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Posts Tagged ‘volokh’

Eugene Volokh takes apart a New York Times editorial in his inimitable style:

The New York Times editorializes in favor of “sound gun-control laws.” Which ones? “Reasonable gun-control laws,” which can now be enacted following the “gun lobby”‘s defeat in November. (No word on the success of the “gay lobby,” “abortion lobby,” “women’s lobby,” and so on.)

I’m all for sound and reasonable gun-control laws. Who wouldn’t be? By definition, they are sound and reasonable, not the unsound and unreasonable kind that I oppose. (I should note that nearly everyone supports some gun control laws that they see as sound and reasonable, if only, say, bans on violent felons’ possessing guns, or if you really insist on minimalism, bans on violent felons’ possessing guns in prison.) Now if only the Times tells us exactly what those laws are — all I see in the editorial is a quote from President-Elect Obama about “keeping AK-47s out of the hands of criminals,” and nothing beyond that — then we might have a conversation. I’d prefer a conversation on the substance, but even a conversation on the political question on which the Times is focusing would require some specifics. It’s hard to gauge voters’ likely reactions to proposals that aren’t identified.

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Since the Judge Kozinski story broke three days ago, I have frequently visited The Volokh Conspiracy hoping that Eugene Volokh — an outstanding blogger who I frequently cite —  would post on the issue. My interest was piqued not only because I admire Kozinski — a brilliant judge with a libertarian streak — but because Volokh had once clerked for him. Here is the expected post, at last.

I’ve tried to avoid blogging about the Judge Kozinski story, because I’m so obviously biased on the subject. I clerked for the Judge. The Judge officiated at my wedding. I talk to him often. I consider him a close friend, he’s taught me a huge amount, and he’s helped me tremendously in my career, and not just by giving me a valuable credential. What I say on the matter will naturally and properly be discounted because of my bias. Still, I can’t help myself any longer, so I’ll pass along what I think, and you can give it whatever credit you think is due.

Here is a link to the rest of Volokh’s article, which I recommend. I agree completely with all his points. However, I am a tad disapponted that he places so much emphasis on the fact that the images on the judge’s site were tame. In other words, while I agree with his conclusion, 

We should all leave Kozinski to his own privately expressed sense of humor, as we’d like the world to leave us to ours,

I would have been happier if he had added it didn’t really matter even if that sense of humour was much racier than what it actually is.

It would be a great day for freedom when the obscenity law is finally repealed. The root of the current controversy is that Kozinski was also going to officiate this case.  Of course, because of the controversy, he has now recused himself from it. The defence, I suppose, would have fancied their chances if he had remained the judge — Kozinski has always known to be a staunch defender of free speech. The prosecution must be chortling with glee.

On another note, I really hope that the LA Times, which broke the story, publishes a retraction and offers Kozinski an apology. They have displayed an astonishing lack of journalistic integrity in their coverage of the matter. It has, to put it lightly, been full of misleading errors. For instance, they said that one of the images showed a man ‘cavorting’ with a donkey when it wasn’t even close to that. But if the LA Times did apologize to this supposedly conservative judge, it wouldn’t really be the LA Times any more, would it?

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Cass Sunstein and Eugene Volokh discuss blogs, echo-chambers, free-speech regulations and much more.

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Intellectual property laws, such as those relating to copyright or patents, are a source of considerable disagreement among libertarians. The reason is not hard to see. In the words of Rodrick Long,

When libertarians of the first sort come across a purported intellectual property right, they see one more instance of an individual’s rightful claim to the product of his labor. When libertarians of the second sort come across a purported intellectual property right, they see one more instance of undeserved monopoly privilege granted by government.

In this fine article, Long argues against intellectual property laws from a libertarian perspective and points out there are other means (such as laws against fraud) to achieve many of the same results. My position on the matter is less extreme than Long’s. I believe that a case does exist for some intellectual property laws; however I also believe that current laws are more restrictive than is necessary. For instance, there is no justification, in my opinion, for the absurdly long copyright laws that currently exist in the United States (and were passed incidentally, under pressure from media corporations).

The matter is complex and deserves a longer post, which I hope to attempt some day. For now, I’d like to point the reader to the fact that Neil Nataniel is currently guest-blogging at Volokh on what he calls the “copyright paradox”, a reference to the fact that copyright simultaneously enables and restricts free speech. The first two posts are here and here.

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It’s the classic pitfall. The law tries to prevent a reprehensible act of fraud (in this case, obtaining sex from one’s brother near-sleeping girlfriend by impersonating the brother). However it does so by passing a law whose language is much broader than it should. The result is yet another encroachment by the law into an area it has no business being in.

Read Eugene Volokh’s excellent discussion on a potentially chilling statute that is being pushed for passage in Massachusetts. Also the comments under Volokh’s post are interesting; below are some of my favourites.

Make-up is now to be illegal in Massachusetts, as are Wonderbras and those ass-padding panties.

Did they just outlaw the greater bulk of bar-room pick up lines?

OK, let’s take a hypothetical 25 yr old Tom and 16 year old Suzy. Suzy tells Tom she is 19, and they have sex. In both Texas and Mass, this is rape. In Texas, she’s the victim, in Mass, he is. Makes sense to me!

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Eugene Volokh has an interesting discussion about a new California law, currently under discussion, that aims to protect researchers against animal rights terrorism.

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A guest-blog at Volokh by Cass Sunstein on libertarian paternalism. Hopefully we will see more writings on the subject.

Unlike some hardcore libertarians, I am sympathetic to the idea of libertarian paternalism, particularly the “one-click” variety that Cass mentions. In any case, as even libertarian opponents of the idea will agree, libertarian paternalism is certainly a huge improvement over the pervasive (and coercive) paternalism that exists today, and will possibly be easier to implement than full-blown libertarianism. Of course, the crucial point in libertarian paternalism is the ease of opt-out; if you make the default too hard to change, you take the libertarian out of the phrase.

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