A Stitch in Haste
http://kipesquire.powerblogs.com/
A collection of real-world libertarian, individualist and laissez-faire rants on policy, culture and other current events by an average, everyday lawyer & investment banker and part-time pop scholar.en-us2008-06-28T11:06+00:00"Tragedy of the Commons" Agenda Item of the Day
http://kipesquire.powerblogs.com/posts/1212874975.shtml
Item Number Two on the Agenda:...Kip2008-06-07T21:06+00:00Discussion of the overcrowding at John Jay Pool during the summer months.John Jay Pool is of course located in John Jay Park, a massive* WPA-era project that is city-owned, taxpayer-funded — and admission-free.
(*Not so massive that they are able find any space among the playgrounds, swimming pool, tennis and basketball courts and handball walls for even a modest dog run. Go figure.)
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For those who simply must know — Item Number One on the Agenda:
Discussion of the proposed variance for Mt. Sinai Hospital's planned tower at 102nd Street between Fifth and Madison Avenues. Concern centers on the degree of shadowing this tower would cause in Central Park[.]
Yet anothernot-for-profit cold, cruel, soulless hospital oppressing the community with their healthcare-providing frivolous, predatory, pharmaceutical-industrial-complex, might-throw-a-shadow tower? Have they no shame! How lucky we are indeed to have unelected "Community Boards" to protect us from these out-of-control leviathans!
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The flier announcing the Community Board meeting has, in bold-italic, all-cap font:
OFFICIAL GOVERNMENT NOTICE
It also has this:
Good for government work, I guess.
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It also has this on the back:
Recycled Paper — For a Healthy & Sustainable Environment
Recycled — oh joy. On the other hand, these fliers adorned every — every — lamppost, traffic signal, utility box and pay phone in my neighborhood. Any one street block would have as many as five of these posted. How environmentally friendly is that? (And did I mention the masking tape — was that recycled too?)]]>I Have Found a More Wretched Hive!
http://kipesquire.powerblogs.com/posts/1211280104.shtml
I went to my co-op's annual shareholder meeting last night. One of the two main topics for discussion was the plan of one of our non-residential neighbors to add floors to...Kip2008-05-20T10:05+00:00
One of my fellow residents (whose view is not at risk) asked a simple question: "Has there been any discussion of what they will be required to give back to the community?"
"They," incidentally, are a hospital. A not-for-profit teaching and research hospital in fact.
And they are being damned for "not giving back to the community"?
Remind me again where I'll find the scum and villainy?
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The other hot topic was the board's proposal to implement a transfer fee, also called a "flip tax," of up to two percent of the sales price whenever an apartment is sold. The debate centered entirely on how much money it would raise for the collective cooperative versus the impact on individual apartment values — the classic "us versus ourselves" doggerel that arises whenever some members of a group want to sacrifice other members "for the good of the whole."
As I sat there listening to the oblivious arguments and the more oblivious counter-arguments, I wondered whether anyone would ask the simple question of why a fee should be imposed that does not reflect an underlying cost? We pay maintenance fees that reflect the underlying costs of running the building. Fair enough. We pay move-in and move-out fees because moving in and moving out consume resources (staff, use of elevators, etc.). Fair enough.
But what cost is being offset by a transfer fee? None was identified. The only selling point was "It's money for us!" How is it that good ethics, or even good accounting? If we pit ourselves against each other in this way, then what will be the next way?
I will be voting against the proposal, though for some reason I suspect the wolf vote will prevail over the sheep vote. Just a hunch.]]>Kip's Law Sighting: "That Would Be Silly"
http://kipesquire.powerblogs.com/posts/1210245093.shtml
"A building has integrity, just like a man — and just as seldom."...Kip2008-05-08T14:05+00:00"A building has integrity, just like a man — and just as seldom."
--The Fountainhead
John Jessop earned a cult following among his colleagues after his withering comments were leaked in an e-mail which has been sent all round the country.
After being asked to fill in a "design access statement" for a storage shed on a small farm, he wrote: "The density is like on a farm, the social context is a farm in the country, the economic context is farming in the United Kingdom in 2008 (which is not very economic), the opportunities are to store equipment inside rather than the outside, the constraint is the planning system."
And under a section headed Context Analysis, he said: "The use is compatible with a farm because it is a farm building."
"It is located where it is because it is in the most convenient place, being on the farm and near the farmhouse."
...
"It can not be lower because nothing could be stored in it. It is not made any higher because that would be silly."
But since when did being "silly" stop a planning bureaucrat?
The notion that a farmer needs anybody's permission to build a farming shed on his farming land to store his farming equipment that he uses to earn his farming income shows how far the half-sibling notions of "zoning" and "environmental impact statements" have corrupted what used to be a rationally based concern for negative externalities. In the past, such reviews were cursory, common sense inquiries. Today? Yes, we the central planners have graciously allowed you to call your land a "farm," but that obviously did not mean that we would also allow you to "do farming" on it. We'll get back to you on that after we review your design access statement...
Other gems omitted from the media account:
--"Landscaping: The applicant and pervious [sic] occupants have spent a long time, probably more than a thousand years, making the countryside around the house look like farmland so that everyone can enjoy the pretty English countryside."
--"Access: There is an airport at Bristol which can be accessed by driving your tractor along the road. This gives direct access to warm sunny places all over the world."
--"Appearance: It looks like a typical modern agricultural shed in green profiled metal sheeting because that is what it is, and a great architect once said, 'Buildings should look like what they are'."
Methinks Mr. Jessop has read The Fountainhead.
Kip's Law: Every advocate of central planning always — always — envisions himself as the central planner.
Original 3-page document PDF here. (Via Fark.)]]>"Comment Left Elsewhere" of the Day
http://kipesquire.powerblogs.com/posts/1209558311.shtml
Tyler Cowen asks a simple question:...Kip2008-04-30T12:04+00:00a simple question:
How good would the abolition of zoning in New York City be?
Of course, that question completely drops the context within which "good" is embedded. Stated differently: "Good" -- by what metric? Real estate values? Total available housing stock? Aesthetics? Whose aesthetics?
Suddenly it's not so simple a question after all.
How about defining "good" as "respecting property rights and constitutional principles"? As I commented at Cowen's blog:
Sorry for the Clintonism, but it depends (as you note) on what your definition of "zoning" is.
First-order zoning -- an area is simply designated "residential," "commercial" or "industrial" -- is not an excruciating abomination to libertarians and can be defended, at least in the abstract, as externality-correcting.
Second-order zoning -- height restrictions are the best example -- are less defensible and should be presumed illegitimate (i.e., restrictions should be subject to heightened scrutiny). This is the kind of "zoning" imposed on most of Manhattan.
Third-order zoning -- where any and every alteration, expansion or demolition must be submitted to an unelected board with near-plenary authority to approve or reject the project -- for any reason up to and including the whim and caprice of the board members -- is per se illegitimate, and under any sane jurisprudence such an infringement of fundamental property rights would be an irrebuttable due process violation. (So-called "historic districts" -- of which there are many in New York City -- are the most egregious example.)
Yes, the "first-second-third" nomenclature is my own concoction, inspired by similar terminology in the context of price discrimination.
More thoughts from Perfect Substitute]]>The Creature from the <i>Blaisdell</i> Lagoon
http://kipesquire.powerblogs.com/posts/1209381862.shtml
"A provision of the Constitution, it is hardly necessary to say, does not admit of two distinctly opposite interpretations. It does not mean one thing at one time and an entirely...Kip2008-04-28T11:04+00:00"A provision of the Constitution, it is hardly necessary to say, does not admit of two distinctly opposite interpretations. It does not mean one thing at one time and an entirely different thing at another time."
--Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398 (1933) (Sutherland, J., dissenting)
If this doesn't violate the Contracts Clause, then nothing ever does:
Warning that America is experiencing a "housing emergency," six Boston city councilors want to force lenders who foreclose on Hub properties to rent seized houses and apartments back to occupants.
...
The proposal would order lenders to lease foreclosed properties back to ex-owners or tenants at market rates until either third parties buy the homes or the measure expires in 2014. Violators would face fines of at least $10,000.
...
Ross said the measure aims to primarily help tenants who've paid rent on time but face eviction anyway because their landlords fell into foreclosure. However, the measure would also cover individual homeowners who fell behind on their own mortgages.
That was a trick observation, incidentally: It doesn't violate the Contracts Clause because, under current Supreme Court precedent, nothing ever does.
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There are two distinct issues here that need to be disentangled.
As a common law principle (individual jurisdictions may of course have their own nuances), renters are already insulated from any and all changes in title to the property they rent (with one huge exception — eminent domain). If I own a house and rent it to you, then (absent mutually agreed-to provisions to the contrary) your lease is binding on any future owners of the land during the period of the tenancy. Even if I sell the house, gift it, die — or default on my mortgage — the lease is the lease and you are protected by it while it remains in effect.
These activist legislators are, therefore, offering you a protection that you already have. Don't you feel "indebted" to them?
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I as the owner facing foreclosure, on the other hand, am screwed. As I should be, given that I'm a defaulter who failed to meet my voluntarily-entered-into obligations. Maybe I was the victim of circumstance, maybe I was reckless in my finances, maybe I was a predatory borrower. It doesn't really matter which. I defaulted on a debt, I breached a contract, my counterparty has both a legal and equitable remedy.
And, under the Constitution, there ought not be a damned thing either I or these hack politicians could do about it:
No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
The Contracts Clause (Article I, Section 10, Clause 1) is one of the least appreciated libertarian aspects of the Constitution. The fact that it applies only to states and not the federal government is, one could plausibly argue, the single worst flaw in the original 1787 document.
But it is still there and still wholly applicable to this fact pattern. A mortgage is unarguably a "contract," the requirement to surrender to a valid foreclosure is unarguably an "obligation" and requiring lenders to lease to defaulters is unarguably an "impairment." Q.E.D.
Or not: Essentially the exact same law was enacted in Minnesota in 1933 and the same five Supreme Court Justices who would later finish off the last traces of economic liberty in America* also killed off economic substantive due process — and an entire clause of the Constitution as collateral damage — in the nightmarish case, Home Building & Loan Assn. v. Blaisdell.
The policy of protecting contracts against impairment presupposes the maintenance of a government by virtue of which contractual relations are worthwhile — a government which retains adequate authority to secure the peace and good order of society. This principle of harmonizing the constitutional prohibition with the necessary residuum of state power has had progressive recognition in the decisions of this Court.
In other words, a state's "police power" (a grant of power that appears only implicitly in the Tenth Amendment) can summarily trump the Contracts Clause (a limitation of power that appears explicitly in Article I), whenever "the peace and good order of society" require it (i.e., whenever activist legislators feel like it).
I'm surprised the Bush Administration never cited to Blaisdell in the War on Terror. The decision's twisted "police powers" reasoning makes John Yoo's memos seem like ACLU briefs.**
It is sad to have to repeat such a axiomatic statement, but it is precisely during emergencies that we need constitutional limitations on government power the most. It is precisely during emergencies that the more vague elements of constitutional law (e.g., "police power" or "executive authority") must yield to the less vague (e.g., "no impairment of contracts" or "no suspension of habeas corpus"). It is precisely when the government wants to act the most that it needs to be constrained the most.
(Incidentally, who but the most opportunistic malcontents would dare suggest that the current housing "crisis" rises to the level of the Great Depression — or the War on Terror? Note that the hack politicians in Boston were quite careful to label their proposal a "housing emergency" measure and to give it a specific expiration date — precisely as the Blaisdell court suggested was necessary to survive a Contracts Clause challenge. Someone on their staff certainly did their homework.)
If I were to expand my list of the Ten Worst Supreme Court Cases to twenty or even fifteen, Blaisdell would definitely make the cut.
**But, cf., this oft-quoted passage from Blaisdell:
Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved. The Constitution was adopted in a period of grave emergency. Its grants of power to the Federal Government and its limitations of the power of the States were determined in the light of emergency, and they are not altered by emergency. What power was thus granted and what limitations were thus imposed are questions which have always been, and always will be, the subject of close examination under our constitutional system.
How the Blaisdell majority gymnastically went from that to actually upholding the "no foreclosures" law remains one of the great embarrassments of Supreme Court jurisprudence.]]>"Comment Left Elsewhere" of the Day
http://kipesquire.powerblogs.com/posts/1207825741.shtml
In a recent Questions post, I asked: Is it a violation of copyright to sell a used book?...Kip2008-04-10T11:04+00:00asked: Is it a violation of copyright to sell a used book?
Prohibiting resale, be it books, cars, or collateral, would serve only to impoverish people who need money and are willing to part with slightly used goods, and to impoverish their would-be trading partners. If enforced, there is no up-side to this sort of prohibition.
To which I commented:
You realize I hope that often the intended answer for my "Questions" is "Duh." ;-)
But let's not overreach. "There is no upside to this sort of prohibition"? Really? Never ever?
My parents reside in a planned community where only people over 55 are allowed to live. My parents cannot sell their home to anyone under 55 (more or less).
My contract with the ASCPA forbids me from selling or giving Diamond to anyone, except back to the ASPCA itself.
Contract rights can indeed supercede property rights. But like all contracts, the terms should be clear and the parties should be entering into it voluntarily and fully informed.
See also "non-compete agreements," "confidentiality agreements," and countless other examples where an individual exchanges a right for a benefit. The right to convey property without restriction is no different -- you should be allowed to trade it for something else you value more.
(But, cf., Shelley v. Kraemer, 334 U.S. 1 (1948) (restrictive covenants based on race are not legally enforceable).)]]>Kip's Law Sighting: Must Every Private Transaction Have a "Public Use"?
http://kipesquire.powerblogs.com/posts/1207707613.shtml
To review: Regardless of what one thinks of the propriety of the government blocking strictly private employment contracts between competent consenting adults at the lower end of the work spectrum...Kip2008-04-09T02:04+00:00review: Regardless of what one thinks of the propriety of the government blocking strictly private employment contracts between competent consenting adults at the lower end of the work spectrum (i.e., minimum wage laws), the arguments for such incursions upon freedom of contract have exactly zero relevance to the upper end of the work spectrum. Stated differently, malcontents need an alternative rationalization for their disturbed voyeurism regarding "excessive" executive compensation ("Excessive"? To whom? By what standard?)
For some among the hubris class, the the latest fashionable rationalization is the fiction of "rising income inequality." (A fiction, as I explained recently, because income percentiles are not constant over time -- today's "top 1%" are neither yesterday's "top 1%" nor tomorrow's "top 1%," and likewise for the "bottom 20%.")
Others are less creative and just flat out claim the prerogative to subject all transactions to mob veto because -- well, because it's the mob:
Net income at Office Depot fell 23 percent last year compared with 2006; its share price fell 64 percent. Steve Odland, its chief, made nearly $18 million all told -- some 85 percent more than in 2006. With the share price of Toll Brothers, the luxury home builder, plummeting, it seems reasonable that Robert Toll, its chief, got no bonus. Still, the company took steps to ensure that he gets one this year, even if home-building doesn't recover.
It's hard to square the conceit that chief executives are rewarded for improving companies' performance with the fact that chiefs at 10 financial-services firms in the study made $320 million last year, even as their banks reported mortgage-related losses of $55 billion.
Of course, it's only "hard to square the conceit" of what other people make when you try to square it in the first place. And you only try to square it when you suffer from some ignoble mixture of envy and schadenfreude. It's one thing to feel compassion for the less fortunate; it's another thing altogether to loathe the more fortunate.
It's quite simple really: If you are uncomfortable or indignant about what the CEOs of Office Depot and Toll Brothers are paid, then don't invest in Office Depot or Toll Brothers. Don't work there. Don't shop there. But don't project your fiscal sociopathy onto others and pretend that you're not the one with an pathological fixation on something that is, literally, none of your business.
More:
In any case, the combination of inexorable income growth at the very apex of society and stagnation everywhere else can serve no public good.
The Bush administration has focused its economic policies on cutting taxes for the very richest Americans. Taxation needs urgently to become more progressive. If the United States is to continue to embrace globalization, technological innovation and other forces that contribute to economic growth, it has to share the spoils better.
One wonders how to say this any more remedially: Private contracts do not need to serve a "public good." Person A paying, out of his own pocket, Person B a sum that Person C happens thinks is "too high" is not an "externality," and Person C has no right, either alone or ganging up with his neighbors, to block or punish that transaction.
The rest is just flat-out lying: The Bush tax cuts did not benefit "the rich" at the expense of "the poor" and the federal income tax is already obscenely progressive. The data are what they are; wishing they were "oppressive" does not make them so.
(One might also note -- since the Times can't be bothered -- that Internal Revenue Code Section 162(m) already disallows the deduction of salaries above $1 million as a business expense for publicly traded corporations -- a figure which, to the best of my knowledge, has never been adjusted for inflation. Such salaries are therefore double-taxed much as corporate dividends are double-taxed. At some point "punitive" tax policy -- which is abhorrent enough -- becomes downright sadistic tax policy. Except to the Times -- for which too much bloodsucking is never enough.
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I find it laughably ironic, incidentally, that someone at the Times chose the headline "Corporate Croesus" for this silly editorial. For those not in the know:
Croesus consulted the oracle of Delphi in Greece. The oracle replied: "If Croesus goes to war he will destroy a great empire." So Croesus went out to meet the army of Cyrus and was utterly defeated, he destroyed his own great empire.
Leave it to the Times not to understand the difference between capitalism and warfare, between an entrepreneur and an emperor, between selling and plundering, between the civility of private contracts and the barbarism of mob rule.
More:
The old story goes on to relate that Cyrus ordered Croesus to be burned alive. When Croesus saw the flames creeping upward to consume him, he remembered the words of the wise Solon and cried out, "O Solon! Solon! Solon!" Supposedly Cyrus was so moved by the story of how Solon had warned the proud king that he ordered Croesus to be released. Cyrus asked to Croesus why he shouted Solon's name, and Croesus asked him another question "what your soldiers are doing now?", showing the Persian soldiers taking all the treasures and destroying everything; Cyrus replied "They are plundering your city"; then Croesus said "They are not plundering my city, it's your city now and your soldiers are destroying your city". After that short conversation Cyrus the Great stopped his soldiers.
The worst thing that can ever happen to an advocate of central planning is to actually become a central planner. For when they do, then learn the hard way that there is indeed a difference between building a business and seizing it, between running a firm and controlling it, between making something and stealing something.]]>Hoki, Hoki, Happy, Hour
http://kipesquire.powerblogs.com/posts/1207272512.shtml
Just a quick pass-long so Tony doesn't get upset with me:...Kip2008-04-04T01:04+00:00pass-long so Tony doesn't get upset with me:
A federal magistrate has overturned Virginia's decades-old ban on alcohol-related advertising in college newspapers, saying that the law violates the student publications' constitutional right to free speech.
U.S. Magistrate Judge M. Hannah Lauck sided with the student newspapers at the University of Virginia and Virginia Tech, which said the restrictions on alcohol references -- including phrases such as "happy hour" -- in print and online media hampered their ability to make money because they've had to turn down potential advertisers.
My long-standing view is unchanged: Truthful commercial advertising should enjoy full First Amendment protection on a par with political speech. The fact that these are college media outlets is utterly irrelevant.
Also irrelevant is the notion that bars or breweries have no "need" to advertise (e.g., via college publications or websites). Such arrogant micromanaging conveniently blanks out the fact that there are students (or graduate students or employees or whoever) who are over 21, not to mention the lack of any evidence whatsoever to suggest that advertising a happy hour "worsens" alcohol abuse, intoxication-catalyzed crime or injury, or any other purported "social harm." (And even if it did, so what? The First Amendment ought not yield so impotently to dubious alcohol-related "externalities" any more than it ought yield to dubious pornography-related "externalities.")
The case is Educational Media Company v. Swecker, No. 3:06CV396 (E.D. Va., March 31, 2008) (PDF - 36 pages)]]>Brevity is the Soul of Will
http://kipesquire.powerblogs.com/posts/1206039190.shtml
If you could condense everything I've ever written on this blog into one succinct passage, it would come out something like this:...Kip2008-03-20T18:03+00:00First, democracy requires judicial supervision to thwart the excesses of elected officials. Second, governments closest to the people are — never mind what sentimentalists say — often the worst.Whether that says more about me or about the person who actually wrote that succinct passage is unclear.
Meanwhile, if you could condense everything I've ever written on this blog into one succinct passage, plus one footnote, that footnote would come out something like this:
P.S. Ron Paul is not a libertarian —
[Dale] Bell, 58, who served in the Reagan administration, calls himself "a Ron Paul guy."
Under Ron Paul's theory of unbridled anti-federalist majoritarianism, the "fiefdom" (Will's term) of Pinal County, Arizona*, would be perfectly within its "states' rights" authority to ban dancing in Bell's restaurant, the controversy at issue in Will's column.
For those curious about the fact pattern:
The question concerns statutory interpretation. The statute includes "dance hall" — along with bowling alleys, penny arcades, skating rinks and other things — among the "amusement or recreational" enterprises that must be "within a completely enclosed structure." Does Bell's restaurant, which makes 99.75 percent of its revenue from food and drink (the rest comes from pool tables and trinkets) become an illegal (because not completely enclosed) dance hall when someone rises to "sway, shuffle or even dance"?
...
The 14th Amendment's guarantees of equal protection and due process of law should mean that government may interfere with a citizen's economic liberty only to promote important government interests that cannot be advanced through less restrictive means. Under today's weak "rational basis" standard, courts validate virtually any abridgement of economic liberty, no matter how tenuous the connection to even a minor public purpose. Conservatives, note well: Restoring economic liberty requires a kind of judicial activism — judges judging rather than merely ratifying government's caprices.
I will never — never — be more afraid of judges than of politicians. And I will always — always — be afraid of those who are.
Incidentally, can you guess which other fiefdom has declared a very similar "War on Dancing"?
I would refine Will's analysis only to note that the Fourteenth Amendment is meant to restrict, not "government" writ large but states specifically — as well as their subordinate units (cities and towns, counties, school districts, etc.) — and to emphasize that there is no fundamental difference between having one's rights violated by Congress, a state legislature, a town council or a school board. A local majority can be just as tyrannical — perhaps more so — than a national majority. That was the whole idea behind Will's second point at the beginning of this post.
That was also supposed to be the great charge of the Fourteenth Amendment — the "new birth of freedom" that has mostly proven to be stillborn.
*When did Arizona stop being "Goldwater country"? Can it be traced to Sandra Day O'Connor ("the only former legislator on the Supreme Court"), to John McCain ("loyal foot soldier in the Reagan Revolution"), both or neither? (But cf., Jeff Flake.)]]>The Other Tragedy of the Commons
http://kipesquire.powerblogs.com/posts/1204770263.shtml
You all know the primary Tragedy of the Commons. When property is owned publicly, or its use is subsidized such that the price to use it is artificially low or...Kip2008-03-06T02:03+00:00Tragedy of the Commons. When property is owned publicly, or its use is subsidized such that the price to use it is artificially low or even zero, it will be overused. If no one owns the meadow and if everyone may freely graze their cows on it, then the meadow will be overgrazed to everyone's detriment.
But there is another Tragedy of the Commons: When property is managed publicly, it will often be underused. The politician or bureaucrat responsible for managing the commons may decide, rationally or irrationally, that sheep should be kept off the commons, or that a new and improved variety of grass should not be planted on it, or that the meadow should be off limits on Sundays, or that gay weddings can't be performed on it, etc.
Want to browse Vanity Fair magazine on the Denver airport's free Wi-Fi system? Sorry. You'll have to buy it at the newsstand, because DIA's Internet filter blocks Vanity Fair as "provocative."
You can't get to the popular gossip column perezhilton.com on DIA's Wi-Fi signal, either. Or the hipster-geek favorite boingboing.net. Or the Sports Illustrated swimsuit photos, even though the magazine's bare-breasted cover shot is on prominent display at airport stores, right next to Penthouse and Hustler.
...
[Airport bureaucrats] say they're using prudent judgment in a public, family-friendly atmosphere.
Of course, one bureaucrat's "prudent judgment" is another bureaucrat's "too prudent" and yet another's "not prudent enough." Such is always the case with hopelessly vague and subjective terms such as "prudent" (or, worse, "provocative").
So, in this instance of the "secondary" Tragedy of the Commons, "not free, but unlimited" has been replaced, not with "free and unlimited" but rather with "free, but limited." And arbitrarily limited at that. That's not a per se improvement; it's merely exchanging one constraint for another -- at the whim of a low-level bureaucrat.
An airport may well be a natural monopoly that is best owned publicly. The same cannot be said for wi-fi (which, since it is perfectly excludable, is never a public good). Even wi-fi at a public airport is not a public good. To avoid the secondary Tragedy of the Commons, the Denver airport should stick to its knitting and leave the wi-fi business to bona fide businesses.
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Incidentally, here is Exhibit A, back from 2006.]]>Has Facebook Become "Public Property"?
http://kipesquire.powerblogs.com/posts/1204552661.shtml
One blawger suggests the answer may be yes:...Kip2008-03-04T13:03+00:00suggests the answer may be yes:
As more of our lives become dependent on Web 2.0 technologies, should we have some sort of rights or consumer protection? Is Facebook the digital equivalent to the company town?
The context was a story that an extremely popular blawger had his Facebook account deleted, supposedly with no explanation (but later updated with a perfectly reasonable "TOS violation" explanation -- and a reinstatement).
In any case, here is the answer I posted:
As more of our lives become dependent on Web 2.0 technologies, should we have some sort of rights or consumer protection? Is Facebook the digital equivalent to the company town?
No and no.
What part of "private property" and "free to the user" are unclear?
I also find it fascinating that this question is being asked in the wake of far more people complaining about exactly the opposite phenomenon: Facebook refusing to delete profiles.
Meanwhile, one person's "dependence" (real or purported) being wielded as a sword upon another person's private property gave us, inter alia, Kelo v. New London. No thanks.
Sometimes private property is just private property. Sometimes a user agreement is just a user agreement.
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It's like your employer locking you out of your office and not letting you take your things."
No, it's like a hotel guest who makes too much noise, is kicked out and then claims "tortious interference with business" because he missed a sales meeting the next day. Utter nonsense.
Or, if you prefer, it's like your employer firing you and then not letting you copy the draft blogposts you stored on its network [in violation of your employment contract].
Remember always: Adhesion contracts, including EULAs and TOSs, are a good thing. They lower costs, reduce litigation and catalyze innovation. It is a false dichotomy to suggest the alternatives are "unfair adhesion contracts and fair adhesion contracts." The choice is between "voluntary adhesion contracts and nothing." All else is sophistry.]]>What Makes a House a Home, or a Tax a Spend?
http://kipesquire.powerblogs.com/posts/1204592889.shtml
I have no problem with people who have a problem, on policy grounds, with the deductibility of mortgage interest from income tax liability. (I have pragmatic and equitable concerns about...Kip2008-03-04T01:03+00:00concerns about abolishing it post facto, but not a "problem" with the concept of repealing it per se.)
I have a huge problem, on the other hand, with this:
The mortgage tax deduction for owner-occupied residences now costs $430.2 billion and is projected to be the fourth largest federal tax expenditure in 2007-2011.
A tax deduction is not a tax expenditure. The government does not "spend money on me" by abstaining from taxing me in the first place.
There are valid reasons to oppose the mortgage interest deduction. "The government spends too much money on it" is simply not one of them.]]>Property Taxes and Bubble Assessments, Revisted
http://kipesquire.powerblogs.com/posts/1204386520.shtml
Tyler Cowen bemoans an increase of over 50% in the assessed value of his home....Kip2008-03-01T15:03+00:00bemoans an increase of over 50% in the assessed value of his home.
Assessment values can and should be based exclusively on real characteristics (acreage, square footage, the presence of a chimney/pool/garage/etc.). The formulas could admittedly become complex and politically influenced, but they would still be more reality-based than bubble-bloated assessments.
Only the tax rate upon the underlying (i.e., real not nominal) assessed value should be allowed to vary (i.e., the taxing authority should only be allowed to vary the tax rate, openly and notoriously, and should be prohibited from engaging in "assessment creep").
It is unreasonable to change a tax burden on one property that has not changed physically for no other reason than because it was sold at a certain price (or, worse, because a neighbor's property was sold at a certain price).
Meanwhile, malcontents who decry "predatory lenders" while denying even the possibility of predatory borrowers might also consider the role of property taxes -- and property tax liens -- on foreclosure rates. Stated differently: Who would dare suggest that there is no such thing as a "predatory tax authority"?]]>More on "Libertarian Civil Disobedience"
http://kipesquire.powerblogs.com/posts/1204249141.shtml
The EconLog post on why libertarians seem so willing to submit to government excesses and abuses, to which I blogged a reply seems to have legs....Kip2008-02-29T01:02+00:00EconLog post on why libertarians seem so willing to submit to government excesses and abuses, to which I blogged a reply seems to have legs.
There is of course a third way [as opposed to submission or civil disobedience]: to sue, hopefully before "activist judges" who understand their solemn constitutional duty to thwart the tyranny of the majority.
Civil disobedience? We can't even get people to check "No" on the $3 Presidential Campaign Fund box on tax returns.
Also, I would submit (sorry, poor word choice) that the Taser and the increasingly lax standards by which its use is considered appropriate have made traditional 1960s-style civil disobedience difficult if not impossible.
Discuss.]]>Linkfest: Chavez Updates
http://kipesquire.powerblogs.com/posts/1203559453.shtml
The more things change...Kip2008-02-21T02:02+00:00change...
President Hugo Chávez said on Sunday that Venezuela was not planning to halt oil exports to the United States. The statement may ease fears in energy markets over fallout from Venezuela's legal battle with Exxon Mobil over compensation for the nationalization of a large oil project.
Mr. Chávez's conciliatory tone stands in contrast to recent comments made by him and other officials here in which they threatened to stop exporting oil to the United States. They said the Bush administration and Exxon Mobil were conspiring to wreak economic havoc in Venezuela.
...
But the move seemed to be meant more for consumption within Mr. Chávez’s political movement here, which faces growing discontent over corruption charges and food shortages.
Shoppers in oil-rich Venezuela often can't find basic food items in stores but the government of President Hugo Chavez on Sunday turned up a huge stash of milk and chicken in a private health clinic.
...
Chavez has repeatedly complained that private clinics charge too much for services and has threatened to take them over.
Just another day in the glorious socialist paradise.]]>Fifth Circuit Says <i>Lawrence</i> Extends to Commercial Transactions
http://kipesquire.powerblogs.com/posts/1202958820.shtml
A major circuit split has arisen over so-called "sex toy bans."...Kip2008-02-14T03:02+00:00
To review: An Alabama statute banning the sale (but not the possession) of sex toys survived a long and arduous challenge in the Eleventh Circuit Court of Appeals.* A key holding in that case was that sexual privacy of the kind guaranteed after Lawrence v. Texas** did not extend to commercial transactions. A "right to private consensual sodomy," the Eleventh Circuit eventually ruled, does not imply a "right to buy or sell a dildo."
Reviewing a Texas statute imposing essentially the same ban, the Fifth Circuit reaches the exact opposite conclusion:
The case is not about public sex. It is not about controlling commerce in sex. It is about controlling what people do in the privacy of their own homes because the State is morally opposed to a certain type of consensual private intimate conduct. This is an insufficient justification for the statute after Lawrence.
The court is using a reductio ad absurdum argument: What good is a "right to own a sex toy" if the government makes it impossible, or unduly burdensome, to actually acquire one? The court draws a direct analogy to Griswold v. Connecticut***, the landmark predecessor to Lawrence that held that a "right to contraception" must also imply a "right to sell contraception."
A clear circuit split on a major constitutional question such as substantive due process is an express lane to Supreme Court review. Stay tuned.
---
Two more hasty stitches:
1. The majority expressly rejected Texas' argument that "sexual gratification unrelated to procreation" somehow enjoys less substantive due process protection than "morality based" (i.e., procreative) sex. The read-through to gay marriage bans — which have been repeatedly upheld recently on this specious "procreation is different" rationalization — is clear.
2. Wouldn't it be nice if, rather than perpetually litigating, re-litigating, appealing, re-appealing, circuit-splitting and certiorari-petitioning the question of what the right to privacy (i.e., sexual substantive due process) does and does not mean, we instead recognized the right of property and simply allowed individuals to buy or rent a plot of land, build or rent a store on it, and sell whatever he pleased, at least to competent consenting adults (i.e., economic substantive due process)?
The case is Reliable Consultants v. Earle, No. 06-51067 (5th Cir., February 12, 2008) (PDF - 22 pages).
*Williams v. Morgan, 478 F.3rd 1316 (11th Cir. 2007), cert. denied sub nom Williams v. King, 128 S.Ct. 77 (2007) (PDF - 16 pages). See also Williams v. Pryor, 240 F.3d 944 (11th Cir. 2001) and Williams v. Attorney General, 378 F.3d 1232 (11th Cir. 2004).
Police raided a novelty gift shop inside the Layton Hills Mall, seizing 15 boxes of items they said were sexually explicit. The raid happened Tuesday morning just as Spencer Gifts was opening for business. Police said a search warrant was drafted, seeking numerous items that may violate Utah laws on dealing materials harmful to a minor.
...
While none of the items in the shop are illegal, authorities allege Spencer may have run afoul of the state statute by having sexually explicit items available for purchase and display to minors. Police were vague in their descriptions of the items seized but acknowledged seizing games, food items and items that could be described as "sex toys."
This fact pattern is a bizarre cross between the aforementioned bans on true sex toys and the recent Abercrombie & Fitch faux-obscenity prosecution/persecution — which was also based on an "accessible by juveniles" statute.
The best defense, other than suggesting a revival of economic substantive due process, would be to challenge the Utah statute as unconstitutionally vague: If a reasonable person cannot tell whether edible underwear is criminally "obscene," then he cannot be prosecuted for displaying it or selling it to minors.]]>On Intrusive Border Searches
http://kipesquire.powerblogs.com/posts/1202949027.shtml
Two hasty stitches regarding the recent stories about electronic devices such as laptops, cell phones and Blackberries being seized and searched at border crossings:...Kip2008-02-14T00:02+00:00stories about electronic devices such as laptops, cell phones and Blackberries being seized and searched at border crossings:
1. The lawsuit that was recently filed by the Electronic Frontier Foundation does not challenge the propriety of the intrusive searches. The litigation is over pending Freedom of Information Act inquiries to Homeland Security regarding the policy (e.g., how often such searches occur, is there any racial profiling, etc.)
2. No matter how intrusive, the searches are, absent a major rethinking of constitutional jurisprudence, entirely legal:
That searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border, should, by now, require no extended demonstration. The Congress which proposed the Bill of Rights, including the Fourth Amendment, to the state legislatures on September 25, 1789 had, some two months prior to that proposal, enacted the first customs statute. Section 24 of this statute granted customs officials "full power and authority" to enter and search "any ship or vessel, in which they shall have reason to suspect any goods, wares or merchandise subject to duty shall be concealed[.]" This acknowledgment of plenary customs power was differentiated from the more limited power to enter and search "any particular dwelling-house, store, building, or other place" where a warrant upon "cause to suspect" was required. The historical importance of the enactment of this customs statute by the same Congress which proposed the Fourth Amendment is, we think, manifest. This Court so concluded almost a century ago.
--U.S. v. Ramsey, 431 U.S. 606 (1977) (internal citations omitted)
Of course, times change, and what was once straightforward constitutional thinking can later be deemed flawed or even abhorrent. An argument can be made -- libertarians are making it now -- that "the longstanding right of the sovereign" to exercise plenary control of its borders may have made perfect sense when only people and packages came across those borders, but in a digital age when "packages" are likely to include an individual's (or a business') most private information -- information that poses no proximate threat the way a weapon or an invasive species does -- such plenary authority should yield to a more probing analysis: What, exactly, is to be gained by copying a border-crossing citizen's hard drive or Internet bookmarks? How, exactly, is the government going to decide who is subject to what kind of data search? What is the price we pay, in terms of lost privacy and personal indignation, from being ordered to enter our passwords into our laptops or to have our cell phone contacts recorded?
If we must accept, for now, the argument that "it has always been so," then the government must also accept the possibility that "it should no longer be so." DHS is on solid footing -- today.
But tomorrow is another day.
More on the law of border searches here. A PDF of the EFF complaint (18 pages) here. Inspired by this post at Liberty Papers.]]>The Loon Giveth...
http://kipesquire.powerblogs.com/posts/1202855769.shtml
...and the loon taketh away:...Kip2008-02-12T22:02+00:00taketh away:
Hugo Chávez threatened Sunday to halt oil exports to the United States if the oil giant Exxon Mobil succeeds in freezing billions of dollars of foreign petroleum assets controlled by Venezuela.
The warning ratchets up a fierce legal dispute between Venezuela and Exxon after Mr. Chávez's move to exert greater state control over the nation's oil industry last year. Rather than submitting to Venezuela's terms, Exxon withdrew from a major production venture, intensifying the feud.
To review: Chavez literally stole the Venezuelan oil industry from its private owners, including foreign investors such as Exxon. Exxon is now simply trying to recoup some of its stolen property, as would any other victim of any other petty mugger. This is not complicated.
Meanwhile, Chavez -- in classic socialist propagandist fashion -- tried to convince the ignorant that he was really a nice guy. He paid Joseph Kennedy $366,000 a year to prostitute himself as a Chavez spokesman for a program under which the poor oppressed people of America would receive low-cost Venezuelan oil (i.e., would received the plundered wealth of poor oppressed Venezuelans).
So much for that idea.
Mr. Chávez has repeatedly threatened to cut off oil supplies to the United States, but has never done so. In fact, despite a deterioration in political relations, the United States remains Venezuela's top trading partner. Venezuela is the fourth-largest supplier of crude oil to the United States, sending 1.2 million barrels a day to American refineries, according to the Energy Information Administration in Washington.
Of course, it will be much easier for the United States to find other sellers of oil than it will be for Venezuela to find other buyers.*
Read that passage again: We are Venezuela's largest trading partner; Venezuela is only our fourth largest oil supplier (and in terms of overall trade, they're far lower down the list than that). So who is going to dictate terms to whom here? For Chavez to threaten us with an embargo is about as meaningful as Ken Hutcherson threatening to bring down Microsoft.
Finally:
Declining oil production at Petróleos de Venezuela has allowed other countries in the OPEC oil cartel, notably Saudi Arabia, to gain a greater share of the market in meeting the expanding global demand for oil. The problems at Petróleos de Venezuela, a major revenue source for Mr. Chávez, are occurring amid growing discontent over food shortages and galloping inflation.
It's easy to seize a refinery -- all you need are some guns and a cheering mob. Running the refinery after you've stolen it is another matter altogether.
Eventually, Petróleos de Venezuela will collapse while the looters head for the exits, Chavez will make some speeches about how he was betrayed by this or that Enemy of the Revolution, and then flee to live in exile in Bolivia or Cuba or some such socialist wasteland. Then the rebuilding (probably by Exxon) of Venezuela's oil industry can commence -- until the next two-bit dictator comes along.
Thus ever with tyrants -- and the mobs who spawn them.
---
*More thoughts from Samizdata, including this (unverified) comment:
Venezuelan crude is particularly heavy and tarry, and most of the refineries capable of processing it are in the US. The US will have less difficulty buying crude from elsewhere than Chavez' [sic] will have ... selling it elsewhere.
Not my area of expertise, but if that's true then Chavez really is a light crude moron.]]>Is Specter's "Church and Stadium" Bill Unconstitutional?
http://kipesquire.powerblogs.com/posts/1202523773.shtml
Sundays are for church. Or football. Or both....Kip2008-02-09T02:02+00:00both.
Sen. Arlen Specter, the top Republican on the Senate Judiciary Committee, introduced a bill [S. 2591] this week that would allow houses of worship to show football games on big-screen televisions.
The legislation was among a flurry of action taken this week as the result of an article Friday in The Washington Post reporting that churches were canceling Super Bowl parties out of fear of lawsuits from the NFL if they showed the game on jumbo TV screens.
...
Rep. Heath Shuler (D-N.C.), a former Redskins quarterback and evangelical Christian who has spoken at church Super Bowl parties, plans to introduce legislation similar to Specter's in the House by the end of the week, a Shuler spokesman said yesterday.
As prologue, I think it is obnoxious that the NFL would harass churches in this manner. I think it is obnoxious that the NFL is exempt from federal antitrust laws. I think it is obnoxious that we have antitrust laws.
But four wrongs don't make a right. Churches deserve no special treatment, none whatsoever, for any activity other than bona fide worship in a bona fide church. No property tax exemptions, no charitable donation privileges, no regulatory exemptions, nothing.
Unanswered, meanwhile, is the pesky question of why only churches? Why can't any tax-exempt organization enjoy the same privilege? (Or at least those rich enough to build 2,000-square-foot auditoriums with 55-inch televisions — God bless Evangelical austerity!)
Remember, the excuse for this theocratic pandering is that these post-sermon shindigs are family-friendly and alcohol-free (a requirement not in Specter's bill, incidentally). So if a university, Elks lodge or VFW post wants to have a similar free-and-dry event, then why shouldn't they be extended the same opportunity?
Oh right — theocratic pandering. Sorry, I forgot.
As for the Establishment Clause issue, the long-standing guidance comes from Everson v. Board of Education*:
The "establishment of religion" clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. ... No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. ... In the words of Jefferson, the clause against establishment of religion by law was intended to erect "a wall of separation between church and State."
(Remember, this is not a religious school, so the less restrictive Lemon v. Kurtzman** test would not apply. See also Walz v. Tax Commission***, upholding a state property tax exemption "given equally to all churches, along with nonprofit hospitals, art galleries, and libraries receiving the same tax exemption.")
So I ask again: Why does Specter's bill apply only to churches?
Bottom line: God loves a level playing field — even a level football field.
---
*330 U.S. 1 (1947)
**403 U.S. 602 (1971)
***397 U.S. 664 (1970)]]>City Violates First Amendment, Property Rights in A&F Seizure
http://kipesquire.powerblogs.com/posts/1202183045.shtml
It almost sounds like a sketch from Mad TV:...Kip2008-02-05T04:02+00:00sketch from Mad TV:
Police confiscated two display photos of scantily clad men and a woman from an Abercrombie & Fitch store and cited the manager on a misdemeanor obscenity charge, authorities said.
The police issued the summons Saturday after Abercrombie management did not heed warnings to remove the images from the Lynnhaven Mall store after some customers complained, police spokesman Adam Bernstein said.
...
City code makes it a crime to display "obscene materials in a business that is open to juveniles," Bernstein said.
Here is the artwork:
Some hasty stitches:
--The basic obscenity charge is unsustainable (i.e., the city code is blatantly unconstitutional). An inch of adult butt-crack is simply not "obscenity" under the Constitution. All but child pornography and the most prurient XXX-rated smut is protected under the First Amendment (see Miller v. California, 413 U.S. 15 (1973)).
--The notion of banning "nude" artwork where minors are welcome to traffic might entail a different analysis, but the code refers to "obscenity" — which, again, these pictures simply aren't.
--Even if they were, there is no mention of a warrant to seize the artwork. Since this was clearly a novel question regarding a constitutionally suspect law (not to mention a low-level misdemeanor), would it have so burdensome to the smut patrol police officers to refer the matter to a judge beforehand, rather than "confiscate first, litigate later"?
--Note again how flippantly property rights are utterly disregarded here (cf., this recent post). This was not art displayed on public property or forced upon a captive audience (not even a captive audience of juveniles). Anyone prudish enough to take offense at these photographs, or who does not want their precious little snowflakes corrupted by viewing some butt-crack, can shop at GapKids (or, better still, over the Internet).
--I never pass up an opportunity to highlight that Ron Paul is not a libertarian but only an anti-federalist. In his utopia, the anti-liberty, anti-property activist legislators who enacted this silly ordinance would be perfectly within their rights — their "states rights" — to do so.
