Denkend aan Holland
zie ik brede rivieren
traag door oneindig
laagland gaan.
rijen ondenkbaar
ijle populieren
als hoge pluimen
aan den einder staan;
en in de geweldige
ruimte verzonken
de boerderijen
verspreid door het land,
boomgroepen, dorpen,
geknotte torens,
kerken en olmen
in een groots verband.
de lucht hangt er laag
en de zone wordt er langzaam
in grijze veelkleurige
dampen gesmoord,
en in alle gewesten
wordt de stem van het water
met zijn eeuwige rampen
gevreesd en gehoord.

Hendrik Marsman

The new academic year is approaching, and this will be my third year in law school. As I was doing my annual reorganization of my academic bookshelf, I came across a book, Starting Off Right in Law School by Carolyn J. Nygren. If I could recommend only one book for first-year law students, it would be this one.

At 117 pages, it is short and pithy, and it contains everything a new law student needs to know about succeeding in law school. Nygren’s method of case reading, note taking, outlining and examination technique has constituted the core of my study practices over the last two years. It is a substantial reason for my success (I am currently second in my class), and has doubtless saved me countless hours that I could have spent over-studying the wrong types of material.

If you are entering law school, buy it and read it.

We came back from vacation last week. While we were gone, our lawn became a jungle. We have long winters here in Laramie with short springs; I’m not sure, but I think the plants start to get restless and as soon as the last snow melts, they jump out of the ground and grow as fast as they can.

Anyway, some of the grass in my front yard was quite high – maybe 18 inches. Some of the grass in my back yard was two and a half feet tall. I know, that’s a little socially awkward in a residential neighborhood. I wasn’t cavalier about it; I just had quite a bit to do when I came back from vacation.

So today I mowed my lawn. Our lawnmower was broken, and the neighbor who lets me use his was not at home. So I bought one.

I bought a gas-powered lawnmower. I do think electric lawnmowers are cool: they are quieter and have zero-emissions. Batteries on electric lawnmowers are becoming more powerful such that one can mow an entire reasonably sized lawn with one.

But, it was evident an electric lawnmower wasn’t going to cut it today.

The lawn required two tanks of gasoline and may have been so thick that it damaged the front-wheel drive (I have to check). The job took about three hours, and near the end, as dusk was approaching, I realized I might be doomed.

Near the beginning of Laramie’s summer, legions of mosquitos hatch. There are so many sometimes that they form clouds. Laramie controls them with god-knows-what-kind-of-evil chemicals, but they do the job, mostly. Still, when you’ve killed ninety percent of fifty bajillion mosquitos, fifty octillion remain (yes, I’m defining 1 bajillion as 10 octillion).

They wanted me. Usually, I am not the most attractive human to mosquitos, but I was the only human around, and I was razing their homes and businesses. They started to fly closer to me, but then flew away.

Then I realized I had certainly made the right purchase. Heavy hydrocarbons are mosquito kryptonite. It seems that all the emissions of a dirty four-stroke engine drove the little Culiseta longiareolatae away from me. The engine might as well have been emitting DDT.

One thing that slows the process down somewhat is the requirement of a signature for delivery. Of course, common carriers have learned that not all packages need to be signed for. Senders and recipients are often happy taking the minimal risk that loss may occur on the doorstep despite good faith by the common carrier in transport and delivery, because the irritation of hassle, particularly in having to be at home to receive personal packages, is greater than the risk of loss of value.

Naturally, the requirement of a signature for delivery of some packages is an important commercial and legal tool, because it provides for certification of delivery by the customer (or customer’s agent). If the customer signs for the package, he knows it has been delivered–to him personally. The common carrier knows it has been placed in the hands of the customer or the agent, versus assuming it will be picked up properly by the customer on his doorstep when he gets home, thereby decreasing the chances of theft, damage by weather or other mishaps. And finally, the sender can rest assured the package was delivered to someone who was willing to sign for its receipt. While if the customer himself does not sign for the package yet his agent or someone else does, there is a minimal chance of misplacement, but if the circumstances surrounding delivery are reasonable and in good faith by the common carrier, the law will not disturb the presumption of proper delivery. And practically speaking, loss does not occur terribly often in such situations.

Common carriers have made the process a bit more efficient for senders and recipients, because online tracking allows us to find out where packages are in the transport process. So, recipients receiving personal packages at home can gauge the day when the package is likely to be delivered. Some residents are fortunate to know the time the common carrier’s driver generally will appear and can make sure to be at home around that time. Unfortunately, however, tracking updates only provide limited information, viz., the day of delivery. Anticipated delivery times are rarely, if ever, designated by the common carriers.

But if they could or would designate anticipated times of delivery, the recipient could more efficiently plan for being at home for delivery. Certainly, if the driver has fewer packages on a given day, it is in the carrier’s interest to be able to deliver earlier than normal. And if there are a great number of packages on a route on a given day, it would be advantageous for the driver to be able to deliver as close to the day’s deadline as possible. Thus, it is understandable that a common carrier would not want to promise delivery or legally obligate itself to do so between a certain time band (absent a profit opportunity that would give it incentive).

Still, in the interest of providing constituents (senders and recipients) information with which they can better plan their days, I suggest common carriers should implement GPS-based technology to inform the constituents of likely delivery times. Of course, for security and proprietary reasons, a common carrier may not want to display to the world the exact location of its trucks at any one time. The technology could, however, combine the known delivery routes a carrier’s trucks with their location. Based on continuous GPS updates of the trucks’ locations, which common carriers most certainly employ today for internal monitoring purposes, the carriers could reliably extrapolate delivery times based on continuous updates to the zeroth-order truck locations, first-order truck velocities and even second-order truck accelerations on their delivery route contours. Such extrapolated times could be updated to the tracking numbers so that recipients, especially, can plan better when to be home to receive signature-required packages.

One of his more poignant theses is that mandatory “free” public schooling was created and is intended to make children mediocre and compliant, specifically by denying them real training in thinking critically. “School trains children to obey reflexively: teach your own to think critically and independently.” His juxtaposition of reflexive obedience and critical thinking as polar opposites is a compelling contrast. Soldiers are not expected to think critically; they are expected to obey. Prisoners are not expected to think critically; they are, quite oppositely, demanded to obey. So why are children expected to obey teachers and schoolmasters reflexively? Because they have putative authority? Garbage! If the Founders of this country reflexively obeyed their King, we would be British subjects.

As parents, we should hope that and train our children to reflexively obey us, at least when we employ the Look or the Voice to let them know that immediate obedience is important. Most times, however, it has become clear to me recently that we should allow our children leeway to ask us “why?” so that we can teach them greater reasoning. Sure, at some point, when our children are young or are impulsive or lack wisdom and are in our care, we may need to curtail the discussion for their own good, but more often than not, children should be treated with the same respect we expect of other adults. We should give them the courtesy to act thoughtfully and give them commands, guidance and suggestions with love, not with imperiousness.

Public education, on the other hand, greatly rewards behavioral compliance. From a utilitarian view, schools couldn’t function without it. See William Golding, Lord of the Flies. But we should ask why, philosophically, should a place of education expect behavioral reflexivity?

Why should my child or your child obey a virtual stranger, the teacher, without question? Because the law mandates that children, absent meeting the requirements for homeschooling, be present in school and obey? Rubbish. I may want my children to generally respect other adults, but I do not want my child to obey them reflexively.

This evening I was looking through a smattering of old school records. I graduated high school with a perfect cumulative 4.0 grade point average, so my ability to thrive inside a public educational environment is not in question. I do not approach this issue with a chip on my shoulder.

Some of my permanent record jumped out at me. In my American History class in high school, the teacher noted I had too many absences. I don’t generally remember being absent from classes in high school unless I was sick, so how many was too many? And since I received an A and understood the material, why does it matter anyway? Take a step back. Why does it matter whether, assuming a student apprehends the material to a comparative level of exceptional competence, he is absent or, {gasp}, he never shows up? Presence in a classroom where the material is already known must serve another purpose. I think Gatto is correct when he points out that it serves the purpose of ensuring that children are compliant citizens for government when they become adults.

To the same extent, I saw my absence records for elementary school. In one case, I think my first grade report card noted that I was not in class for 3 1/2 days out of some period. Since I was 6 or 7, I highly doubt that I was willfully truant, so I must have been absent at the behest of my mother of father. Why in the world should it matter enough to tell the parents when a first-grader is absent?

One might argue that it is a matter of safety. If my mom or dad didn’t know where I was on a given day, a record of my total absences one to three months later will be irrelevant for promoting my safety. No, what it serves is to cajole, scold &/or enlist the parents into helping the State teach their children to be compliant.

Reinforcing this idea is that most of my grades (ranging from Satisfactory + to Satisfactory to Satisfactory – to Unsatisfactory) had to do with behavior, not apprehension.

It has never bothered me to this extent before, but now I review my old records and I am reviled by the counting of my attendance and the remarks about my behavior. I was always a superbly obedient kid, particularly in school, but it grates on me now to think that anyone ever had the authority or power to count my days present and absent in a system that is built to ensure mediocrity and to command my fealty.

Online game software licensing authentication has come into vogue. Gaming software companies have promised users the ability to purchase and download games at any time without having to go to a retail outlet and by giving them the added benefit of a license key permanently tied to their account. They have also given users the ability to re-download any game at any time so that the users never have to worry about losing a disc and have the added convenience of being able to reinstall almost automatically on a restored, rebuilt or new computer.

In return, the leaders in the online licensing and distribution space, Steam and Impulse, have garnered loyal customers. More importantly, in return for convenience, they lock users into licenses that are not transferable – not alienable.

Certainly, those licenses may indicate they are not transferable by sale or gift or otherwise anyway, but what parochial gamer reads such licenses or cares? And why should the gamer care? If he owns physical property (a disc) and possesses a code that allows him to play the game, why should he not be able to sell the disc and the code to another person for a lower-than-retail price once he is finished with the game?

Game companies don’t like this. Instead of making $50 on one sale, even though two or three players may have enjoyed serially gaming on the same license, the companies would prefer to sell the first copy to the early adopter for $50 and then a new copy to the second player, perhaps at a reduced price of $40 and a third copy to a third player for $35, and so on and so forth.

So, as is often the case, the interests of the game-players (in aggregate) and the game distributors are in conflict. When they have been heavy-handed, game companies have usually lost the battle: onerous copy protection is often cracked and no one, candidly, blinks an eye at selling a used game to another person. The original purchaser believes (errantly) that he owns a copy of the game and that a sale to a new person is just between him and the new buyer.

To my mind, it is unfortunate that game distributors and publishers do not simply acquiesce and adopt an ownership rather than a license model. But, it appears the companies have realized that wielding sticks with computer gamers is not so effective as employing carrots or honey.

The honey is what Steam (and Impulse) provides: ease of purchase, immediate notification of upgrades, an automatic authentication system (no need to input silly numbers anymore), saved records that are never deleted, and the assurance that gaming preferences will be stored, for some games, for your account no matter where you access the game.

Of course, the honey is meant to gently ensnare gamers. Once a player purchases a game on Steam and similar services, he cannot resell it or give it away. There is simply no mechanism for transferring the license to another person.

Why Steam’s Model is Misguided

There is nothing inherently morally wrong with the model that Steam uses to attempt to increase sales. I do think it is misguided and not as profitable as people believe.

Currently, if Player One buys a game for $50, defeats it and is now finished with the game such that he will not reasonably replay it, what does he do? Nothing. The license is stored for him forever. Valve Corporation, which owns the Steam platform, and the game publishers that use its platform believe that forcing customers to buy new games directly from them will increase overall aggregate revenues in the long term. Sadly, this belief is similar to the beliefs that perpetuate the Broken Window Fallacy.

On the other hand, lower prices decrease barriers to entry, and augment network effects for continued adoption of the game.

If Player One could sell the game to another, Player Two, for a lower price, let’s say $30, certainly Steam would like to garner that money for itself, and so hopes that by restraining alienation (preventing resale), that Player Two will buy the game directly from Steam so as to ensure that the money that Steam receives in total is $80. For this to be true, assuming Player Two’s preferred price is $30, Steam would have to lower the price at about the time that Player Two is willing to buy the game. If Steam doesn’t do so, the opportunity to make the sale is lost, and in the meantime there is no way for Player One to recoup any money.

Why should Steam want Player One to recoup money? Because Player One has already demonstrated himself to be a willing customer of Steam. If he is willing to spend $50 to purchase from Steam, he likely is willing to take the $30 he might gain from a sale to Player Two to put toward a new purchase. Steam could easily see the $80 anyway. In fact, since Player One has demonstrated himself to be an early adopter, he might put the $30 he receives from Player Two toward a new game of a higher price, effectively turning a $30 sale to Player Two into a new $50 purchase with Steam. In the end, Steam does not get the $30 sale to Player Two, but it does receive $100 from Player One.

Certainly, there is no guarantee Steam will realize a sale in either scenario, but over the aggregate, it seems more likely that players who are already predisposed to buying new games would take money they received from sales to third-party players and purchase from Steam again.

Furthermore, if a player could alienate his games to people on the Steam platform, the player would, in many instances, invite buyers to create new accounts with Steam so the license could be transferred, increasing Steam’s potential customer base. Steam can now directly advertise to the buyer/new player as a captured customer.

How to Punk Steam¹

(How to Break the Misguided Business Model for Online Game Distribution)

Absent the creation of a platform that allows alienation between users of gaming software licenses (or Valve/Steam and others changing their tunes), I propose the following idea. I leave it open to any innovative, courageous group of software engineers to implement, given that there are numerous intellectual property and contractual licensing obstacles to overcome (read: Valve will likely sue you).

For the sake of the argument, let’s call the new company Punk.² Punk would sign users up for the express purpose of enabling them to pseudo-alienate their licenses between one another.

Punk would operate as a meta-authentication system. That is, Punk would sign users up with accounts and would also require the users to connect their Steam accounts to their Punk accounts. Punk would then magically access and index a user’s Steam licenses. The Punk system would do so for each of its legion users.

The user would specify to Punk that it would like to alienate, or rather, pseudo-alienate a gaming license to another Punk user. In order to do so, Punk would serve as an intermediary protocol between the new user (“buyer”) and Steam. This would likely require two layers, an online account layer for Punk as well as a regularly updated client downloaded by its own users so that the client can interface with the Steam client.

The Buyer’s Punk client would send requests to Steam, disguising itself as the original user (“seller”) using the Seller’s stored, encrypted authentication information so that Steam believes the license is properly authenticated to the computer sending the request. Once the authentication for the license is approved (since Steam requires online authentication each time a player plays his game), Punk would have done its job, because now the Buyer is able to use the Seller’s game. In a sense, Punk would serve to de facto shard the licenses of a Steam user’s account, allowing a Buyer to use whichever of the Seller’s licenses the Seller allows. Of course, the system would be designed to allow multiple Buyers to authenticate to Steam via Punk. Punk, in the background, is keeping the authentication of all interested parties separate, discrete and encrypted.

So, when the Seller looks at his Steam account, he sees nothing has changed. A Steam account will still show all licenses, unperturbed. But the Punk account will indicate the games he has pseudo-sold to other Punk users. Punk would have to interface with the Steam client to ensure that the Seller does not continue to play his licensed game directly via Steam, else this would break the model. Punk could do so by integrating as a layer on top of Steam and function by monitoring Steam activity. If the Seller continues to use his license and prevents the use of the license by the Buyer, Punk could employ a warning / fining / banning system to enforce the transactions between its users. Caveat emptor.

The business model (disregarding tortious interference of contract claims), of course, is obvious. Punk provides the inter-user transaction mechanism (the checkout cart), and take a percentage of “sales” between Punk users.

Steam would likely try to thwart Punk, just as Apple combats the jailbreaking of iPhones, so there are some obstacles to consider:

Stewart plays Anderson, a Virginian farmer with six sons, whose land is surrounded on all sides by Union armies. He refuses to participate in the war, at least at he beginning of the movie. Johnson, a Confederate soldier comes to him to recruit Anderson’s sons.

Johnson: There’s a Yankee army breathing down your neck, Mr. Anderson. I don’t think you realize —
Anderson: You’re town-bred aren’t you?
Johnson: I don’t see what that has to do with —
Anderson: I’ve got five hundred acres of good, rich dirt here. As long as the rains come and the sun shines it’ll grow anything I have a mind to plant. And we pulled every stump. We’ve cleared every field. We’ve done it ourselves without the sweat of one slave.
Johnson: So?
Anderson: So?! So, can you give me one good reason why I should send my family that took me a lifetime to raise down that road like a bunch of damn fools to do somebody else’s fighting?
Johnson: Virginia needs all of her sons, Mr. Anderson.
Anderson: That might be so, Johnson, but these are my sons! They don’t belong to the state. When they were babies I never saw the state coming around with a spare tit. We never asked anything of the state and never expected anything. We do our own living — and thanks to no man for the right.

I propose ranking law schools by a well-known “new” method: Google PageRank. That is, run a simple query to see which law school websites are more or less relatively popular. PageRank is about as unfiltered by bias as we could expect, given the distributive machine-oriented nature of the relative evaluation. There’s no need to rely on paying a third-party (US News) for its self-serving preparation of the material. Instead, just perform a Google query, such as [law school].

There may be a question as to whether the popularity of a website is a good proxy for the measure of a school, but linkurls will link to those websites for a myriad of reasons important to the information generator or provider who linked to the website. Google incorporates the legion reasons people find certain websites more popular than others, and it is not terribly necessary (I believe) to examine our collective, distributed navels to find out whether it is a “good” proxy, since it is, facially, more objective than a human-filtered system like US News.*

Now, the results will be somewhat tailored to your locale and to other attributes, presumably to give you, the searcher, the information in a form most useful to you. That is, your relative rankings may vary somewhat from the ones I list below, but wouldn’t that be much more useful to you anyway — to have search results that tend toward your own needs? Imagine that. Here they are, relatively ordered, through the 10th search result page (that does not mean there are 100 listed, since other websites related to law schools appeared in the results interspaced, but are not included here):

Harvard
Yale
Georgetown
Columbia
NYU
Stanford
Texas
Michigan
U. Chicago
UCLA
PENN
Cornell
Suffolk
Minnesota
North Dakota
Wisconsin
Washington
Vanderbilt
George Washington
Berkeley
Indiana U.
Vermont Law School
Duke
Fordham
Brooklyn
Loyola (Los Angeles)
USC
Southwestern
Wayne State
Emory
Rutgers
Notre Dame
New York Law School
Tulane
UVA
Chicago Law School
Northwestern
UC Davis
Pace
Georgia
Baylor
Drake
Boston College
Maryland
Colorado
Cardozo
George Mason
Lewis & Clark
Washington U. in St. Louis
Hofstra
Thomas M. Cooley
SUNY Buffalo
CUNY
Penn State
UNC
U of Oregon
Boston University
John Marshall
Northeastern
Seton Hall
Case Western
Albany Law School
Temple
Valparaiso
USD
Santa Clara
UNLV
Seattle U.
Marquette
BYU
U. Miami
Widenr
Duquesne
U of Missouri

I bet Duke, Northwestern and Cardozo will find this ranking system to be unreliable. =)

Can one of the lawyers on this list give us some color on the Supreme Court extending [the] 2nd [A]mendment to the states on the basis of due process versus on the basis of privileges and immunities?

As far as I know, there are no lawyers on the list, but from common understanding, he meant to pose the question to anyone affiliated with the law, so as a law student, I answered with the following response (with minor edits).

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

(Emphasis added).

The Notion of the Common Good in the Revolutionary Era
The Federalists and Anti-federalists disagreed about a great many things as they pertained to governance in the new nation after England signed its treaty with the united States. A common desire, however, was that government power, where present, should only be used for “the common good.” There were philosophical disagreements about what the common good was, but Paine-ites and Madisonians would agree that government working for “partial or private interests” was clearly violative of natural rights. For example, taxes might be raised to build a town hall to allow communal participation in government: and, as such, would have been considered a common good. However, if taxes were raised to subsidize farmers, they would have been considered antithetical to good governance as working for partial or private interests.

As such, the courts were wont to view legislation through the prism of the common good-partial or private interests dichotomy all the way through 1937.

Slaughterhouse Cases
In the early 1870s, Louisiana had chartered a corporation to create a monopoly over the butchering industry in the in the greater New Orleans area. Butchers were required under state law to subscribe to the corporation in some manner in order to actually do their work. A group of them challenged the law under the newly adopted Amendments XIII, XIV and XV in various cases. The Supreme Court granted certiorari to hear the cases, which over time became collectively known as the Slaughterhouse Cases.

The core of the plaintiff-butchers’ arguments relied on the Privileges or Immunities clause of section 1 of the 14th Amendment. They asserted that Louisiana was restricting their privileges and immunities to work independently in their stock and trade. They further asserted, as a matter of policy, that to allow Louisiana to favor some butchers (the compliant ones) over others (the plaintiffs) was tantamount to favoring partial or private interests over the common good.

From a plain language standpoint, arguing the Privileges or Immunities clause was the most logical, because the butchers believed that they had inalienable privileges and immunities (rights) that had been alienated by Louisiana. This clause and the equal protection clause are the strongest clauses in favor of individual rights in Section 1, because they invoke the idea that certain rights, even if vaguely defined, are unassailable. I’m not even sure the due process clause was considered by the Slaughterhouse plaintiffs, because the due process clause allows for rights to be taken away as long as the process of law is duly followed.

The Court, however, rejected the argument on notions of legislative intent and a very arcanely narrow reading of the phrase “citizens of the United States.” The Court first reasoned that the Amendments were primarily intended to free blacks from slavery. Since the butchers were white and slavery was not at issue, the Court held that the use of the Privileges or Immunities clause was inapposite as they were not contemplated by the purpose of the amendment.

Furthermore, and strangely, the Court also reasoned that the phrase “citizens of the United States” modified the Privileges or Immunities clause by invoking a national interest rather than state interests. That is to say, the Privileges or Immunities clause was only protectionary of a national interest, to wit, a protection against enslavement. The Court ruled that the clause was not applicable to matters of state interest and held that because corporations were creatures and matters of state governments, the Privileges or Immunities clause could not be applied in favor of the butchers, and they lost the appeal.

Incorporation
At jurisprudential issue in the Slaughterhouse Cases was whether rights purportedly guaranteed to individuals by the original Constitution, Congress, or especially the Bill of Rights could be incorporated (enforced) against the states. As putative sovereigns, states were not considered to be bound by most of the rights guaranteed by the Bill of Rights before the Civil War. The federal government could not abridge speech, so it was alleged, but the states could. The federal government could not quarter soldiers in homes during peacetime, but presumably the states could.

Most of the time the distinction was nonexistent, since states governed similarly, at a broad level, to one another and the federal government, but where the issue arose, most Constitutional rights were not incorporated to the states.

The Legacy of the Privileges or Immunities Clause
Because of the narrow reading of the P-I clause of Amendment XIV, it rendered the clause a virtual nullity since 1873. In fact, its inclusion in the Amendment, given the Court’s interpretation, makes it vacuous, because states have rarely, if ever, dared to deny federal rights to their residents. Perhaps the P-I clause might be meaningful again if a state attempted to legislate that no resident could vote in a federal election again. For the most part, though, the clause has been meaningless since 1873. The Supreme Court’s narrow reading of P-I is especially ironic, because the 13th, 14th and 15th Amendments were very clearly ratified to attenuate the despotic power of states over their residents (and in the eyes of some, indirectly grant the federal government more of that despotic power). That is, in narrowing its scope, the Supreme Court likely abrogated the whole reason for including the Privileges or Immunities clause in the 14th Amendment.

Meanwhile, states could establish churches (and did, at least until that went out of vogue in the 1830s), abridge speech, regulate the right to carry and bear arms, disallow jury trials for criminal defendants, force criminals to testify against themselves, etc.

Jurists and lawyers began searching for a way to enforce federally protected guarantees against state intrusion to prevent circumstances as in the above examples from happening. P-I would have been the most logical, but they began to, out of necessity, argue incorporation against the states under the due process clause instead.

Substantive Due Process
Only the law could generate an oxymoron for such an important doctrine, but the theory of substantive due process began to develop more robustly after the Slaughterhouse Cases, likely because the substantive guarantees that would have been affirmed via Privileges or Immunities were lost when the clause was swept into the dust bin of the Supreme Court’s history.

Instead, it began to be argued that Due Process protected not only the literal process of law against arbitrariness and caprice, but that there were inherent substantive guarantees in the notion of due process. One could take away another’s freedom for committing a heinous crime, but one could not abridge the right to a jury trial, period, even if the state purporting to do so had its own sovereignty.

Some argued that process does not include the notion of substance, but the history of the notion of due process belies that argument. Yet, state courts themselves would, even at the time of he country’s founding, adjudicate cases invoking Due Process as equivalent to the Law of the Land, which, for them, included natural rights substantive protections that were implied or not often stated in state constitutions. That is, there was always a substantive component to the interpretation of due process at the state level, so the idea that one could use it at the federal level as against states was novel, but not untied to history.

Over time, one by one the Court began to incorporate rights guaranteed by the Bill of Rights against the states, but even as late as 1908 in a case called Twining v. N.J., the Court held that the Due Process clause did not incorporate the 5th Amendment right against self-incrimination to the states. The Court at this time was still prone to employ a priori natural rights theory instead of looking solely to the text of the law at hand, and so, strangely, it stated that exemption from self-incrimination was not “an immutable principle of justice.”

Later, the Court overruled itself and did incorporate the 5th Amendment to the states.

In another case, Palko v. Conn. (1937), the Court held that free speech was incorporated to the states, but the free exercise of religion was still a state matter and one they could regulate or control.

The cases discussing Substantive Due Process are legion in the Court’s reporters, and the doctrine, while never quite self-consistent, is very well-developed. Over the 20th century, most of the Bill of Rights were incorporated, except for a few hold outs. The 2d Amendment has been one of them.

But, due process has never been a 100% unabashed guarantee of rights. In all cases, the states have the ability to regulate various rights guaranteed as long as there are certain background circumstances present and their is due process. That’s the whole point of the clause. So while the rights are fairly well understood and protected, they are not absolute in the eyes of the Supreme Court. Tests for whether substantive due process is upheld or violated vary greatly from topic to topic:

Arguments Before the Court Re: The Second Amendment in McDonald v. Chicago
Alan Gura, the attorney for McDonald, attempted to argue Privileges or Immunities again. Why? Because if he could convince the Court to resuscitate the doctrine, it would have, conceivably, been a stronger protection against later abrogation by the states if gun ownership was an immunity that could not be abridged. Unfortunately, he did not do a good job of arguing, and even the few justices who might have been inclined to review a law that has been the same and untouched for 137 years did not seem moved by his arguments.

Instead, the discussion mainly centered on using the old standby, Substantive Due Process, to incorporate the rights against the states. What is difficult is that Chicago’s attorney responded to the argument by stating that Chicago (as an agent of Illinois) has not abrogated the right completely. Even if the Second Amendment were incorporated to the states, that Chicago prevents handguns but allows long-guns means that substantive due process is not being violated, so he argues, because the regulation is reasonable and the rights are not totally abrogated.

The inherent tension between the arguments is that both sides are arguing over whether the 2d Amendment should be incorporated AND, assuming it is, which new test to employ for the right to keep and bear arms. There’s no reason why the Court would necessarily choose one of the previous tests over the others except that it will go through a policy-based analysis to determine a method to evaluate whether substantive due process is violated.

If Chicago gets its way, then a reasonableness (rational basis review) test, which is highly deferential, might be employed, allowing them to win the day in spite of incorporation. There’s at least a colorable argument that the allowance of possession of long guns is sufficient to not run afoul of a putative reasonableness requirement of substantive due process as applied to guns.

If Gura gets his way for McDonald, I’m sure keeping and bearing arms would be subject to strict scrutiny, effectively ending any regulation (save federal) of guns at all.

Somehow, I think the Court will use an intermediate test or come up with a new type of intermediate test so as to ensure that the right to keep and bear arms is allowed, but yet will still allow for regulation.

That is why Privileges or Immunities, while a long shot, would have been a winner. Getting the right to keep and bear arms classified as an immunity would have given stronger federal protection to the right. Instead, the fighting will predominantly be about what type of scrutiny federal courts will be allowed to have over states that are abridging the right and how much regulation they can implement without running afoul of Substantive Due Process.

If

If you can keep your head when all about you
Are losing theirs and blaming it on you;
If you can trust yourself when all men doubt you,
But make allowance for their doubting too;
If you can wait and not be tired by waiting,
Or, being lied about, don’t deal in lies,
Or, being hated, don’t give way to hating,
And yet don’t look too good, nor talk too wise;

If you can dream – and not make dreams your master;
If you can think – and not make thoughts your aim;
If you can meet with triumph and disaster
And treat those two imposters just the same;
If you can bear to hear the truth you’ve spoken
Twisted by knaves to make a trap for fools,
Or watch the things you gave your life to broken,
And stoop and build ‘em up with wornout tools;

If you can make one heap of all your winnings
And risk it on one turn of pitch-and-toss,
And lose, and start again at your beginnings
And never breath a word about your loss;
If you can force your heart and nerve and sinew
To serve your turn long after they are gone,
And so hold on when there is nothing in you
Except the Will which says to them: “Hold on”;

If you can talk with crowds and keep your virtue,
Or walk with kings – nor lose the common touch;
If neither foes nor loving friends can hurt you;
If all men count with you, but none too much;
If you can fill the unforgiving minute
With sixty seconds’ worth of distance run –
Yours is the Earth and everything that’s in it,
And – which is more – you’ll be a Man my son!

They can also, frankly, communicate with one another about the deal in spite of eBay’s draconian prohibitions or restrictions on buyer-seller communication otherwise.

But, like all eBay features, the usability comes with a crippling price. While the Best Offer does likely promote more sales, thereby generating happiness and revenue for the sellers, buyers and eBay, it also cripples the ability for sellers and buyers to efficiently revoke those offers and counteroffers before acceptance has occurred. In fact, once an offer (counteroffer) is made, the offeror cannot revoke his own offer for 48 hours. At that point, the offer necessarily expires anyway. So, on one hand, if the offeror decides that his stated price is incorrect (either too high or too low), he can’t change it. What if the buyer offers a price that he would like to raise to entice a faster sale? What if he realizes the price he offered is too high? eBay does make exceptions for obvious mistakes (offering $999 instead of $99), but what if as part of the negotiation process, either party wants to change the offer before the currently offered price has been accepted? He can’t.

On the other hand, if the offeror decides that he would like to keep his price open for longer than 48 hours, because he would like to give the offeree a little more time to say yes, he can’t do that either.

I appreciate that eBay sets some sort of time limit on the offer, particularly since the offer is irrevocable until expiration, but why not allow the offeror a default expiration and allow him to change that while also allowing him to revoke the offer at any time before acceptance?

Fundamental contract law provides that the offeror can revoke his offer any time before the offeree accepts the offer, but once the offer is accepted, there is a binding contract (assuming there is an exchange on both sides, i.e. money for an item, bartering, etc.). eBay flouts the first part of this basic notion by preventing either party from revoking his own offer and by forcing the expiration at a certain time.

In a way, eBay is importing its notions (legal and philosophical) regarding auctions to fixed price sales. For instance, legally, once a bidder bids in a bona fide auction, assuming there is no minimum price that must be attained before the seller is obligated to sell, the seller is legally and ethically bound to sell to that bidder until a higher one comes along, so on and so forth until the highest bidder has won the auction. From a contract theory perspective, the offeror has impliedly stated, “I will sell this item to whomever of you bids the highest.” As soon as there is a bid, the offeror has had his offer accepted. It is the offeree (now the acceptor) who can have his own acceptance superseded by another offeree. But the offeror (seller) is bound by his words which have been agreed to.

With a fixed price auction, the same rules need not apply, because the seller is offering one price. If a buyer comes along and counteroffers another price, why should the buyer be locked into that counteroffer? He’s not auctioning something. Whether or not another buyer can counteroffer something better is immaterial. The offer itself in a fixed price sale, just like the ones you find whenever you walk into a retail store, is inherently different from an auction, which relies on the binding of the seller and the competition between buyers. In a typical fixed price sale, there may certainly be competition between buyers for a limited number of items, but the offeror has not bound himself to selling to the highest bidder.

Nevertheless, eBay transmogrifies a fixed price sale into something that acts like an auction, for no reason other than it establishes control for eBay. Maybe it was easier to program the software to handle the transaction, but in any case, it is a suboptimal solution. If the buyer and seller aren’t free to walk away from the sale, then it is harmful to the marketplace.

What if the buyer finds the same or substantially similar item from a different buyer, as is often the case on eBay? Why shouldn’t he be able to cancel his offer to purchase at a lower price – so long as the seller has not accepted it yet – so that he can find a better price elsewhere? Why shouldn’t the seller be able to cancel the counteroffer to sell at a particular price – so long as the buyer has not accepted it yet – so that he may find a more willing buyer? In the case of small inventories, perhaps the seller was is to sell the item locally in person to someone else and wants to cancel the offer.

In either case, from a philosophical standpoint, eBay is choosing to restrict the freedom of the parties to choose how they enter into contracts. From a practical perspective, eBay is actually harming commerce, because if either party wants to revoke his offer, he usually has a good economic reason to do so, whether it comes down to a better deal elsewhere or the buyer’s realization that he doesn’t want to take this product or a situation where the seller can sell the item to someone locally. In all these cases, the better opportunities (the bird in the hand) may evaporate before the offer expires or the other person chooses to reject it; eBay is requiring the conversation to go on longer than either party would like, perhaps for so-called reasons of fairness (2 birds in the bush).

eBay places more obligations on both parties than the law would, for reasons that are unclear to me. I’m not suggesting that eBay cannot contract with its users as the marketplace to set and enforce certain rules about the way contracts/purchases/auctions are to be conducted on their own website (property). I’m suggesting that what it is doing is inefficient and not the correct or optimal way to conduct a fixed price “auction” or sale. I’m also not stating that eBay should allow shill counteroffers from the seller so that he makes offers that he cannot possibly fulfill: if eBay wants to restrict a seller selling three items to only have three extant counteroffers on the table with three buyers at any one time, that’s reasonable: it fulfills the expectations of reasonable buyers and prevents eBay from suffering a bad reputation by sellers who are acting in a way that will guarantee they violate contracts. But the seller should be able to revoke one of those counteroffers to sell one of his items to a new buyer if it makes economic sense.

Currently I have two items for sale that are locked in a counteroffer black hole since the buyers have not rejected them yet and 48 hours have not expired. It turns out I would like to give one of those items away to a loved one, but I cannot, because to do so would be to possibly violate a contract that may get formed by the buyer (counter-offeree) if he chooses to accept my counteroffer before expiration. So, now I’m stuck not able to give the item away as I would like, because eBay will not allow me to revoke the counteroffer as the law would.

To be clear, assuming that I could revoke these Best Offers, but assuming I had not, if a buyer had accepted one, a contract would be in place. I would honor the contract. But now eBay is forcing me, if I want to use their system (which is one of the few ways I can expand my market beyond my small town), to keep an offer open longer than is economically efficient or optimal.

Plus, the founders are cool guys; I’ve corresponded with one of them, Paul Stamatiou, once, and he struck me as bright, helpful and very down-to-earth, yet enthusiastic.

Consider putting Skribit on your blog.

Laypersons may not understand how significant this is. Currently, unless a legal researcher (lawyer) is using public resources, which have not been easily organized or easily searchable until now, he must rely on licenses to services provided by Westlaw and LexisNexis, which are extraordinarily expensive.

I foresee Westlaw and LexisNexis continuing to provide value to cases with analysis and connective organization, but for general purpose legal research, they are being disintermediated, and it’s about time.

This new feature of Google Scholar will allow legal research to proceed more efficiently, more inexpensively, and makes the common law, most importantly, more accessible to the public by taking it out of the hands of the guild guardians and putting it into the hands of anyone who needs to see the common law.

This gives me great pride. Kudos to the knowledge workers outside of Google who helped the engineers create this search function. Kudos to the engineers. Kudos to Larry & Sergey and all Googlers, who continue to gather the world’s information and make it universally accessible and useful.

3 large scoops of chocolate ice cream
1 cup of milk, give or take
1 very heaping teaspoon of Ghirardelli cocoa powder
1-2 shots of 18 year scotch (I prefer Glenlivet), to taste*

*The key is not to overpower the milkshake but to accent it.

Blend.
Serves 1-2 people.

For context: I, myself, succeeded greatly in public schools.  I graduated high school summa cum laude with a perfect 4.0 cumulative average and maybe received one B in middle school and one S- in first grade.  Other than that, my grades and behavior were exemplary.

Allow me to give you a few quotations from Obama’s speech (per the transcript) and respond to them in-line.  Quotations are indented¹.  My commentary is not.

I will demonstrate that it is socialism par excellence and that it would be so if a Republican were making the speech too.

I’ve talked a lot about your government’s responsibility for setting high standards, supporting teachers and principals, and turning around schools that aren’t working where students aren’t getting the opportunities they deserve.

Why does the government have responsibility for education at all?  One can only assume it does or should if one believes a) that government should create laws to compel children to school and do so at the implied point of a gun and b) that government should take your money (or someone’s money) to pay for it.

But at the end of the day, we can have the most dedicated teachers, the most supportive parents, and the best schools in the world – and none of it will matter unless all of you fulfill your responsibilities. Unless you show up to those schools; pay attention to those teachers; listen to your parents, grandparents and other adults; and put in the hard work it takes to succeed.

And that’s what I want to focus on today: the responsibility each of you has for your education. I want to start with the responsibility you have to yourself.

Clearly assumed in this statement is that government mandated education is not only the responsibility of the other agents listed, but also the responsibility of the student.  That is, he is persuading his audience to be willing and active participants in a system in which they largely have no or little choice.  They are required to attend upon penalty of punishment, so he is also advocating they attend cheerfully and good faith.  True, they will not “succeed” at education, by whatever standards he or public school administrators define success, if they do not put in the effort, but that is not the issue.  At issue is whether the speech is socialist, and the mere fact that the federal government is involved at all in education is a form of socialism to some degree.  That Obama is taking time out of his busy presidential schedule to reinforce his views that public school is an unmitigated good for which students should care and tend reinforces his own belief in socialism.

Every single one of you has something you’re good at. Every single one of you has something to offer. And you have a responsibility to yourself to discover what that is. That’s the opportunity an education can provide.
. . .
And no matter what you want to do with your life – I guarantee that you’ll need an education to do it.

President Obama is impliedly conflating the word education in these facially arguably true statements with public education.

What you’re learning in school today will determine whether we as a nation can meet our greatest challenges in the future.

This is a patent falsity, but good propaganda.  Does he really think that the so-called greatest challenges can be met by what an 8th grader learned on his first day of middle school, or rather, that they will be outcome-determinative for the nation?  No, but it is excellent advertising for public schooling.

You’ll need the knowledge and problem-solving skills you learn in science and math to cure diseases like cancer and AIDS, and to develop new energy technologies and protect our environment. You’ll need the insights and critical thinking skills you gain in history and social studies to fight poverty and homelessness, crime and discrimination, and make our nation more fair and more free. You’ll need the creativity and ingenuity you develop in all your classes to build new companies that will create new jobs and boost our economy.

My bemusement at the juxtaposition of “critical thinking skills” and social studies and the implied meta-theory that the highest form of thought lies in the social sciences rather than in something more fundamentally logical, i.e., mathematics, aside, it is socialist to consider poverty to be the first ill to be fought and to conflate crime and discrimination.  Discrimination is not (or should not be) criminal.  Discrimination is an ugly form of treatment that is uncontrollable in a so-called free society except by peer pressure.  Obama is using the bully pulpit to exert pressure, but criminalizing speech and most forms of behavior tends toward socialism as practiced for a century all over the world – in a way that strips people of freedom.

We need every single one of you to develop your talents, skills and intellect so you can help solve our most difficult problems. If you don’t do that – if you quit on school – you’re not just quitting on yourself, you’re quitting on your country.

An honest subordinate clausal ending of the sentence would have stated, “because if you are all not productive, then we will have a smaller bounty of gross national product to tax.”

But at the end of the day, the circumstances of your life – what you look like, where you come from, how much money you have, what you’ve got going on at home – that’s no excuse for neglecting your homework or having a bad attitude.

Why not?  Why should family problems not take paramount precedence over schoolwork?  He is essentially stating that the fealty of the student to the government institution comes first.  He couches it in the form of the student helping himself, but again, the student effectively has no choice to participate, so it’s a false statement commending the audience to pride their work.

That’s why today, I’m calling on each of you to set your own goals for your education – and to do everything you can to meet them. Your goal can be something as simple as doing all your homework, paying attention in class, or spending time each day reading a book. Maybe you’ll decide to get involved in an extracurricular activity, or volunteer in your community.

Why does community volunteerism have anything to do with school or education in the hard subjects proper?  More propaganda. In fact, the mere fact that government is positively moralizing certain kinds of behavior (beyond negatively moralizing against violent behavior, usually in the form of a basic criminal law), demonstrates a belief that government’s role is to paternalize and moralize to people. That is also part of socialism.

If you get in trouble, that doesn’t mean you’re a troublemaker, it means you need to try harder to behave. If you get a bad grade, that doesn’t mean you’re stupid, it just means you need to spend more time studying.

Or it means that you realize at the core of your being that school is a form of prison and you are rebelling.  Or it means that school is ineffective at teaching, because its mesmerizing commands and structure have sucked the joy out of learning for you.

It’s the story of students who sat where you sit 250 years ago, and went on to wage a revolution and found this nation.

Actually, no.  Now President Obama is farcically rewriting history.  Most of the founding fathers were entirely privately or self-educated.  They learned by reading on their own time; they, mostly, came from moneyed families and learned at their leisure.  George Washington stated, “I am a soldier so that my son can be a farmer so that his son can be a philosopher.”  Washington recognized that a) education and success required an environment where the equality of man was recognized (not in a British peerage system) and b) that the highest forms of thinking required the productivity of past generations to enable it — that it wasn’t automatic for everyone.  The founding fathers did not, as a whole, sit in schools taught with a large cohort of age-peers in the same grinding manner.

Furthermore, they waged a revolution, because the people were totally fed up with the British system of searches for contraband, which required no warrant, and with the imposition of high taxes by a Crown in a faraway land.  How much were “high” taxes?  The Sugar Act prescribed a 3% tax on each gallon of sugar.  Its follow-up Stamp Act required about as much to file paperwork.  3%.  What do we pay in taxes now?  Our founding fathers fought a revolution for freedom from taxes that were up to 18 times less than what we pay now (in some instances).

So today, I want to ask you, what’s your contribution going to be?

To contribute, one must have an object.  To whom should the students contribute?  Society?  The government?  How about to themselves, for themselves and for their families?  No, clearly the implication is a far greater number of worthy beneficiaries than just one’s own family, which smacks of socialism.

I’m working hard to fix up your classrooms and get you the books, equipment and computers you need to learn.

“I am continuing to enforce taxation regulations, i.e. the taking of assets, money and property at the implied point of a gun and prison, to ensure that money is expropriated from the haves to give to you children, the have-nots, in order for you to learn in this government-controlled environment.”

Socialism.

Never mind the fact that one of the ten pillars of communism is compulsory public education for children.

Even in your thoughts, do not curse the king,
nor in your bedroom curse the rich,
for a bird of the air will carry your voice,
or some winged creature tell the matter.^¢

A friend of mine, Jonathan Haskins^£, was a mid-level director at a former company in Silicon Valley for whom I briefly worked.  He and I had an excellent rapport, and I am sad we did not have the opportunity to work together longer, because he was an excellent mentor to a small cadre of us and a talented manager.  He was/is a bright, witty, caring individual with a sense for what matters and what doesn’t.  He is quick to focus on getting things done optimally without getting mired by the unimportant.  He is a good leader and was a truly excellent manager.  He was also a snappy dresser and very gregarious.

There were some peers of mine who did not like Jonathan.  I was never sure why (jealousy?), but they took to gossiping about him in such a way that a malicious rumor spread quickly about his personal predilections.  He was such a talented leader, than it did not overtly affect the manner in which he managed or interacted with the executive management team, but the harshness of the rumors affected him deeply.

Jonathan was going through some difficult relational problems at the time and had moved to our company to get away from an old position that had, after many years, lost its lustre and was no longer as fulfilling.  In a sense, he was trying to make a new start in life and in his career, and then the rumors struck him as a meteor strikes a planet.

Strangely, some of Jonathan’s managers (higher-ups) began to, wrongly, question whether these rumors were affecting his ability to perform his job.  They didn’t – he was eminently  professional throughout this ordeal.  Bottom line: he did himself a favor, resigned, and left for another, better company.

I found out later one of those peers of mine, Dorian, who mongered rumors about Jonathan applied for a senior level product management position at another high tech company.  He was, on paper, potentially qualified for the job.  His problem was that Jonathan is exceptionally well-connected.

Jonathan counts among friends several venture capitalists and other rainmakers.  He is also well-qualified technically, writes excellent code, and has the respect of software engineers and engineering directors all around the Valley.

When Dorian applied for the product management position, the vice president of product management at the new company where Dorian wanted to work called Jonathan and said, “Hey, you worked for Dorian’s company for awhile.  What do you think of him?”  Jonathan told the vice president truthfully that he found Dorian to be unprofessional and not precisely competent.

Such ended Dorian’s application.

We have a saying in the Valley: don’t burn bridges, because the Valley is too small.  In other words, some winged creature, such as Jonathan Haskins, may tell the matter to the vice president of product management.

^¢Ecclesiastes 10:20, English Standard Version.
^£Name has been changed to protect the innocent.  Any similarity this story has to a protagonist named Jonathan Haskins is purely coincidental.
^€Name has been changed to protect the guilty.

No way police could have saved Jiverly Wong’s 13 Binghamton victims, officials say

Most readers or watchers of the news in this country will know of the tragedy which befell the immigrants taking a citizenship test at a testing center in Binghamton, NY on Friday, April 4, 2009. A man identified as Jiverly Wong entered the building and opened fire with his rifle on complete strangers.

Wong killed himself in the attack, leaving surviving victims of the attack, reporters and others to speculate as to his reasons for committing the murders, but the reasons are largely irrelevant. They probably will not help the victims find healing anyway. May יהוה (Yah) bless them in this senselessness.

Clearly but for Wong’s rage and probable insanity, the deceased would still be alive. There was, however, also another substantial factor in the causation of their deaths. New York prevents the purchase of handguns without a license, which can, presuming there are no restrictions placed on an individual license, serve as a concealed permit. Given that most (all?) of the victims of the shootings were immigrants, they were also unlikely to be able to legally own guns in the United States. This means that they were unable to carry a device that, with some training, equalizes the differences between the weak and the strong, the lucid and the crazy, and the good and the evil.

What a tragedy and exposition of the killer’s cowardice. As has already been stated: he did not enter a police station and start firing, because he would have been put down shortly. Instead, he decided to spread his own torment to others who were left defenseless by laws that are supposedly meant to “protect” the citizens of New York.

What restrictionary laws like the ones in New York do is a) not only set a higher bar to ownership, thereby reducing the incentive for people to become familiar with tools they can use to protect themselves, but b) also give rise to a dangerous cultural shift over time. Regular people begin to believe the lie that firearms, because of their inherent unforgiving nature, are something of which to be afraid. Sadly, no one in the building had a firearm on his person that he could have used to kill Wong sooner. Possessing a device with which one can efficiently fire three rounds into the cardiac triangle of an assailant seeking to kill or do grave bodily harm is highly underrated.

Instead, Wong, because it is clear that his chances of obtaining a handgun permit in short order were dubious, purchased a rifle on March 17. Then he waited for the right time to perpetrate the evil and to commit suicide by inner demon.

Opponents of the natural right guaranteed by the Second Amendment might suggest that waiting periods or restrictions be placed on purchasing long guns in addition to handguns. Fortunately, upstate New York has a long history of hunting and culture more disposed to rifle ownership, so this should be politically poisonous. But such restrictions would be a mistake anyway, because people who are willing to do evil will not be bound by law in the first place. The criminal law, at least for laws that are justifiable because they prohibit true wrongs (mala in se, e.g., murder, rape, theft, and so forth), tends to keep good people obedient while acting as a cost-benefit deterrence to only some criminals. Those with the “guilty mind” who see a greater benefit than cost will violate laws anyway for their own nefarious ends. Further, those who are totally depraved — those who internalize no cost to their own hatred — will do evil without reason.

Even if one could eliminate all guns in New York State, it would create greater risk to the citizens of the state, because all of a sudden, the stronger, more evil and bolder criminal-opportunists would have the advantage. Instead of your 55-year-old aunt being able to defend herself with a firearm at ten yards, she would have to face a melee against a criminal with a knife, pipe, chain or his hands, hope that the rape would not be too devastating and hope further that she could live. At least with firearms, the good have a chance.

Not all people are created equally. We do not all have the same opportunity at life, in the face of nature, the government, the market or the evildoer. With at least two of those, the Second Amendment continues to provide the backdrop for our safety and liberty, but we must exercise it.

Neither are all states created equally. I daresay that such a tragedy could not happen in Wyoming. I have joked that I could probably enter nearly any house in San Jose, California (where I used to live), commit some crime (if I were inclined, which I am not!) and probably, at minimum, escape with my life. In Wyoming, the criminal is almost guaranteed to be taking his life into his own hands by trespassing into a man’s home. It is a near given that the criminal will die or be severely injured, most likely by a gun. The same is true out in public. Were a crazed killer to start firing on people in any town in Wyoming, someone will always be nearby with the ability and tool to abort the threat. People here are not afraid of guns, because they recognize that they are tools to be used for a specific purpose; most have a healthy respect for them, and because of that respect and lack of fear, more of us are more likely to carry, increasing our own safety and the safety of our fellow man.

The reason evil men are able to perpetrate and cause harm and get away with at least some of their plans is because they exploit the trust, innocence and goodness that makes societal relationships worthwhile. This harm can always be mitigated by vigilance and tools that equalize the abilities of people who are made physically different. Certainly Wong’s rifle would have been more powerful than a concealed handgun, but at least a handgun would have given many of the thirteen a chance to live.

That police could not have saved the thirteen victims is almost tautological. Unless we were to live in a police state (though we are already tending in that direction), the police are, by definition, reactionary. Anonymous has said, when seconds count, the police are only minutes away. They also do not have the same incentives that an individual has to protect himself, no matter how good the policemen are. Others cannot watch and protect everything remotely at all times for all people. Certainly one should not blame the police for not being able to respond in perfect time. They are neither omnipotent, nor should they be.

Furthermore, the implicit trust that many people have in the government to be able to protect them is madness. These many hapless souls demonstrate the same folly anytime they hope that someone else will ensure their well-being financially, morally or otherwise. No! You are responsible for yourself, and you are also responsible for your own safety. Naturally, it is not your fault if someone harms you, but the only person who really has the incentive and the greatest capability to protect you is you. The police are not omnipotent, but you are potent in your own sphere.

To the extent that government prevents you from protecting yourself against the taking of your life, liberty, property or pursuit of happiness, it is also doing a great evil.

May the Binghamton victims who were trying to make a better way by leaving their native countries, but whose dreams were ended by an earthly nightmare, rest in eternal peace.

WWI
World War One was caused by the subset of powerful nations (note: nations, not corporations or businesses or individual shop owners) creating what George Washington called “entangling alliances” such that when the Duke of Sarajevo was assassinated and two nations went to war, the rest of Europe had obligated themselves to fight along side their primary, secondary, tertiary allies. That was the cause of WWI; it is well-known and undisputed.

If one is impliedly asserting that WWI was perpetuated by companies who profited by the war machine, then yes, this happened. War is impossible without production, and either nations own the means of production (communism) or purchase from those who do have the means of production (corporatism).

The question is, with respect to the latter, is this a fault of the free market, that war could enable people to profit off of weaponization? I would argue that it is antithetical to the free market, because war is impossible without government initiation, intervention and involvement. That is to say, because the government defines and causes war and has a national monopoly over its cause, continuation and end, any company willing to do business with the government to profit off of the evil that is war is engaging not in a free market but in corporatism (also known as mercantilism). In fact, the war market wouldn’t exist without government action, so to even consider participation in it a pock against the free market is a reduction to absurdity.

Corporatism/mercantilism are the reliance by businesses on the protection of the government against their own competitors given them an unfair advantage. These companies become the bullies in the schoolyard, precisely because they are all members of a gang of bullies, the leader of which is the biggest, baddest bully in the yard, namely the government. If the little guy attempts to do business in a such a way that contravenes the protectionism of the government, they are either taxed to unprofitability, taxed into a lack of competitiveness, or prosecuted for bogus “laws” that “protect the American/Canadian people.”

WWII
World War Two was caused by the underhanded greedy tactics of the victor governments in WWI. Because they created such harsh reparations for Germany (the loser), and because Germany’s economy was tied to the rules of European central banks (i.e. the government), they eventually encountered such overwhelming inflation that it was easy for a strongman to rise to power to give the Germans hope in a stronger Germany, because they were weakened and humiliated. Along came the blame of the scapegoat, the Jews, and then the world was embroiled in conflict once again.

The reason that Germany had such high inflation was because the central banks were manipulating the DM to ensure profitablity to their constituent creditors, the governments of Europe. That is, they would lend out money to German banks at high rates of interest, which would force the banks to lend out to the German people at higher rates of interest, so that the other European powers would be repaid their reparations. What the German government should have done was reject the central banking scheme set up for them, but alas, people starved.

If the assertion is that companies profited by WWII, then yes, that is true. The same arguments apply. IBM was especially immoral, as it was selling war materiel to both the American and German governments simultaneously. But, again, this is not an example of the free market, but rather an example of corporatism.

Labor Strikes
What the commenter is subtly doing is creating a strawman “free market” by conflating government-intervention in private affairs and then blaming the rest of the free market (wherever that may be) for the ills of a few bad actors who were reliant upon the Bully for help. When the RCMP gunned down picketers, that was quintessentially the company relying on government intervention rather than solving the striking/picketing themselves. That is not the free market, that is crying home to mama for help. When Henry Ford machine gunned protesters, were they attacking and/or destroying his private property, or were they acting peacefully on his property or were they not even on his property at all? If the former, then the workers were in trespass. If the latter two, then he was a murderer. If the latter and he wasn’t prosecuted, then we have yet another example of government assistance, i.e. corporatism, rather than the free market.

The Current Day
The global financial meltdown is being caused by exactly two things, which have nothing to do with corporate greed. It is caused by government control and manipulation of the monetary supply via central banks and the use of fiat currency and fractional reserve banking.

Fiat currency is an ill which the Framers of the American Constitution strictly prohibited when they required that all money be coined in gold or silver. Why? Because once the government is able to issue paper money, detached from anything of intrinsic value, it can manipulate the total money supply by printing or burning it and by moving the interest rate. Why is this bad? This is bad, because the free market isn’t able to correctly value the goods and services it is selling, and because it always encourages price inflation.

Incidentally, WWI was used as an excuse by Professor Woodrow Wilson to allow the creation of a central bank (for the third time in American history) to control and manipulate the monetary supply of this country, which was the root cause of the Great Depression and a root cause of the economic crisis now. Definitely not a matter of free marketeering gone wrong, either. In fact, the USD has been devalued 96% since 1917.

In an attempt to control inflation, central banks (i.e. governments) attempt to tweak the interest rates, usually lowering them, such that more “money” is released into the market, because banks, who receive the currency from bigger banks, in order to remain competitive with each other (banking is the most non-free market industry), loan money out at rates which are lower and lower, making money easier to get for consumers and businesses. When it is easier for them to get money, they devalue what they have.

Or in other words, if I can get $400,000 at a lower interest rate and a monthly repayment of X whereas a year ago I could only take a loan for $300,000 with the same repayment of X, I don’t actually have more purchasing power, because everyone else has the same new purchasing power. When I go to bid on a house, instead of maybe bidding the actual intrinsic value of $300,000, I’ll bid $400,000 to ensure that I get the house, because the other buyers are able to do the same. In effect, I have overvalued the house versus the value with respect to the monetary supply a year ago.

This effect has continued in recent history since 1998 (but really began in 1917) and we have met the end. The entire market has realized that most assets are overvalued and is correcting for it. Such a huge, national / global bubble is impossible without government intervention and manipulation of the monetary supply.

In fact, without central banks, without fiat currencies, there is never such a thing as a national bubble. In a truly free market, bubbles are region or industry-specific, and the market solves their problems quickly and with relatively little pain. I recommend Edward Chancellor’s book, Devil Take the Hindmost: A History of Financial Speculation, because it discusses many historical bubbles (such as the Dutch Tulip Bubble) and how they were caused.

Fractional reserve banking simply exacerbates the problems of fiat currency central banking, because it allows banks to lend out money they don’t actually have. Fractional reserve banking is sanctioned and allowed by the government. That is, if I have $10,000,000 in my vault, I can lend out another $90,000,000 on paper. Simplifying the math, that means that 90% of the wealth in the United States is paper wealth, false wealth and it means the entire system is by definition, insolvent. In a truly free market, banks that lent on a fractional reserve basis might be able to get away with it, but eventually they would get caught by a bank run. Some people would lose their money, which would be tragic, but the market would greatly reward honest banks who lent out only at a 1:1 ratio.

Banks have been failing, because the manipulation of the fiat currency has run its course in terms of its effectiveness. Ben Bernanke, chairman of the Federal Reserve, has all but admitted he does not know what the Fed can do anymore to preserve the economy. This is because the market here in the U.S. has finally come to realize that all assets are overvalued by some large percentage. Because all of our secured transactions are based on collateral which is now devalued, many people (businesses and consumers) are either unable or rationally unwilling to repay their debts at the same rates, because they simply do not have the wealth or revenue to bank it up.

Because banks lend out at a 9:1 ratio, a reduction of loan repayments by even just 11% is catastrophic to their own “solvency” under the FDIC/FED-sanctioned system. That is why banks are failing so rapidly.

The economy is suffering malaise because of large, coordinated government intervention for more than a century, and the market finally realizes there is less value in it than we thought. Of course, the correct “patriotic” solution is not to spend more money to “save” our economy, but let it correct itself. Else, the U.S. and the rest of the world will run headlong into a bleaker future.