| Tuesday, May 27, 2008 |
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Turning Off the Lights of the World
By Paula @ 1:40 AM   
Ayn Rand's masterpiece Atlas Shrugged ends when the lights go out in the world:
The plane was above the peaks of the skyscrapers when suddenly, with the abruptness of a shudder, as if the ground had parted to engulf it, the city disappeared from the face of the earth. It took them a moment to realize that the panic had reached the power stations---and that the lights of New York had gone out. . . .
She remembered the story Francisco had told her: "He had quit the Twentieth Century. He was living in a garret in a slum neighborhood. He stepped to the window and pointed at the skyscrapers of the city. He said that we had to extinguish the lights of the world, and when we would see the lights of New York go out, we would know that our job was done." In the novel, the lights go out as a result of willful evasion -- the refusal of the world's leaders to acknowledge that it is the power of the mind to reform nature in its own image that keeps the world alight. Evil enough, as far as it goes.
Now it's worse. Now there are people actively looking for the world's light switch and positively salivating at the prospect of flipping it off.
Many commentators, not just at NoodleFood, have identified the man-hating irrationality in the leadership of the environmental movement. (For example, see NoodleFood here; see The Ayn Rand Institute here and here.) But I speak of a new horror: the advent of lawsuits charging specific companies with responsibility for global warming and demanding compensation for damages. This phenomenon unites an unholy trinity of destructive factions: the acolytes of the environmental movement; fear-ridden and pandering lawmakers; and those prepared to cash in on the regulatory scheme resulting from the self-reinforcing lunacy of the first two -- the plaintiff's bar.
Kivalina is an Inupiat Eskimo village in Alaska. As of the 2000 U.S. Census, over one-quarter of Kivalina's residents lived below the poverty line. In 2006 the U.S. Army Corps of Engineers described Kivalina as follows:
Kivalina is home to 402 residents, who live in very overcrowded conditions in just over 70 homes. The community is predominately Alaska Native, and residents depend on subsistence activities for a majority of their caloric intake. The community does not have a piped water or sewer system, except for running/piped water in its school and washeteria. Residents rely on self-haul water and on honey buckets for human waste. 
The village is experiencing catastrophic coastal erosion; ice which used to prevent shore damage from fall and winter storms has been melting. Unsurprising, given its location, shown above (New Orleans, anyone?). To continue its existence, the village must relocate. The U.S. Army Corps of engineers estimates it will cost anywhere between $150 - $250 million.
Kivalina is suing energy companies for $400 million.
Two non-profits, the Native American Rights Fund (NARF) and The Center on Race, Poverty & the Environment have filed suit on behalf of Kivalina against 24 energy companies. The nonprofits have teamed up with -- wait for it -- attorneys who successfully sued big tobacco companies. If the suit is succesful, the attorneys' fees will be about 30% to 40% of the recovery. Meaning that what's left for the plaintiffs will be pretty much the amount the U.S. Army thinks it will cost to relocate the village. Pretty neat how that works out, eh?
The Atlantic Monthly writes:
[T]he suit also accuses eight of the firms (American Electric Power, BP America, Chevron, ConocoPhillips, Duke Energy, ExxonMobil, Peabody Energy, and Southern Company) of conspiring to cover up the threat of man-made climate change, in much the same way the tobacco industry tried to conceal the risks of smoking—by using a series of think tanks and other organizations to falsely sow public doubt in an emerging scientific consensus. In other words, attorneys plan to throw the tobacco playbook at rich energy companies. The message the case wishes to convey is that energy companies knowingly caused global warming and must pay for the damage they've wrought by selling the fossil fuels that provide the world with energy.
There is no scientific consensus on the extent or causation of global warming (putting it charitably). But that is not the biggest problem with the lawsuit. The real problem is that to the extent the lawsuit is successful, it brings mankind closer to the squalid standard of living of the population of Kivalina.
The ability to use fossil fuels for our own benefit is the predominant reason humans enjoy the standard of living that we do. And it's not like this is a big secret: witness developing nations' persistent objections to global emissions policies on the grounds that their priority is economic development.
So here we have the spectacle of million-dollar attorneys . . .
. . . driving their fossil-fueled cars to work
. . . where they'll work well into the night in offices brightly lit using energy provided by the companies they're suing
. . . after which they'll go home to luxurious houses made comfortable through the use of energy to warm and cool their environment
. . . and enjoy a quality of life that would not exist but for the energy companies their lawsuits could put out of business.
There is a terrific irony here. The residents of Kivalina have a subsistence economy. The difference between a subsistence economy and the standard of living most Americans take for granted is based on the use and technology of energy. It takes energy to create factories that manufacture plumbing pipes and pre-packaged food, and it would take energy to transport these conveniences of modern life all the way up to Alaska by air, sea and land. But after lawsuits like this one have destroyed energy companies by wringing billions of dollars out of them on the grounds they've covered up evidence that does not exist, we may all end up living like the residents of Kivalina.Labels: Environmentalism, Law
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| Friday, May 16, 2008 |
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Three Cheers for Marrying Whoever You Damn Well Please!
By Diana Hsieh @ 12:05 AM
First, via GVH, I found this interesting NY Times article on the history behind the Loving v. Virginia case that ultimately legalized interracial marriage. That case was decided just 41 years ago. I'm very grateful -- in a very personal way -- that race is no longer a factor in marriage in America. It's not a legal obstacle whatsoever, and not even much of a social obstacle. That's absolutely wonderful.
Second, the California Supreme Court has ruled that laws restricting marriage to heterosexuals violate the state's constitution. While I might not agree with the reasoning of the court, I do wholeheartedly support gay marriage. The essence of marriage is the total integration of two lives: sexually, legally, socially, financially, geographically, sexually, morally, etc. The fact that most marriages involve two people with contrasting genitalia is not of any grand significance. My marriage, for example, has far more in common with the relationship of a committed, rational lesbian couple than to the now-dissolved insane marriage between Brittney Spears and Kevin Federline.
Significantly, to recognize gay marriage as fundamentally similar to heterosexual marriage -- i.e. as a primary, enduring relationship fundamentally integrating two lives -- is not a lapse into subjectivism. That's because such integration is only possible with certain kinds and numbers of people.
- Marriage to beasts is impossible, as the marriage relationship requires the capacity for rationality, not to mention a basic equality in rights. The relationship involved in pet or livestock ownership is wholly different even from that of a fleeting and unserious romantic relationship.
- Marriage to children is excluded for the same basic reason: children are not yet able to fully exercise even the basic rationality required to live independently. That capacity for independence is required for the integration of lives involved in marriage. In other words, a child has no financial, social, moral, or legal life of his own to integrate with another person. Of course, I need not even mention the abhorrent evil of foisting a sexual relationship on a child.
- Polygamous marriage is excluded because whatever relationships would result from multiple unions would be fundamentally different than that of a two-person marriage. Most polygamous marriages, I suspect, would not be a genuine integration at all, but rather a juxtaposed set of individual marriages, each half-starved due to competing demands on time, resources, and attention. Even if the various husbands and wives do live a single, integrated life together, the resulting relationships would be hugely different than an ordinary marriage. Decisions might be made by majority vote. (Sorry Sally, but you were outvoted: we're moving to North Dakota.) Social norms would be completely different. (Do I have to invite all Joe's wives to dinner, or just the mother of our daughter's classmate?) The laws governing divorce, child custody, medical power of attorney, inheritance, testifying against a spouse, and so on would have to be totally re-worked. (If I don't have a medical power of attorney, which husband directs the course of my medical care while I'm in a coma? If I die, how will my property be divided? Also, should each person be able to marry multiple people?) Notably, sex is basically a two-person activity, so that would have to be juxtaposed, rather than integrated. Basically, polygamous relationships -- even if somehow recognized by law (and I don't oppose that) -- would be fundamentally different from marriages between two persons, whether of the same or opposite sex, along multiple dimensions.
Marriage is an extremely important institution in a civilized culture. It's the full-blown, across-the-board public commitment to share one's life with another person. It's a fundamental value in life that my gay friends deserve just as much as my straight ones.
So... as the title of the post says: "Three Cheers for Marrying Whoever You Damn Well Please!"
(Note: I have no idea whether my co-bloggers agree with me on this issue. They can speak for themselves...)Labels: Culture, Law
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| Monday, April 21, 2008 |
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Honoring an Author's Last Wishes?
By Paul Hsieh @ 12:11 AM
The controversy of whether Vladimir Nabokov's last novel should be published against his wishes has apparently been resolved. Nabokov's son Dmitri has reportedly decided to disregard his father's explicit last wish that his final novel The Original of Laura be destroyed. The literary community is deeply divided on this issue, with some saying that the novel should be published for posterity's sake, and others arguing that the author's last wishes should respected.
I haven't read any Nabokov, so I can't comment on the merits of his work. But if he made his wishes clear in a legally binding document (such as a will), then they should be obeyed. On the other hand, if he expressed it as a nonbinding preference to his son (but didn't formally put it in his will), then it's the son's decision.
Even in the latter case, I would still be inclined to honor the author's preference even if I thought the world might be losing an incalculable piece of literary genius. The only exception would be if I had good reason to believe that the author's expressed preferences didn't actually reflect his genuine preferences (i.e., he was joking or suffering from dementia). But my default would be to go with the author's wishes, unless there was a compelling reason to act otherwise.
(If the case of Nabokov isn't sufficiently compelling, suppose that it was 1982 and you were the executor of Ayn Rand's estate, and she had left similar instructions to burn the pages of her last unpublished novel. Although I can understand the temptation to publish it, I would hope that I would have enough integrity to respect her wishes.)Labels: Ethics, Law
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| Friday, April 04, 2008 |
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Nuisance and Pornography
By Diana Hsieh @ 7:44 AM
Paula Hall recently sent me the following inquiry:
I was browsing the Ayn Rand Lexicon and came across the following [in the entry on free speech]:
Only one aspect of sex is a legitimate field for legislation: the protection of minors and of unconsenting adults. Apart from criminal actions (such as rape), this aspect includes the need to protect people from being confronted with sights they regard as loathsome. (A corollary of the freedom to see and hear, is the freedom not to look or listen.) Legal restraints on certain types of public displays, such as posters or window displays, are proper but this is an issue of procedure, of etiquette, not of morality.
The rights of those who seek pornography would not be infringed by rules protecting the rights of those who find pornography offensive e.g., sexually explicit posters may properly be forbidden in public places; warning signs, such as "For Adults Only," may properly be required of private places which are open to the public. This protects the unconsenting, and has nothing to do with censorship, i.e., with prohibiting thought or speech. [The NoodleFood reader continues:] I can readily understand the concept of statutory rape. I am having difficulty with the notion that "[l]egal restraints on certain types of public displays . . . are proper," when the context refers to displays on private property -- no matter what the content. Rights can be violated only through physical force, and words and pictures are not force. Since when has there been a right not be "confronted with sights [a person] regard[s] as loathsome?" By what public standard could anyone determine what was "loathsome" and subject to restriction?
I am inclined to assume that I am missing something, rather than that Rand is inconsistent(!). What am I missing? Paul and I have discussed this matter at some length, but I don't have time to write up our present view in any detail. Very briefly, our view is that the government can properly forbid nuisances as a kind of tort. However, a nuisance is not just something that someone doesn't like. Rather, it's an unavoidable, perceptual impingement, such that a person cannot go about his ordinary business in its presence. Examples of nuisances would include bright lights, loud music, and nasty smells -- but not a Mexican flag, a mural of a nude woman, or rap music at a normal volume. The particular content of the nuisance is irrelevant. A person has no right to be protected from exposure to disagreeable aspects of the world. That would open the door wide to all kinds of rights-violating restrictions on speech. However, a person does have a right not be "assaulted" by physically painful or unavoidably distracting percepts via some kind of nuisance law.
Some of that analysis fits with Ayn Rand's quoted comments, but not all of it. If we disagree with her on this fine point of legal philosophy, so be it. However, since neither Paul nor I are experts on philosophy of law, we're definitely interested in hearing arguments on all sides.Labels: Law, Objectivism
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| Thursday, January 24, 2008 |
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An Odd Grey Area in the Law of Sex
By Paul Hsieh @ 7:46 AM
Here's a story from the Denver Post which raises some interesting issues about prosecuting children for having sex with one another:Utah Supreme Court justices acknowledged Tuesday that they were struggling to wrap their minds around the concept that a 13-year-old girl could be both an offender and a victim for the same act -- in this case, having consensual sex with her 12-year-old boyfriend.
The Ogden, Utah, girl was put in this odd position because she was found guilty of violating a state law that prohibits sex with someone under age 14. She also was the victim in the case against her boyfriend, who was found guilty of the same violation by engaging in sexual activity with her. "The only thing that comes close to this is dueling," said Associate Chief Justice Michael Wilkins, noting that two people who take 20 paces and then shoot could each be considered both victim and offender. And Chief Justice Christine Durham wondered if the state Legislature had intended the "peculiar consequence" that a child would have the simultaneous status of a protected person and an alleged perpetrator under the law.
...State authorities filed delinquency petitions in July 2004, alleging that each had committed sexual abuse of a child, a second-degree felony if committed by an adult. The girl appealed the petition, saying her constitutional right to be treated equally under the law had been violated. Her motion noted that for juveniles who are 16 and 17, having sex with others in their own age group does not qualify as a crime. Juveniles who are 14 or 15 and have sex with peers can be charged with unlawful conduct with a minor, but the law provides for mitigation when the age difference is less than four years, making the offense a misdemeanor. For adolescents under 14, though, there are no exceptions or mitigation and they are never considered capable of consenting to sex. I do agree with the general principle that children below a certain age cannot genuinely consent to sex with an adult. But I'm not sure what the proper legal approach should be for two such children who engage in sex with one another.Labels: Law
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| Tuesday, January 01, 2008 |
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The Wrong Way to Defend Intellectual Property Rights
By Paul Hsieh @ 2:07 PM
Update: Newsfactor.com is reporting that the Washington Post has misreported part of their story, and that Jeffrey Howell is being sued for ripping his own CD's onto his computer hard drive and placing them onto his shared folder for distribution to the rest of the world through the Kazaa file sharing system.
Obviously this changes the merits of that particular lawsuit. (It doesn't change the error of the Sony lawyer Jennifer Pariser's statements also cited in the WaPo story.)
=====
I am a firm believer in intellectual property rights, including copyright. However, when the RIAA (Recording Industry Association of America) takes ridiculously wrong legal positions in their supposed "defense" of copyright, it merely confuses and alienates honest consumers. A recent article in the Washington Post summarizes some of the statements that recording industry lawyers have made condemning the entirely legitimate practice of taking a music CD that one has legally purchased and transferring a copy onto one's own home computer or MP3 player for personal use (i.e., not for widespread distribution to others):In legal documents in its federal case against Jeffrey Howell, a Scottsdale, Ariz., man who kept a collection of about 2,000 music recordings on his personal computer, the industry maintains that it is illegal for someone who has legally purchased a CD to transfer that music into his computer.
The industry's lawyer in the case, Ira Schwartz, argues in a brief filed earlier this month that the MP3 files Howell made on his computer from legally bought CDs are "unauthorized copies" of copyrighted recordings.
...The Howell case was not the first time the industry has argued that making a personal copy from a legally purchased CD is illegal. At the Thomas trial in Minnesota, Sony BMG's chief of litigation, Jennifer Pariser, testified that "when an individual makes a copy of a song for himself, I suppose we can say he stole a song." Copying a song you bought is "a nice way of saying 'steals just one copy,' " she said.
But lawyers for consumers point to a series of court rulings over the last few decades that found no violation of copyright law in the use of VCRs and other devices to time-shift TV programs; that is, to make personal copies for the purpose of making portable a legally obtained recording. To make things worse, the RIAA used to explicitly endorse the practice they are now condemning. A few years ago, they stated on their official website (and still available via the Web Archive):If you choose to take your own CDs and make copies for yourself on your computer or portable music player, that's great. It's your music and we want you to enjoy it at home, at work, in the car and on the jogging trail. But that language has since then been removed from their current website.
The danger is that when an organization like the RIAA overstates its case by making such egregiously bad claims about intellectual property rights, it merely undercuts the validity of the concept in the average readers' minds. An average consumer might easily (and with some partial justification) conclude, "If 'copyright' means that I can't listen to my own legally-purchased album on my own iPod, then screw it - I won't respect copyrights!"
Of course, the correct approach to combating illegal and immoral "file sharing" of copyrighted material is not to make a bogus defense of property rights, but to make a genuine principled defense that incorporates the relevant technological facts about these issues.
For instance Dr. Leonard Peikoff's briefly discusses this issue on his website (in the entry dated April 12, 2007), and arrives at a better conclusion, based on the distinction between form and content:Q: On Copyrights:
1. Under a proper capitalist government, if you buy CDs where the only contract term is "Copyright, All Rights Reserved," would it be legal--and moral--to copy those CDs, that one has already bought and paid for, to one's own iPod?
A: First, a caveat: I have not thought much about issues in the philosophy of law. So some of the following is only my best ideas given limited knowledge.
I agree with your earlier general statement that creators have a moral right to set whatever conditions they want, rational or otherwise, in regard to the use of their property. As you say: "copyright owners have the right to control the act of copying as such. In support of this is the idea that their property rights cannot be limited, and that the copyright owners created the value of the music in the first place."
However, if you ask me what is the rational policy in this issue, my answer involves a distinction between form and matter -- i.e., changing the medium or organization of a purchased work in order to make its content more conveniently accessible to the buyer; vs. duplicating the purchased work (which is what I myself call "copying"). E.g., scanning OPAR into your computer in order to adjust the font vs. making a copy of the purchased book, so that you have two of the very books on sale in the store. I regard the first as, in essence, a transfer of content already paid for, and thus justified; while the second is unjustified: if you buy a book, you are not and should not be authorized to become a manufacturer of it, whether of 1 or 1,000 more copies.
The same applies to CDs. I think you have a right to transfer the content to an iPod, or to transfer excerpts from different CDs onto one CD; but I do not think you have a right to "copy" them in the sense of manufacturing duplicates of the original CDs. I believe Dr. Peikoff's position is essentially correct, and that form-content distinction is an important one.
There are some interesting side issues that he didn't address that might be worthy of further analysis. For instance, does creating a physical backup copy of a CD of music or software that one has legitimately purchased (purely as a precaution in case that the original is accidentally damaged or destroyed) count as "manufacturing" in the sense that he means? Provided that one keeps that backup copy in a safe place unused (as opposed to giving/selling it to others for their use), I think this would be legitimate. Most software producers allow or even encourage this practice, and I think it would be a reasonable practice for musical content as well.
Similarly, does burning a duplicate physical copy of a music CD so that one can keep one copy in the upstairs music CD player and a second copy downstairs or in one's car (again purely for personal use as opposed to giving/selling to others) count as "manufacturing"? Also, is the intended user (i.e., personal use vs. giving/selling to others) the critical distinction as well? I freely admit that I don't have fully worked out positions on some of these questions of how best to apply the broad principle of copyright to specific scenarios in this era of easy digital duplication and dissemination.
Overall, I think Dr. Peikoff is on the right track with this type of analysis, and this is the correct approach to take, rather than the concrete-bound approach of the RIAA ("copying" = "stealing") which merely undercuts respect for property rights.
I would love to see more work by Objectivists on the nature and proper justification of intellectual property rights, such as Greg Perkins' essay, "Don't Steal This Article!" or Ayn Rand's own "Patents and Copyrights" in Capitalism: The Unknown Ideal. Michigan State law professor Adam Mossoff has also written a number of articles on intellectual property available on SSRN. More such work would be a welcome contribution to the often-contentious and confused discussions in the mainstream media about these important issues.Labels: Law, Technology
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| Friday, December 21, 2007 |
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Why Originalism Won’t Die
By Diana Hsieh @ 9:27 AM
Tara Smith's article, "Why Originalism Won't Die - Common Mistakes in Competing Theories of Judicial Interpretation," was recently published in the Duke Journal of Constitutional Law and Public Policy. The article abstract reads:
In the debate over proper judicial interpretation of the law, the doctrine of Originalism has been subjected to numerous seemingly fatal criticisms. Despite the exposure of flaws that would normally bury a theory, however, Originalism continues to attract tremendous support, seeming to many to be the most sensible theory on offer. This Article examines its resilient appeal (with a particular focus on Scalia's Textualism). By surveying and identifying the fundamental weaknesses of three of the leading alternatives to Originalism (Popular Will theory, Dworkin's value theory, and Judicial Minimalism), the Article demonstrates that the heart of Originalism's appeal rests in its promise of objectivity. The Article also establishes, however, that Originalism suffers from a misguided conception of what objectivity is. All camps in this debate, in fact, suffer from serious misunderstandings of the nature of objectivity. Happily, it's available for free online. You can read the HTML version or download the PDF.Labels: Law
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| Thursday, December 20, 2007 |
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Monica on Stuff
By Diana Hsieh @ 8:00 AM
Monica of Spark A Synapse has blogged some good stuff of late, e.g. on grading public school exams, on overcoming hatred of Christmas, and on whether Scientology should be banned.
As for Scientology, the major question for me is whether the Church of Scientology is a fundamentally or substantially criminal organization or not. I can't pretend to answer that question definitively. My understanding is that the protection from scrutiny given by the designation of the Church of Scientology as a church, combined with its own secrecy, makes certain knowledge of any criminal wrongs rather difficult. The stories commonly heard about it are deeply worrisome, however.
In any case, my own years-long nightmare of being sued by a Scientologist for making unfavorable public comments about the religion he wouldn't even admit as his own made perfectly clear that the organization and its members ought to be prevented from abusing the legal system as they so often do. A person doesn't deserve "a day in court" just because he managed to file a lawsuit, particularly not when that costs others acting within their rights years of peace of mind and many thousands of dollars.
Of course, that problem isn't limited to Scientologists; tort reform is needed to protect all people from unjust lawsuits from all corners. Scientologists merely seem particularly apt to abuse the system whenever someone displeases them.Labels: Law, Religion
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