You'll Never Live Like Common (law) People

By Robert H.

Every educated American fancies themselves a constitutional scholar, but it's rare for a layman to be so brazen as to claim the role of legal historian.  Meet Alex Tabarrok.

Most crimes used to be based on the common law and ancient understandings of wrong (murder, assault, theft and so on) but today there are thousands of federal criminal laws that bear no relation to common law or common understanding...If someone tracked you for a year are you confident that they would find no evidence of a crime? Remember, under the common law, mens rea, criminal intent, was a standard requirement for criminal prosecution but today that is typically no longer the case especially under federal criminal law . 

Ok, first things first: Alex's main point has nothing to do with the common law, and it's a fine point.  Essentially he thinks too much is illegal in modern society, especially under federal law, and that that should make you nervous.  Agree or disagree, I don't have much to say about that.

But nearly everything he says about the supposed golden age of the common law is wrong.  This is long and technical, but worth doing:

A. "Most crimes used to be based  on the common law..."

Not really.  For those that don't know, the common law was judge made law that came to define much of our early legal regime.  But it never existed alone, and statutes (IE, what we normally think of as "laws") have always been an important source of criminal law.  For example, the greatest articulation of the laws of England (remember, we were their colony and inherited the common law from them) at the time of the founding (ok, just before the founding) is Blackstone's Commentaries on the Laws of England.  To pick a random chapter, this list of offences against public trade cites 11 crimes, only 3 of which were crimes at the common law (at least insofar as Blackstone mentions) and all of the rest of which were specified by statute.  This mix of common law crimes and statutorily defined crimes also existed in 19th century and early 20th century America, right up until Americans started drafting criminal codes instead of relying on the common law.

Maybe if someone counted they would find that, yes, at some point in some (or most) states there were technically more common law offenses than statutory offenses, but the idea that Americans used to understand criminal law as the special realm of the common law just isn't, as far as I know, true.

B. "Most crimes used to be based... on ancient understandings of wrong"

This is more arguably true, but I think it's important to add that many crimes during the glory days of the common law, while perhaps based on some ancient understanding of wrong, certainly don't fit our understanding of wrong.  I didn't actually pick the chapter of Blackstone linked to above at random, I picked it because Tabarrok is an economist and almost every crime listed there would horrify him.  Let's list the chapter's common law crimes:

1. Owling: transporting wool or sheep out of England, to the detriment of English cloth manufacturers.  I'm pretty sure Tabarrok opposes protectionist measures like this.
2. Cheating: this ranges from what we would now call fraud to stuff Alex does not now think should be illegal, including making bad beer or disobeying government price fixing.  Blackstone is not actually clear where statute ends and common law begins on this one.
3. The offense of forestalling the market: this is just buying something before it comes to market or talking someone into not bringing it to market.  I don't think most Americans would agree that saying, "Hey, Joey, why not just hold onto your cow instead of selling it" violates a fundamental understanding of wrong.

Common law crimes we would find abhorrent or silly or surprising are not limited to economic crimes.  For example, spreading false news against great men (felony punishable by imprisonment at common law), heresy (only a misdemeanor at common law), and the mere speaking, with no attendant act, of treasonable words (misdemeanor).

Now it can fairly be said that not all of this applied in 19th century America, obviously, and Tabbarok could argue that he is hearkening back to a 19th, not 18th century golden age of common law.  It could also be argued that Blackstone might be too late a source, and earlier in English history judge made law was more dominant and less inter-meshed with statutory laws.  But this raises further problems: as you travel into the 19th century legal principles Tabarrok doesn't like began to surface (he seems disdainful of the crime of attempt, for example, which really began to take root in Britain in the 1780's).  As you travel further back, legal principles Tabarrock speaks highly of had not yet developed (In england, mens rea only began to be thought of as required for almost every crime around the 17th century, for example (I think)).  So it's not clear what time period, exactly, Tabarrok wants to look to as the glory days of common law.

All that said, I am not an expert.  It's possible there was, at some time, a common law state where A. the criminal law largely consisted of common law, and B. it matched a modern understanding of right and wrong.  But I doubt it.

C. "But today there are thousands of federal laws that bear no relation to the common law or a common law understanding."

That's arguably true (no relation is a bit much. There is no federal common law, but common law principles still suffuse federal law), but I want to forestall a possible rhetorical trick and this is as random a place to do it as any: a defender of Tabarrok could say that his focus is entirely federal, so I shouldn't mention state common law in my response.  But I have to: there weren't many (any?) federal crimes at the common law.  For Tabarok to be making any sense, he has to be comparing the common law of England or American states to current federal criminal law.

D. "Remember, under the common law mens rea, or criminal intent,"

"Mens Rea" doesn't mean "criminal intent," it means "guilty mind," and refers to the mental state that must accompany most criminal acts for them to be illegal.  Intent is a type of mens rea, and the one most used under common law, but not the only one.  Negligence or recklessness or malice aforethought were other types of mens rea.

E. "... was a standard requirement for criminal prosecution."

Sort of.  As the common law went along, Mens Rea did come to be thought of as a requirement for crimes, reflecting the growing influence of ancient roman law on the common law.  But things were still kind of confusing: it wasn't really clear what mens rea requirements attached to what crimes (lots of those crimes listed by Blackstone, for example, don't specifically define a mens rea), and even as things began to be defined the definitions came piecemeal, with every crime getting its own idiosyncratic mens rea ("intent to deprive another of their property" for larceny; "malice aforethought" for murder; "a blameworthy state of mind regarding consent," among other definitions, for rape).  Generally these were divided into two camps: specific intent crimes, where the criminal intended some harm; and general intent crimes, where the criminal simply intended to do the criminal act but did not necessarily intend the subsequent harm.  But even that distinction was more confusing than helpful.  Point being, "mens rea" was never simple, well defined, and easily grasped under the common law.  When arguing how intuitive and simple the common law was, you can't just say "criminal intent was a standard requirement for criminal prosecution," without heavily footnoting that sentence.

Further, I suspect some common law mens rea requirements don't quite fit what an average person might think was fair.  For example, if I intend to slap an "Alex is Dumb" sign on your back via notebook paper and tape (intend an offensive touching), miss because you suddenly duck, and accidentally slap the person beside you (doctrine of transferred intent), and their brittle bone syndrome causes a serious injury, I am guilty of a serious felony (obviously the judge or prosecutor or jury will go easy on me, but Tabarrok sneers at such safeguards).  But if I was going to put the sign on our class's doorway, it suddenly opened, and I slapped the innocent bystander, I am guilty of no crime.  Maybe Tabarrok thinks that the first slap should be a felony, maybe he thinks that the distinction between the first and the second slap makes sense, but to me "meant a harmless prank, now guilty of felony battery" sounds like the sort of legal horror story Tabarrok was telling in his post, and the distinction between "accidentally slapped a guy after trying to put dumb sign on your back" and "accidentally slapped a guy after trying to put dumb sign on door" seems meaningless.  Longwinded point being: you can get bad results for seemingly harmless conduct under the common law, too.

F. "but today [a the requirement that a mens rea accompany an actus reus] is typically no longer the case, especially under federal law."

I am pretty sure this is false or misleading.  There are two kinds of criminal codes in America: those based off of the common law and its principals and those based off of the Model Penal Code (a model code without the force of law some clevermen drafted in the 60's).  The federal criminal law is more-or-less the former.  As a result, while it does have strict liability felonies (ie, statutory rape or, as Tabarrok points out, trespass to federal parks), most federal laws require *some* sort of mens rea. Indeed, there is supreme court precedent encouraging judges to interpret ambiguous federal statutes to require a mens rea requirement.  Just so, one of the crazy laws Tabarrok lists, obstruction of correspondence, has a mens rea requirement, specifically that the crime be done " with design to obstruct the correspondence, or to pry into the business or secrets of another, or opens, secretes, embezzles, or destroys the same."   (As a total aside, while it wasn't a crime at the common law, obstructing the delivery of the mail has been a crime since 1792,  so it's a weird one to pick as an example of how our crazy modern criminal laws are so much worse than the past).

The caveat is misdemeanors and crimes punished by mere fines, which often don't have a mens rea requirement.  For all I know, if you count them it is true that most federal criminal laws are strict liability offenses.  But Tabarrok makes a point of how easy it is to commit felonies and harps on the seriousness of many of these crimes, so I think it's fair to demand that, if he is going to claim that federal law has abandoned mens rea requirements, he make it clear that he is mostly speaking in the context of misdemeanors .  

Just as an aside, model penal code states (Texas, for example) are much better about this than common law jurisdictions.  The model penal code strictly defined four levels of mens rea (five if you count strict liability) and specified that 1. unless otherwise stated, those mens rea requirements apply to *every* element of the crime, and 2. if no mens rea is mentioned in the definition of a crime, one should generally be read into the statute (this does not apply for "violations," basically a term of art for crimes with light punishment).  Strict liability felonies exist under the model penal code, but rarely.

In other words, the model penal code does a much better job than the vaunted common law when it comes to ensuring there is a clear, broad mens rea requirement attached to every major crime.  Instead of looking to the past, Tabarrok might want to look to the MPC for a successful counterexample to federal law.

***

So I want to emphasize that while I probably know more about the law than Alex Tabarrok, I am not a legal historian and don't practice criminal law, so some of this may be wrong.  I also want to emphasize that Tabarrok is smarter than me and is a better economist than I am lawyer.  But, by dent of not being one, he is a much worse lawyer than I am, and I am confident that at least *some*, if not *most* of how he compares the common law to modern federal criminal law is incorrect or misleading.

You may well ask why Tabarrok drags the common law into this argument in the first place, since the newspaper piece he is quoting does a great job of arguing that we have too much federal criminal law without bothering to mention the common law at all.  The answer, I suspect, involves his adherence to a strain of thought that began with Hayek (I think) and has probably best been articulated by judge Richard Posner, one of the greatest living American jurists around.  These fellows value the common law as an example of emergent order, thinking it's bottom-up approach to building a legal system beats the pants off of top-down, statist attempts.  I think the general consensus among legal scholars these days is that those guys got it wrong,  but I'll blog about that another day.

So yeah, apologies to anyone who actually read all of that.

Inventing Conservative Environmentalism: Part 0

By Robert H.

Charlie's been raising good points in the comments to my last post that have convinced me that 1. The post wasn't well written, 2. My ideas were muddied.

So, rather than simply assert that coming up with a unique, conservative environmental plan is really hard, I'm going to try to demonstrate it.  Over the next few days I am going to examine every plausible principle I can think of that could underlie conservative environmental policy.  I'll start with the principles that I think underlay conservative environmental policy in the 70's, then look at the new principles that Adler outlined in his paper, then look at all the other principles I can think up.  I suspect I'll find that principles either, 1. Aren't that useful, 2. Aren't that uniquely conservative, or 3. Aren't that important.  But maybe not!

But first, I want to clarify what I mean when I say "conservatives don't have a workable, unique environmental policy."  Because I don't mean a lot of things.  I don't mean: 1. Liberals are right on all environmental policy questions, 2. The policies and ideas that comprise the liberal status quo all come from liberals.  Cap and trade, for example, was a conservative idea before liberals embraced it.  3. In the future everyone is going to agree on environmental policy. 4. There aren't dumb liberal ideas that conservatives will never embrace, or 5. liberals will, in the future, have a unique environmental vision.

To understand what I do mean, think about military policy.  Liberals and conservatives used to have BIG differences when it came to the military: liberal Machiavelli thought the military should be composed of volunteer citizens, conservative Louis IV was all about standing armies, Thomas Jefferson wanted militias, Napoleon liked conscription, conservatives tended to what an officer class drawn from the aristocracy, liberals wanted a meritocratic military, the USSR abolished officers, then it brought them back, etc.  Most recently, there have been fights over whether homosexuals can serve and whether women can serve in every role.

Well, most of that is settled in America, and conservatives and liberals don't much have big ideological differences anymore.  At least, not compared to centuries past.  Large, standing, volunteer, army.  Officers class is defined by having a college degree and getting into and passing certain training programs.  People are promoted base on need and merit in an up-or-out system.  Five branches.  Etc.

But that doesn't mean that conservatives and liberals agree on military policy, it just means they aren't fighting fundamental  ideological battles.  There are still questions of whether funding should go up or down, what wars should we fight, how should we address rape, should we pay more attention to higher education credentials when promoting officers, should we fund this program or that one, etc.  So while I think it would be accurate to say, "liberals and conservatives can't articulate plausible, fundamentally different visions about the military," it's still true that there is plenty for them to fight about, and clear differences between the parties.

That's where I see environmental policy headed.  The big, fundamental ideological differences between the parties are becoming less and less tenable, and differences are starting to be matters of "is this specific policy right or wrong," not big questions like "should the federal government regulate water?"

So, since I see convergence between the parties, and could just as fairly say "in the future liberals won't be able to articulate a clear, ideological difference on environmentalism," why am I focusing on the conservative side of the story?  Because they are fighting this convergence the hardest!  Adler's essay outlines three paths for conservatives: 1. Just sort of reflexively oppose all environmental regulation ever, 2. Basically call for the same things as the liberals but on a smaller scale and trying to be more market oriented, 3. Outline a bold new conservative vision for environmental policy.  He sees most conservatives these days going down path 1, but he wants path 3.  I am writing because I think conservatives need to get over it and accept path 2, or else actually come up with the bold new vision along path 3.

I hope that made more sense than my last post!  Anyways, my future posts in this series will be shorter and more concrete.  Also, in case you for some reason think I will be, know that I won't be blogging tomorrow because THE US IS PLAYING MEXICO IN WORLD CUP QUALIFYING WHY DON'T YOU KNOW THAT ALREADY.

Product of His Environment

By Robert H.

I was excited to read that Jonathan H. Adler had written an article entitled Conservative Principles of Environmental Reform, and even more excited when I read an interview with him entitled "Yes, Conservatives Can be Environmentalists   Here's How."  For years now I've thought that conservatives need to come up with a plausible environmental program, and this promised to show me a conservative who had done just that.

Unfortunately , he has not.

To explain this, we need to review the ideological bidding:  Recall that there are two big economic problems with pollution.  

1. The tragedy of the commons.  Because no one owns common resources, the incentives to preserve them don't work out right.

2. Transaction costs.  Because pollution injures a lot of people a little, the transaction costs to get them all together and deal with the polluter (either by suing him or paying him to stop) can be too high.  

In the 60's and 70's, conservatives and libertarians had clear answers to these problems.  Nozick outlined this in Anarchy State and Utopia, for example (such a good book you guys).

1. Privatize the commons.  If the government sells off all the common resources to the highest bidder, we can a. make sure incentives line up right for preserving those resources  and b. use the proceeds to help the common good, keeping the little guy from getting hosed.

2. Class actions.  Create a legal mechanism by which people can easily aggregate and sue polluters.

But then, over the coming years, problems undermined these solutions.

1. New kinds of air pollution.  Back when people thought of air pollution as a factory pouring smog into the air next door, you could kind of see how "privatize the resources" could work.  Treat the pollution like a trespass on all the nearby land it worsened the air quality over, let those landowners sue.  But when we realized that polluters were making microscopic contributions to continental or global air quality problems -- acid rain in the northeast, ozone holes over the antarctic, global warming -- it wasn't clear how to create a private property interest that could solve the problem.  The damage was to the entire atmosphere, the individual polluters contribution to it minimal and hard to separate out.  What do we do in response to that, sell the atmosphere?  Expect everyone who owns land on earth to get together and sue him?  Try to track down where the individual sulfur atoms he pumped into the air went?  There was no good solution.

2. Class actions turned out to be a mess.  Trying to simplify the costs of coordinating all those people just isn't possible without creating terrible agency problems (you basically end up with a lawyer who isn't actually working for his clients, and whose clients might not even know he exists), and at this point both conservative and liberal lawyers have pretty much given up on class actions.

So conservatives have never recovered from that.  They've basically spent the last few decades with wax in their ears, claiming that in every case the cost of pollution is overhyped and the cost of government intervention underhyped and so we should never regulate pollution ever.  They're probably right in a lot of individual cases, but as a universal answer to the problems posed by pollution it is wanting, and the empirical evidence supporting it seems week (IE, there have been some low cost, big success regulations of pollution).  Meanwhile, the liberals have workable answers to both the problems raised in one and two:

1. Deal with air pollution with cap and trade or taxes (from an economic perspective they get they same result).  

2. Deal with the aggregation problem by having government centrally regulate polluters (this imposes inefficiencies and risks regulatory capture, but, again, I think conservatives are nuts to claim that in every case the inefficiencies outweigh the gains).  

***

Ok, so that is out of the way, and the stage is set for Adler to finally come up with a conservative answer to the problems that stifled conservative environmentalism   Fortunately, he is able to express his solutions in one, succinct answer.

BP: So how do you use property rights to align incentives in other areas, like air pollution? 

JA: We do have to recognize that in many areas we still don’t know how to do that. We know what it might look like. In the pollution context, it would mean that every polluter would be held responsible for the pollution it generates. We don’t yet know how to make the tort system do that efficiently. But we know that’s the incentive we want. And the closer we can get to that ideal, the more we’re going to produce environmental results.

So... that's disappointing.  He doesn't know how to regulate air pollution and doesn't have a better tort solution than class actions, but he wants those better solutions to exist.  Good for him?

  He does have some specific ideas about global warming, though:

BP: So that’s the case that conservatives should pay attention to climate change. But what does that mean for policies to deal with?JA: I’m not a fan of regulating greenhouse gases under the Clean Air Act, I don’t think that’s particularly effective or efficient. But I don’t see the argument for doing nothing. I don’t think that’s consistent with conservative principles. So I’ve done papers on adaptation and how do we get the degree of energy innovation that many people think will be necessary. And most controversially, I’ve argued that a revenue-neutral carbon tax would be a good idea.

Oh.  He wants a carbon tax.  Like the liberals.

So his conservative solution to the problems plaguing conservative environmentalism are 1. Surrender to the liberals.  2. Figure something out.  Disappointing.


***

Seriously though, Adler makes some good points.  If I could force his argument into my paradigm (which is not his paradigm, and it's worth reading what he has to say in his own words), it would be 1. Conservatives need to stick to our "just privatize the commons" approach and fight for it aggressively in the places it works. 2. In the places it doesn't work, like air pollution, we need to be thinking hard to come up with something.  3.  We also need to be thinking hard to come up with a better tort system.

Then, as a sort of general 4. He does a lot to feed into the current conservative argument (centralized regulation of the environment, like liberals want to do it, is super super costly it is just terrible you guys).

Those are all fair and good points, they just fall super short of bringing conservative environmental policy back to where it was forty years ago: sitting pretty with a plausible story for how conservatives can protect the commons.

***

As an aside, I would add that environmentalism raises non-economic problems: for some people (IE, hippies) it is an inherently negative outcome when animals go extinct or biomes cease to exist or whatever.  If you value some piece of nature more than is economically efficient (IE more than people are willing to pay for it), then even the broad outlines of conservative environmentalism Adler presents won't do much for you.

Why I Think About Libertarianism So Much

By Robert H.

I am not a Libertarian, but I devote a lot of time to thinking about libertarianism and reading libertarians.  Why?  Well, the answer to that question depends a lot on the libertarians I am thinking or reading about.  I divide libertarians into three sorts:

1. Marginal Libertarians: For most policies, these people think the next policy step should be in a libertarian direction, but they don't necessarily want a libertarian state.  So of all the realistic policies we might adopt towards health care, the marginal libertarian wants the one that has less government intervention in the  marketplace, less government subsidies, etc.  Maybe he likes Paul Ryan's plan.  But, unlike a traditional libertarian, he doesn't necessarily want government OUT of healthcare.  At the margin he prefers libertarian policies, but going all the way to a minimalist state scares him.

Obviously more people are *mostly* marginal libertarians, than are *completely* marginal libertarians, since it is more a coincidental or attitudinal thing ("hey, look at that!  Most of the policies I like involve less government!") than a real ideology.  Greg Mankiw is an example of a marginal libertarian.  Or Tyler Cowen.

2. Consequentialist Libertarians: Consequentialist libertarians think the marginal policy move should be in a more libertarian direction, but they also think that those policy moves should go all the way, and we should have a night-watchman state, or anarcho-syndicalism, or whatever.  They want this because they think those kind of states are simply the best way to arrange public affairs, IE that adopting a minarchy has better consequences than adopting other forms of government.  They aren't much interested in libertarianism as a philosphy, they see it as a practical and superior form of government.

I tend to think of Scott Sumner as a consequentialist Libertarian, though he may be more of a marginal libertarian. In general I think very few people fall into this category, and I don't spend much time thinking about it.

3. Philosophical Libertarians: Philosophical libertarians think a libertarian state would have good consequences, but they also think it is philosophically mandatory.  They think government simply has no right to engage in redistribution, for example, and that this is as much a moral evil as theft.  Or maybe they don't go that far, but on some level they think there is a *moral*, as well as a practical case to be made for minimal government.

I am just going to pick the obvious example and say Robert Nozick was this kind of libertarian.  Or at least, was when he wrote Anarchy, State, and Utopia.  But this category obviously includes people with muddier thinking. Ron Paul, say.

***

So why do I care about libertarianism?  Because I am close to 1 and detest 3.  In terms of category 1, I've been convinced on the merits that a lot of policy should move in a more libertarian direction.  I am for free trade, open borders, less local regulation of property (IE, "zoning," height restrictions, etc), less incarceration  etc.  I still have big soft fuzzy liberal notions that keep me from identifying as a libertarian (hooray obamacare!), but I can read Tyler Cowen's blog and "right on" more than I "tsk tsk."  So I tend to enjoy reading and thinking about consequentialist libertarians, even when they disagree with me.

In terms of category 3, I pay attention because a lot of philosophical libertarians are, to me, terrifyingly counter-majoritarian , rejecting the basic

Democratic Focused, Rights Focused, Rule of Law Focused Cultural Norms + Democracy + Rights as Side Constraints = Sound Government 

formula that worked increasingly well over the 20th century.  So, for example, here's a law profesor, Glenn Reynolds, who came on Russ Robert's show to talk about all the ways he would like to change the constitution in order to ensure that his policies always win.  His proposals run the gamut of ways you can fail to respect modern democracy,  from changing long established process rules to make the outcomes you want more likely (IE, fiddling with term limits, which he wants to do), to constitutionally forbidding democratic outcomes simply because you don't like them on policy grounds (IE, instituting a balanced budget amendment, which he does not oppose and only does not support because he thinks it won't be stringent enough), to undermining human rights when you find them inconvenient (IE, he wants a constitutionally mandatory poll tax, currently forbidden by the 24th amendment and probably by Article 25 of the ICCPR, an international human rights treaty we have ratified).

That's modern philosophical libertarianism: "We are clearly right as a philosophical and policy matter, but modern democratic government keeps not doing what we want.  Therefor, democracy is flawed and the government is only failing to recognize our obvious rightness because it is in thrall to special interests.  Therefor, we should limit democracy not just when it steps on human rights, but more generally whenever it fails to enact the policies we want.  Convincing people to vote libertarian is all well and good, but most important is to take away or limit their ability to vote for non-libertarian outcomes."  The US constitution's model, limited powers for federal government to guard against tyranny, but broad powers for state government to empower the people, has been turned into a radical new model: limited power for all government, not for the purpose of preserving democracy, but in order to make sure all our preferred policies win.  It's a sickening rejection of majoritarian rule.

Add the distrust of democracy in with the utopianism, the blind conviction in an over-simplified philosophical position, the bad economics, the confident predictions of imminent doom for western democracies (doom that will conveniently reveal the status quo to have been flawed and libertarians right all along), the revolutionary rhetoric, and the on-campus appeal and you get a movement that reminds me uncomfortably of American communism in the 20th century.  I'm not sure if movement libertarianism has the potential to actually be as dangerous or global as communism was, but I don't think it's worth finding out.  Philosophical libertarians, from Ron Paul to law professors on Econtalk, have terrible ideas.  Those ideas have to be engaged.  Doubly so since so many of their policy positions coincide with my own, and since it worries me when my beliefs about, say, ending the drug war get lumped in with the beliefs of someone who wants a constitutionally mandated gold standard, or something.

So, that's why I spend a lot of time thinking about philosophical libertarianism.

Obviously, not all philosophical libertarians fit the description I just painted (most don't, probably.  The most wrong voices are probably the ones I am most likely to remember), and I try to be charitable to the best arguments philosophical libertarianism can present (which are pretty good!).  Just as obviously, plenty of people who hold a few views I find objectionable are probably smart people with lots of other good views (I am sure Reynolds, the law professor I talked about above, is smarter than me and has better ideas than me about most things, he just has really bad ideas about whether the constitution should be amended).  I am trying to demonize ideas, not people.

Minarchy Is Coercive

For some bizarre reason, ideological libertarians make arguments like this:

Instead, suppose you try to convince people of the similarity between government and organized crime. You say that both provide “protection” backed by coercion. The advantage of this is that if you can get someone to shift to looking at issues along the freedom-coercion axis, that person will be less receptive across the board to arguments for state intervention based on the oppressor-oppressed axis or the civilization-barbarian axis.

Just a reminder that minarchy is coercive.  Libertarian government will coerce me if I try to tort you, rob you, break our contract, tack a nap in your bed, walk through your yard, whatever.

The scale of coercion isn't even necessarily smaller in a libertarian state.  You could imagine a state where social norms are breaking down -- maybe there is a bad recession or a war of self defense or a disruptive technological change afoot -- and *lots* of people *really* want to steal or break and enter or tort or assault.   The threat or use of force is actually having to be invoked super often to change people's behavior.   Just so, you can imagine (and might be living in) a state where most people don't particularly mind paying their taxes, and the threat of and actual use of force is less necessary to get them to comply with tax law than it is to get our people in the first state to respect property law.  Even more important, you can imagine (though it may be unlikely) taxation and redistribution transforming the first state into the second state -- maybe the state taxes people and subsidizes public education, giving people a road out of poverty and, over time, making the masses less grumpy.  Maybe it's a social insurance program.  Whatevs.  Point is I can imagine a welfare state ultimately coercing less than a libertarian state would, with coercion defined as using force or the threat of force to change behavior.

Now you may think it is extremely unlikely that welfare-state policies will have that outcome, but that's an empirical and economics question more than it is a philosophical one.  To the extent it is true based on empirical observation that libertarian states coerce less, we are making a pragmatic or consequentialist argument,  not an ex-ante ideological argument.  And pragmatic libertarians are all right in my book.

Which isn't to say ideological libertarians are clearly wrong.  Ideological libertarians like minarchy because they think it coerces for the morally right reasons, IE to enforce the harm principle.  But they should argue that.  This whole "its all about coercion vs. freedom" thing is either a wrong or a pragmatic argument, it isn't a self evident philosophical truth.  The argument they want to make is "it is about justified coercion vs. unjustified coercion."  The state isn't the mafia because it is possible for the state to coerce you for justified reasons, but it *can* *be* like the mafia if it goes too far.

Restricting Guns to Prevent Mass Shootings is Dumb

The majority of gun deaths in America are suicides.  Suicides are also the type of death most easily deterred by restricting access to guns: Israel has had success curbing military suicides by not letting soldiers access guns on their downtime and Australia saw a sharp drop in suicide rates when it instituted its gun buyback program, with states with more aggressive buyback programs seeing a bigger drop faster.  These are not the only studies that indicate this, and the result has "microfoundations" in psychological literature: restricting the means by which someone can kill themselves is a key step in treating patients, having a gun in the home is a risk factor for suicide, etc.

Meanwhile, mass shooting deaths are a fraction of a fraction of America's 31,000 plus annual gun deaths, and the relationship between gun control and crime is harder to suss out.

So gun control is about suicides.  This is good, because it gets us to a core reason we might need state paternalism -- to protect the mentally ill from their crazy decisions.  It has the added benefit of being less condescending to gun owners: "we know you are responsible, we know you can handle your weapon safely, but we are worried that some depressed member of your household is going to use that gun to off themselves when they aren't thinking straight."

And it gets the numbers into a world where severely restricting gun rights makes sense: the economic impact of the firearms industry was about 31 billion dollars last year (by their trade group's estimates), meaning, if we value lives at about $7,000,000 (a standard figure in public policy planning, I think), we only need to save just under 4,500 lives a year to make the complete death of the gun sales industry worthwhile.  Not only do I think that is a realistic figure (there are 17,000 plus firearm suicides a year; deterring just a quarter of them from killing themselves would get us there), I think we can stop short of completely ruining all the utility people get out of gun ownership and completely bankrupting the industry (licensing guns to people when need can be shown (security guards, cops, etc), allowing rentals for firing ranges and hunting, perhaps still allowing a tightly regulated collecting hobby, etc).

So passing a restriction on big magazines or assault rifles to prevent mass shootings might be a marginally good idea, but it is going after a really small problem.  The problem is suicide.  The solution is heavy gun restriction.

If you think that people have an individual right to bear arms in the constitution, the solution is repeal of that right and heavy gun restriction.

Pros and Propholactics Pt. 2 -- Health and Safety Regulation

This is a continuation of a series about LA county mandating condom usage in porn.  Part I is here.

Advocates of the rule see it as an obviously correct workplace safety regulation: unprotected sex is dangerous, these people are having unprotected sex on the job, let's protect them.

Except that's not fully convincing.  Some jobs are dangerous -- fishing off the coast of Alaska, building a house, repairing broadcast towers.  People die doing this stuff.  But we let them because our society is not all about maximizing safety.

In life there are risks and there are rewards, and generally we trust tort law and the free market to sort that out.  If someone wants to pay you to do something dangerous, he'll have to pay you more.  If someone is negligent or lies to you to put you in a dangerous situation  you can sue them.  When do we depart from that rule?  Do any of those exceptions apply here?  Let's find out!

Reasons for regulating health and safety:

1. Information overload: Consumers gotta consume, and in the modern economy they are faced with a lot of options.  Of the thousands of restaurants in your city, which are safe?  Which brand of toothpaste is safest?  Is the escalator in this mall dangerous?  Tough to say!  In situations like that, where there are big information asymmetries  some people think it makes sense to protect the ignorant party.  Rather than being paralyzed having to research a hundred restaurants  you can just show up and be pretty confident some official has inspected the kitchen.  Score.

This doesn't really apply in this case.  The porn stars aren't random people who wandered onto a set, this is their profession.  They're aware of the safety precautions that have been taken (mandatory testing), the safety precautions that haven't been taken (no condoms), are comfortable with that mix.

2. Tough Bosses: The "let's just let the free market work it out" rule implies that employees and workers will negotiate the "correct" mix of safety and danger.  A lot of people aren't comfortable with that, and think that employers have some coercive power over employees, maybe because of transactional costs (hard for employees to unite and negotiate as one), maybe because of the market just not being a magical cure-all, whatever.  So the workers want a safety railing and the evil plutocrat says "no!"  Society passes regulations to get them that railing.

This certainly doesn't apply in this case: it's for situations where management and labor are fighting, but teh porn stars oppose this regulation as heartily as the owners.

3. Human Rights: Some things are just wrong and people shouldn't be allowed to do them.  Lots of people think you shouldn't be able to sell yourself into slavery, or work an 11 year old for 12 hours a day in a factory, or whatever.

I don't think this applies here.  Lots of people think you shouldn't be able to sell sex, but no one thinks you shouldn't be able to have sex without wearing a condom.  Condom-less sex is not the sort of act so insulting to human dignity that we want to ban it.

4. Externalities: Management and labor agree that they are causing the right amount of pollution, but maybe the dude downstream for where they are dumping the toxic waste disagrees.  We impose regulations on things that could be seen from a worker-safety perspective -- handling toxic waste -- because we are actually worried about other people -- the civilians downstream.

I don't think this applies here.  Yes, people who have condom-less sex risk contracting and spreading disease.  But that's true of people who are doing it professionally and people who aren't.  If this regulation isn't targeted at protecting porn starts, its protecting everyone, everyone should be willing to live by the same rule (IE, condom-less sex should be banned society wide).

***

So of all the traditional reasons I can think of for workplace safety regulation, none of them seem to apply here.  This looks a lot more like "I know this is a risky job, but it's not crazy risky ("porn star" is not the most dangerous job in America, by a long shot), my boss is taking some reasonable precautions  and I'm getting paid a premium for the danger.  Let's do this."  And in a free market society, that's pretty much how we apportion risk.

Did I miss something?

Pros and Prophylactics Pt. I -- Introductory Post

LA County recently mandated that actors uses condoms in hardcore porn shoots.  So gross and who cares, except porn is a billion dollar industry in LA.  So this matters.

Basically the dispute is safe sex advocates on one side and the porn industry (and, crucially, the porn stars themselves) on the other.  It's a pretty simple argument: "This is basic workplace safety stuff, and promotes safe sex besides."  vs "We already have a vigorous STI testing program that keeps performers safe.  We don't want to go further since using condoms hurts profits, both because dudes are dumb and don't like watching condom-porn and because it increases production costs, since condoms chafe a bit, especially over the super-long sex sessions used on a shoot, and actors and actresses need to spend more time on a shoot resting when they are used."  I strongly suspect the pornographers are right on this one, and I'm going to do a series of blogs explaining why.  I am planning on three posts: why it's a bad idea as workplace safety regulation, why it's a bad idea from a first amendment point of view, and why it's a bad idea from a privacy rights point of view (there should be a better term for the kind of rights I am talking about, but the courts call them privacy rights so I will to).

Crucially, I won't be doing a close cost-benefits analysis of how much this will cost the industry vs. how many people it will save from STIs.  I think that's the most relevant kind of way to figure out the right solution here, but that sort of thing is hard to do.  Suffice to say there are real costs (Vivid pictures tried to go all condom and was losing so much money they had to stop) and real benefits (people won't get sick, duh) involved here.

Click here for part 2 of this series, IF YOU ARE MAN ENOUGH.  Or woman enough.  Or gender-is-a-spectrum enough.