Category: reason

For years, Julie Hall has been running a small animal rescue operation without incident on her farm in the northern Michigan town of Petoskey.

That ended in late January when state wildlife officials showed up at her door in response to a complaint that she was taking in animals without the proper permits. Hall has since been charged with a misdemeanor, and six of her animals, including a blind raccoon and a one-legged crow, were confiscated and euthanized by the state.

“I truly did not know I was breaking the law because I had done this all my life, as a farmer, I’d done this,” says Hall. “Had I known I was such a criminal, I would have never done it. I’m not built that way.”

The state’s Department of Natural Resources (DNR) says that licensing requirements exist to prevent rescued wild animals from becoming a danger to the community and that it had no choice but to put down the animals collected from Hall’s farm.

“We put out press releases every spring saying, do not pick up wildlife, do not keep wildlife, do not take wildlife out of the wild. It’s illegal and it’s not good for wildlife,” said Jim Gorno, an official with DNR, to the Charlevoix Courier in late February. “What happens is the wildlife is raised, sometimes if you let it go, they become a nuisance or even a disease issue here.”

Hall has been taking in animals at her family’s KeiJu Farm for decades. She candidly admits that she didn’t have the required state permission to be a Michigan Licensed Rehabilitator.

Everyone from farmers and friends to members of the community would bring her all sorts of creatures in need of help, she says, from animals injured by hunters to orphaned baby raccoons.

“We have nothing but wildlife up here. We’ve moved into their homes. It’s our responsibility when something like that happens,” she says of her animal rescue work.

Hall, assisted by a crew of volunteers, would do what she could to nurse the animals brought to her back to health so that they could be released back into the wild. Animals that came to her as babies were taught to fish, hunt, and fend for themselves before being let go, she says.

Those animals with more serious disabilities—or which failed to pass tests showing they would be able to survive in the wild—she kept around permanently alongside her domesticated goats, chickens, and alpacas.

“I’m not a fool. I know exactly how this works. I’ve read articles, books. I’ve done this all my life,” she says.

The crackdown on her rescue operation, Hall says, came after a disgruntled volunteer—who she had let go for stealing—complained to a number of state agencies about her farm.

A few of these agencies conducted uneventful site visits in response to those complaints. Officials from the state’s Department of Agriculture showed up, she says, but left after finding no violations and helping her move some hay around.

Things went differently when DNR officials showed up at her farm on January 28.

“Four DNR vehicles pulled into my driveway like SWAT,” Hall says. “I think they were expecting me to be erratic. I calmly and quietly took them to the enclosures where the animals were.”

What followed was a traumatizing experience for Hall. DNR officials went around scooping up the unpermitted wild animals she was keeping on her farm, including Sassy, a blind raccoon, and several Canadian geese who’d been wounded by hunters and had been living on Hall’s farm for a few years.

“Sassy didn’t want to move for nothing,” recalls Hall. “She didn’t want to come. She could sense something was wrong.”

A deer that Hall had taken in as a fawn was euthanized that day on the farm. DNR officials gave the animal two injections, one to put it to sleep, and then another to put it down.

“It was so horrible,” says Hall, tearing up. “I couldn’t fix anything.”

The Charlevoix Courier reports that six animals in total were eventually euthanized by DNR. Hall was charged with holding wild animals in captivity without a permit, a misdemeanor offense.

Hall is currently working to get the necessary permits to restart her rescue operation. But that effort could be derailed if she is convicted. She says that she intends to fight the charge, and that a court hearing is set for March.

Hall is clearly rankled that her rescue work has become a legal issue. “If you love and care for an animal,” she says, “it’s against the law.”

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Last week, President Biden ordered an air strike on Iranian-supported militia groups in Syria. His actions understandably rekindled debates about the legality of US military activity in that country. Indeed, Donald Trump ordered very similar strikes in Syria (albeit targeting Assad regime facilities associated with chemical weapons) in both 2017 and 2018. Critics have argued that Biden’s air strikes —and Trump’s—were illegal because never specifically authorized by Congress. In my view, that isn’t true. But the overall legality of the US military presence in Syria is highly questionable at best, and does require congressional authorization. Obama, Trump, and now Biden all deserve blame for failing to secure it, or even seriously try to do so.

My position on the legality of Biden’s air strike is much the same as what I said about Trump’s Syria strikes in 2017 and 2018: large-scale attacks (like the one Barack Obama launched against Libya in 2011) require congressional authorization, but very small ones that don’t rise to the level of a “war” generally do not. The boundary between the two can be a fuzzy one. But both the Trump and Biden air strikes—due to their extremely limited scope and duration—are well short of the line. Obviously, some leading scholars disagree, and argue disagree, and believe that almost any initiation of force against a foreign power requires congressional authorization. If they are right, Trump’s two air strikes against Syria were unconstitutional, and Biden’s may well be so, as well.

But Biden can also make additional argument that his strike was a direct response to recent attacks on US forces by the pro-Iranian militia groups the strike was directed against. Advance congressional authorization is not needed for actions taken in self-defense in direct response to an attack by the same party the strikes are launched against.

The issue of whether Biden’s actions (like Trump’s before him) was a good idea is a more complicated question. The Trump strikes did little to deter Assad from committing horrific atrocities, though perhaps he has since done them largely with conventional weapons rather than chemical ones. Whether Biden’s deters Iran and its allies from continuing to attack US forces remains to be seen.

But even if the recent air strike is both, the overall US military presence is not. The still-ongoing US intervention against ISIS—the main original goal of our military presence in that country—is clearly large enough to qualify as a war, and thus requires congressional authorization, just like the Libya War did. But ever since that effort began under the Obama administration in 2014, successive presidents have alternately ignored the constitutional problem or offered specious rationales claiming that congressional authorization already existed (e.g.—under the 2001 AUMF targeting the perpetrators of the 9/11 attack, or the 2002 AUMF against Saddam Hussein’s regime in Iraq), even though it pretty obviously doesn’t. In addition to violating the Constitution, the Syria intervention also runs afoul of the 1973 War Powers Act, which requires the president to get congressional authorization for any deployment of military forces in “hostilities” abroad within 90 days of the start of the deployment. It is blatantly obvious that the US  intervention in Syria involves the kind of “hostilities” covered by the Act, and that the War Powers Act deadline passed a long time ago (back in 2014). I have been highly critical of this state of affairs from the beginning, and most of what I said about it back in 2014 and 2015 still applies today.

As I have repeatedly emphasized, the constitutional requirement of congressional authorization for large-scale offensive military action isn’t just a technicality:

It also helps ensure that we don’t initiate dubious conflicts at the behest of a single man, and that we maximize the chances of success if we do start a new war. If the president is required to get congressional authorization before starting a war, he is forced to build up a broad political consensus behind his decision, which in turn increases the likelihood that we will stay the course until victory is achieved, as opposed to bailing out as soon as difficulties arise. If such a consensus is absent, it is likely best to forego entering a conflict to begin with.

As James Madison put it, “[t]he constitution supposes, what the History of all Gove[rmen]ts demonstrates, that the Ex[ecutive] is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legisl[ature].” Even Alexander Hamilton, the leading advocate of expansive presidential power among the Founders, wrote that only “the Legislature have a right to make war” and that “it is . . . the duty of the Executive to preserve Peace till war is declared.” In addition to the originalist case for the requirement of congressional authorization, there are also strong living-constitution considerations supporting it.

I am not as dovish as many libertarians, and I believe there was good reason to take military action against ISIS, and perhaps even also against the Assad regime and various Iranian proxies in Syria. But, for both legal and pragmatic reasons, it is important to ensure all large-scale military actions secure congressional intervention.

The new president has inherited this problem from his predecessors. But, like it or not, he now owns it, and has a duty to secure congressional authorization for any ongoing military action in the region. So far, however, both he and Congress have shown little interest in addressing this problem. In the case of Congress, that is a continuation of a long-standing pattern that has now lasted for almost seven years, since the Syria intervention began. I hope that changes. But, at this point, I am far from optimistic.

On the plus side, the Biden administration does deserve credit for ending US support for Saudi-led offensive military action in the ongoing Yemen war. While that effort probably did not violate the Constitution, it did run afoul of the War Powers Act. In addition, the Yemen War has been a horrific humanitarian catastrophe, one from which the US has derived little if any strategic gain—certainly none that can even begin to justify the awful effects of the conflict.

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One way to think about Sen. Elizabeth Warren’s (D–Mass.) renewed push for a wealth tax is as an opportunistic attempt to ride the pandemic policy wave: Democrats have packed hundreds of billions of dollars worth of non-pandemic policy into their pandemic relief bill, and Warren has decided that the coronavirus presents the perfect opportunity to push a signature policy that she favored long before COVID-19 was on anyone’s radar.  

Warren is spending this week talking up her “Ultra-Millionaire Tax Act.” It’s essentially a refreshed version of the same idea she proposed during her failed bid for the Democratic presidential nomination. The current measure, like the old one, would tax the net worth of American households with more than $50 million in assets to the tune of 2 percent annually, with an additional 1 percent tax for households worth more than $1 billion. Warren favored the wealth tax in 2019 when the economy was generally doing pretty well. But now, she says, it’s needed “because of the changes in this country under the pandemic.”

Another way to understand her latest push is as an effort to pressure the Biden administration to move further to the left on economic policy, in part because such efforts have been relatively successful. 

Warren’s insistence on a wealth tax was one of the ideas that set her apart from Joe Biden during the Democratic primaries. He wasn’t against increasing taxes on the wealthy, but he never backed taxing the wealthy that particular way. The wealth tax—a version of which Sen. Bernie Sanders (I–Vt.) also supported—was a radical idea. Biden was running as the Democratic primary field’s moderate. 

Yet as the Democratic party’s nominee, and then as president, Biden has moved toward the left, especially on economic policy. He’s a centrist only in the sense that he’s found the middle of the Democratic party, trying to split the difference between its more moderate factions and progressive agitators like Warren. Biden’s steady movement suggests that the pressure from the left is having an impact. 

When asked recently about Warren’s wealth tax proposal, Biden administration press secretary Jen Psaki walked a careful line: Biden “strongly believes that the ultra-wealthy and corporations need to finally start paying their fair share,” she said, according to CNN. “He’s laid out a lot of ideas and when we get to that point in our agenda, he’ll look forward to working with [Warren] and others in Congress.” Biden isn’t committing to the idea. But he’s not quite firmly ruling it out either. 

Still, Warren’s wealth tax is unlikely to end up on the Biden administration’s agenda, at least in its current form: In a recent interview with The New York Times, Treasury Secretary Janet Yellen, who has emerged as one of the key defenders of Biden’s $1.9 trillion stimulus plan, cautioned that Warren’s plan is “something that has very difficult implementation problems.” Yet the Times reports Warren also indicated that she “was prepared to look at ending tax treatment that could have a similarly profound effect.” The progressives Warren represents might not get exactly what they want out of the Biden administration, but their pressure is having a clear impact. 

But that’s not all that’s going on here. Warren’s advocacy for the wealth tax is also born out of a desire for easy political targets who can shoulder the blame for whatever problems or pseudo-problems Warren wants to bring up. What Warren needs are villains. 

Warren, like Psaki, has repeatedly invoked the idea that a wealth tax would help ensure that the rich pay their “fair share”—nevermind that the rich fund a disproportionate share of tax revenues, with the top 1 percent of earners paying about 38.5 percent of all income taxes. She complains that the system is “rigged,” that the rich are getting away with, well, something. Warren is so determined to set up the wealthy as the bad guys that she’s gone back to pushing a tax proposal that even Biden’s Treasury Secretary is skeptical of.

Yellen is right, by the way, that Warren’s plan would have “implementation problems.” That’s a polite way of saying it wouldn’t work. The wealthy tend to have difficult-to-value assets, and forcing the IRS to value them every year in order to assess the tax would, in the words of one tax expert, be an “administrative nightmare.” 

The plan would, however, result in a huge uptick in tax-related hassle for ordinary, not-super-rich people: Beyond the annual tax on wealth, her plan would also pump an additional $100 billion into the Internal Revenue Service to beef up enforcement, and mandate 30 percent annual audit rate for the agency—meaning that nearly a third of American households would be audited every year. 

What it probably wouldn’t do is raise the sort of tax revenue that Warren claims.

The most obvious change to the plan she just introduced, compared to the original 2019 proposal, is in the revenue estimates: Relying on estimates from University of California, Berkeley economists Emmanuel Saez and Gabriel Zucman, Warren previously projected that the tax would hit about 75,000 Americans and raise about $2.75 trillion over a decade. Primarily as a result of increased household wealth, Warren now claims the tax would hit about 100,000 households and raise $3 trillion that could be spent on a slew of Democratic policy priorities. 

That’s unlikely. As Harvard’s Larry Summers and the University of Pennsylvania’s Natasha Sarin have argued, the estimates Warren relies on almost certainly dramatically overestimate the revenue such a tax would raise. Those estimates, Summers has written, are “substantially exaggerated—likely by around a factor of two” for any realistic implementation of the tax. Summers allows that there is room for disagreement about the methodology for estimating the effects of the wealth tax, but then notes that in the case of the estimates Warren relies on, “every choice Saez and Zucman make goes in the direction of their ideological preconceptions.” 

This isn’t a serious policy proposal, and, in some ways, it’s not meant to be. It doesn’t matter to Warren that, in addition to everything else, it might well be unconstitutional. It’s an attempt by Warren to stay on-brand. 

So she is returning to her old ideological crusade for reasons that are partly opportunistic, partly cynical, and partly strategic. This isn’t really about the particulars of the legislation. It’s a crisis-adjacent rallying cry for Warren and for Warren-ism, an attempt to use the pandemic to push the Biden administration further to the left and keep Warren visible in the process. The worrying thing, given Biden’s trajectory so far, is that even if we don’t end up with a full-fledged wealth tax, Warren, or at least Warrenism, might still win. 

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This post is adapted from our new book, Mine!: How the Hidden Rules of Ownership Control Our Lives.

Who owns the space behind your airplane seat: you reclining or the squished laptop user behind? And who owns your online life: you clicking around or Facebook selling your most intimate data?

Turns out, these puzzles are both the same puzzle and they share a single answer: you lose. The prize goes to those who know how the simple rules of ownership really work.

James Beach is a large guy, over six feet tall. On a United Airlines flight from Newark to Denver, the businessman lowered his tray table and attached his Knee Defender. The Knee Defender is a simple plastic clamp available for $21.95 that locks the seat in front. Its website claims the clamp will “stop reclining seats on airplanes so your knees won’t have to.” Assured of his workspace, Beach opened his laptop.

The Knee Defender claims are real. When the passenger sitting in front of Beach tried to recline, her seat didn’t budge. Outraged, she slammed her seat back, popping out the Knee Defender and jolting Beach’s laptop. He quickly jammed her seat back up and reattached the clamp. She turned around and threw her drink at Beach. The pilot changed course to Chicago for an emergency landing and both passengers were removed from the plane.

These high-altitude brawls are happening more and more.  Last year, on an American Airlines flight from New Orleans to North Carolina, Wendi Williams reclined her seat. The man behind was in the last row, so he could not recline. Instead, he tapped the back of Williams’s seat repeatedly, like an irritating metronome. Her video of this high-altitude fracas quickly went viral.

After each incident, the blogosphere boomed back and forth with indignant commentary. Talk show host Ellen DeGeneres defended Williams: “The only time it’s ever okay to punch someone’s seat is if the seat punches you first.” Delta Air Lines chief executive Ed Bastian took an opposing view: “The proper thing to do is, if you’re going to recline into somebody, you ask if it’s OK first.” Williams didn’t ask.

So who’s right?

Williams’s view is simple: her armrest button reclines her seat, so the space belongs her. My home is my castle, and anything attached to it is also mine.

Attachment is the most important ownership principle you’ve never heard of. It’s why landowners in Texas can extract underground oil, why California’s Central Valley is sinking, why Alaska can sustainably manage Bering Sea fisheries—and why occasional homeowners feel justified in shotgun blasting drones hovering above their backyards. Attachment is what translates two-dimensional boarding passes, land deeds, and maps into three-dimensional control of valuable resources.

But attachment is not the only ownership rule in play. At the beginning of every flight, all seats are in the “full, upright, and locked position.” At that moment, Beach had exclusive use of the space in front of him. He had first dibs on the wedge. First-in-time is a second core rule for claiming mine. Kids assert it on the playground; adults invoke it up in the air. It’s mine because I was first. Recall that Beach actually took physical control of the wedge with his Knee Defender. And there’s a third rule. Possession. Nine-tenths of the law. Mine because I’m holding onto it. Possession means I get to defend my workspace.

Air travel brings into sharp focus three conflicting rules—attachment, first-in-time, and possession.

Each side picks the story that gives it the moral high ground, each side wants ownership bent toward its view. But there is no natural, correct answer to mine versus mine battles. Ownership is always up for grabs.

When we ask audiences about the Knee Defender conflict, the answer is always the same, whether we’re talking with our law students at Columbia and UCLA or a non-law crowd. Most people respond with versions of “It’s obvious.” But when we ask for a show of hands, people generally split between Williams and Beach—and everyone looks at each other with incredulity. In a 2020 national poll, about half replied, “If it can recline, I’m reclining,” and the other half said, “No, just don’t do it.” Everyone feels in the right, as did Williams and Beach. That’s why Williams felt justified in posting her video and Beach didn’t hesitate to shove the front seat forward. Don’t mess with what’s mine.

Tomorrow, in part 2, we explore why these high-altitude brawls are breaking out now and how deliberate ambiguity is an advanced tool of ownership design.  Part 3 will show how the Knee Defender story explains everything from how the West was settled a century ago to battles today over who owns our online data.

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Stop reading right now if you want to avoid SPOILERS for various mystery plots!

The other day, I was reading about the plot of the last novel Agatha Christie published before her death—and the last Hercule Poirot novel—Curtain (1975). I haven’t read the novel, and I was unaware of this plot twist: Poirot plans to drug the killer using sleeping pills in hot chocolate; the killer anticipates the trick, so he insists on drinking Poirot’s hot chocolate; but Poirot anticipated the killer’s move and drugged both cups. Poirot had a higher tolerance for the sleeping pill, so the killer, but not Poirot, ended up drugged.

Of course, this is the iocane powder trick. The Princess Bride move came out in 1987, but this trick was also present in William Goldman’s novel, which was published in 1973, two years before Christie’s publication of Curtain.

So was Christie copying Goldman? But Christie’s novel was written in the 1940s and locked away in a bank vault for decades. Perhaps this plot twist was already present in the original? But did Goldman know about the plot of Curtain? Did he know Christie? Were the plot details known to Christie’s friends? Both books have what I’ll call the Vizzini twist, where the target has the idea of switching cups. But the implementation in The Princess Bride has the Vizzini meta-twist, where Vizzini follows the logical reasoning to an absurd degree—which also supports the idea that Goldman knew of a version with a single twist.

Now the basic idea has a long history: Mithridatism is the idea of protecting yourself against poison by taking small doses (see, e.g., Terence, or The Count of Monte Cristo). The more involved idea, where you use your immunity to kill someone else (and, at the very least, distract attention from yourself), was also used a lot before 1973, for instance in Dorothy Sayers’s Strong Poison, and Dashiell Hammett used similar ideas, as did Christie herself in some of her other novels (see, e.g., Peril at End House).

But I haven’t been able to find any pre-1973 cases (aside from the unpublished Curtain) that had not only the iocane powder trick but also the Vizzini twist. Does anyone know of any, or have any insight into whether Goldman knew about Curtain?

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