I have a rosebush.

It is a floribunda with deep red–almost maroon–flowers. I’ve been working on it for a few years now, and I prune it when it needs pruning, and I water it every other day, and I feed it and rotate it (it is in a large pot) and clip off dead blooms and whatnot. I care for it, rather like some people care for pets. It is a thing that I am proud of. Proud that I have kept it alive (I have a bad track record with plants); proud that I have been able to transform it from the scraggly little runt I bought at a Home Depot somewhere into a big, beautiful, healthy bush; proud of the time and money and love I’ve put into it. It has been getting ready for its first bloom of the year, which I expected during this first week of June. It had produced more flower buds this year than it ever had in years past. I was really looking forward to it.

This morning, I discovered that some merry prankster had come by and chopped off all the new buds.

Attached image: Rosebush 1

And left the buds strewn all over the porch.

Attached image: Rosebush 2

Thirty-two in total. I collected them and put them in a Ziplock in my freezer. When I find out who did it, I intend to present the rosebuds to that person and ask that they pay for them.

The culprit left four buds uncut, all of which are difficult to find as they are hidden among the foliage.

My leasing office seems to know exactly who did it. Because they have received numerous similar complaints of property damage from other residents. I have no personal knowledge, however, of whodunnit, so I shan’t go about casting aspersions I cannot back up with the photographic evidence.

Hence a new acquisition.

I shall set up the camera to watch my rosebush from now on.

The office seems to think it is a particular young person who lives a few doors down. If it is indeed this particular young person who is responsible, I should be very, very worried about her sanity. Someone as young as that, able to form the necessary malicious intent to cut of just the buds of my rosebush, and without any prior contact with me, may have the early makings of a sociopath.

Or maybe it is just that young people these days have no concept of property?

My rosebush will recover. But it will take another month before it is able to fully bloom.

Posted by Qwertz at 2:02pm on 2 Jun | 2 Comments

Gus Van Horn mentions the difficulty of arguing against the government’s use of behavior-modifying techniques in mixed-government contexts:

Unfortunately, everyone is so used to the government owning the roads … that few so much as bat an eye when they hear of the government looking for ways to psychologically manipulate people into doing its bidding. Indeed, in this limited context, it is hard to argue productively against the government taking advantage of such knowledge about human perception.

As a law student, this topic has caused me a great deal of concern over the past few months. I have wanted to write something about it, but have not had the time or energy to do so in any great detail. Now that the semester is over, I intend to put some substantial effort into it. I will use this post to record my initial thoughts on the problem, in anticipation of a more thorough, well-written post at some point in the future.

Constitutional Law really got me started thinking about this issue. So much of Con Law is skirting, evading, rationalizing, or outright ignoring contradictions created by unexamined bad premises. I hope to develop several concrete examples, but for now, take the example of student speech (the Tinker line of cases). Students are protected by the First Amendment’s guarantees of freedom of expression, but schools have a significant interest in carrying out their educational mission, which may at times require curtailing students’ ability to speak freely on campus.

In my head, there is no problem here. The First Amendment applies only to government actors. A school, as a private actor, may run itself as it sees fit, and may curtail student speech as much as it wants. Students who do not like it may take their business elsewhere.

But wait! Most schools are not private actors. The government runs them. Therefore, the schools are subject to First Amendment restrictions. Now what do we do?

No matter what standard of review you apply to restrictions on school speech, there must be at least a legitimate state interest in regulating the speech. In school speech cases, the state interest is in carrying out the educational mission of the school - the same interest a private school would have in regulating student speech, except here it is being offered by the government.

On the one hand, the operator of a school has a legitimate interest in regulating student speech in furtherance of its educational mission. But on the other hand, governments have no such legitimate interest. A government should not be able to get around something like the First Amendment simply by engaging in an activity that ought to be private. Government shouldn’t be able to inherit the rights of private parties by co-opting a private role.

Instead of questioning the premise - that government schools are acceptable - the legal system has created a complex, obscure, non-objective doctrine for balancing individual rights against government interests.

“!”

The idea that individual rights and government interests are things that can conflict and therefore must be weighed and balanced is so obscene that it makes me physically sick to my stomach every time I read a court opinion expressing it. Government has only one legitimate interest, as expressed in the four most important words of the Declaration of Independence: To secure these [individual] rights.

So when a case like Morse v. Frederick (the “bong hits 4 jesus” case) comes up to the Supreme Court, the rational thing to argue is that no balancing is required - the mere existence of a public school violates individual rights, including the student’s free speech rights. A rational legal system dedicated to protecting individual rights would progressively limit the powers of public schools to the point where they could no longer operate.

But ours doesn’t do this, because “society” places a value on public education, and because “democracy,” as expressed in the legislature, shows that “the people” want public schools. And who are the courts to question the will of the people?

All of this is important to me because I will one day be a lawyer. I will argue on behalf of clients. Can I ethically argue what I think will get my client the best result (the best result being the result closest to an objective ideal result), if in making that argument I must give sanction to the unchallenged false premise? Or do I challenge the false premise and lose my case, and perhaps my license? (You can lose your license for making a legal argument that is not, in the court’s opinion, rationally supported by existing law. Arguing that public schools are unconstitutional would be such an argument. It would also be a wrong thing to argue given the current approaches to constitutional law - by all the widely accepted jurisprudential models, public schools are constitutional. And because they’re constitutional, it is not in the power of the courts to do away with them, even though they really do violate individual rights.) By limiting what premises may be challenged, the courts get stuck with all these contradictions among individual rights and government interests. If you can’t challenge the false premises, you’re stuck in a situation with no right answer.

How do you argue for what is right in situations where there is no right answer?

I call these situations “sundae specials,” because of a metaphor that occurred to me almost a year ago: This is like asking whether you want sprinkles on your giant poison sundae. How do you make that decision, except by ignoring the gross underlying evil?

Other concrete examples include gay marriage (conflict between equal protection and the welfare state), the draft (do we allow discrimination based on gender in order to get fewer people drafted, or do we require Congress to draft qualified men and women, in the interest of equal protection?), and freedom of religion (misapplication of the principles of Free Exercise and No Establishment leads to contradictions between the two clauses).

I will be writing more coherently about this subject in the future. Comments and suggestions for avenues of research are welcome.

Posted by Qwertz at 1:13pm on 6 May | No Comments

Fred Phelps and his Westboro Baptist Church have, for some time now, been traveling the country protesting at the funerals of American soldiers killed in the line of duty. Back in 2006, they protested outside the funeral of Marine Lance Corporal Matthew Snyder, who was killed in action at the age of 20. See this article, the original complaint, and Monica’s (of Spark a Synapse) post on the same topic for the unpleasant details.

English as a language lacks invectives of sufficient force and color to condemn this kind of behavior in the terms justice demands.

However, has WBC done anything properly considered tortious?

The complaint states five claims: defamation (for materials published on WBC’s various websites); invasion of privacy - intrusion on seclusion; invasion of privacy - publicity given to private life; intentional infliction of emotional distress; and civil conspiracy. The latter is really just a modifier of the others and would not stand on its own without them. I know nothing of invasion of privacy as a tort (Maryland apparently recognizes both these and two other forms of invasion of privacy). The statements involved in the defamation count were enough to survive a 12(b)(6) motion to dismiss for failure to state a claim, but I don’t think they are enough to prove material falsity, which is required to win on that count. The count that interests me is intentional infliction of emotional distress.

[If someone knows more about invasion of privacy as a tort action, please share. I’m not presently in a position to research it.]

IIED is a shifty claim to begin with. It is very, very rarely successful, and all the cases I’ve read on the tort have involved deliberate, personal campaigns of psychological harassment, mostly in employment situations or where the harassed person otherwise had a strong extrinsic disincentive to extricating himself from the abusive situation. It is amorphously defined as “extreme and outrageous conduct” causing “severe emotional distress.”

In this situation, I think it would be very difficult for Mr. Snyder to win on this claim. The conduct was not particularly extreme. Their behavior was, reportedly, not atypical of protests. In fact, WBC, despite their absolutely repellent opinions, tend to be less extreme in their protest tactics than the dirty hippy ‘viro WTO protesters have been of late. They appear more extreme because their position is so horrid, but their conduct is very consciously reserved, precisely (I believe) out of a desire to avoid legal issues. (In the case filed by Mr. Snyder, the court was forced to allow alternative service of process because defendants WBC et al. actively evaded service of process, successfully creating an appealable issue where none should have existed.) IIED requires extreme and outrageous conduct, and I have never read an IIED case the extremeness and outrageousness of the opinions expressed affected the extremeness or outrageousness of the conduct used to express them.

Some interesting questions are nonetheless raised. Is a court judgment, pursuant to a civil complaint and presumably predicated on a jury verdict, the type of government action barred by the First Amendment? The thinking has long been that yes, the courts and common law cannot do what the Constitution prohibits Congress to do. (Aside: One might argue that the First Amendment, via the Fourteenth Amendment and Gitlow v. United States, 268 U.S. 652 (1925), applies to all State action, because the Fourteenth Amendment says “No State shall…” instead of “No State legislature shall…,” but only to Federal Congressional action and not, for example, action by the Federal executive, some Federal executive agency [which encompasses the whole administrative state], or the Supreme Court [but not the lower Federal courts, which enjoy jurisdiction only by Congressional grant]. In this way, one might argue that the First Amendment restrains State government more than it restrains the Federal government. Why one would want to so argue is beyond me.) Therefore Maryland could not recognize a civil action that would require the courts, in enforcing a judgment, to violate the First Amendment.

I think this approach is strained and without merit. A civil adjudication is premised on a finding that the plaintiff has been wronged. That his rights have been violated by someone else. If that’s the case, then the defendant had no right to take the wrongful action. No person has a right to take any action that violates someone else’s rights. Rights, being individual in nature, do not conflict. So why should the First Amendment be presumed to protect rights which do not exist?

On the other hand, are words alone enough to violate someone’s rights? What about the act of communicating those words? The “freedom of speech” and “freedom of the press” are representative of the right to free thought. They represent the proposition that man must be free to try to persuade other men using non-coercive means. Looking only at the acts of WBC, I do not see any coercion here. Therefore, I would recognize no tort.

Unfortunately, WBC’s actions took place within the context of “public property.” That little contradiction in terms leads to an irreconcilable problem: funeral attendees are forced, if they want to attend the funeral, to traverse public property, and may exercise no right of exclusion against unwanted WBC protesters. By virtue of public property, the funeral attendees are forced either to put up with the WBC protesters or not attend the funeral. And the government can take no action, morally or legally, to silence the protesters while they are on “public property.” The contradiction is unresolvable without “checking the premise” of public property in general, a premise the courts (and, indeed, the substantial majority of Americans) are absolutely unwilling to check.

So we will see hackneyed, patchwork gapfiller laws establishing complex, twisted rules trying to navigate around the contradiction, rather than to resolve it.

[Please note that, while I doubt whether WBC has done anything illegal or tortious, there can be no doubt whatsoever that what they have done is in monstrously poor taste, and the ideas they espouse are wicked on an unparalleled scale. The lack of English verbiage adequate to properly condemn those ideas and the manner in which they were expressed is the source of the title of this post.]

Posted by Qwertz at 12:38am on 26 Oct | No Comments

Every good pragmatist knows that one of the absolutely essential functions of government is to own, operate, and maintain public roads. Several arguments I have heard advanced in favor of publicly-owned roads include:

• Uniform standards;
• Unrestricted access;
• Cost-free access;
• Universal access to an essential resource;
• Safety;
• Efficient allocation of scarce resources;
• Availability of eminent domain power to efficiently locate major roadways;

And of course the vague but ever popular, “that’s what governments are for!” And every good economist knows that all of this is bunk. But is there something more nefarious in the institution of the public road?

Consider cable television. Or any other utility that requires long, narrow, contiguous strips of property. Cable television is convenient because it is an excellent, modern example of the practical end result of public road ownership, as we shall soon see.

Joe Capitalist decides to start a cable company. He will sell cable television service to his customers. To do so, he buys up land (or easements across land) to bury his cable and connect his satellite receiving station to the homes of his customers. Perhaps he charges installation by the cable foot from his station. This will be costly for distant customers, but inexpensive for nerby ones. In addition Joe Capitalist also charges a surcharge for each easement he has to obtain in order to connect a new customer. Again, distant customers will be priced out, but adjoining customers will enjoy a great discount, as no easements will be necessary. As Joe’s business grows, the number of customers who must pay easement surcharges will decrease. Joe might even want to sell to some distant customers below cost, because the property owners crossed by Joe’s cables will be encouraged to sign up, too. Once a line has been established in an area, neighbors are encouraged to buy from Joe, because buying from a similarly-structured competitor will require the payment of easement surcharges, whereas connections to Joe’s existing lines will be much cheaper. But if Joe’s prices get too high, or his service gets to crappy, then the extra cost to buy from a superior competitor is justified. Everything works.

If Joe wanted to, he could make a large capital investment and lay out cables all over town by dealing with whoever owns the roads. Cable requires long, narrow, contiguous strips of land, and roads are just that. There are three relevant road-ownership models to consider:

1. Roads are owned by adjoining property owners, who may or may not license road maintenance and management out to a third party that does such things; such road maintenance entities would be businesses in themselves whose service coverage would coalesce by offering lower rates (and expending less in cost) for service to adjacent road-owners;
2. Roads are owned by a third party, who operates a large percentage of roads in a geographic area which, for the same reasons as above, would likely be contiguous; or
3. Roads are owned by the government.

Under the first scenario, Joe might sometimes find laying his cable out on the roads to be a good idea. If the roads are owned by adjoining property owners, then he can offer them the bonus of cheaper cable television in return for letting him bury his cable near or under their section of the road. But it could be spotty. If he runs into an intransigent property owner, he may have to divert across an existing customer’s land to find new customers. So a plan for laying out cable exclusively along the roadways might actually harms him in the long run. Roads are functionally one-dimensional: for any given point on the road where a cable could branch off, only two properties are adjoined. But whole parcels are frequently bordered by more than two neighbors. Even in rigorously designed communities, each parcel will ordinarily have three neighbors: one to each side and one to the rear. While Joe might make use of roads occasionally, they are not necessarily the most efficient way to lay out cable.

Under the second scenario, Joe might go to Sally’s RoadCo and strike a deal. Perhaps some sort of commission deal whereby Sally earns royalties on the customers Joe gets adjacent to Sally’s roads. He has this option, and it might work better, depending on how the roads are arranged with respect to the adjoining properties. If Joe is paying royalties and also paying the cost of burying lengths of cable, this kind of agreement with Sally would work best on high unit density streets - where there are more customers per unit of distance along the road. Condos, apartments, high-rise office space. Under this system, remaining competitive would be more challenging, because competitors would be able to make similar agreements with Sally, reducing the initial cost of entering the new market as compared with the previous road ownership model. Even if Sally likes Joe so much that she doesn’t give similar deals to Joe’s competitors (or, perhaps, offers him an exclusive agreement), it will be more difficult, but again not impossible, because Sally could still sell individual easements across the roads and competitors could fall back on the customer property approach, dealing with Sally only when they need to cross a road.

But in the third scenario, there is only one owner of the roads, and it is moved by the chad, not the dollar. Joe can no longer use the previous models for his business, because the government has surrounded small chunks of private property with public roads. Whereas under the private models Joe could negotiate with property owners, or with Sally, when he needed to cross a road, now he has to negotiate with the local government. Local government has interest in raising revenue, sure, but it does not need to worry about losing customers. So its services are crap and its prices stratospheric. Getting a right of way to cross a public road with his cable, either above it or below it, would be cost prohibitive if Joe wanted to expand his market beyond a few suburban blocks. He no longer has a rational road owner with whom to deal. Nor does he have an alternative road owner who might be more rational. What he does have, and where cable television shines as a perfect example of what I’m driving at, is the option of buying a municipal franchise.

With a franchise, Joe Capitalist pays 5-15% of his gross revenue earned from customers within the city. In exchange, Joe gets three things: 1) an exclusivity agreement, prohibiting any competitors from getting the same deal from the government; 2) the right to bury or suspend cable under, over, or along roads at no additional fee beyond what it costs him to install the cable; and 3) the promise from the local government that no competitors will be allowed to operate in his territory. As if they could under these conditions. The royalties are so high that the agreement wouldn’t be of any value to Joe without a guarantee of exclusivity.

These and similar agreements have been used ever since public utilities began to deregulate. Power, water, sewer, natural gas, telephone, the new fiber to the premises services (which some are arguing interfere with cable television franchises, because of Verizon’s intent to deliver TV over their FiOS product), &c. It is as if “deregulation” was just a cover for something entirely unlike deregulation.

But if Joe did not want to deal with the government, he could only sell cable television services (assuming no other obnoxious regulations) to people on his block. He cannot cross the road without dealing with the government.

This is different from the situation where Sally owns the roads, but doesn’t want to deal with Joe. Market forces affect Sally. They don’t affect the government.

By virtue of its ownership of roads, the government gains extraordinary control over the cable television market. It may determine who offers cable television services, where they are offered, and the price customers pay. If customers don’t like their cable company, they cannot choose another. Their only recourse is to alternative technologies. Like satellite, which doesn’t suffer from road-related oppression, but has its own special problems (read: FAA, FCC, and NASA). Suddenly, Joe Capitalist doesn’t have any incentive to offer quality service at low prices any more.

Cable TV is only an example. Roads let local governments control local markets by limiting the extent to which they can be operated without some interaction with the government. Roads let local governments control what private property owners may do on or with their property. I submit that, where roads are owned by governments, there is no such thing as private property, and no such thing as a free market. If I were a power-hungry local government, and wanted a subversive yet powerful means by which to throttle local markets and property owners, I would make sure I owned the roads.

Posted by Qwertz at 8:18pm on 10 Sep | 5 Comments

Some lively back-and-forth between Messrs. Inspector and Flibbertigibbet on urbanism, and Mr. Van Horn’s recent cable company travails got me thinking on the role of public roads in government’s ability to exert control over private property. This is mildly unfortunate, however, as I am far too busy at the moment to be thinking about such things. So I’ve popped it in the oven on a low roast for now, and later tonight I should have a tender, juicy morsel for you.

Posted by Qwertz at 3:09pm on 7 Sep | No Comments