There Oughtn’t to be a Law

If you’ve ever said to yourself, “there ought to be a law,” you should probably rethink that position.

In the first place, there probably is a law that governs whatever you are up in arms about. As I’ve noted before, there are literally so many federal criminal laws that nobody can even say for sure how many there are. And, because federal agencies have the authority to issue rules and regulations, there may be as many as 3,000 administrative regulations that carry criminal penalties. Then, of course, are the state laws. Traditionally, federal criminal law was limited to very particular sorts of crime inherently related to the federal government (counterfeiting, for example.) As a result, the vast majority of criminal laws were promulgated at the state level. The tremendous “federalization” of criminal law hardly did away with did any of the state laws (with rare exceptions of federal preemption), and so there are far more laws now than ever.

Secondly, and more importantly, even where there is not a statute that directly addresses a particular set of circumstances, existing common law still applies. Common law is court created law (or “court discovered law” if you are a serious believer in the natural law and the power of common law courts to divine the eternal precepts thereof.) Common law is developed over time by the courts relying and building upon past rulings. In the words of Montaigne, “in rolling on [laws] swell and grow greater and greater, as do our rivers.” So, for example, there may not be a statute that requires above-ground pool manufacturers to include warnings against diving, but case law almost certainly creates such a duty. Similarly, there may not be a statute or regulation preventing breakfast cereal manufacturers from putting a certain poison in their foods, but there doesn’t need to be; established negligence and products liability case law provides substantial protections for consumers.

And finally, law is quite often not the proper mechanism to achieve your (no doubt noble) aims. In the words of Jeremy Bentham, “Every act which promises to be pernicious upon the whole to the community (himself included) each individual ought to abstain from of him: but it is not every such act that the legislator ought to compel him to abstain from.” In part, law is not an adequate solution to many problems because it is always enforced by violence or the threat of violence, and that violence has its own costs.

Next time somebody says “there ought to be a law,” ask whether they are certain that there is not some statute, regulation, or common law that does not already cover the subject matter. And, regardless of whether such a law exists, ask whether there is not some better, non-legal remedy for the perceived problem.

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Beer of the week: 12th of Never Ale – The idiom “on the 12th of Never” is used to express improbability. And, improbable as it may have seemed years ago, Lagunitas has been started putting their beer into cans. This, the first aluminum encased offering from Lagunitas, is a cloudy, straw-colored pale ale. There is lots of pineapplely hops, and a nicely rounded flavor. An excellent beer, even if it does come from a can.

Reading of the week: An Introduction to the Principles of Morals and Legislation by Jeremy Bentham, Chapter XVII§1, VIII-XV – In this excerpt, Bentham opines that drunkenness and fornication are among the pernicious behaviors that laws are ill-suited to preventing. “With what chance of success, for example, would a legislator go about to extirpate drunkenness and fornication by dint of legal punishment? Not all the tortures which ingenuity could invent would compass it: and, before he had made any progress worth regarding, such a mass of evil would be produced by the punishment, as would exceed, a thousandfold, the utmost possible mischief of the offence.”

Question for the week: If you could repeal any law, what would it be?

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The Silent Supreme

The death of Justice Antonin Scalia last week revealed yet again the terrible state of political discourse in our country. One clear problem involves the call by Senate Republicans to block any and all Obama nominations. This certainly looks like a dereliction of duty, and has been called an “impeachable offense.” (Of course, the most vocal critics of this behavior, ignore the attempted filibuster by Senators Kerry, Clinton, and Obama upon the nomination of Justice Alito.) But what I think is more telling is the personal vitriol toward members of the Court.

All of the biggest political actors had the tact to express their condolences at the death of Justice Scalia, but plenty of casual tweeters expressed their joy. Even worse than the schadenfreude over the death of a Supreme Court Justice were the attacks on (the still very much alive) Justice Thomas. Thomas became a “trending topic” on Twitter because there were so many people wishing that he would be the next member of the Court to die. Two particular themes came to the surface though these Tweets: the perception that Thomas was a mere puppet who always followed Scalia, and the racially charged claims that Thomas was either a slave or a traitor to his people.

I will ignore the racial statements. Those who made them deserve our scorn, but the statements themselves are not worth addressing. They are beneath the dignity of the Court and they are beneath me. The idea that Thomas was a puppet for Scalia, however, is worth evaluating.

According to SCOTUSBlog, Scalia and Thomas agreed in 78% of cases. This is lower than the percentage of cases where Thomas agreed with Alito (81%) and lower than the percentage of cases where Scalia agreed with Chief Justice Roberts (84%). But perhaps more tellingly, that number is positively dwarfed by the percentage of cases where the liberal justices agree. That same source tells us that Justice Breyer agrees with each Justice Ginsburg, Justice Kagan, and Justice Sotomayor a full 94% of the time. The lowest agreement rate among the liberal justices is 91%. Any claim that one or more of the Supreme Court Justices are mere puppets who vote the way they are told is probably nonsense. But if there is any legitimacy to the idea, the statistics indicate that we should be looking at somebody other than Thomas.

There are plenty of areas where I disagree with Justice Thomas, but it is simply ignorant to claim that he is not an independent thinker. He is a prolific dissenting voice on the court, and perhaps that alone is worthy of admiration. It would have been so much easier for him to “just go along” with Scalia, but Thomas was and is his own man.

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Beer of the week: Yankee Buzzard IPA – This IPA from Wisconsin Brewing Company is also known as beer #002. Yankee Buzzard is hazy and has a pleasant, hoppy aroma. Hops certainly dominates, but unlike in many IPAs, here they are balanced nicely with the malty body. This is a very good IPA, especially for somebody who does not favor over-the-top bitterness.

Reading for the week: Kelo v. New London, Dissenting Opinion of Justice Clarence Thomas – The City of New London used eminent domain to kick several of its citizens out of their homes and turn the land over to the drug company Pfizer. The Supreme Court ruled that the city did not violate the Constitution by doing so. Justice Thomas, predictably, dissented. In part, I chose this reading because the public response to this case was so negative; most states now have laws that prevent this kind of eminent domain action. But mostly, this reading shows the way that Justice Thomas works. His appeals to original texts are especially interesting to me. (In case the Readings page of this blog left any doubt on that point.)

Question for the week: Do the Justices of the Supreme Court venture too far into the world of practical politics (as Justice Thomas believes), or does the Supreme Court have a right (or duty) to effectuate policy?


They who hesitates is lost.

In the English language, we have gendered pronouns. Masculine: he, him, his. Feminine: she, her, hers. When discussing unidentified individuals, the traditional approach has been to use masculine pronouns. For example: “He who hesitates is lost.”

Recently, in terms of the development of the English language, there has been a push to change this practice in an attempt to be more inclusive of women. After all, females make up about half of the population and she who hesitates is equally lost. One approach to this problem is the use of the “singular they”. This is particularly common in the possessive. For example: “whoever said that I am spiteful better watch their back.” However, there is a lot of push-back against using the plural pronoun as a neuter singular. For one thing, it sounds queer to many people because it does not make grammatical sense to simply substitute a plural word in place of a singular one. Another strategy is to simply use the feminine pronouns rather than the masculine. This is generally effective, but can seem affected. It seems particularly affected when the context would clearly apply to a man far more often than to a woman. For example: “the perpetrator of a brutal multiple homicide can be held liable for emotional injuries she causes to the families of her victims,” or “one should make sure that she has applied Just For Men™ hair dye evenly throughout her mustache.” (Note that a woman certainly could commit brutal homicides or dye her mustache, but these acts are more likely those of a man.)

I am a bit of a traditionalist. I try to avoid the singular they entirely. I prefer the use of the masculine pronouns for unidentified individuals because it just sounds more natural to me. Of course, I will use the feminine where context clearly makes the individual more likely a woman. For example: “when choosing a brassiere, one should make sure that the elastic does not dig into her skin.” (Again, a man could purchase a bra for his own personal use, but the advice clearly applies more to women.)

The point of this post is not to engage in an argument about the changing role of women in society. I am not writing to claim that it is not important to encourage women to enter academic or professional fields that have traditionally been male dominated. Interest in mathematics, science, engineering, and all sorts of valuable studies should be fostered in all students who show an interest or talent in them, regardless of sex. My purpose in this post is simply to advise that choosing pronouns for the purpose of being inclusive should be secondary to choosing pronouns to make the author sound like he knows how the English language works.

I read a published court decision today that sacrificed clarity and general quality in an apparent attempt to be gender-inclusive. A federal judge, a person whose entire livelihood relies on his ability to clearly explain rules, reasoning, and conclusions, proposed this three-factor test to determine whether an attorney may disclose confidential information to prevent a future crime:

“First, how much information did the attorney possess suggesting that a crime was going to be committed before he disclosed? Relatedly, how much investigation did the attorney conduct to inform herself of the circumstances and resolve any doubts she may have had? Third, how convinced was the attorney that their client was going to commit a crime (for example, did he believe beyond a reasonable doubt?)?” (Emphasis added.)

In three sentences about a single hypothetical attorney whose conduct is being evaluated, the judge used two masculine pronouns, two feminine pronouns, and the singular they. These word choices did not change the meaning of the paragraph, but it did make the whole thing unnecessarily complex. The last sentence is particularly bad. It refers to “their client” and then asks what “he believe[d]”.  The judge is asking about what the attorney believed, but it appears that he is asking what the client believed. Clarity has been sacrificed for… what? What real value did the judge add to this paragraph by indiscriminately bouncing from pronoun to pronoun?

Perhaps there are some people who would not have been distracted or confused by the judge’s word choice. Maybe the fact that I don’t like the way he writes says more about me than it does about him. But his job is to write, and he could have conveyed his thoughts more clearly by picking a gender and sticking with it. This paragraph makes his work look sloppy. If his writing is sloppy, people might assume that his reasoning is sloppy as well. And for a judge, that consideration should easily outweigh any desire to make everybody feel included.

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Beer of the Week: Genesee Cream Ale – The first time I ever had this beer, I purchased it because it was the cheapest available option. If I recall correctly, before taxes it was less than 50¢ per can. Despite the name, “cream ales” do not contain any dairy products. (Unlike milk stouts, which are brewed with lactose for extra sweetness.) I actually find it to be very palatable. It does have a certain smoothness and nice body for a cheap, mass-produced beer, and at a price that is hard to beat.

Reading for the Week: At a Vacation Exercise in the College, Part Latin, Part English by John Milton – It is a significant understatement to say that Milton knew how to use language well. The excerpt of this address by he made while he was yet a student is a testament to the power of the English language in the right hands. After delivering an oration in Latin, Milton changes to English poetry and announces that it is the English language that is best equipped to attire the deepest and choicest thoughts.

Question for the Week: Do you think that the use of feminine pronouns when talking about unidentified individuals sounds affected? Is that a good enough reason not to do it?


Would you like some beer with your water?

Last month news broke that Anheuser-Busch InBev is facing two big law suits. The more sensational suit is a class-action that alleges that they have been watering down their beers. Specifically, they are accused of adding water directly before bottling, reducing the alcohol percentage of several of their brands below the level stated on the labels. The reduction is claimed to be as high as 8%. (That is, 8% of 5%. So less than half of a percent. Numbers sure are nifty that way.)

As I mentioned in a recent post, class-actions are basically scams. The only people who get very positive results are the attorneys; successful plaintiffs generally get paid in coupons. My other beef with them is the math used to calculate damages. The plaintiffs in this case want the court to award $5 million in damages for AB InBev selling them 4.7% beer with a label that says 5%. How in the world is that worth $5 million in damages? Don’t get me wrong; if they are actually selling a product that is not consistent with the label, that is both wrong and illegal and they should be punished. And if InBev made an additional $5 million by filling more cans with less beer, they have no right to that money. But I just can’t imagine a scenario where I could stand in front of a judge and say under oath, “The difference between the label and the product was enough to cause me material damages on the order of 6-figures. But the product was not bad enough for me to just buy a different beer. Because, seriously, I  bought a six-pack of Budweiser every week for the past four years, even after I had found that I was dissatisfied with the product.”

What makes this case even more suspect is the fact that adding water immediately before bottling is totally standard practice and is in no way improper. They brew the beer slightly strong to begin with and then add water to get the alcohol level to the exact level they want. NPR decided to test some of the beers for themselves and found every one tested to be “well within federal limits” of their labeled alcohol content.

The second law suit is an anti-trust suit. The feds are trying to prevent AB InBev from purchasing Modelo, brewers of Corona. The logic of the suit is that the acquisition would create a giant company capable of obstructing the free market and causing price increases. As much as I love the idea of protecting the free market, the claims just don’t seem to make much sense to me. AB InBev is already a giant company. But they have been losing ground to smaller brewers for years now. Adding a few more macro-brews to their portfolio isn’t going to grant them a stranglehold on the market. If they attempted to raise prices across their newly acquired lines, that would only make it easier for other breweries to gain market-share just by keeping their prices the same. If anything, I’d expect prices to drop as the company consolidates production and streamlines distribution. It seems likely to me that AB InBev just didn’t make the right campaign contributions to make this deal go through smoothly.

Beer of the Week: Cafri – Until these law suits are sorted out (or until I forget,) I am boycotting AB InBev and Modelo beers. So this week’s beer is an unaffiliated, Corona-like brew from Korea. And, for what it is, it isn’t bad. Cafri is clear and smooth. It certainly does not have much flavor at all, but what is there is not at all offensive. It is more than adequate as a Corona substitute and was at one point my go-to cheap Korean beer.

Reading of the week: The Code of Hammurabi, Selections – The oldest extant written code of law seems primitive in some respects; there are regulations about how and when family members can be sold into slavery and under what conditions rape victims should be executed. But there are also some “progressive” laws; there are minimum wage requirements and laws that relieve debtors in the event that their crops are destroyed by acts of god. Also, there is a law against overcharging for beer. The penalty (rightfully) is death by drowning. Not in beer, in the river.

Question of the week: Under The Code of Hammurabi, a judge whose decision is later shown to have been made in error is permanently removed from the bench and forced to pay back the fine he imposed 12-fold. Would the American judicial system be better if judges whose decisions were overturned on appeal were forced to retire?


Keep your law out of my soul!

Freedom of religion is widely accepted as one of the founding principles of the United States of America. However, religious freedom was not there from the start.

Every one of the colonies had laws regarding religion. In the Massachusetts Bay Colony, non-Puritans were pretty thoroughly persecuted. Quakerism (one of the most peaceful and oatmeal loving of all Christian sects) was expressly forbidden. Some Quakers were even executed by the Massachusetts Bay government for their faith.

One of the first great strides toward religious freedom in America was the Virginia Statute for Religious Freedom, penned by Thomas Jefferson. He regarded the Statute as one of his greatest accomplishments and instructed that it be memorialized on his tombstone. (His presidency and all of his accomplishments during that period of his life are notably omitted.) In his Notes on Religion, Jefferson asserts that “The care of every man’s soul belongs to himself,” so nobody should be coerced into participating in any specific church. Such a claim seems so obvious to us today that we recoil at the idea of state mandated church attendance.

What is striking to me is the analogy that Jefferson draws between the soul and the body. “The care of every man’s soul belongs to himself ,” just as the care of his body and possessions belong to himself. “Well what if he neglect the care of his health,” he asks rhetorically, “Will the magistrate make a law that he shall not be poor or sick?”

How ironic! Jefferson appealed to the obvious freedom and sovereignty over one’s own body to demonstrate the freedom and sovereignty of over one’s own soul, but today the shoe is on the other foot. Freedom of (and from) religion seems so obvious to us, but the idea of personal physical sovereignty is constantly eroding. Imagine suggesting to Jefferson that one day the state would ban alcohol, “for our own good.” (Jefferson specifically mentions that “consuming his substance in taverns” is an activity in which every man has liberty.) Or, for that matter, the state would ban marijuana or super-sized colas. How incredulous would he be?

The fact is that a man’s body and soul, at least in this world, are inseparable. The state can’t save a man from himself physically any more than it can save him spiritually. “Laws provide against injury from others; but not from ourselves. God himself will not save men against their wills.”

Beer of the Week: Taiwan Beer Gold Medal – At the beginning of the 20th century, the Japanese rulers in Taiwan decided that the people couldn’t be trusted with tobacco, alcohol, opium or salt, so they set up a state-owned monopoly company called the Taiwan Tobacco and Liquor Corporation. Compare this to state monopolies on vice in America, such as state lotteries where gambling is otherwise prohibited “for our own good.” Today, however, Taiwan is a huge free-market success story and the TTL monopoly has been broken up. However, the 90 year head-start means that Taiwan Beer still dominates the market. Gold Medal is a cheap, mass-produced rice beer, so it is no surprise that it is basically bland and unappealing. The single part of this beer that stands out is the fairly distinct rice flavor. Sure, plenty of beers use rice and other adjuncts, but in this beer the rice plays a very prominent flavoring role. That is not to say that there is much flavor, but it actually is rather interesting how much this beer is unlike even other beers of its genre.

Reading of the week: Notes On Religion by Thomas Jefferson – This excerpt starts with a very interesting question: “How far does the duty of toleration extend?” This is especially important specifically with regard to religion since most religions assert that they are the one “right” religion and everybody else is not only “wrong”, but damned for it. “Every church is to itself orthodox; to others erroneous or heretical.”

Question of the week: Why has freedom of religion become so widely accepted while other freedoms have eroded?


I Cannot Join the Class Action Against Facebook AND be a Class Act

If you are on the Facebook (and I know that you are,) you most likely received an e-mail recently informing you that you are eligible to participate as a co-plaintiff in a class action suit against Facebook Inc. because they used your name or photo in a “Sponsored Post”. I am here to tell you why you ought not participate.

The details are pretty simple: the law suit alleges that Facebook unlawfully used a number of names and images in “Sponsored Posts”. Any Facebook user whose picture or name was used in such an ad is eligible to participate in the suit. The law suit will be settled. In fact, a judge has already denied a proposed settlement. According to NBC, the original proposed settlement was for $20 million. Sounds great, right? Well exactly $0 of that was going to go to the users whose names and images appeared in the ads. $10 million would have gone to the attorneys and the other $10 would have gone to not-for-profit organizations that teach people how to use social media safely. The judge in the case decided that the fact that the users get absolutely nothing was total BS, so they’ve been forced to rework the deal.

In the new proposed settlement, users can get up to $10 each. The final amount has to do with how many people join the class action. If only a few people join, each could get the whole $10. But each person who joins makes each piece of the pie that much smaller. In all probability, enough people will join that the payouts will become so small that the cost of sending out that many checks will become prohibitive. In that (almost certain) event, all the money will revert to the aforementioned not-for-profits. Still, Kwame Opum at Digital Trends says that “you should definitely sign up.” And at first, I agreed with him; it is hard to argue with free money. However, halfway through filling out my own claim form, I decided that I morally could not participate.

The claim form includes a list of declarations that I would have to make to the Court under penalty of perjury:

1. I understand that a story about some action I took on Facebook (such as liking a page, checking
in at a location, or sharing a link), along with my name and/or profile picture, may have been
displayed in a Sponsored Story shown to my Facebook Friends who were authorized by me to
see that action.

Fine. I get that much. I am not at all sure that my name or picture actually was included in a “Sponsored Story”, but I do understand that it may have happened, and that is enough.

2. I was not aware that Facebook could be paid a fee for displaying actions such as these, along with
my name and/or profile picture, to my Facebook Friends.

Again, fine. I was not aware. It seems likely that it is mentioned somewhere in the terms of service, but I didn’t read them. And I suspect that if it were in the terms of service, there wouldn’t be a law suit.

3. If my name and/or profile picture was displayed in a Sponsored Story, I believe I was injured by
that display.

Uh oh. I can imagine scenarios in which such a display could have injured me. Perhaps Nike was on the verge of giving me a huge advertising contract but they decided not to since I had publicly “liked” Puma. Maybe Paul McCartney would have invited me to come jam with him, but he saw that I “liked” meat. So I do believe that I could have been injured by a “Sponsored Story” but that is not what the declaration states. It states that “I believe I was injured by that display.” And that is simply not true. I have no reason to think that I was injured by this practice by Facebook. Even if I think this practice is sneaky, underhanded or even downright wrong, I don’t believe that I was injured by it.

The two remaining declarations are even more noncontinuous than the first two:

4. I am submitting only one Claim Form, regardless of how many Facebook accounts I have.
5. I understand that I am releasing all claims that I have against Facebook and all other
“Released Parties” as set forth in Section 5 of the Settlement Agreement (available at
http://www.fraleyfacebooksettlement.com/court).

So only item three presents a problem. Unfortunately, that problem is insurmountable. I am not willing to perjure myself for a chance at $10. I doubt I’d even perjure myself for a sure $10.

In the end, Facebook will still cough up the same amount whether I join or not; the attorneys will still get their $10 million; and the not-for-profits will almost certainly get theirs. The only difference that would come from sending in my own claim form is that I would know that I made a false statement to the Court. I would never be caught. I would not be tried or convicted of perjury. The only negative consequence would be my own sure knowledge that my word isn’t worth even ten measly dollars.

Beer of the Week: Hofbräu Münchner Weisse – Speaking of legal integrity, Hofbräu has an interesting story. The so called “German Purity Law” (the mythos of which I have previously debunked) prevented most brewers from making wheat beers, but Hofbräu obtained an exemption. This gave them a 200 year jump on the competition and they seem to have made good use of  their head-start. This cloudy wheat beer hits the nose with notes of banana and a hint of clove. The body is superbly smooth and refreshing. Overall, it is simply a wonderful beer.

Reading of the Week:  Of Truth by Francis Bacon – It was inevitable that some author should finally make a second appearance in a Reading of the Week. Bacon receives the honor (such as it is) because his essay Of Truth expresses so beautifully why I refuse to put in a claim in the Facebook settlement: “It will be acknowledged, even by those that practise it not, that clear, and round dealing, is the honor of man’s nature… There is no vice, that doth so cover a man with shame, as to be found false and perfidious.”

Question of the week: I did not write this to be preachy. I know that I am by no means perfect. One of my imperfections is that I do lie on occasion. Is there any lie that does not “cover a man with shame”?