a long stressful day or a hard week.”

***Update: Man, am I am amateur! Here’s an email from a Belgian friend, whose knowledge of the suds puts me to shame. Oh well, something to look forward to… “So you like a Belgian beer! Chimay is not my favourite. It isn’t even the best Trappist beer on the market. If you’d ask me, the best Trappist is Westmalle, with Sixtus coming close. Right now Leffe is very popular. Anyway, is it the same quality you get over there that we serve here in the home of the abbaye-beers? […] [Other good Belgian beers include]: a Duvel (devil), Judas, Delirium Tremens, Verboden Vrucht (forbidden fruit), Kasteelbier (castle beer), Geuze, Hoegaarden, Graal (grail) or one of the other 200 or so Belgian beers.”

***Update: at the advice of my Frenchy friend Alex Padilla, check out www.realbeer.com, where you can order Belgian beer delivery.

In recent posts (post2), I discussed various disputes among both pro-war and anti-war libertarians, including this pro-war article by David Brown. See the interesting rebuttals by Justin Raimondo and L. Neil Smith. Writes Raimondo:

Gee, it’s always Israel with these Objectivists—why is that? For a philosophy that disdains “tribalism,” hates religion, and deifies “reason,” isn’t it a little odd to be (literally) flying the Israeli flag? Yet the latter-day saints of the Objectivist faith have taken up the cause of Israel more fiercely than the most fanatical mystics, either Zionist or Christian. Here is a country based on religion, whose existence is justified by Biblical passages, founded by radical socialists, and which regularly bulldozes the private property of the original inhabitants into oblivion. How do we explain the heirs of Ayn Rand lining up behind Labor Zionism and the heirs of Vladimir Jabotinsky? What a coalition: Ariel Sharon, Pat Robertson and Leonard Peikoff. They deserve each other.

You know–ol’ Justin asks some pretty darn good questions sometimes, doesn’t he!

Can be dowloaded for free from their website.

My latest article, Of Legal Fictions and Pro-Lincoln Libertarians: Reply to Sandefur, is a follow up to a recent blog post and a reply to Sandefur’s most recent remarks in this debate.

Note: Updated and revised version included as chap. 1 of Legal Foundations of a Free Society (Houston: Papinian Press, 2023). Text below.

[Update: see various biographical pieces on my publications page, including Alan D. Bergman, Adopting Liberty: The Stephan Kinsella Story (2025).]

“How I Became A Libertarian,” LewRockwell.com (Dec. 18, 2002) is my entry in the LewRockwell.com autobiography series initiated by Walter Block. Later published as “Being a Libertarian” in I Chose Liberty: Autobiographies of Contemporary Libertarians (compiled by Walter Block; Mises Institute 2010).

For later material augmenting and complementing this one, see related biographical pieces here.

PART I

LIBERTARIANISM

1

How I Became a Libertarian

First published as part of the LewRockwell.com autobiography series initiated by Walter Block, as “How I Became A Libertarian,” LewRockwell.com (December 18, 2002). Later included as “Being a Libertarian” in I Chose Liberty: Autobiographies of Contemporary Libertarians (compiled by Walter Block; Mises Institute 2010). Additional biographical pieces may be found at www.stephankinsella.com/publications/#biographical.

Unlike many libertarians who dally with socialism before seeing the light, I have never been attracted to leftism. Indeed, although I of course welcome former pinkos to our ranks, I’m always a bit suspicious of anyone who could ever be swayed by that bunk.

Born in 1965, I was reared in a small town near Baton Rouge, Louisiana. My natural aversion to leftism stems from this upbringing. The milieu—if South Louisiana can be said to have one—was nominally Democratic, but relatively apolitical, culturally conservative, and Catholic. I can’t recall ever meeting any open or hardcore leftists until college.

There were other contributing factors that made me ripe for libertarianism. For one, I have always been strongly individualistic and merit-oriented. This is probably because I was adopted and thus have always tended to cavalierly dismiss the importance of “blood ties” and any inherited or “unearned” group characteristics. This made me an ideal candidate to be enthralled by Ayn Rand’s master-of-universe “I don’t need anything from you or owe you anything” themes.

Another factor is my strong sense of outrage at injustice, which probably developed as a result of my hatred of bullies and bullying. I was frequently attacked by them as a kid, because I was small for my age, bookish, and a smartass. Not a good combination.

I attended Catholic elementary and high school in Baton Rouge. I had a love-hate relationship with Mrs. Reinhardt, Catholic High School’s librarian. When she was not expelling me and my cronies from the library for pulling pranks, she would recommend books to me, as she knew I was an avid reader of both fiction and nonfiction. One day she recommended Ayn Rand’s The Fountainhead to me.^[1] (I believe this was in 1982, when I was a junior in high school—the same year Rand died.)

“Read this. You’ll like it,” she told me. Ex nihilo—something. Rand’s ruthless logic of justice appealed to me. I was thrilled to see a more-or-less rigorous application of reason to fields outside the natural sciences. I think this helped me to avoid succumbing, in college, to the simplistic and naïve empiricism-scientism that most of my fellow engineering classmates naturally absorbed. Mises’s dualistic epistemology and criticism of monism-positivism-empiricism, which I studied much later, also helped shield me from scientism.

By my first year of college (1983), where I studied electrical engineering, I was a fairly avid “Objectivist” style libertarian. I had read Henry Hazlitt’s Economics in One Lesson^[2] and some of Milton Friedman’s works, but I initially steered clear of “libertarian” writing. Since Rand was so right on so many things, I at first assumed she—and her disciples Peter Schwartz and Leonard Peikoff—must be right in denouncing libertarianism as the enemy of liberty.

And yet in my reading I kept coming across libertarians, whose views seemed virtually identical to Rand’s “capitalist” politics. Finally, out of exasperation at trying to reconcile Rand’s denunciation of libertarians with their seemingly similar views, I read Rothbard’s For a New Liberty,^[3] and then several other works, such as Nozick, the Tannehills, David Friedman, etc.^[4] Before long I realized Rand’s minarchism was flawed. Individual rights entail anarcho-capitalism; a state, even a minarchist one, necessarily violates the individual rights that Rand so passionately championed. Rand made a lot of sense on a lot of issues, but her arguments in favor of government were strained.

I remember attending my only Objectivist conference, in Dallas, with my good friend Jack Criss (a libertarian radio talk show host from Jackson, Mississippi). Entitled “Meeting of the Minds,” the conference showcased Objectivist stars David Kelley, John Ridpath, and Alan Gotthelf. This was in March 1989, I believe, before David Kelley had been purged from official Objectivist circles for daring to praise Barbara Branden’s biography The Passion of Ayn Rand.^[5] I had corresponded with Kelley who was gracious enough to take time to reply (this was before email) to my questions. I have always admired and respected Kelley.

I had several stimulating conversations with him at the conference, mostly on epistemology and philosophy. But I remember at a reception one of the students telling how he had taken his copy of The Passion of Ayn Rand and burned it in a private ceremony in his mom’s back yard when he realized how “evil” it was. I think he sought to gain points among his audience by relating this tale. I recall Jack and I looking at each other with cocked eyebrows. “Book burning.” Yes. Well. That was the last and only Objectivist conference I ever attended.

In the late-80s I started publishing columns in the LSU student newspaper, The Daily Reveille, from an explicitly libertarian perspective. As my interests became more sharply political and philosophical, my girlfriend (later wife) and friends urged me to consider law school. I was by this time in engineering grad school. Unlike many attorneys, I was not one of those who had always wanted to be a lawyer. In fact it never occurred to me until my girlfriend suggested it over dinner, when I was wondering what degree I could pursue next, so as to avoid having to enter the workforce. At the time I thought one had to have a pre-law degree and many prerequisite courses that engineers would lack; and I feared law school would be difficult. I remember my girlfriend’s chemical engineer father laughing out loud at my concern that law school might be more difficult than engineering. In retrospect, I can say that law school is not easy, it is a lot of work—but it is not that conceptually difficult. Lots of morons graduate from law school.

By 1988 I was in law school and becoming a more well-rounded libertarian, having read by this time Rothbard, Mises, Bastiat, the Tannehills, and a non-trivial portion of the books offered in the Laissez-
Faire Books catalog. In that year there were two significant events in my life, from a libertarian perspective. One was Hans-Hermann Hoppe’s controversial and provocative article in Liberty, “The Ultimate Justification of the Private Property Ethic.”^[6] In this article Hoppe sets forth his “argumentation ethics,” which holds that the libertarian
private property ethic is implied in the very activity of argumentation—because those engaged in argumentation already presuppose the value of conflict-avoidance and the ability to control property and thus, those arguing in favor of socialism contradict themselves.

The second thing was that I encountered the legal principle of “estoppel” in my contracts class. This is the ubiquitous legal principle that precludes someone from asserting a legal claim or position that is inconsistent with earlier statements or behavior. I remember sitting in contracts class, as Professor Morris lectured on this topic, thinking “Eureka!” to myself, as I began to see that the concept of estoppel meshed perfectly with libertarian logic (and also with Hoppe’s argumentation ethics). The libertarian non-aggression principle holds that force may only be used in response to (initiated) force. There is a nice symmetry here. One may use force, if and only if it is in response to initiated force (aggression).^[7]

I saw in class that day that the principle of estoppel could help explain and justify the non-aggression rule. Force was justified against an aggressor, because having used force himself he would be estopped from objecting to retaliation. For him to assert that force is wrong—which he must do in order to object to retaliation—would contradict the “force is permissible” maxim underlying his own act of aggression. He is “estopped” from asserting a claim inconsistent with that underlying his earlier behavior.

My estoppel theory complements and draws on Hoppe’s argumentation ethics. For years I believed that I first came up with my estoppel theory and then read Hoppe’s work and linked the two together. Now I am not so sure and think that I first read and absorbed Hoppe’s argumentation ethic, which made me fixate on the similar logic of estoppel when I coincidentally studied it in law school shortly thereafter.

I was at King’s College London in 1991, pursuing a master’s degree in law, when I produced the first draft of a paper arguing estoppel can help justify libertarian rights. Somewhat naïvely, I submitted it to King’s College Law School’s law review, whereupon it was summarily rejected. Not daunted, I submitted an improved draft to Tibor Machan for his journal Reason Papers. I had read many of Machan’s works, including his Human Rights and Human Liberties^[8] and Individuals and Their Rights,^[9] and he had been kind enough to respond to several of my letters. I remember speaking with him one night, about the submission, from a students’ pay telephone at King’s College in London, and then getting drinks at a pub with friends, none of them knowing or able to appreciate that I had just spoken with a “famous” libertarian writer whose books I had read. “Estoppel: A New Justification for Individual Rights” was published in the Fall 1992 issue of Reason Papers.^[10]

Another shift in my libertarian life occurred in 1994, when I first met Lew Rockwell, Hans Hoppe, and Murray Rothbard. But let me back up. After finally completing my nine years of higher education, I had to earn a living. So in 1992 I started practicing law in Houston. When Hoppe’s second English-language book, The Economics and Ethics of Private Property, came out in 1993,^[11] I decided to do a review essay for a law review; the review was published in 1994 in the St. Mary’s Law Journal.^[12] I promptly sent it to Hoppe, who sent back a warm thank you note.

By mid-1994 I had moved to Philadelphia (I was there for three years, until I returned to Houston in 1997, where I reside today), and resolved to attend the John Randolph Club meeting in October 1994, near Washington, D.C., which was a gathering of paleoconservatives from the Chronicles crowd and several libertarians associated with the Mises Institute, part of a short-lived attempt at yet another libertarian-conservative “fusionism.”^[13] My primary goal was to meet Hoppe, Rothbard, and Rockwell. I was thrilled to meet them and other scholars associated with the Mises Institute, and was able to get Murray to autograph my copy of Man, Economy, and State,^[14] which he inscribed “To Stephan: For Man & Economy, and against the state –Best regards, Murray Rothbard.” Well, I know the nicer one-volume edition is out now, but just try to get me to part with my musty, tattered two-volume copy. Rothbard unfortunately passed away in January 1995, just two months later, but I was happy that I was able to meet him.

Since then I have attended many Mises Institute conferences, including every one of the annual Austrian Scholars Conferences, initiated, if I am not mistaken, in 1995. Over the years I gained more appreciation for Mises and Austrian economics, and for the unparalleled scope of Rothbard’s scholarly contributions to economics and political philosophy, and related fields. I am now not only an anarcho-libertarian, but a Misesian-Austrian. I have gained an increasingly deeper respect for Lew Rockwell and the singular achievement that is the Mises Institute. It has become my intellectual home.

[Endnotes]

^[1] Ayn Rand, The Fountainhead (New York: Signet, 1996). See also Jerome Tuccille, It Usually Begins with Ayn Rand (Stein and Day, 1971); and “Libertarianism After Fifty Years: What Have We Learned?” (ch. 25).

^[2] Henry Hazlitt, Economics in One Lesson (New York: Three Rivers Press, 1988; https://fee.org/resources/economics-in-one-lesson).

^[3] Murray N. Rothbard, For a New Liberty, 2d ed. (Auburn, Ala.: Mises Institute, 2006; https://mises.org/library/new-liberty-libertarian-manifesto).

^[4] And many of the works listed in Stephan Kinsella, “The Greatest Libertarian Books,” StephanKinsella.com (Aug. 7, 2006).

^[5] Barbara Branden, The Passion of Ayn Rand (New York: Anchor, 1987).

^[6] Hans-Hermann Hoppe, “The Ultimate Justification of the Private Property Ethic,” Liberty 2, no. 1, September 1988), p. 20, republished as “On the Ultimate Justification of the Ethics of Private Property,” chap. 13 in The Economics and Ethics of Private Property: Studies in Political Economy and Philosophy (Auburn, Ala.: Mises Institute, 2006 [1993]; www.hanshoppe.com/eepp). See also Stephan Kinsella, “Argumentation Ethics and Liberty: A Concise Guide,” StephanKinsella.com (May 27, 2011), and other material available at www.StephanKinsella.com/lffs.

^[7] For more on this, see “A Libertarian Theory of Punishment and Rights” (ch. 5) and “Dialogical Arguments for Libertarian Rights (ch. 6); also Stephan Kinsella, “The Genesis of Estoppel: My Libertarian Rights Theory,” StephanKinsella.com (March 22, 2016). For more on argumentation ethics, see chaps. 5 and 6, as well as “Defending Argumentation Ethics” (ch. 7); “The Undeniable Morality of Capitalism” (ch. 22); Hans-Hermann Hoppe, “The Ethical Justification of Capitalism and Why Socialism Is Morally Indefensible,” chap. 7 in Hans-Hermann Hoppe, A Theory of Socialism and Capitalism: Economics, Politics, and Ethics (Auburn, Ala.: Mises Institute, 2010 [1989]; www.hanshoppe.com/tsc); idem, “From the Economics of Laissez Faire to the Ethics of Libertarianism,” “The Justice of Economic Efficiency,” and “On the Ultimate Justification of the Ethics of Private Property,” chaps. 11–13 in The Economics and Ethics of Private Property; idem, “Of Common, Public, and Private Property and the Rationale for Total Privatization,” in The Great Fiction: Property, Economy, Society, and the Politics of Decline (Second Expanded Edition, Mises Institute, 2021; www.hanshoppe.com/tgf); idem, “PFP163 | Hans Hermann Hoppe, ‘On The Ethics of Argumentation’ (PFS 2016),” The Property and Freedom Podcast, ep. 163 (June 30, 2022); Stephan Kinsella, “Argumentation Ethics and Liberty: A Concise Guide,” StephanKinsella.com (May 27, 2011); idem, “Hoppe’s Argumentation Ethics and Its Critics,” StephanKinsella.com (Aug. 11, 2015); Frank van Dun, “Argumentation Ethics and the Philosophy of Freedom,” Libertarian Papers 1, art. no. 19 (2009; www.libertarianpapers.org); Marian Eabrasu, “A Reply to the Current Critiques Formulated Against Hoppe’s Argumentation Ethics,” Libertarian Papers 1, 20 (2009; www.libertarianpapers.org); Norbert Slenzok, “The Libertarian Argumentation Ethics, the Transcendental Pragmatics of Language, and the Conflict-Freedom Principle,” Analiza i Egzystencja 58 (2022), 35–64.

^[8] Tibor R. Machan, Human Rights and Human Liberties: A Radical Reconsideration of the American Political Tradition (Chicago: Burnham Inc Pub, 1975).

^[9] Tibor R. Machan, Individuals and Their Rights (Chicago: Open Court Publishing, 1989).

^[10] See also Kinsella, “The Genesis of Estoppel: My Libertarian Rights Theory” and chapters 5–7 in this volume. Tibor became a good friend. He passed away in 2016. See Kinsella, “Remembering Tibor Machan, Libertarian Mentor and Friend: Reflections on a Giant,” StephanKinsella.com (April 19, 2016).

^[11] Hoppe, The Economics and Ethics of Private Property.

^[12] Stephan Kinsella, “The Undeniable Morality of Capitalism,” St. Mary’s L. J. 25, no. 4 (1994): 1419–47, included as chapter 22 in this volume.

^[13] See references in Kinsella, “The Three Fusionisms: Old, New, and Cautious,” StephanKinsella.com (Jan. 16, 2022).

^[14] Murray N. Rothbard, Man, Economy, and State, with Power and Market, Scholars ed., 2d ed. (Auburn, Ala.: Mises Institute, 2009; https://mises.org/library/man-economy-and-state-power-and-market).

A fantastic interview with libertarian theorist extraordinaire Hans-Hermann Hoppe, “Hans-Hermann Hoppe on War, Terrorism, and the World State,” Interview by Mark Grunert, Le Québécois Libre, No. 115, Dec. 7, 2002.

In a recent blogpost, I mentioned the current dispute over the Sonny Bono Copyright Term Extension Act, which provided for the extension of existing copyright terms by an additional 20 years from the terms set by the 1976 Copyright Act. The Supreme Court is considering this issue in Eldred v. Ashcroft. The argument is that Congress’s extension of copyright terms is unconstutional because this violates the Constitution’s provision that Congress can grant copyright for “limited times”. (“The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Art. I, Sec. 8 ) I’m sympathetic to the argument, especially because of my doubts as to the legitimacy of federal copyright law, but am doubtful the Supremes will overturn the law.

However, what is interesting to me is the inconsistency shown by those opposing the copyright term extension based on the Constitutional language of Art. I, Sec. 8, giving Congress power to grant authors exclusive rights to their writins, for limited times. What is inconsistent, indeed a bit hypocritical, is this. Most lawyers today accept the propaganda spoonfed to them by democratic-socialist law professors and judges that Congress has very broad, almost plenary, power to legislate on virtually anything so long as it “affects commerce”. That is, Congress’s authorization to “regulate commerce” is construed by the courts, ever since Wickard v. Filburn and the New Deal era, to authorize federal statutes that are NOT otherwise specifically authorized in the constitutional text.

By this language, suppose there had been no provision about patents and copyrights at all. It is beyond doubt that the patent and copyright acts would be upheld as constitutional now, because they regulate activities that “affect commerce”. Just as there is a federal Lanham Act creating federal trademark rights, even though there is no specific grant of authority for Congress to legislate federal trademark rights. And lo and behold, the trademark rights are (potentially) unlimited in term.

Now, just because Art. I, Sec. 8, gives Congress authority to grant copyright for limited times, this does not mean they do NOT have the power, under other provisions (such as the interstate commerce clause), to grant copyright for UNlimited times. (For a brief mention of the resort to the interstate commerce power as a justification for copyright law, see this article, at text near footnote 33.)

Now personally, I believe the entire commerce-clause jurisprudence to be a dishonest mockery of the rule of law, and that 99% of all federal legislation is prima facie unconstitutional for this reason. However, most modern attorneys agree readily with the makeweight argument of Wickard v. Filburn. And for them, I see no basis for their criticism of federal statutes authorizing even unlimited copyright terms.

From an article in Solid-State Lighting (link2):

According to a story carried by Science, UCSB professor Shuji Nakamura has been accused by US District Court Judge James Fox of lying about Nichia patents. The accusations surfaced in a March 15, 2002 letter to federal prosecutors, made public in the electronic newsletter Internet Patent News Service. The story was picked up by the journal Science (Vol. 296, April 5, 2002, p. 31). The disputed US patents (5306662, 5578839, 5747832, and 5767581) cover Nakamura’s landmark LED and laser diode work done while he worked at Nichia. According to Fox’s letter, statements made by Nakamura, in a court deposition related to the North Carolina State University and Cree Inc., vs. Nichia Corporation and Nichia America Corporation patent dispute, conflict with claims made by Nakamura in the patent applications filed by Nichia. Thus, Fox accuses Nakamura of lying to either the US Patent Office or in his recent depositions regarding Nichia patents. [Copy of Judge Fox’s letter.] Either way, Fox recommends bringing perjury charges against Nakamura.

Nymex Suit Pushes Copyright Envelope explains that Nymex claims it has copyright in its prices–despite the fact that prices are simply exchange ratios–that is, facts–and copyright protects original expressions of ideas, not mere facts.