J17 - SciTech and Paradigms

One of the tasks involved with serving on a law journal is writing an academic article that could be published by the journal, or some other academic journal. This year, I am a member of the Albany Law School Journal of Science and Technology, or SciTech. So, my article has to relate somehow to science and/or technology, which is not a difficult task for me. Actually, the most difficult part, for me, is finding a way to relate the things I would like to write about back to law somehow.

Now, there’s a definite schedule that writers need to follow in order to make sure that their article is ready by the end of the year. The first deadline on this schedule involved the preparation of a possible topic list and the acquisition of a faculty advisor. Even though we got this schedule before the school year started, I went through life assuming that Professor Hirokawa would be my advisor, since my topic was going to involve the environment somehow, and he’s the environmental law professor. However, I never actually asked him to be my faculty advisor. As a result, I missed the first deadline. I cleared it with my editor, but it was still a little disappointing.

The three topics that I included on my topic list were: i) a plan for privatizing oceans, given that property in this age is considered to be whatever the government says it is, but no government has jurisdiction over the oceans; ii) an examination of the possible legal system of seasteading nations, given their desire to be relatively lawless islands of prosperity; and iii) how the legal system, specifically the common law, reinforce our negative and counterproductive conception of climate change. I’m gonna go with the third option, because it relates directly to my emc2 project and I don’t want to be working on two big research projects at once. However, the connection back to law is incredibly strained. So, I’m gonna have to work on that.

In discussing my topic with Professor Hirokawa, I realized something important. Property, as it exists in our society, is not the Lockean concept of property that is used in economics, particularly Austrian economics. I need to adjust my own idea of property to be more realistic; in this time and place, property is defined by law. It’s not so much that I own a parcel of land, it’s that I own a parcel of land in a residential zone subject to an easement for public access to the creek. My right to my property is absolute, but the definition of my property is constrained by law. Obviously, this needs to be rectified, but, in the meantime, if I’m going to communicate with people in the real world, I need to adjust my descriptions of certain concepts so that I’m not coming from a world of purely mental construction, assuming more from my audience than they can deliver. Moreover, this revelation reinforced the notion that ideas have real power in the physical world. We’re not just struggling against a climate change paradigm. There are many paradigms at work in our society that need to be questioned and reconsidered. That is a quite formidable challenge. And an exciting one.

J16 - Plan for SDA#2

For my second self-designed assignment, I want to bring in some of my legal education. Fortunately, my research this month lends itself to that effect, since one of the main sources I studied this month was Rothbard’s article on law (“Law, Property Rights, and Air Pollution”). I still want to do something written, since that’s what I’m good at. 

My plan is to write a judicial opinion deciding an air pollution case. The case will mostly be based on the facts of the 1970 Boomer v. Atlantic Cement Co. case at the New York Court of Appeals (New York’s highest court). The case was interesting (or disappointing) because the court set a new precedent with their ruling, breaking from the common law rules that they had established previously. So, in order to make my fake opinion as hypothetically influential as possible, I’ll be writing it as the Chief Judge of the New York State Court of Appeals, one of the best courts in the country, considering a case similar to Boomer and ultimately overturning it in defense of property rights.

This will be a little challenging because judges are not economists; the arguments that I use to decide upon the solution to this environmental problem must be legal, not economic. But, as Rothbard realized, and as I now realize, it’s nonsensical to suggest property rights as a solution to various problems without assurance that those property rights will be enforced. The purpose of this assignment is to sketch out what that enforcement might look like.

Identifying the Enemy: A Comment on the Classification of Human Beings

It is my hope that this essay will be a useful contribution to the discourse surrounding the events in Charlottesville.  There already exist far greater accounts and analyses of the actual events than I could ever provide.  Rather, I discuss the classification of human beings, and the risk it poses to our ability to respond properly to the events in Charlottesville. For the purposes of this essay, “good” is defined as “conducive to human life and welfare (in terms of material prosperity)” and “bad” is defined as the opposite of good, “detrimental to human life and welfare (in terms of material prosperity).” Additionally, “Nazism,” which is primarily an economic platform, will be used in the vernacular sense, “anti-Semitic plus....” 

There is a difference between bigotry and a bigot. One is an attitude, one is a person. There is a difference between racism and a racist. One is a belief, one is a person. There is a difference between Nazism and a Nazi. One is an ideology, one is a person. These distinctions are important because condemning Nazis, saying that they have no place in your city or in our country, is not the same thing as condemning Nazism. And such a pattern of condemnation, I believe, is a grievous error.

It seems to me that all of the accusations of being Nazis and the condemnations of Nazis that have followed the events in Charlottesville carry an implied assumption: that being a Nazi is bad. This is a proposition that I can readily agree with. But, listen closer to people’s comments, and you’ll begin to hear something a little different: that being a Nazi makes someone a bad person. This proposition I have a problem with. Is being a Nazi enough to qualify someone as a bad person? What is the criteria for classifying someone as a bad person, as opposed to just someone who has done bad things?

You see, being a Nazi is just one feature of a person. He may also be a devoted family-man, a successful businessman, a generous tipper, a regular church-goer, a willing tax-payer. The bold proclamations that such individuals should have no part in our society seem infantile when one realizes that these individuals are, in fact, part of our society. Are these contributions enough to outweigh their racist views and actions? I don’t know. But I don’t think we can dismiss them outright.

Indeed, since it’s impossible to weigh the good and bad actions of an individual in any objective sense of the word, one may question the propriety of applying such labels to as complex a creature as a human being. Murder, the intentional killing of a human being with malice aforethought, is, and must always be, a bad thing. Socialism, the elimination of private ownership of the means of production, is, and must always be, a bad thing. Human beings, in contrast, may be bad sometimes and good at other times. Should we apply such a damning label to an individual when the applicability of the label could be so ephemeral?

Of course, the same problem arises when considering any label commonly applied to living human beings, who always retain the capacity to change. We may properly label someone a Nazi today, but that individual may see the light and become a libertarian tomorrow. So, if we are to use any labels, we must do so cognizant of their temporary status. Labels are useful and important in the course of human activity, and it is not suggested that their use as applied to human beings be abandoned merely because of their chance of being temporary. Therefore, since the label “bad” is not used in a sense any more permanent than any other label, it does not seem improper to label someone who intentionally and repeatedly does bad things as a bad person. It remains unanswered whether holding Nazi views, or even shouting racial slurs while holding a tiki torch and throwing rocks at counter-protesters, is enough to earn that label.

So we’ve determined that it is appropriate to call someone a bad person under certain circumstances, and we’ve allowed that being a Nazi may be such a circumstance. But now I’d like to consider the wisdom of doing so. Because, from what I’ve observed in public discourse, such a practice has the tendency of being counterproductive, as it misdirects people’s focus away from the real problems, the definitionally bad things that taint the human beings they work through. In this age of underdeveloped critical thinking skills, lack of precision can cause confusion, and this confusion can be costly.

One of the clearest examples of this confusion is the comparison between President Trump and Hitler. “Trump is ‘literally’ Hitler,” we hear. The implication, of course, is that Trump is a very bad person, just like Hitler was a very bad person. But this is a confused line of thinking, because there’s nothing bad about being Hitler. You see, Hitler wasn’t a bad person because he was Hitler; he was a bad person because he did many bad things. Things that Trump has not done. My point is that this comparison represents the public’s identification of Hitler, a complex human being, as synonymous with evil. But, again, being Hitler is not the crime that Hitler was guilty of; he was guilty of invading neighboring nations and orchestrating a Jewish genocide. It’s the actions of the individual that are bad, punishable, condemnable. Not the identity of the person. It’s not people who are bad; it’s the things they believe and the things that they do. We call people bad when they act badly.

Now, none of us are likely to forget Hitler’s crimes. But we are almost certain to not exercise the necessary care to specifically condemn Hitler for being a genocidal dictator rather than generally condemn Hitler as a bad person. And as slight as it might be, risk of confusion exists when we fail to exercise such care. 

Why does specificity matter? Why should we make painstakingly clear that murderers are punished for killing someone, rather than because of who they are? Why should we distinguish between being a Nazi and being a bad person? Because otherwise we misidentify the enemy, and we risk focusing our efforts on the wrong solutions. For example, our goal as a society should not be to punish criminals, but to reduce crime. The crime is the bad thing, the thing we need to fight. But if we lose focus of this goal, and start viewing punishment as the end rather than the means, we run the risk of instituting a solution that doesn’t actually address our real problem, of taking a step that doesn’t actually bring us any closer to our real goal. A cursory overview of our criminal justice system might suggest that we have, in fact, misplaced some of our focus.

A similar loss of focus explains the Nazi problem. Our real enemy is not the adherents of Nazism, but Nazism itself. I have heard a number of commentators say something like “Hey, Nazis! We already beat you, back in World War II. You’ve already lost!” Sometimes this is said with condescension, sometimes with confusion. But the truth is, we only defeated a specific group of Nazis. Nazism was condemned, but not truly engaged, let alone defeated. The Nazi problem calls for an intellectual fight. Only good ideas can defeat bad ideas. World War II failed to eradicate the Nazis because we tried to fight an ideology with force, not reason. 

We seem to be making the same mistake today. The public, along with their elected representatives, seem to be laboring under the delusion that it is enough to label people as Nazis and to publically condemn them. If this isn’t enough to make them go away, then perhaps it may be necessary to resort to police action. But almost no one has taken the time or care to identify the real enemy as Nazism, the ideology, and offer a refutation of it. This leaves it alive and virulent enough to continue collecting recruits, free to rear its ugly head at some later date in yet another attempt to destroy the liberal social order.

Some people are Nazis, and they should be labelled as such. And it may be that these Nazis are, in fact, bad people, although I continue to question whether being the one is sufficient to make someone the other. But even if we admit that Nazis are bad people, we must remember that they are bad people because they are Nazis, and that our eternal struggle against bad things is more accurately directed at the Nazism than at the Nazis. We should, therefore, take great care in forming our response to events like those in Charlottesville. 

Human beings are complex creatures. Not one of us is either all good or all bad, and we are all capable of change. For that reason, it is better to focus not on fighting bad people, but on fighting the bad parts of each flawed human being. We should not ostracize the Nazis among us as irredeemably bad people. We should, instead, offer them a better vision to replace the hate in their hearts, a vision of a peaceful and prosperous future that we can build together.

J15 - Hurricanes and the Function of Prices

They say that being an economist is the least satisfying job available. The economist spends his entire life refuting economic fallacies and attempting to educate the public about the wonders of the price system, and then, in the hospital, when they're about to die, he hears a pair of nurses talking about the need for a higher minimum wage. Additionally, one of my former students has told me that his knowledge of economics has made him quite a cynic. Economists have the rare ability to see what is unseen; they see how everything could work out if everyone cooperated with each other and if the government didn’t interfere with the market process, and they see that this is never the course chosen in real life. They begin to lose faith in people.

I’ve managed to avoid these depressing attitudes, for the most part. My knowledge of economics has, instead, given me a profound sense of wonder. When I walk through the streets of New York City, my mouth is usually agape, not because I’ve never seen so many people, or buildings so big, or prices so high, but because I am staggered by the amount of wealth that surrounds me. I marvel at the fact that more people than the population of the entire Roman Empire can fit into one city, and that they all get fed. Who built this monument to humanity’s triumph over scarcity? Private savings, entrepreneurs, the market. Instead of seeing all that we do wrong, like my student, I see all that we’ve done right. It makes me happy, and hopeful.

Except during natural disasters. Then I become a cynic. I get angry. I begin to feel hopeless. Because it’s during disasters when markets are the most needed, and during disasters when markets are most resisted. And I don’t need the ability to see the unseen to see the real, human costs of this resistance. 

I am speaking, of course, about “price gouging” and the public’s widespread vilification of it. 

I’ve already written extensively on the functioning of the price system in my first Self-Designed Assignment, so I won’t go into too many details here. But there are two very important things that high prices accomplish in emergencies: they cause people to conserve the scarce resources, and they cause further production of the scarce resources. When a resource is scarce, its price rises, which tells market participants that only their most valuable ends can be satisfied with this good. In other words, as the price of water rises, less water is purchased to boil pasta, so more water is available for drinking; as the price of plywood rises, less plywood is purchased for building doghouses, so more plywood is available for covering windows. 

The other thing high prices during emergencies do is attract resources from the rest of the country. Here in New York the price of gas rose almost 40 cents in just a few days after Hurricane Harvey hit Texas. Some people complained, because it wasn’t like the hurricane had affected our supply of gasoline. And that’s true. But what was happening was that the people in Texas, having lost their supply of gasoline, were now competing for our supply, and outbidding us. The high prices in Texas attracted gasoline and water and plywood away from the rest of the country and towards Texas. Yes, this occurred because businesses and individual arbiters wanted to make money off the high prices in Texas. But they made money by bringing people the supplies they so desperately needed. The market makes sure that these money-makers earn their reward, but it does reward them, and by doing so it creates the incentive needed to attract the help that is needed. 

Furthermore, the high prices provide useful information about what exactly is needed, and where. If you look at the prices in Texas, the price of water has multiplied many times over. The price of clothing has not risen much; the price of stuffed animals not at all. And yet, many people are donating clothing and stuffed animals. This is not what people need. They need money and water and construction materials. Market prices communicate valuable, real-time information about what is needed and where and how badly. 

By allowing prices to rise during disasters, more resources are drawn to the areas where they are needed the most. The people in those areas naturally conserve their use of that resource, allowing their fellows an opportunity to obtain part of the supply. And the rest of the market can see where exactly help is most needed and what form that help should take. If we prevent prices from fulfilling their function, we cripple ourselves, and our relief efforts, and the social order’s ability to deal with the crises. People die as a result. And yet, because these voluntary transactions seems “unfair,” people condemn and actively squash the price gouging, a system that does far more good than any government response ever could. 

And as an economist, as someone who understands what these prices mean and what they’re doing to help people, the ignorant cries to put a stop to them are infuriating.

J14 - The Primacy of Property Rights

Murray Rothbard’s seminal contribution to the market environmentalism literature is entitled “Law, Property Rights, and Air Pollution.” As the name implies, the article discusses far more than how the price system coordinates human actors in their attempts to solve environmental problems. The substantial majority of the article is dedicated to elucidating a theory of property rights and what a body of law based solidly on such a theory would look like. The discussion of air pollution seems like more of an illustration of previous points rather than a conclusion built upon the previous points. As I mentioned in a previous Journal, I was disappointed with the content of this seminal piece. However, I do recognize the importance of what it does contain. It is telling, I think, that Rothbard believed that the most significant contribution he could make to the literature on environmental economics was an explication of property rights.

Now, Rothbard meant for the enforcement of property rights to be a direct solution to a number of environmental problems, namely air pollution in this particular article. And I agree that this is a valid contribution to the market environmentalism literature. After all, the tragedy of the commons only arises because of there is a commons. If that land had been privatized, then overuse and abuse would not have occurred (provided, of course, that a legal system existed that could enforce those property rights). Dr. Walter Block, Rothbard’s heir as Mr. Libertarian, has written two books drawing upon Rothbard’s property rights focus: Privatizing Roads and Highways and Water Capitalism. The last time I spoke with Dr. Block, he was working on a third book about privatizing space. So, it is clear that privatization and enforcement of private property rights eliminates many of the externality problems and resource conservation problems and efficiency problems that are raised by the environmentalists. 

But my project focuses on something a little bit different. I’m focusing on adaptation, rather than prevention. I acknowledge the validity and utility of the privatization and enforcement route for the solving of many problems, but the literature already richly addresses those issues. My project is about how the market might build a better future through climate change, rather than how the market might prevent climate change. So this focus on property rights as a direct solution to environmental problems is somewhat peripheral to my own focus.

However, property rights are an indirect solution to the problems that I seek to address, because private property rights are a necessary precondition of a free market. My project is about how the price system and the market process can create solutions out of the problems, rather than solutions to the problems, but the price system and the market process would cease to function without private property. At the very beginning of this project I justified calling it “Market Environmentalism” because I was going to make the explicit assumption that socialism, without property rights, would be incapable of addressing the environmental issues we are facing. After reading Rothbard’s article, however, I’m wondering whether I should turn that explicit assumption into a reasoned explanation. I didn’t want to get too far afield with my project, but Rothbard’s focus makes me think that taking the time to explain and defend the system of property rights that is necessary for the market to function might be necessary. Indeed, Rothbard has written elsewhere that one cannot explain the market without explaining property. After all, when men engage in exchange, they are not really exchanging an apple for a box of nails; they are exchanging ownership of the two goods. The former owner of the apple now has control over and may dispose of the box of nails, and vice versa. Still, to save time and space, I think that I’ll skip the philosophical justifications for property (citing to proper authorities) and just explain the libertarian theory of property.

Briefly, the libertarian theory of property rights is similar to the Lockean theory of property rights. Property is the right to exercise exclusive control over the owned good/resource. An individual owns himself, and acquires property by appropriating/mixing his labor with unused nature-given resources, transforming them into valuable economic goods. He may then trade these produced goods for the property of others, which was acquired in the same way. In a libertarian social order, these property rights are absolute: they do not expire after a number of years of nonuse, they are not subject to taxes, they are not subject to government regulations as to what one can produce or how one can produce or what one can do with what one produces. Again, for the sake of time and relevancy, I won’t enter into an explanation of how the market might enforce these property rights, but the theory of a free market is based upon the assumption that these property rights are enforced. The market cannot exist without private property.