Positive Liberty

I am ending my association with Positive Liberty. I will be returning to my own blog, Freespace, and will explain shortly my reasons for leaving. I sincerely appreciate my co-bloggers for having me on, and particularly Jason Kuznicki, who always paid the bills.

I thought Thomas Friedman’s August 26 article in the New York Times was spot on. Unfortunately, it’s available only to subscribers, but here’s a taste:

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In recent months, I’ve found myself reflecting on the achievements of Western culture–on what it is that makes it worthy of success against its enemies, domestic and foreign. And I’ve often thought of the first episode of James Burke’s The Day The Universe Changed, which I still think one of the best, most eloquent discussions of why Western civilization deserves to prevail. I’m delighted to see that it’s available on Google video (though split up into five parts; 1, 2, 3, 4, 5). It’s a brilliant exposition, showing how freedom–whether capitalism or freedom of inquiry in science–lie at the heart of the human values Western civilization has discovered. Check out especially part 2:

That’s the kind of thing we do. We try to take the universe apart to see how it works. We can’t leave anything alone without knowing what it is. We are insatiably curious. And that’s what we defend here, with all this military hardware. The right to be curious. To ask questions and get answers. To question authority and remove it from power if we don’t like what it’s telling us. And that’s why we’ve changed, constantly, throughout history, to become what we are today. Because we’ve never stopped asking questions. And what have we got as a result? Answers. A mountain of them, gathered over the centuries. So much, we’ve had to invent systems just to handle it. So big, information processing itself is now a science. So total, it’s generated the full entire complex of the modern Western world, a world based on information, that we can defend from a hole inside a mountain thanks to the knowledge we’ve accumulated, and that we want to go on being free to accumulate.

Ron Moore manages to encapsulate everything wrong with Battlestar Galactica in a single sentence about a different TV show. Praising the conclusion of The Sopranos, he says, “I’m glad [the writer] thumbed his nose at the tyranny of the narrative drive to bring things to a tidy conclusion so we can all clap and walk away.”

One who considers the imperatives of “the narrative drive” to be “tyranny” would be well advised to avoid a career as a writer, IMHO.

(Yes, I still consider myself a BSG fan, despite my serious qualms about the last season and my agreement with Bill Gordon’s criticisms of this self-consciously naturalistic show. The show is an outstanding specimen of naturalism, with brilliant acting and production values. But its rebellion against the “tyranny” of narrative technique has crippled its real potential.)

Opened up a new stick of Degree brand antipersperant today. On top, impressed into the substance, was the phrase, “Take The Risk.”

Aside from the inanity of this slogan, as a public policy matter, do we really want to encourage people who are just about to put on deodorant to simply “take the risk”?

For a brave and true letter to Nature.

Nothing makes me madder than seeing someone abuse the legal process to try to intimidate and bully people for no good reason. That’s exactly what’s going on with Stuart Pivar’s libel case against PZ Myers. Pivar (who appears to be a serial abuser of the courts) is demanding damages due to a book review Myers wrote in which he called Pivar a “classic crackpot.” Well, I’m here to say that Pivar is more than a crackpot. He’s a crackpot, an idiot, a moron, a fool, a bully, and an abuser of the legal system who deserves to be sanctioned for filing a frivolous and baseless case for no reason other than to infringe on PZ Myers’ constitutionally protected right of free speech.

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Here is the audio of my oral argument yesterday before the Ninth Circuit Court of Appeals in Merrifield v. Melton, a case I blogged about a while back, when it was in the trial court. And here is an editorial about it in today’s Daily Recorder (with a marvelous graphic!)

On behalf of the Pacific Legal Foundation, I represent Alan Merrifield and a business group called the California Nuisance Wildlife Control Operators Association. Their business is to keep vertebrate pests—everything from bats to birds to raccoons and squirrels—out of buildings, using non-pesticide methods. Instead, they use spikes or screens or traps, or other mechanical devices.

But the state of California has a law that requires these people to get what are essentially exterminator licenses. They’re required to spend two years learning how to handle pesticides, and then take a test that is almost entirely devoted to pesticides—pesticides they don’t use.

Worse, the license is only required if you deal with pigeons, rats, and mice—but not if you deal with any other kind of animal. So as I put it in the oral argument, if you put spikes on a building to keep pigeons off of it, you don’t need a license, but if you put the same spikes on the same building to keep seagulls off, you do.

Even more telling, the state’s expert witness testified under oath that the law was designed for simple protectionism. I describe that in some length on pp 35-36 of this law review article.

The oral argument was before Judges Hawkins, O’Scannlain, and Wardlaw, and I thought it went really well. It was in the beautiful Courtroom One of the Ninth Circuit’s building in San Francisco—which is one of the few buildings that survived the 1906 earthquake. It used to be the California Supreme Court, so it is overlaid with marble and statuary—they really knew how to make courtrooms back then. And, true to California’s history, Courtroom One still has a visible bullet hole from where a witness was shot to death on the stand in the 1910s.

The judges seemed to really know the case and understand the arguments well, particularly Wardlaw, who at one point asked a question that she could only have asked if she’d really read the papers in the case carefully. But my favorite part came when Judge O’Scannlain said (something to the effect of) “The state wins if they can give us a rational basis for the law, but we’re having a hard time finding one!”

Interesting quote at Samizdata.

I and others (particularly Robert Hessen) have pointed out how the term “corporation” has changed over time, and how references to “monied corporations” in the writings of Jefferson and others cannot be hastily applied to the modern, private, for-profit corporation. Here’s an indication of how different today’s corporation is from the entities that existed in the founding era—this is the entire definition of “corporation” from the First Edition of the Encyclopedia Britannica (1771):

CORPORATION, a body politic, or incorporate, fo-called, becaufe the perfons or members are joined into one body, and are qualified to take and grant, &c.

Corporations are either fpiritual or temporal: fpiritual, as bifhops, deans, archdeacons, parfons, vicars, &c. Temporal, as mayor, commonalty, bailiff, burgeffes, &c. And fome corporations are of a mixed nature, compofed of fpiritual and temporal perfons, fuch as heads of colleges and hofpitals, &c. All corporations are faid to be ecclefiaftical or lay: ecclefiaftical are either regular, as abbeys, priories, chapters, &c. or fecular, as bifoprics, deanries, archdeaconries, &c. lay, as thofe of cities, towns, companies, or communities of commerce, &c.

A friend of mine, who’s visiting Taiwan, writes, apropos of the Chinese toy recall,

Now admittedly, Taiwan is a bit biased against China, but for good reason, and there’s some major news on here that isn’t reaching much publicity in the states. For example, toy recalls. There have also been disposable chopstick recalls in Taiwan because they were varnished with a toxin in China, eggs from China that were carefully filled with sand so they had the same weight, and baozi (chinese steamed buns) that were mostly finely ground cardboard instead of dough. China is treated as some shining beacon of hope and potential prosperity in the U.S., the “nice” or “progressive” communists, the perfect place for the Olympics, even though entire neighborhoods were given 30 days notice to clear out for construction. At least in the U.S., people are compensated before being robbed of their homes, just a little. Anyway, an interesting thing to research and rattle some cages about. Here in Taiwan, if you have a choice, you don’t buy China. Not just as a form of boycott for a political message. It’s for your own safety. Might be a good practice elsewhere.

I commented on my Free-Market-China-skepticism here and here.

My PLF colleague, Deborah La Fetra, is guest-blogging over at Point of Law, and has some posts about the Foundation’s more interesting arguments in cases involving premises liability and related issues.

The piano is my favorite musical instrument; just about anything played on it will melt my heart. So this weekend, I thought I’d list some recommendations. Anyone who wants to suggest others is welcome to do so in the comments section.

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Turns out at the end of this month, a new CD of “remixed” Miles Davis tunes is going to be released. This reviewer liked it, but I’m not so sure. Davis once broke off with his longtime friend Teo Macero after Macero released Water Babies without Davis’ permission. The idea of taking old Miles Davis songs and re-recording them with new artists on there is disturbing. On the other hand, what’s the difference, really, between this and other types of legitimate derivative works? The finished product will have to stand or fall on its own. One thing I’m sure of is that Davis would not have approved.

“A Sentence About Tyranny” (1950) by Gyula Illyés (translated by George Szirtes)

Where tyranny exists
that tyranny exists
not only in the barrel of the gun
not only in the cells of a prison

not just in the interrogation block
or the small hours of the clock
the guard’s bark and his fists
the tyranny exists
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