Category: reason

Law-enforcement excesses grab an ever-growing
share of headlines. Doors kicked in, people killed, dogs shot,
phone lines tapped, curfews imposed—they’re all examples of
official overreaching at that unpleasant intersection of private
activity and state disapproval. For some people, the implication of
such abuses is that more scrutiny and the right people in charge
will make law enforcement an enterprise which people need not fear.
But that’s not necessarily the case, writes J.D. Tuccille. It may
be that lawmakers have assigned law-enforcers goals so
frustratingly elusive that even angels couldn’t resist the
temptation to escalate tactics to insane extremes, trampling
liberty and decency along the way.

View this article.

Law-enforcement excesses grab an ever-growing
share of headlines. Doors kicked in, people killed, dogs shot,
phone lines tapped, curfews imposed—they’re all examples of
official overreaching at that unpleasant intersection of private
activity and state disapproval. For some people, the implication of
such abuses is that more scrutiny and the right people in charge
will make law enforcement an enterprise which people need not fear.
But that’s not necessarily the case, writes J.D. Tuccille. It may
be that lawmakers have assigned law-enforcers goals so
frustratingly elusive that even angels couldn’t resist the
temptation to escalate tactics to insane extremes, trampling
liberty and decency along the way.

View this article.

According to a
recent
analysis by the consulting firm McKinsey and Company, about 7
million Americans will qualify for free health insurance policies
under the Affordable Care Act once federal subsidies are taken into
account. That includes about 6 million people who are currently
uninsured and about 1 million who have policies purchased on the
individual market. All of them have incomes that are too high for
Medicaid but low enough to receive subsidies that will fully cover
the cost of a “bronze” or “silver” plan on a government-run
exchange. The New York Times says
this free medical coverage is not only a boon to the
recipients but also a shot in the arm for Obamacare, since “the
availability of zero-premium plans may make the deal especially
enticing to the healthy young people the marketplace needs to
succeed.”

Wait a minute. It’s true that younger, healthier policyholders
are expected to subsidize medical care for older, sicker
policyholders, especially now that it’s illegal to charge people
based on how much covering them is expected to cost. But that works
only if the younger, healthier policyholders are paying for medical
coverage they rarely or never use; if they are not putting any
money into the system, how can they possibly improve its financial
condition?

Instead of paying for the premiums of the young and healthy, the
government could directly subsidize coverage for people who really
need it. Wouldn’t that be cheaper? More generally, Obamacare seems
like an unnecessarily complicated way of forcing some Americans
(the ones who do not qualify for subsidized premiums) to pay for
other Americans’ medical treatment. The mandates, the exchanges,
and the individual insurance requirement combine to transfer
resources from richer, healthier people to poorer, sicklier people.
This hardly seems like the most straightforward or efficient way of
helping people who cannot afford health care, but it does serve to
conceal what is actually going on, to the point that a leading news
outlet claims each healthy person covered at taxpayers’ expense is
somehow saving taxpayers money. 

According to a
recent
analysis by the consulting firm McKinsey and Company, about 7
million Americans will qualify for free health insurance policies
under the Affordable Care Act once federal subsidies are taken into
account. That includes about 6 million people who are currently
uninsured and about 1 million who have policies purchased on the
individual market. All of them have incomes that are too high for
Medicaid but low enough to receive subsidies that will fully cover
the cost of a “bronze” or “silver” plan on a government-run
exchange. The New York Times says
this free medical coverage is not only a boon to the
recipients but also a shot in the arm for Obamacare, since “the
availability of zero-premium plans may make the deal especially
enticing to the healthy young people the marketplace needs to
succeed.”

Wait a minute. It’s true that younger, healthier policyholders
are expected to subsidize medical care for older, sicker
policyholders, especially now that it’s illegal to charge people
based on how much covering them is expected to cost. But that works
only if the younger, healthier policyholders are paying for medical
coverage they rarely or never use; if they are not putting any
money into the system, how can they possibly improve its financial
condition?

Instead of paying for the premiums of the young and healthy, the
government could directly subsidize coverage for people who really
need it. Wouldn’t that be cheaper? More generally, Obamacare seems
like an unnecessarily complicated way of forcing some Americans
(the ones who do not qualify for subsidized premiums) to pay for
other Americans’ medical treatment. The mandates, the exchanges,
and the individual insurance requirement combine to transfer
resources from richer, healthier people to poorer, sicklier people.
This hardly seems like the most straightforward or efficient way of
helping people who cannot afford health care, but it does serve to
conceal what is actually going on, to the point that a leading news
outlet claims each healthy person covered at taxpayers’ expense is
somehow saving taxpayers money. 

Over at Locus, sci-fi
author and Boing Boing co-editor Cory Doctorow outlines an
intriguing proposal on how to crowdsource a defense against
patent and copyright trolls. The basic collective action problem is
that trolls have a huge incentive (concentrated benefits) to demand
payments from thousands of allegedly infringing companies and
individuals (diffuse costs) under the threat of expensive lawsuits.
Doctorow reports that patent trolls extort $29 billion annually
from lawsuit-wary companies.

In his new article at Locus, Doctorow offers what he
calls the Magnificent
Seven solution. In that 1960 western movie, a farming
village hires seven gunslingers to help defend themselves against
extortionist bandits.

To counter patent trolls, Doctorow suggests that it might be
possible create a Kickstarter-like mechanism to aggregate fees from
companies and individuals to fight back against the trolls, making
it too expensive for them to threaten infringement lawsuits. From
Locus:

Imagine a Kickstarter-style service for a new kind of
class-action lawsuit: the class-action defense…

What would a Kickstarter for Class Action Defense look like?
Imagine if you could pledge, ‘‘I promise that I will withhold
license fees/settlements for [a bad patent/a fraudulent copyright
fee/a copyright troll’s threat] as soon as 100 other victims do the
same.’’ Or 1,000. Or 10,000. Hungry, entrepreneurial class-action
lawyers could bid for the business, offer opinions on the
win-ability of the actions, or even start their own kickstarters
(‘‘I promise I will litigate this question until final judgment if
1,000 threat-letter recipients promise to pay me half of what the
troll is asking.’’)

Basically, it’s the scene where the villagers decide to stop
paying the bandits and offer the next round of protection money to
the Magnificent Seven to defend them.

There’s a lot to like about this solution. Once a troll is
worried about a pushback from his victims, he’ll need to raise a
war-chest, and since the only thing a troll makes is lawsuits,
he’ll start sending more threats. Those threats will attract more
people to the kickstarter, raising its profile and its search-rank.
The more the troll wriggles, the more stuck he becomes.

Doctorow’s proposal does help solve this particular collective
action problem inside the bounds of our current legal environment.
As he notes:

Getting screwed by thieving, amoral ripoff artists sucks. The
reason people give in to the blackmail is because it is
unimaginably, impossibly expensive to fight back. I think that if
we can nudge ‘‘unimaginable and impossible’’ into the realm of mere
‘‘expensive and time-consuming,’’ we’d have armies lining up to
hand these crooks their asses.

As I have argued, a far better solution would be for Congress to
entirely eliminate software and business practice patents, and to
limit copyright to the life of the author plus ten years. In the
meantime, let’s go with Doctorow’s proposal.

For more background on how patent trolling stifles innovation,
see my column, “Patent
Trolls of Tech Fairy Godmothers.”

H/T Jeff Patterson.

Over at Locus, sci-fi
author and Boing Boing co-editor Cory Doctorow outlines an
intriguing proposal on how to crowdsource a defense against
patent and copyright trolls. The basic collective action problem is
that trolls have a huge incentive (concentrated benefits) to demand
payments from thousands of allegedly infringing companies and
individuals (diffuse costs) under the threat of expensive lawsuits.
Doctorow reports that patent trolls extort $29 billion annually
from lawsuit-wary companies.

In his new article at Locus, Doctorow offers what he
calls the Magnificent
Seven solution. In that 1960 western movie, a farming
village hires seven gunslingers to help defend themselves against
extortionist bandits.

To counter patent trolls, Doctorow suggests that it might be
possible create a Kickstarter-like mechanism to aggregate fees from
companies and individuals to fight back against the trolls, making
it too expensive for them to threaten infringement lawsuits. From
Locus:

Imagine a Kickstarter-style service for a new kind of
class-action lawsuit: the class-action defense…

What would a Kickstarter for Class Action Defense look like?
Imagine if you could pledge, ‘‘I promise that I will withhold
license fees/settlements for [a bad patent/a fraudulent copyright
fee/a copyright troll’s threat] as soon as 100 other victims do the
same.’’ Or 1,000. Or 10,000. Hungry, entrepreneurial class-action
lawyers could bid for the business, offer opinions on the
win-ability of the actions, or even start their own kickstarters
(‘‘I promise I will litigate this question until final judgment if
1,000 threat-letter recipients promise to pay me half of what the
troll is asking.’’)

Basically, it’s the scene where the villagers decide to stop
paying the bandits and offer the next round of protection money to
the Magnificent Seven to defend them.

There’s a lot to like about this solution. Once a troll is
worried about a pushback from his victims, he’ll need to raise a
war-chest, and since the only thing a troll makes is lawsuits,
he’ll start sending more threats. Those threats will attract more
people to the kickstarter, raising its profile and its search-rank.
The more the troll wriggles, the more stuck he becomes.

Doctorow’s proposal does help solve this particular collective
action problem inside the bounds of our current legal environment.
As he notes:

Getting screwed by thieving, amoral ripoff artists sucks. The
reason people give in to the blackmail is because it is
unimaginably, impossibly expensive to fight back. I think that if
we can nudge ‘‘unimaginable and impossible’’ into the realm of mere
‘‘expensive and time-consuming,’’ we’d have armies lining up to
hand these crooks their asses.

As I have argued, a far better solution would be for Congress to
entirely eliminate software and business practice patents, and to
limit copyright to the life of the author plus ten years. In the
meantime, let’s go with Doctorow’s proposal.

For more background on how patent trolling stifles innovation,
see my column, “Patent
Trolls of Tech Fairy Godmothers.”

H/T Jeff Patterson.

Unless just about every polling outfit in
the country is wrong, Democratic candidate Terry McAuliffe should
cruise to victory in Tuesday’s election. Some conservatives blame
Libertarian Robert Sarvis for taking votes from Republican Ken
Cuccinelli. A. Barton Hinkle explains that it’s Cuccinelli’s
campaign could have fared better if he cared more about personal
and civil liberties.

View this article.

Unless just about every polling outfit in
the country is wrong, Democratic candidate Terry McAuliffe should
cruise to victory in Tuesday’s election. Some conservatives blame
Libertarian Robert Sarvis for taking votes from Republican Ken
Cuccinelli. A. Barton Hinkle explains that it’s Cuccinelli’s
campaign could have fared better if he cared more about personal
and civil liberties.

View this article.

The Senate is scheduled to vote
today on the Employment Non-Discrimination Act (ENDA), which adds
sexual orientation and gender identity to the list of verboten
reasons to deny somebody employment. According to The
Washington Post, all 55 Democrats are on board. They need
five Republicans to join their side to avoid a filibuster and that
may well happen.

Then, of course, it will die in the Republican-controlled House.
It is probably not cynical to suggest that this is all part of the
plan. Okay – maybe it’s a little cynical. But gays were used as a
wedge issue by the right back in 2004 in the midst of the
struggling Iraq War. Now the left’s signature achievement under
Barack Obama’s administration is struggling. Given the incredibly
quick (historically speaking) shifts in opinion in favor toward
accepting gay people, it would be foolish of the left not to try to
run with this and force some tough choices on Republican congress
members leading up to the midterms. The Washington Post
notes that support for ENDA-like laws is now in the
majority in all states:

Nearly all recent opinion polls indicate that a large majority
of the American public — more than 70 percent — supports efforts to
make employment discrimination against gay and lesbians illegal. Of
course, these national numbers are not what the senators are likely
to care about. However, when we use national polls to estimate
opinion by state, we find that majorities in all 50 states support
ENDA-like legislation (note that in 1996, majorities in only 36
states supported ENDA). Today, public support ranges from a low of
63 percent in Mississippi to a high of 81 percent in
Massachusetts.

Libertarians who believe that hiring policies – even
discriminatory ones — fall under the First Amendment’s “freedom of
association” provision may end up getting lumped in with the
religious right on this one (not that this is a new thing).

I
wrote about the prospect of ENDA’s passage back in April,
wondering whether there was actually data that backed up a real
need for laws to protect against anti-gay discrimination in the
first place. Andrew Sullivan noted on Sunday that following the
passage of the federal hate crime laws in 2009, there have been
only two prosecutions for anti-gay cases. But despite Sullivan’s
previous opposition to anti-discrimination laws, he has relented:

[T]he libertarian position on such crimes is largely moot – for
good and ill. The sheer weight of anti-discrimination law is so
heavy and so entrenched in our legal culture and practice, no
conservative would seek to abolish it. It won’t happen. And if such
laws exist, and are integral to our legal understanding of minority
rights, then to deny protection to one specific minority (which is
very often the target of discrimination) while including so many
others, becomes bizarre at best, and bigoted at worst. Leaving gays
out sends a message, given the full legal context, that they don’t
qualify for discrimination protection, while African-Americans and
Jews and Catholics and Latinos and almost everyone else is covered
by such protections. It’s foolish to stick to a principle, however
sincere, in the face of this reality.

Secondly, the federal government has ceased its own
discrimination policies in marriage and military service and
therefore now has some small sliver of moral standing to lecture
private individuals across all states. My objections twenty years
ago are now moot.

Put those two developments together and I would not vote against
ENDA if I, God help us, were a Senator. But I would vote for it
with my eyes open. I don’t think it will make much difference in
reality just as I don’t believe hate crime laws make much
difference in reality. Of course that’s an empirical question and I
promise readers horrified by my luke-warm support of this that I
will gladly recant such skepticism if ENDA truly does lead to a
flurry of successful suits across the country against anti-gay
bias.

I think I’ll stick to my sincere principles. The ending of the
federal government’s discriminatory practices still doesn’t give
them moral standing to lecture anybody about anything. Governments
are not our moral guardians or arbiters and is still prone to
extending and retracting various privileges to certain citizens on
the basis of who is in control.

Over at Cato, Walter Olson out-cynics me by suggesting that
pushing ENDA is a way for politicians to take credit for cultural
shifts they had nothing to do with. He also wonders if
there is an upper limit the number of categories where private
actors’ rights of freedom of association will no longer apply:

[A]t some point we do need to stop adding new groups to the
parade—either that, or see freedom of association turn into a
presumption of something else. At what point do we say no to future
demands that protected-group status be accorded to employees based
on political and controversial systems of belief, physical
appearance (the “looksism” issue), family responsibilities, résumé
gaps because of unemployment or other reasons, or use of lawful
products or engagement in lawful activities in off hours—to name
just a few of the areas that in fact have been the subject of
real-world agitation in recent years? If we say yes to all, we
introduce a new presumption—familiar from the prevailing labor law
in parts of Europe—that no employer should be free to terminate or
take other “adverse action” against an employee without being
prepared to show good cause to a judge. That is exactly the goal of
some thinkers on the Left, but it should appall believers in a free
economy.

That’s reason enough to oppose ENDA, as I see it.