Cryptocurrency and Third-Party Doctrine

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Many people hold the misconception that cryptocurrency offers total anonymity in financial transactions. There are multiple reasons why the belief that this decentralized private digital money does not conceal the identities of transacting parties. For one, the perception of complete anonymity is illusory because all transactions on the blockchain are accessible to the public. Since most blockchain environments “..have transaction structures that show the sender and receiver addresses explicitly. Because of this property of openness, a large proportion of the users can be re-identified..” (p. 18). These concerns pale in comparison to the legal resources at the disposal of government agencies with broad objectives ranging from tax collection, criminal investigation, and to even surveillance. This disproportionately impacts new entrants in the space that use exchanges and lack the technological illiteracy to hold their digital token in self-hosted wallets, as exchanges are subject to KYC and AML laws.

There are many various laws, judicial constructs, and conferred powers government actors utilize to relinquish our financial privacy. These tactics extend beyond semantical word games over what constitutes “…persons, houses, papers, and effects..” in the digital age (Amend. IV). One of the best-known doctrinal assaults against economic privacy invoked by law enforcement is the third-party doctrine. A judicial doctrine that strides a thin line, between the state interests; and regulating illegal activities (p.3). Although, the third-party doctrine has remained in use since the 1970s it has been a subject of controversy. The decision in United States v. Miller (1976) spurred the passage of the Right to Financial Privacy Act (1978), a feeble attempt to stifle the reach of the doctrine. The law was riddled with numerous exceptions to warrant requirements.

What is the Third-Party Doctrine?

Legal scholar Orrin S. Kerr provides a succinct definition of the doctrine:

“…The “third-party doctrine” is the Fourth Amendment rule that governs the collection of evidence from third parties in criminal investigations.’ The rule is simple: By disclosing to a third party, the subject gives up all of his Fourth Amendment rights in the information revealed (p.563)..”

The extent to which the doctrine is a rule and not an exception is a matter of debate among civil libertarians and privacy purists. Any information disclosed to a financial intermediary is not out of the reach of government officials. This also includes information provided to a third party that the customer believes will “remain private” ( Hoffa v. the United States) (p.9).

The nascent roots of the third-party doctrine lay within the test established in Katz v. the United States (1967). What has become known as the “Katz Privacy Test”; weighs privacy interests against the interests of the state. The case established a two-part judicial test for distinguishing when a private citizen has a reasonable expectation of privacy. 1.) An individual must have a subjective expectation of privacy. 2.) Society must accept these circumstances as being reasonable. Both standards are abstract and murky, making it a hindrance to derive clear and consistent guidance from such disputable and open-end criteria. 

It is not until nearly a decade later that the doctrine emerged when the Katz Test applied to a case regarding financial privacy. This seminal case was no other than the infamous United States v. Miller (1976).  The case involved Mitch Miller charged with producing untaxed liquor. In the process of collecting evidence, the ATF (Department of Alcohol, Tobacco, and Firearms) issued several subpoenas to collect Miller’s banking records. (p.12). Miller was never informed that his banks had been summoned to supply his records to the ATF. As luck would have it, the lower courts saw that the ATF “…had unlawfully circumvented the Fourth Amendment by first requiring the banks to maintain the customer records for a certain period and second by using the insufficient legal process to obtain those records from the bank..”(p.13). The high court reversed the previous decision citing that “…bank kept copies of personal records that he gave to the bank for a limited purpose and in which he retained a reasonable expectation of privacy under Katz..” (p. 13). The SCOTUS reasoning :

“…checks are not confidential communications, but negotiable instruments to be used in commercial transactions, and all the documents obtained contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business. The Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities….”

Ultimately, the court ascertained that information provided to banks was not subject to Fourth Amendment protection. After all, the information we are willing to disclose to an intermediary may not be so confidential. Ideally, we would never choose to convey such information. We also trust financial institutions to exclude the gruesome details of our purchasing decisions, regardless of the legality. All because a purchase was legal does not mean it was not embarrassing. For example, frequent outings at fast-food restaurants, pornography, and scoring BTS tickets are all legal transactions, but all ones that should not be scrutinized by the judging eyes of stuck-up government employees. It is not just the bad guys who are seeking the prying eyes of government officials. 

The case to advance the third-party doctrine was Smith v. Maryland (1979), adjudicated a few years after Miller further reinforced this hideous obstruction to individual privacy. In this case, the telephone company installed a pen register “…to record the numbers dialed from the telephone at.. the home the suspect of robberies. This scenario would be considered a Fourth Amendment exception since the phone companies already have access to and record phone records.

Another landmark case in the judicial history of the doctrine was United States v Jones (2012). The defendant was arrested on drug charges after a law enforcement official attached a GPS tracker to her vehicle for 24-hour surveillance and all without a warrant. The Supreme Court viewed the warrantless attachment of a GPS tracking device as a Fourth Amendment violation. That covert tracking constituted a trespass and a violation of the reasonable expectation of privacy.

For any faithful civil libertarian, Jones might have been a glimmer of hope in the arena of the right to privacy. The logic in Riley v. California (2014) we have the illusion of hope regarding privacy matters. Riley was a member of a San Diego gang that opened fire on a rival and subsequently drove away. He was then pulled over for expired tags while operating another vehicle and was searched before being impounded; officers intercepted contraband. The responding found two guns and called in the gun unit to analyze Riley’s phone depicting the suspect making gang signs. The ballistics tests tied Riley to the previous shooting direct toward rival gang members. The court ruled in favor of Riley in this case; digital data presents no immediate harm to investigation officers, but phones operate as “minicomputers”, holding a plethora of personal information. Therefore, a warrantless search may be acceptable in exigent circumstances (which Riley did not present).   

The next step in the stare decisis whittling down the third-party doctrine was Carpenter v. the United States (2018).  Defendant Timothy Carpenter; was implicated in a series of robberies, and his phone number was located by authorities; they used this information per the Stored Communications Act (1986)Based upon “..cell-site evidence..” Carpentry had been located as being nearby to the crimes. The five-four decision stated that :

“… Expectations of privacy in this age of digital data do not fit neatly into existing precedents, but tracking person’s movements and location through extensive cell-site records is far more intrusive than the precedents might have anticipated…”

Essentially, utilizing the tracking capabilities of smartphones veers into a territory that infringes upon our enumerated right to privacy. Paralleling, the situation in Jones warrantless tracking regardless of the method is unconstitutional. In many ways using a smartphone is analogous to strapping a tracking device to a motor vehicle.

Crypto and The Third-Party Doctrine

The byproduct of the Carpenter decision has opened a new chapter in the Jurisprudence of the third-party doctrine. Per Fourth Amendment Orrin Kerr “… Carpenter “recasts a lot of doctrine in ways that could be used to argue for lots of other changes.” (p.226). So far, the courts appear to have analogized transactions occurring on cryptocurrency with those of traditional financial institutions (banks). The first case to apply the doctrine to cryptocurrency transactions was United States v. Gratkowski (2020).

The case involved a federal investigation into a child-pornography website and officials subpoenaed Coinbase’s transaction records; defendant Richard Gratkowski was suspected of patronizing the website under investigation through the exchange. (p.1-2). Gratkowski attempted to suppress the information procured in the investigation”.. the government violated the Fourth Amendment by using a subpoena to obtain his information instead of a warrant…” (p.127). The defendant foolishly argues this point without much consideration of the stare decisis substantiating the doctrine. After all, voluntarily disclosed information, in most instances (p.1), is immune from warrant requirements. The court found paralleling cryptocurrency transactions to phone records (Carpenter) was not an equal comparison. As phone logs are far more intrusive “window into a person’s life”(p 129).

Beyond the concerns regarding the degree to which disclosure of transaction histories could be construed as intrusive, in the eyes of the law, the defendant has already consented to the visibility of his financial activity. The court perceived that Gratkowski did not have a reasonable expectation of privacy as Coinbase not only has public records of all transactions but also is subject to the Bank Secrecy Act (1970) (p. 130). Per the letter of the law, the assumption of anonymity is illusory when conducting business with an intermediary such as Coinbase since it is an institution that fits within the purview of the BSA. (p.131).

In a hail Mary attempt, Gratkowski’s defense team tried to invoke the logic of Kyllo v. the United States (2001). In Kyllo, an agent of the Department of the Interior utilized thermal-imaging technology to detect Danny Kyllo’s marijuana grow operation[1]. The Fifth Circuit felt as if extrapolating Kyllo to Gratkowski’s circumstances was inappropriate as even if thermal imaging was equal to traceable record transactions, the cited case is only applicable to searches within the home (p.132).

Conclusion:

Per the current case law, it is indisputable that the third-party doctrine extends to cryptocurrency transactions that occur on an exchange. This does not ethically justify the application of this egregiously invasive judicial construct to financial surveillance. In balancing state and individual interests, the right to privacy implied in the Fourth Amendment was effectively sullied. An individual using banking or investment services should not have to be concerned about the trespasses of government agents on their transactional histories. Even if an individual has committed no crime, they still have a right to privacy. Do you want the judgmental eyes of an overpaid government employee criticizing your recent purchases of tickets to a BTS concert or a treasure trove of goodies at the local sex shop? Some purchases and investment decisions are downright humiliating and should remain out of the view of external individuals. All because stare decisis sides with the third-party doctrine, does not mean that it is faithful to the contextual interpretation of the Fourth Amendment. Especially, when in the digital age the perception of “…persons, houses, papers, and effects…” (Amend. IV)  has shifted into a sphere of intangible media.

While it is disturbing that the technologically illiterate must restore to using crypto exchanges subject to the legal logic of the doctrine. Unfortunately, self-hosted wallets are not safe from the encroaching hand of the state. While regulators are now seeking to target self-hosted wallets for AML and KYC, we know that the Juris prudence will most likely extend the insidious third-party doctrine to these private methods of cryptocurrency storage. Soon cryptocurrency transactions will fully be under the surveillance and auspices of the government. The best we can hope for is that the high court will realize the error of this perverted doctrine and call it out for the Fourth Amendment violation that it is.

Prisoner’s Dilemmas: XVII- Privacy Paradox

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tension between privacy and the interests of law enforcement has eroded the Fourth Amendment. Our weathering privacy rights surfaces only continue to crumble every time Americans face a choice between convenience and anonymity. When we install software we encounter this dilemma known as the privacy paradox. Most people are not inclined to read the fine print when we install new software applications on their electronic devices (computers, cell phones, and tablets); it is a bunch of legalese mumbo-jumbo acting as a temporary barrier to the products and services you desire to use. This inconvenient bulwark is penetrated by agreeing to all the terms and services detailed in the previous fifteen paragraphs. Few, if any, consumers read nor understand what they have consented to. The Privacy Paradox is defined as :

“… the dichotomy of information privacy attitude and actual behavior has been coined the term privacy paradox(Brown, 2001; Norberg et al., 2007)”.

Essentially, most people profess to care about privacy but are willing to give it up in the short term to gain access to various digital products and services. The logic of this paradox seems oxymoronic until you realize that people lack patience and an extensive attention span. This contradiction validates the observations of Thomas Schelling’s theory of Egonomics. Individuals often grapple with the competition of present wants and future concerns when making decisions. When the details of the terms and conditions of using a product or service are articulated in opaque language and presented as bottom page afterthought, no wonder people are so readily agreeing to policies that may jeopardize their privacy. This dynamic only fertilizes the substrate for a Prisoner’s Dilemma. The firm producing the product or service acts in their self-interest by wording the terms and conditions in complex language, virtually impermeable to lay readers. If users understood what they agreed to, they would be less apt to use these products. Concurrently, these customers believe they are acting in their self-interest by choosing not to read the terms and conditions page and simply consenting to these requirements.

Neither party (customer or service provider) creates an ideal climate for transparency. It is all too easy for the customer to witlessly use the product without knowing how the service provider is collecting, storing, or even selling their information to third-party companies. The severity of this information asymmetry intensifies when specific forms of data are subject to collection and surveillance by government agencies. As stated in United States v. Miller (1976) banking services carry no reasonable expectation of privacy. The courts could apply this similar logic to data collected by other varieties of service providers, especially when presented under the guise of exigent circumstances. Essentially this contraction exists due to the laziness of consumers and the perverse incentives of service providers. 

Bootleggers & Baptists-LIII: Condom Prohibition???

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Arizona senate candidate Blake Masters is signaling that he wants to double down on the rhetoric of the draft of the Dobbs decision. Per Business Insider, stated that Masters does not want to ban contraceptives outright; but believes that Griswold v. Connecticut was flawed. His response to the publication lacks any substantive explanation. He will have plenty of time on the campaign trail to elucidate his position on Griswold. When I first heard about Masters’ position, it was framed as a “condom ban”. The words of a politician tend to be hollow, but only time will tell if his policy scope will veer into prohibiting contraceptives. As we all know, like dishonesty, political figures also have a penchant for engaging in policy mission creep.

If we were to apply the Bootleggers and Baptists (1983) lens to Masters stance on Griswold, the question arises, who benefits? Masters is a Baptist for advancing the normative objective of supporting a Pro-life platform. Arguably, this hard-right political candidate is also Bootlegger for pandering to the highly religious populous right. It is entirely possible that he has gone too socially conservative.

The undisputable Bootleggers are Democratic candidates in Arizona. Why? Independent voters and moderate Republicans might be turned-off by Masters’ social policies. Especially, considering the vagueness of his explanation for wanting Griswold overturned lends itself to misinterpretation. Leading many to assume that his position is equal to a contraceptive ban. Condom bans in the works? Not 100% sure at this point, but it seems like many people are jumping the gun. In the meantime, it will make for some great political theater. For those in Texas, never fear; Ted Cruz has vigorously defended the use of prophylactics; needless to say, 2022 will make for an intriguing midterm cycle.

Bootleggers & Baptists: LII- Pro-Gun and Pro-Roe Actvists Form a Coalition

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The Dobbs draft leak has seemingly added more fuel to the abortion debate over the past week. The real point of contention stilting the embers of the current renaissance in the commentary on Roe v. Wade was the passage of the Texas Heartbeat Bill (Senate Bill 8) last year. The state legislature passed a law that would effectively operate as an informal ban that skirts judicial review; since enforcement was being handled through the deputization of private citizens. Senate Bill 8 is a spectacle of legislative ingenuity; even knowledgeable detractors must admit this point. The design of the Bill is particularly pernicious and could be manipulated for partisan retaliation. For example, last year, California Governor Gavin Newsom talked of engineering his variant of SB 8 tailored to target ghost guns and semi-automatic rifles. The only thing gun owners have going for them in defense against such an action is that the Second Amendment is an enumerated right, meaning they do not need to only rely on stare decisis.

An unlikely coalition formed in 2021 to combat the passage of Senate Bill 8. The kind of coincidental political union that only further justifies the utility of Bruce Yandle’s concept of Bootlegger and Baptist (1983) coalitions. The California-based Firearms Policy Coalition joined the Texas pro-choice faction to oppose the legislation. Even going so far as to author an amicus brief critical of SB 8. Per Statista, of the Republicans, polled 50% owned a gun; 61% lived with a gun owner. Odds are, members of the Firearms Policy Coalitions are right-wingers that would not typically work with the pro-Roe camp. The flawed structure, logic, and versatility of SB 8 could put gun rights in jeopardy. Who would be the Bootleggers and the Baptists in this scenario? Anytime there is a collaboration between different stripes of political activists, these roles are interchangeable depending on the observer’s ideological proclivities. A more even assessment would be that both merging factions are Dual Role Actors (2020). As the pro-gun and the pro-Roe camps, both are defending moral arguments but simultaneously benefit from achieving their own separate policy goals.

The Paradox of Implicit Logrolling: Bodily Integrity- Newports and Roe

The Paradox of Implicit Logrolling (Clark, 2021) demonstrates how intra-platform vote trading can lead voters to hold logically inconsistent policy positions. One example is; a Republican purporting to be Pro-life but concurrently supporting an aggressive foreign policy. In the current political climate of the United States, the topic of bodily integrity appears to be the nexus of the most salient examples of this phenomenon. After all, the genesis of this paradox came from the incongruency of Democrats favoring vaccine mandates (93 % of poll Democrats support mandates applied to private companies) and simultaneously defending Roe v. Wade from the standpoint of bodily integrity. 

However, the current trends in the Democratic party’s policy platform‘s lack of logical continuity regarding bodily integrity are evident from the policies the party has recently supported. Last week, the Biden Administration announced a plan to move forward with a national ban on mentholated cigarettes. A measure favored by 57 % of Democrats polled. The fervor of Pro-choice (predominately left-leaning voters) advocates protesting and repudiating the decision in the leaked draft of the Dobbs case. 

These examples are not intended to shame modern liberals, nor are these normative value judgments regarding their ideological positions; these examples are merely observations derived from an applied static model. The bundle of policies favored by the Republican party is also rife with logical contradictions. The DNC seems to be providing us with most of the conspicuous examples of this paradox. The fact that the Dobbs case and the menthol ban magnifies how the topic of bodily integrity causes political parties to adopt policy preferences that pose philosophical contraventions. If it is rational to assume that electing to obtain an abortion is a matter of self-ownership, then would not the same apply to an adult choosing to smoke Newports? It is perplexing how this lapse in logic eludes many folks on the left. President Biden openly spoke out on the Dobbs decision but opted to proceed with nationwide menthol prohibition. It is possible his vocal criticism of the SCOTUS draft decision is a political maneuver to curve the disappointment of the Progressive-wing of the DNC with his centrist policies. Making the correct statements on the right wedge issue can be gold in the sphere of social currency. 

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Tribal By Combat- A Story of Transaction Costs

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Trial by combat, in the eyes of modern observers, is nothing more than a barbarous anachronism of the dark ages. In his paper, Trial By Battle (2011), Peter Leeson details the economic advantages of the judicial practice in medieval England. The two concluding paragraphs of Leeson make some profound observations regarding the societal pivot away from a violent form of legal auctions. One counteractive realization Leeson comes to suggests that we do not abandon trial by combat for moral reasons, but rather this was due to a reduction in the transaction costs of land disputes. No, we did not suddenly become enlightened.

“…Finally, trial by battle didn’t die because England became less barbaric. It died because England became a lower transaction cost economy. Just as trial by battle substituted for the Coase theorem in a world of sticky property rights, the Coase theorem substituted for trial by battle in a world with significantly more fluid property rights. In that world lower transaction costs of trade permitted markets to allocate land to higher-valuing users. It became less critical for the legal system to ensure that disputed rights’ initial allocation was efficient. Because of late twelfth-century legal reforms that unstuck land rights, the late twelfth century the judicial system could afford to move away from trial by battle and toward more ‘‘enlightened’’ trial methods, namely trial by jury. When judicial combat became an unnecessary cost, England abandoned it. 

This has important implications for how we understand the process of legal systems’ evolution. It suggests that legal systems’ evolution is less about a process whose course follows the trajectory of enlightened thinking and more about a process whose course follows the trajectory of the transaction cost of trade. When this cost rises, the relative price of relying on ‘‘sophisticated’’ judicial institutions rises too. Legal institutions become more ‘‘primitive’’ in the sense that we tolerate more costly (and less seemly) judicial procedures for identifying and allocating property to higher-valuing users. When the transaction cost of trade falls, so does the relative price of relying on ‘‘sophisticated’’ judicial institutions. The reverse happens: legal institutions become less primitive. Society acts enlightened because it has become cheaper to do so….”

As Leeson demonstrates, how the system of feudalism complicated the allocation of land rights; therefore, the institution of public combat trials helped distribute the land to the higher-valuing users. Those who spend more on champions to represent them in the contest must value the parcel of land more. How many traditions and institutions do we now consider archaic and outmoded by more efficient alternatives? Historians claim that such practices stopped due to an enlightened shift in social norms. Prima facie does seem more likely that social progress has been generated more by economic efficiency than lofty and abstract moral ideals. Who is to say that trial by combat was even uncivilized? Under certain conditions, it could be a feasible form of private dispute resolution analogous to dueling.

Bootleggers & Baptists: XL- Joe Rogan: Team Spotify v. The Medical Establishment

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INTRODUCTION:

Veteran stand-up comedian, mixed-martial arts commentator, and podcaster; Joe Rogan has come under fire for promoting COVID-19 misinformation. Business Insider lists six examples of Rogan proliferating misinformation about COVID-19 within the past two years. Arguably the proverbial “straw-that-broke-the-camel’s-back” was last month (episode # 1757)when Rogan had a controversial virologist, Dr. Robert Malone, on as a guest. Prompting 270 medical experts to send an open letter to Spotify to address the inaccurate information disseminated through Rogan’s podcast. The letter expressed: “Spotify has a responsibility to mitigate the spread of misinformation on its platform, though the company presently has no misinformation policy..”.

However, is this statement even true? Do platforms have a responsibility (legally or morally) to moderate and suppress factually incorrect content? Even though Spotify is a Swedish-based company, this rhetoric parallels the talking points of the Section 230 debate in the United States. Section 230, in most instances, shields service providers from liability for the media generated by content producers. This amendment of the Communications Act of 1934 (230 falls under the Communications Decency Act of 1996). Section 230 states :

‘….‘(c) PROTECTION FOR ‘GOOD SAMARITAN’ BLOCKING AND SCREENING OF OFFENSIVE MATERIAL.— ‘‘(1) TREATMENT OF PUBLISHER OR SPEAKER.—No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. ‘‘(2) CIVIL LIABILITY.—No provider or user of an interactive computer service shall be held liable on account of— ‘‘(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or ‘‘(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1)….” (p.84).

This subsection of Section 230 could easily extend to streaming services. Spotify exercises no editorial discretion and merely provides the tools to content creators to distribute music and podcasts. ****Ethically, there are free speech concerns regarding social pressure to moderate and censor content. While the First Amendment only protects citizens from government censorship, it is evident that Spotify is not troubled by the content produced on Joe Rogan’s podcast. If Spotify takes any action, it would be due to public scrutiny.

BOOTLEGGERS AND BAPTISTS:

The outcry for Spotify to address the JRE podcast’s proliferation of misinformation may not have manifested in a formal policy proposal, but there are still individuals that stand to benefit. Making the JRE controversy a perfect scenario for a Bootleggers and Baptist (1983) coalition dynamic. One subset of the coalition acting as the public face presented the moral argument for Spotify acting against Joe Rogan. Quietly, lurking in the background, are the callous beneficiaries hoping their ulterior motives are not recognized. 

The Baptists in this scenario are the experts that drafted the open letter to Spotify and other notable public health professionals that have vocally expressed condemnation of Rogan’s commentary on the pandemic. One of these renowned crusaders is Dr. Katrine Wallace of the University of Illinois, who catastrophically describes Rogan as “a menace to public health,” particularly for espousing anti-vaccine rhetoric”. Whether or not you find this statement hyperbolic or false, it still conveys an ethical concern for the influence of Rogan’s podcast influence on public health. Therefore, making Wallace and like-minded professionals Baptists. Although, there is the potential that Wallace is a Dual-Role Actor, simultaneously being concerned about public health and seeing an opportunity to raise her public profile. After all, she is a blogger.

There are two categories of Bootleggers that operate as silent beneficiaries in this scenario. The first group is the other Podcasters that distribute their content through Spotify. If the JRE podcast becomes removed from Spotify or suffers other forms of sanctions, that would mean less competition for Tim Ferriss. The second category of Bootleggers would be the medical establishment. Not to treat this faction as an amorphous blob, considering it is a collective consortium of various people, organizations, and businesses, it would be nearly impossible to identify all the potential players in the subset of the anti-JRE coalition. The vast networks of the medical establishment are so pervasive it has even been referred to as the Medical-Industrial Complex, paralleling the concept of the Military-Industrial Complex.

There are a lot of individuals that stand to profit from keeping the status quo intact. Any professional possessing heterodox perspectives stand potentially disrupt the current public consensus resulting in fewer profits for pharmaceutical companies and other appurtenant facets of the industry. Over the past couple of years, there has been an ongoing assault on expert consensus. In a world of “alternative facts, the gap has continued to widen between popular opinion and professional consensus. Few things can be threatening as a credentialed professional who holds positions that go against the grain of the establishment. These individuals appeal to a public that is disillusioned and skeptical of expertise. The medical establishment aimed to reclaim its throne by targeting influential voices that have contrary views. In the hopes that people will stop patronizing herbalists and reading articles written by Robert Malone. When persuasion is ineffective, censorship becomes the preferred mechanism. 

POTENTIAL SOLUTION?:

The problem remains of how do we distinguish fact from fiction? Is it Dr. Malone or the medical establishment that is being dishonest? The average American citizen lacks the knowledge, time, and resources to effectively qualify the claims of either faction in the COVID debate. This situation parallels the phenomenon of rational ignorance examined in Public Choice Theory; deference to experts and public figures is cost-effective to the average layman. No need to read dozens of medical journals filled with opaque jargon. When there are have several sets of experts with competing opinions whom do you listen to? It is possible to find an expert in any field that can confirm our priors.

One brilliant suggestion comes from UCF professor and scholar Enrique Guerra-Pujol, who suggests we should utilize prediction markets to assess the veracity of conspiracy theories. In any decision-making process, we are grappling with the fact that no one can have all the information. As stated in the Hayekian Knowledge Problem; information is naturally dispersed, meaning effective top-down decision-making is impossible. If we could hypothetically remedy this by creating an incentive-based mechanism that can aggregate all perspectives on a given topic we will have a better (not perfect) outcome. By including the vaccine skeptics rather than excluding them, they become part of the validation process. When we look at range-voting in jury trials it becomes quite apparent that even including erroneous perspectives does not drastically impact the overall outcome.

Perhaps instead of capitulating to public pressure to remove all of Joe Rogan’s “COVID episodes, Spotify could run a user poll or a modified prediction market (to avoid the ire of SEC and CFTC) to get the listener feedback on the veracity of the content of these episodes. Instead of removing the episodes, if deemed to be inaccurate, Spotify should merely place disclaimers.

****Correction- The 230 immunity argument does not hold up for two reasons:

  1. Spotify does exercise editorial discretion.
  2. Spotify may satisfy the legal definition of a publisher.

Prisoner’s Dilemmas: XI – DACA and Labor Shortages

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DACA (Deferred Action for Childhood Arrivalsis a controversial immigration initiative from the Obama administration. Implemented in 2012, it extended deferred action (“…administrative relief from deportation..”) to undocumented immigrants that came into the United States as children, albeit the following criteria:

“…To be eligible for DACA, applicants must meet several eligibility requirements such as: have entered the United States before their 16th birthday, be currently in school, a high school graduate or be honorably discharged from the military, be under 31 years of age, and not have been convicted of a felony, significant misdemeanor, or otherwise pose a threat to national security….”

migration.org/glossary/daca

However, this Obama-era policy has proven to be quite contentious, especially considering the nativist proclivities of the Trump administration. This sentiment is reflected in the Southern District of Texas ruling in  State of Texas et al v. United States of America et al ruling DACA to be illegal. There are many arguments for restricting immigration, but it is possible that limiting immigration could produce problematic consequences? Adverse outcomes beyond the lofty ideals of multiculturalism? Currently, in the United States, there is a labor shortage, being dubbed the Great Resignation. More people are declining to participate or return to back to the workforce. Labor force participation was reflected as 61.9 percent as of December 2021.; when compared to December 2019, 63.3 percent.

The discrepancy in workforce participation between 2019 and 2021 may seem minor, but to see the severity of the effect, one only needs to view the lack of staffing at the local grocery store. Combined with global supply chain shortages it becomes apparent that commodities and entry-level labor are in short supply. Does the question become why further decrease the pool of potential workers through cracking down on immigration? Then arises the erroneous myth that immigration, specifically illegal immigration harms American workers. Most Americans polled even admit that immigrants assume job roles that most native-born citizens are unwilling to perform. It should note that deporting DACA-eligible workers would also exacerbate current worker shortages in higher-paid jobs considering nearly a quarter of DACA have attained a college degree (p.2).

If anything, considering the current economic conditions, restricting immigration/ deporting undocumented workers could result in a Prisoner’s Dilemma. A mutual defection between undocumented immigrants that entered the United States as children (DACA Dreamers) and the vigilant “immigration hawks”. By the very fact, the dreams refuse to go back to their country of “origin” this could be seen as an implicit defection against the immigration hawks who seek to deport all illegal immigrations and be strict about who is permitted to assume residency in the United States. Naturally, the incentives structures between the two groups are irreconcilable, the odds of a mutually acceptable compromise are slim-to-none; the immigration debate is a winner-take-all game. Compromise can be achieved in politics but is rendered untenable because of political polarization. Immigration has become a hotly contested wedge issue where making concessions are no longer fashionable. The immigration hawks do not realize that they are shooting themselves in the foot. When labor shortages impact establishments ranging from the drive-thru to the emergency room, it affects everyone. Regardless of their position on immigration, making it asinine to refuse willing labor participation the right to work.

Bootleggers & Baptists XXXIX- AB-5 and Uber

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The emergence of the Gig Economy has allowed millions of Americans to earn additional money without the constraints of rigid work schedules. However, the flexibility allotted to contractors through ride-sharing and food delivery services is under threat in California. Back in 2019, the California legislature passed Assembly Bill 5 (AB-5) that would classify many freelance workers as “… workers bona fide employees, with schedules and hours determined by the company rather than the worker..” (p.4). The California courts apply AB-5 under the three-prong test developed in Dynamex Operations v. Superior Court to distinguish contractors from full employees; after AB-2257 passed in 2020, “..109 categories of workers were exempted from AB-5..” (p.7). In response to AB-5, delivery and ride-sharing platforms collectively generated Proposition 22 to exempt these services from the law (p.7). Unfortunately, the law was ruled as unconstitutional 2021; per the Los Angeles Times:

That’s in part because the law, Roesch wrote, infringes on the power of the Legislature explicitly granted by the state Constitution to regulate compensation for workers’ injuries.

 Hector Castellanos, et al. v. State of California, et al.

Amid all the AB-5 turmoil, one question emerges, who benefits from labeling gig workers as full-employees? It certainly isn’t the Uber driver. Considering, 80% of surveyed independent contractors “…reported having done some sort of independent contracting gig in the last year said that it was a part-time occupation…” (p.6). Also, most gig workers have insurance benefits either from their primary job or spouse (p.5) and prefer the flexibility over fringe benefits that “…bear opportunity costs in the form of foregone income they could have received if not for the benefits.” (p.6).

When viewed through the lens of Bootleggers and Baptist (1983), it is clear that few economic agents are hiding within the smokescreen of the workers’ rights coalition. The irony is, the demographic that AB-5 is designed to “help’, vehemently opposed the legislation. It can be assumed that the California legislature is a Dual-Role Actor in this coalition. Why? State lawmakers most likely passed this law as a worker protection provision for gig economy employees. However, Judge Roesch’s admission that excluding gig workers interferes with the authority of the legislature. Lawmakers are also Bootleggers for having an invested interest in not relinquishing political power.

 One notable economic agent on the bootlegger side of the coalition would be labor unions. Some readers may wonder why labor unions would not be considered a Baptist or even a Dual-Role Actor. Unions are heavily involved in the political process (p.410), theoretically could be perceived more as political interest groups than employee protection organizations. Arguably, these organizations do little to advance the interests of workers. Labor unions within the state of California had angled to organize ride-share drivers, “…contributing to the pressure on legislators to make a change..”(p.7). Various labor unions throughout California have expressed that AB-5 would reduce the exploitation of contract employees. However, they benefit from this legislative victory because it reinforces their political currency as an interest group. One union that stands to gain the most from reclassifying Uber drivers are taxicab unions. It is well known that the taxicab industry has struggled to compete with the convenience and lower rates of ride-sharing apps. The state of Nevada has placed restrictions on platforms offering ride-sharing services. Uber has faced many regulatory barriers often supported by taxi drivers (p.191); most notably “medallion systems” where governments issue a limited number of licenses to operate as a driver (p.574). Classifying Uber drivers as full-employees would make employing contractors more costly and onerous, thereby disturbing Uber’s operations. All of this to shield taxi drivers from the Schumpeterian gales of creative destruction.

More on Torres v. JAI

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In a previous blog entry, I did mentioned that the Arizona Supreme Court made the right call on Torres v. JAI (2021). The case regarding the assignment of liability when bars over-serve customers. The AZ Supreme Court ruling is only valid because the decision conforms to previous case precedence. For example, in the logic of Patterson v. Thunder Pass (2007), the court waved liability the bar made a notable effort to ensure that the inebriated patron arrived home safely.

However, Torres may adhere to the contemporary reasoning of the state court, which is only a natural corollary of a distributing trend in adjudication beginning in the early 1980s. The modern jurisprudence in Arizona addressing over-serving liability dates to Ontiveros v. Borak (1983). Ontiveros marks a distinct departure from  Common Law immunity:

“….At common law a liquor vendor was not in any way liable to an intoxicated customer who injured himself because of his condition, nor was he responsible for injuries to innocent third parties resulting from his inebriated patron’s negligent acts. (King, 1966,p.252)…”

The position before Ontiveros upheld by the Arizona courts affirmed the traditional Common Law interpretation. As evident in Pratt V. Daly (1940), were “… it was recognized both within and without Arizona that Pratt v. Daly had approved and adopted the common law rule of nonliability..” (para 9). Ontiveros effectively gutted the Common Law logic of protecting tavern owners from undue liability instances of over-serving intoxicated patrons. Although, the verdict in Ontiveros is easy to accept on purely rationalistic grounds; because the bar served the patron 30 beers!

A law professor at the University of Central Florida.,  F.E. Guerra-Pujol, brought it to my attention that we need the legal doctrine of proximate cause. In the absence of clearly defined limits on assessing liability, the chain of liability could stretch out infinitely. Unfortunately, unjustly assigning blame to distant actors in the “alcohol supply chain”. Under this logic, Torres might conflict with the proximate cause doctrine. After all, once the customer arrives home safely, why would the bar still hold any responsibility? In Torres, the intoxicated customer caused the accident after arriving at his residence. It may be fair to suggest that there was enough distance between the events to absolve JAI of liability from the stance of this doctrine. But this does not consider existing state statutes and previous in-state case law.

Op-Ed Piece: Torres v. JAI Dining Services

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Published by Pinal Central (Click Here)

Editor, Casa Grande Dispatch:

The Arizona Supreme Court’s recent decision Torres v. JAI Dining Services examines the issue of liability in the case of restaurants and bars over-serving alcoholic beverages. A patron of the Jaguar Club in Phoenix got ejected from the club after drinking for hours. He subsequently drove to his brother’s house to sober up and then was dropped off at his home. The intoxicated patron slept for approximately an hour before agreeing to drive his girlfriend home. Unfortunately, he was still inebriated when bringing his girlfriend home, striking a car, killing both occupants inside the vehicle. A jury rendered a verdict that the club and the driver were both liable for damages. JAI was able to get this ruling reversed by the Court of Appeals before the case reached the Arizona Supreme Court.

However, JAI attempted to challenge this ruling since the intoxicated patron arrived safely at his home and still decided to drive. JAI argued that it was similar to driving drunk after drinking at home. In an analogous case, Patterson v. Thunder Pass, the staff made adequate arrangements to ensure the drunk customer got home safely. JAI made no such arrangement; since the ruling Ontiveros v. Borak, state courts no longer recognize immunity from over-serving. Overall, the Supreme Court’s decision to overturn the Court of Appeals reversal on JAI’s liability was a good call.

Prisoner’s Dilemma- IX: The Johnson Act v.s. IGRA (The Distal Prisoner’s Dilemma)

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The Johnson Act and Challenges to Class II Gaming:

Under the Indian Gaming Regulatory Act (IGRA) 1988, there are three distinct classifications of gambling conduct on tribal soil. Class I games are generally of little economic value to the tribes operating gaming establishments; are associated with intracultural ceremonies. Class I games are unregulated by any nontribal institution (p. 8). In contrast, Class II games fall within the range of bingo and associated games (tip jarspull tabs, and card games) (p.3). However, any banking card games such as Blackjack and Baccarat fall outside of the category of Class II gaming along with traditional casino-style games such as slot machines (p.4). Class II games are free of state and federal regulation providing the form of gambling is not prohibited (p.1341). Pursuant to IGRA, the tribe establishes local ordinances governing the operation of Class II gambling. All local regulations need to be approved by National Indian Gaming Commission (NIGC) (p.1341). The final class of tribal gaming is Class III, including banked card games and traditional casino games (p.4). Per IGRA, the tribe must enact a tribal-state compact to provide Class III gaming services (p.305). Arguably, games such as slot machines are significantly more profitable than Class II games [1].

Over the years, some controversy has surfaced regarding what games fall under the umbrella of Class II games. Despite IGRA acting as a well-intentioned compromise, providing the tribes with the right to pursue gaming enterprises and balancing for safeguarding tribal gaming from criminal influences (p.2), it failed to foresee technical advances in the gaming industry. By the 1990s, digital aides to accompany Class II games such as bingo and pull-tab were devised, making them superficially similar to Class III games such as slot machines and video Blackjack. After years of length, court battles it electronic versions of Class II games are now recognized as distinct from Class III forms of gambling. Class III games incur substantial transaction costs of negotiations with the state the tribal territory resides within.

The attempt to prohibit electronic variations of Class II games, such as bingo, is justified by the Johnson Act. This law enacted before IGRA banned the use of gambling devices in establishments in the Indian country. The Johnson Act was soon challenged in the courts; by various tribes providing Class II gaming services. One prominent case was Citizen Band Potawatomi Indian Tribe of Oklahoma v. Green, 995F.2d 179, 179 (10th Cir. 1993). The Oklahoma Supreme Court affirmed the district court’s decision that video lottery terminals would not apply to the IGRA waiver of the Johnson Act since Oklahoma outright bans such gambling devices. The court sided with the state, but it did open the door for video pull-tab and bingo terminals by making such an exemption contingent on the state loosening restrictions on these actives. After the Citizen Band ruling, Oklahoma passed the Amusement and Carnival Games Act, this liberalized gaming in Oklahoma (p.7). Unfortunately, the tribes struggled to negotiate a compact much beyond expanding to off-track horse racing (p.8). The tribes were still languishing in a purgatorial dead-end from the pressure of the social conservatives of Oklahoma (p.8). The East Shawnee Tribe “…developed a paper pull-tab game that utilized an electronic reader to scan paper pull-tabs and display an image on a video screen when the machine dispenses the paper pull-tab..” (p.9). The tribe circumvented their gaming commission and requested a ruling from the CFR court. The CFR’s favorable ruling did not dissuade the U.S. Attorney Lewis of the Northern district from viewing “…such devices as an unlawful class III electromechanical facsimile of a pull tab game..” (p.9). Subsequently, the District Court ruled that this variant of an electron pull-tab game was a Class III game (p.10). The U.S. Attorney Lewis ignored the ruling raided the tribe’s casino. The East Shawnee and the government came to a settlement dismissing the charges and returning all seized funds (p.10).

In 1996, the NIGC chairman decided that the “..electronically broadcasted bingo game…” MegaMania was a Class II game (p.10). Then in 1997, the DOJ and Oklahoma tribal leaders met to discuss the limits of electronic bingo games while the NIGC concurrently expanded the list of electronically assisted games that fell within the Class III category (p.10-11). Lewis ignored this decision and organized a raid on casinos owned by the Seneca-Cayug and Cherokee Nation. Lewis also went so far as to pursue a case against MegaMania devices used at tribal establishments in California (p.11). Resulting in United States v. 103 Electronic Gaming Devices, No. 98-1984-CRB, 1998 WL 827586 at *10 (N.D. Cal. 1998). The Ninth Circuit threw Lewis’s case out citing that the interconnected terminals were an aide and therefore was Johnson Act compliant. After several years of appellate courts finding that IGRA permits Class II games to utilize electron aides, NIGC made the 2002 amendment to IGRA formally codifying this conclusion (p.12).

The Obvious Prisoner’s Dilemma:

The long and drawn-out battle over the classification of tribal-hosted electronic-aided bingo games is a clear example of how the interests of bureaucratic agencies do not always align. Bureaus function under the auspices of the same department, compete for funding and institutional support. This situation demonstrates a scenario where orthogonal agencies are at odds; due to having diametrical incentives structures. The NIGC was intended to operate with constrained autonomy when IGRA was first enacted. But NIGC independence is significantly hampered by the shared regulatory responsibility dispersed between the agency, the Department of the Interior, and the DOJ (p.305-306). As is evident from the previously described struggles for tribes in Oklahoma, the relationship between the NIGC and the DOJ is contentious.

Prisoner’s Dilemma exists because the DOJ exists to offensively combat illegal activities associated with improper operation of gaming facilities (p.323). Simultaneously, NIGC solely exists to provide an on-ramp for tribes to seek liberalization of gaming for economic development (p.323-324). Neither of the incentives structures is compatible; this can explain the ample examples of defection on the part of both parties. The NIGC actively helps the tribes by expanding the number of games utilizing electronic aides regulated as Class II (fewer legal hurdles). In contrast, the DOJ enforces the gaming laws, even if that means taking overly broad or narrow interpretations of the current statutory code. Both government entities could have coordinated mutual compromises versus adversarial strategies for managing tribal gaming regulations. This lack of consensus generated a multilayered cat-and-mouse game between the NIGC/tribes and the DOJ.

The Distal Prisoner’s Dilemma:

The less conspicuous Prisoner’s Dilemma is an intertemporal one involving one set of congressional representatives versus another. The Johnson Act and IGRA are incompatible pieces of legislation that generate intricate policy conflicts (p.315-318). Since the two laws are incongruent, IGRA is a defection from the previous Johnson Act. In IGRA, it is implied before the 2002 amendments that the electronic aides were exempt; it was not clear enough to dispel any controversy. Either clarification of the exemption in the original law or having it match more closely to the criteria of the Johnson Act would have been a “cooperative strategy”.

Distal Prisoner’s Dilemma is an indirect mutual defection that engenders poor outcomes. The defections are generally temporally stratified and are not an instantaneously implemented noncooperative strategy. Either through congress’s ignorance of the law or zealotry to regulate tribal gaming, they are working against their own previously established legislation.

Op-Ed Published: Water District Rates Arizona

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(Click here)

Editor, Casa Grande Dispatch:

The Arizona Supreme Court has finally settled the controversy regarding the legality of setting uniform rates for consolidated water districts in the October 2021 ruling Sun City Home Owners Ass’n v. Arizona Corp. Commission. The Sun City HOA claimed that the setting of uniform rate was an act of discriminatory pricing, violating Article 15, Section 12 of the Arizona Constitution. After being compared to the other communities serviced by EPCOR for municipal water services, Sun City has historically had some of the lowest operational costs. Most municipalities experienced a decrease in rates, while Sun City was the exception. The increase in the price of water service offsetting the cost to other communities functions as cross-subsidy.

The state Supreme Court did not rule in favor of the HOA, but there are further ethical and economic concerns to evaluate. For one, the rate-setting power conferred by the state Constitution (Article 15, Section 3) to the ACC mirrors the congressionally allotted privilege of chevron deference at the federal level. This judicial doctrine does differ from the powers allocated in the Arizona Constitution; chevron provides judicial power to bureaucratic agencies; in contrast, the state permits quasi-legislative authority, a rule-making power that is inappropriate for a bureaucratic agency to wield. Hence why we have a legislature. Economic exchange determines prices (the law of supply and demand) and not the edicts of lawmakers or bureaucratic agencies. Town governments and EPCOR need to negotiate the rates, not state agencies.

Suicide as a Natural Right- Part III: The Externalities Argument

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Part I:

Part II:

Most legally mandated suicide prevention measures fixate on its impact on society. An individual assuming an externalities defense of the involuntary hospitalization of those with suicidal tendencies falls prey to a fallacy that all prohibitions of vices are subject to operating as a preemptive measure. Prompting the question, what is the committed offense outside of the state statutory code? What most Libertarians would refer to as victimless crimes. Enforcement of victimless crimes does not remedy the loss of property or harm to any non-consenting third parties. Rather, such laws have the unfortunate propensity of conflating potential consequences with actual damage done. Most arguments for maintaining the federal ban on illicit drugs emphasize prospective ramifications versus actual outcomes. Even drunk driving laws fail to meet the criteria for a violation of our private property rights. Operating a motor vehicle while intoxicated only increases the odds of bodily harm and destruction of property, but it does not guarantee this consequence. 

US civil law no longer recognizes personal suicide attempts as a criminal offense. However, the criminality of physician-assisted suicide varies radically by state. Suicide is no longer a crime. Suicide prevention laws are completely constructionist inventions. More importantly, it also fails to fulfill the criterion for violating another person’s natural rights. Arizona has an involuntary commitment law codified under Title 36 of Arizona Revised Statutes. If there is no crime committed, can detention be perceived as lawful?

Such fits the definition legally sanctioned form of kidnapping. The basis of the logic of the Fourth and Fourteenth Amendments provides fodder. If it were not for Title 36, it would be considered unlawful confinement. The only rational inference is that these mandates are the illegitimate byproduct of legal positivism. The standpoint drove by a “moral” concern for potential externalities. Codifying morality is never a justifiable reason for exercising the authority of governing institutions!

Prisoner’s Dilemmas- V: The Texas Heart Beat Bill

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The headlines in the news have been animated by the controversial Texas law, SB 8; colloquially known as the Heartbeat Bill. The legislation boasts several stringent limitations on abortions that operate analogously to a de facto ban. However, the most shocking aspect of the bill is that it allows private citizens to sue facilities that have performed abortions for $10,000 or more per procedure. This feature of the law indirectly deputizes the residents of Texas and has the potential to lead to some unforeseen consequences. At its core, the Heartbeat Bill is a legal manifestation of the partisan tug-of-war in the abortion debate. While Pro-Life advocates may believe they have won this round, little do they realize Texas now has a Prisoner’s Dilemma on its hands. The blowback from this contentious [1] the legislation will impose economic costs on the state of Texas.

It is worth noting that only a minuscule number of the citizenry in Texas has had an abortion. Per the Guttmacher Institute, in 2017, only 55,440  Texas residents had abortions performed. This figure is meager when compared to the total of all adult female Texans. Also, most voters are conservative. How could this move be detrimental to the entire state of Texas? The state only has a few liberal oases (West Texas & Austin); the overall impact of citizens moving to more progressive jurisdictions would only have a marginal effect on tax revenue. Perversely, this might have a disparate effect, leaving left-leaning municipalities such as Austin with a significant loss in local tax revenue. 

Texas having lower taxes and an affordable cost of living has resulted in population growth in recent years. Population growth and economic growth are correlated. Most of the Texas transplants are not coming from conservative-leaning states, but liberal high tax states such as California and New York. Arizona is another state currently experiencing a large diaspora of Americans migrating from high-tax states. Epitomized in the slogan “.. Don’t California, My Arizona..”. What happens when the conservative values of a low tax state become too off-putting for prospective residents? Not only hampers the economy through decreased tax revenue, but it hampers economic development in other ways. Left-leaning Tech Companies may enjoy the corporate tax rate of Texas. What happens when companies start choosing to avoid setting up offices in Texas for ethical reasons? More companies may opt to establish a campus in Phoenix instead of Austin. Causing an unfortunate ripple effect through the entire state economy. The Pro-Life camp is not doing themselves any favors by not striking a political middle ground. Progressives are only shooting themselves in the foot by avoiding Texas because of the Heartbeat Bill.

Foot Notes:

1.) This brief essay is in no way a commentary on the morality of abortion. Any such normative arguments would only detract from a game-theoretical assessment of the situation described.

Vaccine Op-Ed Has Been Published

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Published by The Casa Grande Dispatch (Pinal Central): Click here

Editor, Casa Grande Dispatch:

There has been a lot of debate over vaccine mandates in the wake of the COVID-19 pandemic. Most arguments revolve around the science of vaccines or the ethical concerns of state-sanctioned requirements. However, are such policy prescriptions even legal? Much of the justification based in past case law depends upon which level of government is issuing the mandate. Several Supreme Court rulings from the early half of the 20th century validate the legality of state and local (Jacobson v. Massachusetts and Zucht v. King) immunization requirements. What about at the federal level? The Biden administration’s proposal seeks to implement a nationwide vaccine mandate. Arizona and 23 other states are rightfully challenging this encroachment upon states’ rights.

Past case law does not justify top-down mandates from the federal government. Limiting the defense of a national vaccine requirement to using circuitous channels, President Biden directed OSHA to establish a vaccination requirement for employers with 100 or more employees. The president relies on the authority conferred to the agency, under Section 6 of the OSH Act, endowing OSHA with the ability to promulgate occupational regulations. Judging by the amount of opposition to this emergency measure by state governments, the president initiated a bureaucratic cold war, fought in the courts. COVID-19 has been devastating to the entire county, but ultimately measures to combat the virus should be left to the states — a statement validated by past case precedence; a maxim guiding the core legal arguments of the litigating states.

Suicide as a Natural Right- Part II

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Part I

The Lockean conception of shelf-ownership does not work if we cannot alienate self-hood. In the context of involuntary slavery, our absolute right (p.10) to self-possession is relinquished through coercive force [1]. The notion of natural rights almost always implies that the individual owns. For instance, the right of free speech codified under the First Amendment of the Constitution implies self-ownership. Individuals embroiled in political debate must utilize the very bodies they own and utilize scarce resources (p.2)to engage in the passionate exchange[2]. There is one glaring flaw that most ethical theorists get dead wrong about natural rights. Our negative rights that are part-and-parcel with our personhood may be self-evident, but they are certainly not inalienable. The American Declaration of Independence echoes this sentiment and forever cements it in the public consciousness: 

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.

The claim that these rights are unalienable does not connote ownership of these rights in any meaningful sense. By the inseparable nature of self-ownership and natural rights, we do not truly have unfettered possession of ourselves. The ability to alienate something is that can only be the consequence of ownership. True ownership implies that an individual can transfer, maintain, sell, deface, lease, destroy, etc. the article in question as they see fit. One of the strongest arguments for this radical interpretation of ownership comes from economist and Libertarian theorist Walter Block. Dr. Block writing “..No law should be enacted prohibiting or even limiting in any way people’s rights to alienate those things they own. This is “full monte” alienability, or commodification…” (p. 6) [3]. Block surmises that an unlimited condition of ownership naturally extends to the person, meaning that if an individual chooses to sell themselves into slavery this is legitimate. Unlike the trans-Atlantic slave trade, the individual being sold is consenting to the arrangement [4].

However, most, and moral theorists would suggest that natural rights, especially selfhood cannot be alienated or dispensed with. As our mind and body are typically inseparable; neither can be reallocated nor disposed of. This supposition suffers from an unfortunate fallacy because a person can voluntarily absolve their will and sentience. In the most extreme case, a person could give themselves a lobotomy effectively alienating their will and severing their mind from their corporal body (p.8) [5]. 

There are less extreme examples of people abstractly selling off natural rights in exchange for material gain. One only needs to look to employment contracts to see a ubiquitous example of this selective selling of rights. It is common for employers to include social media policies as a condition of employment. Effectively acting as a voluntarily acknowledged limit on free expression; a right codified under the First Amendment. Regardless of whether this restriction is a temporary sale of this right or permanent alienation it is a legitimate exchange. From the standpoint of Rothbardian contract law, this arrangement fulfills the criteria for an enforceable contract. Under this theory of contract law, the property must be exchanged for the contract to be binding, any other agreement is a mere promise (p.133-135). At the core of an employment contract or conditions of employment, the property is being exchanged. The employer is transferring compensation (monetary and additional benefits) to the employee. This exchange is contingent upon the employee following the company’s internal policies. Indirectly operating as a form of selling or “renting” natural rights in exchange for employment.

Selling property is merely one means of alienating property. Other more drastic measures can achieve this same outcome. The concept that an individual can condemn their property, mirroring the same privilege current held by various tiers of the U.S. government. The only difference is that when the state does it, they do so without the consent of the owner. Even when eminent domain is practiced within the parameters of the takings clause, however, the property owner generally does not have the right to refuse to surrender their property. Regardless of whether they are justly compensated for the relinquishment of their business, land, or home this arrangement is still inherently coercive. In stark contrast, if a property owner dedicates to transfer or otherwise condemn the land they own, this is legitimate. Effectively, suicide is an example of a person opting to condemn themselves. A person choosing to forever dispose of themselves permanently disables their ability to contribute to society; mimicking how governing institutions can decree that land or a build is no longer fit for occupation or commercial use. The state typically initiates such a directive in the context of habitation or use of the property would pose a “safety hazard”. However, a person contemplating “condemning” themselves does not need to fabricate such vague excuses. If they truly own their own body and mind, they do not have to provide any justification for performing such action. Unlike eminent domain, the individual can consent to the decision they have made. 

Most people might argue that allowing others to commit suicide with no mandated intervention would squander human lives [6]. Further supporting this statement by repeating tired platitudes about how it is a permanent solution to a temporary problem. No doubt, suicide does come with a wide array of societal costs. The individual can never be replaced nor can their human capital because no two people have the same experiences. If we set aside the externalities of the act, there’s a deeper conflict at play. There’s a long tradition of property owners having the right to destroy what they own. The right to destroy one’s property has its roots in the doctrines of Roman and English Common law (p.8). Moreover, there is a long-standing tradition that arguably supersedes the concerns of modern environmentalists or other public interest initiatives. The concern for wasting resources was even voiced by John Locke back in the seventeenth century:

The same law of nature, which does by this means give us property, does also bound that property. God has given us all things richly, 1 Tim. vi. 12. is the voice of reason confirmed by inspiration. But how far has he given it to us? To enjoy. As much as anyone can make use of to any advantage of life before it spoils, so much he may by his Tabour fix a property in whatever is beyond this, is more than his share, and belongs to others. Nothing was made by God for man to spoil or destroy. (p.12).

While Locke provides us with prudent advice regarding resource management, it is nevertheless, a suggestion. A just legal system would defend the property owners’ right to dispose of their property how they choose, even if it is considered wasteful. A legal system that has penalties or restrictions impeding the right to destroy one’s property, provides a perverted form of justice. Much like anything else a person owns, they should be able to “destroy” themselves. In a sense, we legally permit other more protracted forms of incremental suicide. For instance, currently, no laws are prohibiting the sale or consumption of sugar-saturated and chemical ladened soft drinks. Although cigarettes are highly taxed and regulated, we still live in a society where smoking is still legally tolerated. Both soda and cigarettes slowly kill the person ingesting either product; despite this fact, these products should remain legal. Following this same logic, if the person should be able to choose what they put into their body, they can choose to also ultimately dispose of their body.

Footnotes

[1]. The account of Slavery in Locke’s Second Treatise of Government (1690).

[2]. An allusion to  Hans-Hermann Hoppe’s theory of Argumentation Ethics.

[3]. In reference to Block’s postulations related to the possibility of voluntary Slavery.

[4]. How slavery was practiced in the United States was a reprehensible institution. The trans-Atlantic slave trade was incompatible with a property rights justification for self-ownership. 

[5]. An example Walter Block borrowed from legal theorist Stephan Kinsella.

[6]. The idea of wasting human life can be applied in an economic sense. The decreasing fertility rates in the Western world present challenges to the labor force and the tax pool. Especially, after all the Baby-boomers die.