I do a substack "live";Dan Williams on outlandish accusations of censorship; Andrey Mir's theory of identity politics; I review a book on luck; Alberto Mingardi reviews a book on laws run amok
I was unaware that the common law had ever gone away in the United States other than in Louisiana where contract and torts are said to have a civil law character. Indeed the common law governs most relationships between private parties, including businesses, in the United States and the courts and judges are so unreliable and unpredictable that the United States is the world leader in alternative dispute resolution as parties flee the common law nightmare. Romanticize oligarchy and aristocracy all you want, but people are still going to attempt to minimize their transaction costs. US economists don’t really appreciate this because they worship GDP and more transaction costs mean more GDP.
Ironically, it was the populists who inflicted the common law on the United States. Up until the time of Andrew Jackson, the aristocrats like John Adams were all fluent in Latin and resorted to Roman civil code texts frequently. They were quite close to installing a common sense civil law regime until the country lawyers who didn’t have facility with Latin overpowered the aristocracy and began imposing common law on a state-by-state basis and the midwits took control. The federal courts developed their own common law tradition independently. The oligarchs and aristocrats failed as they always have.
Because the United States has national, state, and local common, administrative, judicial, and legislated law it is not in the least surprising that the United States also leads the world in legal costs. Nor is it at all surprising that the US, with 2.5% of GDP going to legal costs is closely followed by other common law jurisdictions Canada and the UK. Australia comes in 5th behind Germany.
Germany, however, has a wholly superior legal system, despite also having a federal system and the immense legal cost of EU compliance. Germany is legal system is a civilian system, primarily based on codified laws and regulations and there is concurrent jurisdiction between the Federal Government and the states so that defendants don’t have to face both federal and state trials for the same thing. It also uses an inquisitorial system with judges conducting most of the trial instead of allowing cross-examination between the defense and prosecutors. This reduces costs for the parties and defendants are not coerced into plea deals by prosecutorial threats of enhanced sentences and even more costly trials as so frequently happens in the US. Germany also uses a mixed system of judges and lay judges so the legal guild is less able to engage in monopoly practices. Germany has five basic codes which are relatively common sense and intelligible so it is possible for lay people to understand the law in advance and plan their affairs accordingly without costly legal counsel. And most importantly, the dank emanations of prior judgments do not hang in the air suffocating all progress: Germany has no stare decisis. No endless shelves of prior opinions for the legal guild to generate billable hours. Of course, Germany is not perfect. And last but not least, the German Federal Constitutional Court is the only court that may declare statutes unconstitutional. Moreover, private parties do not have to bear the cost of litigating the constitutionality of laws: the court can exercise review without a conflict before it:
“The Federal Constitutional Court has two separate panels (senates) of 8 judges each (originally 12), and each panel has jurisdiction over distinct areas of constitutional law. Judges serve a single, nonrenewable 12-year term (service, however, may not extend past the retirement age of 68). Half the membership is elected by the Bundesrat (the upper house of the German legislature), the other half by a special committee of the Bundestag (the lower house). To be elected, a judge must secure a two-thirds majority of votes cast; this rule has generally prevented any party or coalition from determining the court’s composition.
The court’s workload of some 5,000 cases annually is quite heavy in comparison with the U.S. Supreme Court, which hears several hundred cases each year. The Federal Constitutional Court is not an appeals court; rather, it is a trial court with first and final competence. Its decisions are binding on state and federal legislatures and on all other courts. Any individual claiming an infringement of his basic rights may bring a constitutional complaint. In any case in which there is doubt as to the constitutionality of a law, lower courts must stay the proceedings and submit a question to the Federal Constitutional Court. Unlike the U.S. Supreme Court, the Federal Constitutional Court exercises what is termed abstract judicial review; under this jurisdiction the federal or a state government or one-third of the members of the Bundestag may petition the court on the constitutionality of a statute, even before the statute has taken effect….. ... The court settles disputes between the states and the federal government and serves as a court for impeachment of the president and judges. “
Of course the system is not perfect. Some features are proving problematic: “The Federal Constitutional Court is also empowered to decide whether a political party is pursuing aims and using methods that conflict with the democratic order; in cases where the court rules that a party is in violation of the constitution, it will order the party’s dissolution.”
Nevertheless, I have little doubt that the people of the United States if able to vote in a referendum on whether to retain the status quo or adopt the German court system, would overwhelmingly support the latter.
Do we really need wonder why the neo-aristocracy movement in the US wants to distract us by blaming the public for the USA’s third rate legal system? The status quo is unsustainable.
There's a lot of crowding out of common law by statutes. When you read employment law cases, for example, they are mostly about statutory causes of action. That wasn't true in, say, 1960. Same is true in environmental law - nuisance was the main cause of action, now it is all statutory. So the common law didn't go away, it is just a smaller proportion of the law today.
Additionally, much of what was traditionally common law has itself been supplanted by being codified by statutes that adopt restatements of the law or model or uniform codes. Not that this has put a stop to a certain unpredictable and idiosyncratic coloration that an individual judge can paint onto what it purportedly """the law""".
Re: "I suspect that the late Jeffrey Friedman had the explanation for the public’s excess desire for laws: the belief that there is an expert with perfect knowledge in the subject area."
My intuition is that this explanation has much less bite than the public's desire to impose their norms and sentiments as formal rules for all in all manner of things. "There oughta be a law!"
Classical liberals distinguish laws and norms. They hope to have few, but crucial laws; and day-to-day regulation of behavior by wise, healthy norms in civil society. In current political cultures, few people are classical liberals, it seems.
Compare the EconTalk conversation between Michael Munger and Russ Roberts, about Lord Moulton's classic lecture a century ago, "Law and Manners," and Moulton's ideal, "obedience to the unenforceable:"
Dan Williams exerts prodigious mental effort to downplay the significance and harm of government propaganda in the form of illicit attacks on free speech and those who practice it. Some of these attacks have had very harmful consequences, for example, suppression of the fact that the mRNA vaccines were not safe and effective for general use. He deprecates the term censorship industrial complex which is useful and necessary to provide a concise reference to a web of practices and thereby facilitate discussion. Attacks on language in an effort to derail or hinder criticism, typical of the Left, are discreditable. Calling the invaluable work of people like Shellenberger and Taibbi "hysterical discourse" is nonsense. Arnold is too charitable to Williams who is not in the least charitable to the objects of his highly partisan critique in the form of a spurious even-handed discussion.
It is important to remember that in the Murthy v Missouri decision on government involvement in social media censorship (https://www.supremecourt.gov/opinions/23pdf/23-411_3dq3.pdf ), the Supreme Court did not rule on the merits but instead on standing. In that case a lower court judge had opined that the White House and federal agencies “engaged in coercion of social media companies to such an extent that the decisions of the social media companies should be deemed that of the Government.”
Alito’s dissent in Murthy provides a useful contrast to Williams:
“For months in 2021 and 2022, a coterie of officials at the highest levels of the Federal Government continuously harried and implicitly threatened Facebook with potentially crippling consequences if it did not comply with their wishes about the suppression of certain COVID–19-related speech. Not surprisingly, Facebook repeatedly yielded… …
That is regrettable. What the officials did in this case was more subtle than the ham-handed censorship found to be unconstitutional in Vullo, but it was no less coercive. And because of the perpetrators’ high positions, it was even more dangerous. It was blatantly unconstitutional, and the country may come to regret the Court’s failure to say so. Officials who read today’s decision together with Vullo will
get the message. If a coercive campaign is carried out with enough sophistication, it may get by. That is not a message this Court should send. “
Williams’ comments vindicate Alito.
If government involvement in social media censorship is really so innocuous, maybe Congress should just require that all communications between government employees and officials and media outlets be permanently retained and subject to FOIA and if oral recorded and transcriptions published in the Federal Register.
As a related note, the Libertarian legal community tends to have a hard time dealing with these kinds of cases in an intellectually coherent manner because of the desire to draw a conceptual hard border, as it were, between the state and the private firm, and the rules applying to each. Instead, to borrow another phase, there needs to be a much more robust "wall of separation" between firms and the state. Otherwise, The State Action Doctrine and the Third Party Doctrine can't handle the modern "Don Corleone's Merely Polite Request" Doctrine. The only non-naive answer is, at a minimum, to make it illegal for the state to communicate to private companies except in the form of a permanently public court order, and for it to be likely illegal for private companies to give the state what it wants in the absence of such a court order.
Arnold likes to point out how mobile internet devices confuse our instincts and make the distant seem near and familiar. But it's much more than that, more like the increasing importance of the intangible over the tangible. Increasingly, the lives we live and interactions we have in the digital, virtual space are more 'real' and 'important' than that of our physical reality, which more and more seems little more than an annoying necessity the details of which are inconsequential or a matter of convenience, like the gnostic or zoroastrian attitude about this material domain as a kind of prison for the soul, though one that could be made surprisingly pleasurable as in a "golden cage."
In the past, broad geography mattered so much more than it does today, so "region" and "local" made sense as ways to distribute and organize political power in what was assumed to be along the lines most likely to reflect any era's major political disputes. That assumption is now obviously totally obsolete, details of personal identity matters much more than region to voting patterns and political views, and to the extent region still matters, it is mostly downstream of population sorting trends, not something that has any relation to the nature of living on the land near particular geographic coordinates.
But likewise, "narrow geography" used to matter a lot more too. Your private sphere and the details of your life you would wish to keep from unwarranted public scrutiny was, in fact, closely correlated with your physical person, house, papers, and effects. But now that, too, is increasingly obsolete. I think if you gave most people today a choice, they would rather the police toss their bedrooms than get account log-ins and dig through their smartphones. Today, most of the important and sensitive private details of your life are not tangible and close to your physical person but contained in intangible digital records which the law currently deems to be the property of private companies.
So, on the one hand, the government isn't supposed to be poking into your "narrow geography" private affairs unless they have probably cause to believe you've committed a crime and they've proved it to a judge sufficient to get a warrant. On the other hand, your "privacy intangibles" are all owned by private companies, and the government - which these companies know can crush them into dust anytime it wants to - can merely ask them to hand all that information over, and the private companies often do it, often happily, and often for profit, since the government can just insist it is one of many possible customers for those juicy datasets. So much for "individualized suspicion", just mine that big data baby, Beria would have had a field day.
Likewise with censorship. The government is not supposed to just shut you up or prevent certain things from being published, yadda yadda. But, it can just ask the small number of major private companies which own the platforms you speak through - and are the only places that matter where anyone is around to be able to listen - to, well, shut you up and prevent you from publishing certain things.
Likewise with ostracism and excommunication from polite society. The government is supposed to treat everyone equally and not discriminate between viewpoints. But also, the government can get the banks to do its bidding, and the banks can just debank you without having to explain why, and, you may have noticed, it's pretty hard to live a normal life when banks won't do business with you, and perhaps the Constitution was not meant to have giant loopholes that are allowed to apply for 99.99% of the "free population" so long as it still even theoretically possible for one stubborn mule to survive as a hermit.
So far the legal Libertarians have seemed either paralyzed by ambivalence or completely out to sea on what to do about these pressing realities. They don't want to push private companies around, but they don't seem to know any other effective way from getting them to do things for the state that the state shouldn't be trying to do at all.
At the very least, if the state that can investigate and regulate these companies into the ground is going to """ask""" these """private""" platforms to """voluntarily""" censor (er, "reduce the visibility and distribution of ... ) certain content, it should communicate these merely polite requests solely via permanent records in a publicly-accessible internet forum hosted on some blockchain (or whatever). There's no need for conspiracy theories when everything is right out in the open; helps build trust and stuff.
On the other hand, when those communications are allowed to happen in secret and are denied or lied about later on for any particular subject, and acted on in ways completely inscrutable to the public (and judging from some commentary, arguably even to counsel with the so-called benefit of discovery orders) that the principle of conspiracy theory must be allowed, and there is no way to argue for a moderation of view from those who now hew to a policy of radical skepticism and presume the government is lying to everyone all the time about everything.
This reply is in agreement with the comments of both Thucydides and Treeamigo below. Three additional points. First, Williams assumes that readers of the work of Taibbi, Benz, Shellenberger, et. al. are too stupid and unsophisticated to discern for themselves whether the term 'censorship industrial complex' has any merit. As Thucydides argues, the term is a useful shorthand for a web of practices, and it is not necessarily taken literally by the intended audience. Williams reveals himself as an elitist in this respect. Second, Williams openly acknowledges that he supports the 'liberal establishment,' notwithstanding many of its flaws, and in the final paragraph, asserts that Trump is 'America's most authoritarian politician,' i.e. Williams suffers from TDS. These biases shape everything that Williams writes in this article and every article he writes. Finally, the web of practices that fall under the rubric of 'censorship industrial complex' are harmful and downright evil not only in and of themselves, but also because they undercut America's ability to exercise 'soft power' abroad, especially with regard to more traditionally authoritarian regimes such as Russia, China and Iran. It is not good enough for the United States to be a softer version of authoritarianism than its adversaries. We have to hold ourselves up to a much higher standard than our adversaries if we are going to go around the world claiming to be the 'good guys.'
One of the first "vaccines" involved rubbing pox on an infected person's skin. This resulted in something like 10 or 20% of the vaccinated dying. It was not by any means safe. But infection through the natural course resulted in a far higher death rate. Safe and effective are relative.
Williams is nuts. Of course soft censorship is a problem - the government should not be out there suppressing the speech of Americans, nor implicitly threatening companies like Meta et al to toe the line or invite the wrath of regulation and taxes, nor should the FBI be feeding these companies falsehoods in order to protect the politicians they favor. And it goes beyond “soft” censorship, as Williams well knows, into outright demonetization of voices (taking away livelihoods) as well as outright removals and bans.
None of these are things I want our government doing. If politicians wish to speak out against narratives they don’t like or counter them with “truthful” narratives- they have a bully pulpit, they literally hold press briefings every day, cabinet officials can hold special press conferences and they can also buy advertising, write op-Ed’s, etc. Speech is meant to be a competitive and freewheeling process, not a proscriptive one, under our constitution.
I love this comment except for the part where you say, "Williams is nuts." I understand your perspective, but I would say, "Williams was born and raised in left-wing culture." Everything else about your comment is fantastic.
One aspect of censorship substack that is important to remember, there was no other source of information other than substack and X. Everything else was censored.
One of the real advantages of common law is that it proceeds incrementally. Each case is like an observation that a judge "fits" to a trend. Common law is therefore less proscriptive, and confines itself to the specific facts and circumstances in question (rather than attempting to lay out an operating manual). Over time, common law becomes like a dynamic FAQ. Wisdom compounds.
The downside is that there can be more variation and uncertainty. There are always going to be outliers on that plot. And for other reasons, we've made litigation itself a very expensive and inefficient "law discovery" process.
You need more certainty of outcome in a low-trust society. You don't want to gamble on the outcome of your case if it turns out the judge and jury aren't from your tribe.
"Unjust Subgroup Solidarity" is why Singapore got rid of juries.
Lee Kuan Yew was trained in the British legal system (at Cambridge!) and was assigned to defend four Muslim men of killing an innocent RAF officer and his family in cold blood in what was essentially a religiously-aggravated race riot. He was convinced they were guilty (they all buy admitted to it), but he got them off by working, "... on the weaknesses of the jury -- their biases, their prejudices, their reluctance really to find four Muslims guilty of killing in cold blood or in a heat of great passion, religious passion, an RAF officer, his wife and child." LKY said, "The judge was thoroughly disgusted. I went home feeling quite sick because I knew I'd discharged my duty as required of me, but I knew I had done wrong." He decided to dump the "foolish, completely incongruous" jury system.
There's definitely some truth to that, but "jury of your peers" is not accidental phrasing. Common law is local. But yes, plainly the inability to work things out amongst ourselves is part of the impetus towards top-down rule making.
I agree. The biggest reason our legal system is so expensive is discovery in civil cases. If we could dial back discovery to the way it use to be pre-1930s or so, the cost would go way down. Nor would this lead to a different outcome in the vast majority of cases.
I will never forget having my young mind blown by John Hasnas at an IHS seminar when he told us that there used to be a thing called "private law" where suspected criminals were charged/sued by their victims, and where the point of restitution was not to generate income for the state but to make the harmed party whole.
Of course this makes "consensual crimes" impossible to criminalize, so it would not fly in the modern world.
"…I believe that everyone interested in public policy, including Rank, should focus more on lifetime income and less on annual income."
How would one do this?
Assuming we had good data on lifetime income, what would it tell us? Assuming "lifetime" ended at retirement age, what does that tell us about people working today?
Would it paint a different picture of racism or sexism? What would it tell us about the divorcee who had a good household income married but not so good single?
What might comparing lifetime-to-date and current income tell us?
Re. "One of the reasons we have too many laws in the United States and throughout the Western world is that people want them."
I think this is true, but only in a limited, nuanced sense. I rarely see any real grass-roots level support for new laws. I often see politicians claiming a "crisis" that cries out for new laws as a means to rally their supporters. More often I see politicians passing laws that solve no obvious problem but don't arouse great resistance - for example the Bush-era ban on incandescent light bulbs. Even more often I see regulators generating law through administrative procedure to address areas within their purview that are presented as problems, but with little or no attention to cost-benefit analysis.
Further, the incentives to create new laws are entirely different from the incentives to eliminate old ones. Politicians can claim credit for accomplishment by creating a new law, but get much less credit for eliminating an old one. Regulators who create new regulations show their relevance and expand their organization's role, but regulators who abolish old regulations decrease their organization's role and perhaps question its rationale for existing. Plus, existing laws will always have constituencies who benefit from the laws, and will resist changing or eliminating them.
Another reason there are too many laws is that in a highly liberal polity in which there is little common moral agreement, resort is had to legal sanction in an effort to maintain some degree of order.
Perhaps there is a distinction between “sufficient laws to maintain order in a society with diverse norms” and “too many laws.” I would say that if the vast majority of people in a society do not know the laws in a meaningful way, then you have way too many laws.
Most people have not known what the law says without having to re-read it since Hammurabi, whose code took "loser pays" to the ultimate extreme, which tended to keep serious accusations down to a reasonable level. "Wait, is the rule of restitution for conversion a factor of ten or is it twenty?" - "No, moron, it's either ten or THIRTY, depending on whether you stole from a free man on the one hand or from the palace or a temple on the other, respectively." - "These details are hard to remember, good thing we're writing these things down. Now, what if the thief doesn't have enough to pay back the thirtyfold restitution? Death?" - "Yes, of course, death." - "Well, at least some things are easy to remember."
As a compromise on what to do with all those shoplifters that seem to have come out of nowhere in complete coincidence in timing when the local criminal justice system decided to stop doing anything about them, I propose that tenfold restitution be permitted to be chosen by the convict instead of prison, with him having to restock ten containers of tide pods for each one he tried to run out of the CVS.
I disagree. While the law often has lots of little fiddly bits people don't know, at least in English based civilizations the laws have been known to the people. That's the whole point of common law, that it is unwritten and understood by the people. When the law is basically "don't initiate harm unto others" and the other disputes are a mixture of negotiation and arbitration the law really is simple. Modern law (really legislation and regulatory codes) are vastly more detailed and complex than anything historical. You would struggle to get most zoning codes on the 7-8 foot stele the entire Code of Hammurabi is on, much less all the laws in the US, federal, state and local.
Even finding out if there is written law relevant to your particular question is a hell of a task.
It's also worth noting that most civilizations did not have written laws well past the time of Hammurabi. I am not saying that is an improvement, but the modern norm is vastly different than the rest of human history, even post Big H.
Proofreading, seems to be missing a not: "pundits mostly do [NOT] try to open minds, but instead behave as if they were out to close the minds of people on their own side.
If this is true, its contrapositive is also true, and good news:
If you're learning new tricks, you can't be an old dog.
Congrats to Arnold for trying and being successful on going live.
When I found out at 1:45 am that I needed the substack app on my iPhone, I decided to go to bed instead. Now I've downloaded it, so ready for next one.
Thanks a bunch to Lee Bressler for posting it and the transcript.
I'm guessing about 70% positive case for Trump in economics. Small boom.
Mostly thru deregulation & construction & oil drilling. Lower gas prices look a lot like lower inflation.
Dan Williams remains wrong about many important key issues, including the science of mis-information, and the against the idea of a Censorship Industrial Complex.
There is, in fact, many organizations with agents arguing to censor ideas, like H. Biden's laptop being his, and having evidence of Biden corruption. In fact, in 2020 such US govt agents did tell sometimes private media to censure the truth.
His huge, excellent contribution from last year was to elaborate on the The Market for Rationalizations. One insight that is so important, gotten from Barbara Brandon*, is that smart people are able to lie themselves in ways that they belief what is false. A key way they do this today is thru finding other smart folk willing and able to rationalize the false belief.
Unfortunately, he often mixes his excellent insights with intellectually lazy critiques of Trump and his supporters, so I stopped following him too closely. It's clear he is against conservatives objecting to the censorship that has actually happened, and he cleverly references these complaints in their slimmest form, before essentially dismissing them with ... rationalizations. Which he's quite good at coming up.
In 2020, Biden got 20 million more votes than did Hillary in 2016 -- we are unlikely to learn the names of more than a few of them. I believe most were infrequent voters convinced to vote, or bullied, by their Dem relatives, into voting Biden; but some 4-8 million mail-ins were technically fraudulent. Out of some 65 million with 80% going Biden.
Not sure what the mail-in # was yet in 2024, but Trump's total votes is about the same, Harris is more than 10 million less. The huge mail-in vote, so tilted to Biden and so easy to use for fraud, is why I believe in fraud. Can't prove it; Trump didn't prove it. Neither Williams, nor AK, have proven or even given evidence that there was no serious fraud. Maintained their belief in "no fraud until proven". Almost all democracies severely limit mail-in voting because of difficulty in stopping fraud. Williams' total belief in a pristine election of Biden makes me sure he's one of the smart ones, very able to lie to themselves to believe something false.
I try to remain open to proof that there was little fraud, but the fraud deniers offer none, merely the absence of proven fraud cases . And opposition to photo Voter ID. Most states voting Harris don't require photo voter ID. And assurance by the FBI no big fraud. For a Deep State that lied about Biden's laptop, such assurance is not believed.
Russia hoax (& 2 yr Mueller investigation witch hunt), Covid (Trump not innocent, not the main guilty one), H Biden's laptop. There's plenty of cases to make a "science" if one wanted to, but it would show the academic colleagues of Williams as being gullible to falsehoods. So instead they remain part of the Censorship Industrial Complex, and lie about the existence of it -- but maybe believe their own falsehoods.
I was going to write something about Coase, but you wrote what I was going to write about it using an example not unlike what I would have written in your post about Leoni.
I have not read Gorsuch's book, and only read one negative review (perhaps in the NYT) and one positive review (the one you linked).
To respond to your question, the common law of statutory interpretation is answering the question about LLMs and not Congress. The Copyright Act has not changed much since 1976 with the exceptions of the DMCA and some recent changes to music licensing. However, courts will often shy away from ruling on substantive statutory law that they don't need to rule on to get a case off of their dockets. E.g. this decision from last week dismissed a complaint filed by some news organizations against OpenAI on standing grounds (https://www.bloomberglaw.com/public/desktop/document/RawStoryMediaIncetalvOpenAIIncetalDocketNo124cv01514SDNYFeb282024/4?doc_id=X18AGVQ2BEU9DCBFDQULD4SNTVV). This opinion shows how the mixed tradition of the US works in practice, with common law doctrines mixing with constitutional law, the law of treaties, and statutory law. In this case, although the judge did discuss the statutes, it was in the context of the judge-made doctrine of standing. This three prong test was discovered by Scalia in Lujan, but you could less-charitably say that he wrote it as if he were a legislature of one, and the courts have followed that test as if it were in the 28th Title in the U.S. Code.
I think there are two things going on in Overruled. The first is what Mingardi identifies (and Leoni is really under appreciated today - he was very good on this.) That's largely true - but there's also the reverse problem of legislatures being so busy doing stuff they shouldn't that they don't have time for the legislation they should be working on. Example - company/corporate law. Delaware (the US leader) updates its statute at least annually. It's mostly good stuff too - they listen to the corporate bar because DE makes a lot revenue from the corporate registry. The UK parliament, on the other hand, gets around to updating English company law (Scotland's is different to some extent) roughly every 20 years or so. That's bad - there are lots of minor tweaks needed sooner but they are very busy doing stuff they shouldn't do. The second is that Congress and many state legislatures are careless or sloppy (sometimes on purpose) in writing the laws they do write. The quality of drafting is both unintentionally bad for lack of skill or lack of time in drafting and sometimes intentionally bad (to punt a hard question to the courts). Even a cursory read of the Clean Air Act demonstrates this - a monster statute rife with ambiguities. Both of these are serious problems with legislatures but they are different in important ways.
"The difficulty comes in defining what it means to be 'left alone.'" -David Friedman, The Machinery of Freedom
We libertarians are still working out what it means to be "left alone."
Let me ask you a question. In the context of the First Amendment, with your ideal society in mind, what is your preferred definition of religion? My religion consists of the following:
-An instinct to survive
-A need to raise my children to adulthood in such a way that they succeed in raising their children to adulthood
-Obligations to my family
-A need to protect freedom of conscience
-The Golden Rule
-A need to protect freedom of Socratic dialogue
-A need to protect the freedom to learn
I want to pursue pathways that alleviate my concerns about what stops learning. These include:
-Constitutional amendments at the federal level as described in my letter to Francis Fukuyama;
-Constitutional amendments at the state level;
-Creation of, or at least brainstorming better “religious” schools;
-And of course helping my children learn and survive.
What is your approach to alleviating your concerns about what stops learning?
“Returning to common law…”
I was unaware that the common law had ever gone away in the United States other than in Louisiana where contract and torts are said to have a civil law character. Indeed the common law governs most relationships between private parties, including businesses, in the United States and the courts and judges are so unreliable and unpredictable that the United States is the world leader in alternative dispute resolution as parties flee the common law nightmare. Romanticize oligarchy and aristocracy all you want, but people are still going to attempt to minimize their transaction costs. US economists don’t really appreciate this because they worship GDP and more transaction costs mean more GDP.
Ironically, it was the populists who inflicted the common law on the United States. Up until the time of Andrew Jackson, the aristocrats like John Adams were all fluent in Latin and resorted to Roman civil code texts frequently. They were quite close to installing a common sense civil law regime until the country lawyers who didn’t have facility with Latin overpowered the aristocracy and began imposing common law on a state-by-state basis and the midwits took control. The federal courts developed their own common law tradition independently. The oligarchs and aristocrats failed as they always have.
Because the United States has national, state, and local common, administrative, judicial, and legislated law it is not in the least surprising that the United States also leads the world in legal costs. Nor is it at all surprising that the US, with 2.5% of GDP going to legal costs is closely followed by other common law jurisdictions Canada and the UK. Australia comes in 5th behind Germany.
( https://www.sterlinganalytics.com/u-s-legal-system-ranked-as-most-expensive-in-the-world/ )
Germany, however, has a wholly superior legal system, despite also having a federal system and the immense legal cost of EU compliance. Germany is legal system is a civilian system, primarily based on codified laws and regulations and there is concurrent jurisdiction between the Federal Government and the states so that defendants don’t have to face both federal and state trials for the same thing. It also uses an inquisitorial system with judges conducting most of the trial instead of allowing cross-examination between the defense and prosecutors. This reduces costs for the parties and defendants are not coerced into plea deals by prosecutorial threats of enhanced sentences and even more costly trials as so frequently happens in the US. Germany also uses a mixed system of judges and lay judges so the legal guild is less able to engage in monopoly practices. Germany has five basic codes which are relatively common sense and intelligible so it is possible for lay people to understand the law in advance and plan their affairs accordingly without costly legal counsel. And most importantly, the dank emanations of prior judgments do not hang in the air suffocating all progress: Germany has no stare decisis. No endless shelves of prior opinions for the legal guild to generate billable hours. Of course, Germany is not perfect. And last but not least, the German Federal Constitutional Court is the only court that may declare statutes unconstitutional. Moreover, private parties do not have to bear the cost of litigating the constitutionality of laws: the court can exercise review without a conflict before it:
“The Federal Constitutional Court has two separate panels (senates) of 8 judges each (originally 12), and each panel has jurisdiction over distinct areas of constitutional law. Judges serve a single, nonrenewable 12-year term (service, however, may not extend past the retirement age of 68). Half the membership is elected by the Bundesrat (the upper house of the German legislature), the other half by a special committee of the Bundestag (the lower house). To be elected, a judge must secure a two-thirds majority of votes cast; this rule has generally prevented any party or coalition from determining the court’s composition.
The court’s workload of some 5,000 cases annually is quite heavy in comparison with the U.S. Supreme Court, which hears several hundred cases each year. The Federal Constitutional Court is not an appeals court; rather, it is a trial court with first and final competence. Its decisions are binding on state and federal legislatures and on all other courts. Any individual claiming an infringement of his basic rights may bring a constitutional complaint. In any case in which there is doubt as to the constitutionality of a law, lower courts must stay the proceedings and submit a question to the Federal Constitutional Court. Unlike the U.S. Supreme Court, the Federal Constitutional Court exercises what is termed abstract judicial review; under this jurisdiction the federal or a state government or one-third of the members of the Bundestag may petition the court on the constitutionality of a statute, even before the statute has taken effect….. ... The court settles disputes between the states and the federal government and serves as a court for impeachment of the president and judges. “
Of course the system is not perfect. Some features are proving problematic: “The Federal Constitutional Court is also empowered to decide whether a political party is pursuing aims and using methods that conflict with the democratic order; in cases where the court rules that a party is in violation of the constitution, it will order the party’s dissolution.”
(https://www.britannica.com/topic/Federal-Constitutional-Court )
Nevertheless, I have little doubt that the people of the United States if able to vote in a referendum on whether to retain the status quo or adopt the German court system, would overwhelmingly support the latter.
Do we really need wonder why the neo-aristocracy movement in the US wants to distract us by blaming the public for the USA’s third rate legal system? The status quo is unsustainable.
There's a lot of crowding out of common law by statutes. When you read employment law cases, for example, they are mostly about statutory causes of action. That wasn't true in, say, 1960. Same is true in environmental law - nuisance was the main cause of action, now it is all statutory. So the common law didn't go away, it is just a smaller proportion of the law today.
Additionally, much of what was traditionally common law has itself been supplanted by being codified by statutes that adopt restatements of the law or model or uniform codes. Not that this has put a stop to a certain unpredictable and idiosyncratic coloration that an individual judge can paint onto what it purportedly """the law""".
Re: "I suspect that the late Jeffrey Friedman had the explanation for the public’s excess desire for laws: the belief that there is an expert with perfect knowledge in the subject area."
My intuition is that this explanation has much less bite than the public's desire to impose their norms and sentiments as formal rules for all in all manner of things. "There oughta be a law!"
Classical liberals distinguish laws and norms. They hope to have few, but crucial laws; and day-to-day regulation of behavior by wise, healthy norms in civil society. In current political cultures, few people are classical liberals, it seems.
Compare the EconTalk conversation between Michael Munger and Russ Roberts, about Lord Moulton's classic lecture a century ago, "Law and Manners," and Moulton's ideal, "obedience to the unenforceable:"
https://www.econtalk.org/michael-munger-on-obedience-to-the-unenforceable/
Dan Williams exerts prodigious mental effort to downplay the significance and harm of government propaganda in the form of illicit attacks on free speech and those who practice it. Some of these attacks have had very harmful consequences, for example, suppression of the fact that the mRNA vaccines were not safe and effective for general use. He deprecates the term censorship industrial complex which is useful and necessary to provide a concise reference to a web of practices and thereby facilitate discussion. Attacks on language in an effort to derail or hinder criticism, typical of the Left, are discreditable. Calling the invaluable work of people like Shellenberger and Taibbi "hysterical discourse" is nonsense. Arnold is too charitable to Williams who is not in the least charitable to the objects of his highly partisan critique in the form of a spurious even-handed discussion.
It is important to remember that in the Murthy v Missouri decision on government involvement in social media censorship (https://www.supremecourt.gov/opinions/23pdf/23-411_3dq3.pdf ), the Supreme Court did not rule on the merits but instead on standing. In that case a lower court judge had opined that the White House and federal agencies “engaged in coercion of social media companies to such an extent that the decisions of the social media companies should be deemed that of the Government.”
Alito’s dissent in Murthy provides a useful contrast to Williams:
“For months in 2021 and 2022, a coterie of officials at the highest levels of the Federal Government continuously harried and implicitly threatened Facebook with potentially crippling consequences if it did not comply with their wishes about the suppression of certain COVID–19-related speech. Not surprisingly, Facebook repeatedly yielded… …
That is regrettable. What the officials did in this case was more subtle than the ham-handed censorship found to be unconstitutional in Vullo, but it was no less coercive. And because of the perpetrators’ high positions, it was even more dangerous. It was blatantly unconstitutional, and the country may come to regret the Court’s failure to say so. Officials who read today’s decision together with Vullo will
get the message. If a coercive campaign is carried out with enough sophistication, it may get by. That is not a message this Court should send. “
Williams’ comments vindicate Alito.
If government involvement in social media censorship is really so innocuous, maybe Congress should just require that all communications between government employees and officials and media outlets be permanently retained and subject to FOIA and if oral recorded and transcriptions published in the Federal Register.
As a related note, the Libertarian legal community tends to have a hard time dealing with these kinds of cases in an intellectually coherent manner because of the desire to draw a conceptual hard border, as it were, between the state and the private firm, and the rules applying to each. Instead, to borrow another phase, there needs to be a much more robust "wall of separation" between firms and the state. Otherwise, The State Action Doctrine and the Third Party Doctrine can't handle the modern "Don Corleone's Merely Polite Request" Doctrine. The only non-naive answer is, at a minimum, to make it illegal for the state to communicate to private companies except in the form of a permanently public court order, and for it to be likely illegal for private companies to give the state what it wants in the absence of such a court order.
Arnold likes to point out how mobile internet devices confuse our instincts and make the distant seem near and familiar. But it's much more than that, more like the increasing importance of the intangible over the tangible. Increasingly, the lives we live and interactions we have in the digital, virtual space are more 'real' and 'important' than that of our physical reality, which more and more seems little more than an annoying necessity the details of which are inconsequential or a matter of convenience, like the gnostic or zoroastrian attitude about this material domain as a kind of prison for the soul, though one that could be made surprisingly pleasurable as in a "golden cage."
In the past, broad geography mattered so much more than it does today, so "region" and "local" made sense as ways to distribute and organize political power in what was assumed to be along the lines most likely to reflect any era's major political disputes. That assumption is now obviously totally obsolete, details of personal identity matters much more than region to voting patterns and political views, and to the extent region still matters, it is mostly downstream of population sorting trends, not something that has any relation to the nature of living on the land near particular geographic coordinates.
But likewise, "narrow geography" used to matter a lot more too. Your private sphere and the details of your life you would wish to keep from unwarranted public scrutiny was, in fact, closely correlated with your physical person, house, papers, and effects. But now that, too, is increasingly obsolete. I think if you gave most people today a choice, they would rather the police toss their bedrooms than get account log-ins and dig through their smartphones. Today, most of the important and sensitive private details of your life are not tangible and close to your physical person but contained in intangible digital records which the law currently deems to be the property of private companies.
So, on the one hand, the government isn't supposed to be poking into your "narrow geography" private affairs unless they have probably cause to believe you've committed a crime and they've proved it to a judge sufficient to get a warrant. On the other hand, your "privacy intangibles" are all owned by private companies, and the government - which these companies know can crush them into dust anytime it wants to - can merely ask them to hand all that information over, and the private companies often do it, often happily, and often for profit, since the government can just insist it is one of many possible customers for those juicy datasets. So much for "individualized suspicion", just mine that big data baby, Beria would have had a field day.
Likewise with censorship. The government is not supposed to just shut you up or prevent certain things from being published, yadda yadda. But, it can just ask the small number of major private companies which own the platforms you speak through - and are the only places that matter where anyone is around to be able to listen - to, well, shut you up and prevent you from publishing certain things.
Likewise with ostracism and excommunication from polite society. The government is supposed to treat everyone equally and not discriminate between viewpoints. But also, the government can get the banks to do its bidding, and the banks can just debank you without having to explain why, and, you may have noticed, it's pretty hard to live a normal life when banks won't do business with you, and perhaps the Constitution was not meant to have giant loopholes that are allowed to apply for 99.99% of the "free population" so long as it still even theoretically possible for one stubborn mule to survive as a hermit.
So far the legal Libertarians have seemed either paralyzed by ambivalence or completely out to sea on what to do about these pressing realities. They don't want to push private companies around, but they don't seem to know any other effective way from getting them to do things for the state that the state shouldn't be trying to do at all.
At the very least, if the state that can investigate and regulate these companies into the ground is going to """ask""" these """private""" platforms to """voluntarily""" censor (er, "reduce the visibility and distribution of ... ) certain content, it should communicate these merely polite requests solely via permanent records in a publicly-accessible internet forum hosted on some blockchain (or whatever). There's no need for conspiracy theories when everything is right out in the open; helps build trust and stuff.
On the other hand, when those communications are allowed to happen in secret and are denied or lied about later on for any particular subject, and acted on in ways completely inscrutable to the public (and judging from some commentary, arguably even to counsel with the so-called benefit of discovery orders) that the principle of conspiracy theory must be allowed, and there is no way to argue for a moderation of view from those who now hew to a policy of radical skepticism and presume the government is lying to everyone all the time about everything.
This reply is in agreement with the comments of both Thucydides and Treeamigo below. Three additional points. First, Williams assumes that readers of the work of Taibbi, Benz, Shellenberger, et. al. are too stupid and unsophisticated to discern for themselves whether the term 'censorship industrial complex' has any merit. As Thucydides argues, the term is a useful shorthand for a web of practices, and it is not necessarily taken literally by the intended audience. Williams reveals himself as an elitist in this respect. Second, Williams openly acknowledges that he supports the 'liberal establishment,' notwithstanding many of its flaws, and in the final paragraph, asserts that Trump is 'America's most authoritarian politician,' i.e. Williams suffers from TDS. These biases shape everything that Williams writes in this article and every article he writes. Finally, the web of practices that fall under the rubric of 'censorship industrial complex' are harmful and downright evil not only in and of themselves, but also because they undercut America's ability to exercise 'soft power' abroad, especially with regard to more traditionally authoritarian regimes such as Russia, China and Iran. It is not good enough for the United States to be a softer version of authoritarianism than its adversaries. We have to hold ourselves up to a much higher standard than our adversaries if we are going to go around the world claiming to be the 'good guys.'
One of the first "vaccines" involved rubbing pox on an infected person's skin. This resulted in something like 10 or 20% of the vaccinated dying. It was not by any means safe. But infection through the natural course resulted in a far higher death rate. Safe and effective are relative.
Williams is nuts. Of course soft censorship is a problem - the government should not be out there suppressing the speech of Americans, nor implicitly threatening companies like Meta et al to toe the line or invite the wrath of regulation and taxes, nor should the FBI be feeding these companies falsehoods in order to protect the politicians they favor. And it goes beyond “soft” censorship, as Williams well knows, into outright demonetization of voices (taking away livelihoods) as well as outright removals and bans.
None of these are things I want our government doing. If politicians wish to speak out against narratives they don’t like or counter them with “truthful” narratives- they have a bully pulpit, they literally hold press briefings every day, cabinet officials can hold special press conferences and they can also buy advertising, write op-Ed’s, etc. Speech is meant to be a competitive and freewheeling process, not a proscriptive one, under our constitution.
I love this comment except for the part where you say, "Williams is nuts." I understand your perspective, but I would say, "Williams was born and raised in left-wing culture." Everything else about your comment is fantastic.
One aspect of censorship substack that is important to remember, there was no other source of information other than substack and X. Everything else was censored.
One of the real advantages of common law is that it proceeds incrementally. Each case is like an observation that a judge "fits" to a trend. Common law is therefore less proscriptive, and confines itself to the specific facts and circumstances in question (rather than attempting to lay out an operating manual). Over time, common law becomes like a dynamic FAQ. Wisdom compounds.
The downside is that there can be more variation and uncertainty. There are always going to be outliers on that plot. And for other reasons, we've made litigation itself a very expensive and inefficient "law discovery" process.
You need more certainty of outcome in a low-trust society. You don't want to gamble on the outcome of your case if it turns out the judge and jury aren't from your tribe.
"Unjust Subgroup Solidarity" is why Singapore got rid of juries.
Lee Kuan Yew was trained in the British legal system (at Cambridge!) and was assigned to defend four Muslim men of killing an innocent RAF officer and his family in cold blood in what was essentially a religiously-aggravated race riot. He was convinced they were guilty (they all buy admitted to it), but he got them off by working, "... on the weaknesses of the jury -- their biases, their prejudices, their reluctance really to find four Muslims guilty of killing in cold blood or in a heat of great passion, religious passion, an RAF officer, his wife and child." LKY said, "The judge was thoroughly disgusted. I went home feeling quite sick because I knew I'd discharged my duty as required of me, but I knew I had done wrong." He decided to dump the "foolish, completely incongruous" jury system.
There's definitely some truth to that, but "jury of your peers" is not accidental phrasing. Common law is local. But yes, plainly the inability to work things out amongst ourselves is part of the impetus towards top-down rule making.
I agree. The biggest reason our legal system is so expensive is discovery in civil cases. If we could dial back discovery to the way it use to be pre-1930s or so, the cost would go way down. Nor would this lead to a different outcome in the vast majority of cases.
I will never forget having my young mind blown by John Hasnas at an IHS seminar when he told us that there used to be a thing called "private law" where suspected criminals were charged/sued by their victims, and where the point of restitution was not to generate income for the state but to make the harmed party whole.
Of course this makes "consensual crimes" impossible to criminalize, so it would not fly in the modern world.
"…I believe that everyone interested in public policy, including Rank, should focus more on lifetime income and less on annual income."
How would one do this?
Assuming we had good data on lifetime income, what would it tell us? Assuming "lifetime" ended at retirement age, what does that tell us about people working today?
Would it paint a different picture of racism or sexism? What would it tell us about the divorcee who had a good household income married but not so good single?
What might comparing lifetime-to-date and current income tell us?
Re. "One of the reasons we have too many laws in the United States and throughout the Western world is that people want them."
I think this is true, but only in a limited, nuanced sense. I rarely see any real grass-roots level support for new laws. I often see politicians claiming a "crisis" that cries out for new laws as a means to rally their supporters. More often I see politicians passing laws that solve no obvious problem but don't arouse great resistance - for example the Bush-era ban on incandescent light bulbs. Even more often I see regulators generating law through administrative procedure to address areas within their purview that are presented as problems, but with little or no attention to cost-benefit analysis.
Further, the incentives to create new laws are entirely different from the incentives to eliminate old ones. Politicians can claim credit for accomplishment by creating a new law, but get much less credit for eliminating an old one. Regulators who create new regulations show their relevance and expand their organization's role, but regulators who abolish old regulations decrease their organization's role and perhaps question its rationale for existing. Plus, existing laws will always have constituencies who benefit from the laws, and will resist changing or eliminating them.
Another reason there are too many laws is that in a highly liberal polity in which there is little common moral agreement, resort is had to legal sanction in an effort to maintain some degree of order.
Perhaps there is a distinction between “sufficient laws to maintain order in a society with diverse norms” and “too many laws.” I would say that if the vast majority of people in a society do not know the laws in a meaningful way, then you have way too many laws.
Hell, if your cops fairly routinely don’t know the laws they are meant to enforce, you have too many :)
If you're talking about cases in which the principle of Qualified Immunity comes up, then that has nothing to do with the number of laws.
No, I am talking about the cases where the cops claim powers they do not have, or claim laws are being broken that don't exist.
Most people have not known what the law says without having to re-read it since Hammurabi, whose code took "loser pays" to the ultimate extreme, which tended to keep serious accusations down to a reasonable level. "Wait, is the rule of restitution for conversion a factor of ten or is it twenty?" - "No, moron, it's either ten or THIRTY, depending on whether you stole from a free man on the one hand or from the palace or a temple on the other, respectively." - "These details are hard to remember, good thing we're writing these things down. Now, what if the thief doesn't have enough to pay back the thirtyfold restitution? Death?" - "Yes, of course, death." - "Well, at least some things are easy to remember."
As a compromise on what to do with all those shoplifters that seem to have come out of nowhere in complete coincidence in timing when the local criminal justice system decided to stop doing anything about them, I propose that tenfold restitution be permitted to be chosen by the convict instead of prison, with him having to restock ten containers of tide pods for each one he tried to run out of the CVS.
I disagree. While the law often has lots of little fiddly bits people don't know, at least in English based civilizations the laws have been known to the people. That's the whole point of common law, that it is unwritten and understood by the people. When the law is basically "don't initiate harm unto others" and the other disputes are a mixture of negotiation and arbitration the law really is simple. Modern law (really legislation and regulatory codes) are vastly more detailed and complex than anything historical. You would struggle to get most zoning codes on the 7-8 foot stele the entire Code of Hammurabi is on, much less all the laws in the US, federal, state and local.
Even finding out if there is written law relevant to your particular question is a hell of a task.
It's also worth noting that most civilizations did not have written laws well past the time of Hammurabi. I am not saying that is an improvement, but the modern norm is vastly different than the rest of human history, even post Big H.
Proofreading, seems to be missing a not: "pundits mostly do [NOT] try to open minds, but instead behave as if they were out to close the minds of people on their own side.
good catch. fixed now
I liked better the other way.
Maybe not. Could be he means they are truly trying but they fail and it looks like the opposite to people who don't share the same opinion.
Doubtful Kling is that naive.
Thank you.
You can't teach an old dog, new tricks.
If this is true, its contrapositive is also true, and good news:
If you're learning new tricks, you can't be an old dog.
Congrats to Arnold for trying and being successful on going live.
When I found out at 1:45 am that I needed the substack app on my iPhone, I decided to go to bed instead. Now I've downloaded it, so ready for next one.
Thanks a bunch to Lee Bressler for posting it and the transcript.
I'm guessing about 70% positive case for Trump in economics. Small boom.
Mostly thru deregulation & construction & oil drilling. Lower gas prices look a lot like lower inflation.
Dan Williams remains wrong about many important key issues, including the science of mis-information, and the against the idea of a Censorship Industrial Complex.
There is, in fact, many organizations with agents arguing to censor ideas, like H. Biden's laptop being his, and having evidence of Biden corruption. In fact, in 2020 such US govt agents did tell sometimes private media to censure the truth.
His huge, excellent contribution from last year was to elaborate on the The Market for Rationalizations. One insight that is so important, gotten from Barbara Brandon*, is that smart people are able to lie themselves in ways that they belief what is false. A key way they do this today is thru finding other smart folk willing and able to rationalize the false belief.
Unfortunately, he often mixes his excellent insights with intellectually lazy critiques of Trump and his supporters, so I stopped following him too closely. It's clear he is against conservatives objecting to the censorship that has actually happened, and he cleverly references these complaints in their slimmest form, before essentially dismissing them with ... rationalizations. Which he's quite good at coming up.
In 2020, Biden got 20 million more votes than did Hillary in 2016 -- we are unlikely to learn the names of more than a few of them. I believe most were infrequent voters convinced to vote, or bullied, by their Dem relatives, into voting Biden; but some 4-8 million mail-ins were technically fraudulent. Out of some 65 million with 80% going Biden.
Not sure what the mail-in # was yet in 2024, but Trump's total votes is about the same, Harris is more than 10 million less. The huge mail-in vote, so tilted to Biden and so easy to use for fraud, is why I believe in fraud. Can't prove it; Trump didn't prove it. Neither Williams, nor AK, have proven or even given evidence that there was no serious fraud. Maintained their belief in "no fraud until proven". Almost all democracies severely limit mail-in voting because of difficulty in stopping fraud. Williams' total belief in a pristine election of Biden makes me sure he's one of the smart ones, very able to lie to themselves to believe something false.
I try to remain open to proof that there was little fraud, but the fraud deniers offer none, merely the absence of proven fraud cases . And opposition to photo Voter ID. Most states voting Harris don't require photo voter ID. And assurance by the FBI no big fraud. For a Deep State that lied about Biden's laptop, such assurance is not believed.
Russia hoax (& 2 yr Mueller investigation witch hunt), Covid (Trump not innocent, not the main guilty one), H Biden's laptop. There's plenty of cases to make a "science" if one wanted to, but it would show the academic colleagues of Williams as being gullible to falsehoods. So instead they remain part of the Censorship Industrial Complex, and lie about the existence of it -- but maybe believe their own falsehoods.
I was going to write something about Coase, but you wrote what I was going to write about it using an example not unlike what I would have written in your post about Leoni.
I have not read Gorsuch's book, and only read one negative review (perhaps in the NYT) and one positive review (the one you linked).
To respond to your question, the common law of statutory interpretation is answering the question about LLMs and not Congress. The Copyright Act has not changed much since 1976 with the exceptions of the DMCA and some recent changes to music licensing. However, courts will often shy away from ruling on substantive statutory law that they don't need to rule on to get a case off of their dockets. E.g. this decision from last week dismissed a complaint filed by some news organizations against OpenAI on standing grounds (https://www.bloomberglaw.com/public/desktop/document/RawStoryMediaIncetalvOpenAIIncetalDocketNo124cv01514SDNYFeb282024/4?doc_id=X18AGVQ2BEU9DCBFDQULD4SNTVV). This opinion shows how the mixed tradition of the US works in practice, with common law doctrines mixing with constitutional law, the law of treaties, and statutory law. In this case, although the judge did discuss the statutes, it was in the context of the judge-made doctrine of standing. This three prong test was discovered by Scalia in Lujan, but you could less-charitably say that he wrote it as if he were a legislature of one, and the courts have followed that test as if it were in the 28th Title in the U.S. Code.
I think there are two things going on in Overruled. The first is what Mingardi identifies (and Leoni is really under appreciated today - he was very good on this.) That's largely true - but there's also the reverse problem of legislatures being so busy doing stuff they shouldn't that they don't have time for the legislation they should be working on. Example - company/corporate law. Delaware (the US leader) updates its statute at least annually. It's mostly good stuff too - they listen to the corporate bar because DE makes a lot revenue from the corporate registry. The UK parliament, on the other hand, gets around to updating English company law (Scotland's is different to some extent) roughly every 20 years or so. That's bad - there are lots of minor tweaks needed sooner but they are very busy doing stuff they shouldn't do. The second is that Congress and many state legislatures are careless or sloppy (sometimes on purpose) in writing the laws they do write. The quality of drafting is both unintentionally bad for lack of skill or lack of time in drafting and sometimes intentionally bad (to punt a hard question to the courts). Even a cursory read of the Clean Air Act demonstrates this - a monster statute rife with ambiguities. Both of these are serious problems with legislatures but they are different in important ways.
Dear Dan Williams - I would say:
"The difficulty comes in defining what it means to be 'left alone.'" -David Friedman, The Machinery of Freedom
We libertarians are still working out what it means to be "left alone."
Let me ask you a question. In the context of the First Amendment, with your ideal society in mind, what is your preferred definition of religion? My religion consists of the following:
-An instinct to survive
-A need to raise my children to adulthood in such a way that they succeed in raising their children to adulthood
-Obligations to my family
-A need to protect freedom of conscience
-The Golden Rule
-A need to protect freedom of Socratic dialogue
-A need to protect the freedom to learn
I want to pursue pathways that alleviate my concerns about what stops learning. These include:
-Constitutional amendments at the federal level as described in my letter to Francis Fukuyama;
-Constitutional amendments at the state level;
-Creation of, or at least brainstorming better “religious” schools;
-And of course helping my children learn and survive.
What is your approach to alleviating your concerns about what stops learning?
Sincerely,
Scott Gibb
https://substack.com/home/post/p-151534783?source=queue