Writing to Local Politicians- Qualified Immunity

 

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Author’s Note: This will be the last blog entry concerning Qualified Immunity for awhile. I don’t want my blog to become too stagnate so I will reconvene on this topic at a later date.  If you wish to learn more about  Qualified Immunity or stay on top of the latest developments I would recommend visiting the Unjust Shield blog.  This essay was a letter sent to several Arizona representatives requesting that they assist in the effort to abolish QI. This political luminaries included: Mark Finchem, Vince Leach, Martha McSally, and Kyrsten Sinema.

 

June 25th, 2020

Peter Clark

peterclark7979@gmail.com

The Honorable (Insert name here).

 

 

Dear Representative (Insert name here)

 

 

The death of George Floyd has ignited a renewed interest in policing reform.  Purposed reform measures have ranged from increasing training requirements to dissolving police departments. I would personally suggest eliminating one of the institutional protections that shield negligent police officers from accountability, Qualified Immunity. A legal doctrine originally intended to protect government employees from being sued for performing essential job functions, providing their actions do not violate any well-established rights. Unfortunately, this protection is slowly starting to become a form of absolute immunity. Per the 2018 paper by the University of Chicago legal professor William Baude the Supreme Court general overturns instances where the lower courts deny Qualified Immunity to police officers. Demonstrating the failure of the checks-and-balances on this legal privilege. This matter is only exasperated by the Supreme Court’s decision last week to refuse to reconsider this legal doctrine.

 

 

The innumerable examples of officers that have clearly violated the rights of American citizens and are still granted Qualified Immunity are horrifying. In the case of Baxter V. Bracey (2014) a suspect was attacked by a police dog after having surrendered to the arresting officers. There was the case of Jessop v. Fresno where officers stole rare coins and cash totaling over $225,000.00 during a search of a private residence.  In the case of Mullenix v. Luna (2010) where the officer performed a dangerous maneuver that he had no previous training to stop a high-speed chase. In any other occupation not only would the employee be fired, but in most cases be held liable for damages in the event of a lawsuit. If arresting officers were cognizant of the fact that they could be sued, wouldn’t they be less inclined to take risks? To adequately tackle such examples of negligence incentives, need to be realigned.  Qualified Immunity creates such a sturdy safety net for police officers that either consciously or subconsciously take this legal protection for granted. This leads to the above-described examples of malfeasance.

 

As any reasonable person can tell you defunding the police or dissolving police departments is not a realistic solution. It is practically infeasible and tantamount to political suicide. Instead of abolishing the institution, it is best to implement checks-and-balances. Rather than construct bureaucratic and legal safeguards that insulate civil servants from the consequences of gross ineptitude. Whether that be through criminal prosecution or Tort law. The best way to start would be by eliminating Qualified Immunity. I respectfully ask that you support any initiative on the state level to help abolish this problematic legal privilege. Qualified Immunity is recognized in Arizona law under ARS 36-738.

 

Sincerely,

 

Peter Clark

 

 

 

 

Why Ending Qualified Immunity Is A Better Policy Option Than Defunding

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If someone puts their hands on you make sure they never put their hands on anybody else again.”
Malcom X

 

Libertarianism holds that the only proper role of violence is to defend person and property against violence, that any use of violence that goes beyond such just defense is itself aggressive, unjust, and criminal”
Murray N. Rothbard

 

 

Author’s Note:  Thank you Professor F.E. Guerra-Pujol for your assistance with editing this op-ed piece. Your stylistic and grammatical recommendations have brought this essay to the next level.

The essay was published by the AZ Capitol Times

 

Don’t defund police; eliminate qualified immunity

 

The Unpublished Letter to the Editor (QI)

 

36DDFCAA-C09B-40F5-9BA2-CA72564612C7

 

Author’s Note: I submitted this piece to several local newspaper outlets. It appears as if none of these establishments have elected to publish my brief essay. It is possible that the my writing is a little weak. Even the topic is too technical or controversial.

I still applaud myself for attempting to take this on this issue in only 200-250 words ( Pinal Central: limit of 250 worded. AZCentral: limit of 200 words). This maybe a lesson to avoid issues that are overly complex when writing a letter to the local newspaper. Qualified Immunity requires more than 250 words to be properly addressed. I even had to cut references to William Baude’s 2018 paper on the subject.

That doesn’t  mean I have given up, there is another local publication that publishes longer form editorials.  After that I might give QI a rest, as I don’t want the content on  this blog to become to stagnant.

The top photo has nothing to do with the topic at hand. The free photo application   on WordPress was giving me some issues. So I decided to upload this photo I took back in April. I was walking my dogs around the neighborhood and thought the painted rock was interesting.

 

Editorial:

 

Dear Editor,

The death of George Floyd has left Americans with many questions. How did the police officer that killed Mr. Floyd still have a job after 17 previous complaints? How do we as a country combat police brutality? One potential solution may come from Representative Amash’s proposal to abolish Qualified Immunity. What is Qualified Immunity? It is a legal doctrine that protects government employees from being sued for performing essential job functions. Providing their actions do not violate any well-established rights.

 

The modern application of this legal status was defined by Harlow v. Fitzgerald (1982). Establishing the need for clear “statutory” evidence that the plaintiff’s rights have been violated. Eventually evolving into the requirement for a previous case in which the details of the violation are identical. Leading to instances of constitutional violations with no restitution. One glaring example, Baxter V. Bracey (2014), where the suspect was attacked by a police dog after surrendering. These strict requirements make it nearly impossible to seek proper recourse when our civil rights have been infringed upon.

 

Most police officers are decent and law-abiding. Few would ever dream of using cruel or unnecessary tactics to subdue a suspect. The minority of bad cops need to be held fully accountable for their actions. The best way to do so would be eliminating institutional barriers to punishment.

Unlawful Assembly and The Limits of Free speech

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My own opinion is enough for me, and I claim the right to have it defended against any consensus, any majority, anywhere, any place, any time. And anyone who disagrees with this can pick a number, get in line, and kiss my ass.”
― Christopher Hitchens

 

There are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.”
― James Madison

 

 

There is a fine line separating protected speech from destructive behavior. Many onlookers have questioned the efficacy of peaceful demonstration (see comment below the article).  After all,  in the tragic death of George Floyd, the government has violated its contract to the people. In a Lockean sense, we exchange unfettered freedom for state protection of our rights. This theoretically voluntary arrangement is undermined when state power takes primacy over contractual  fulfillment. Outrage is certainly warranted. Especially when those who have sworn to protect this social contract are the ones benefiting from the institutional loopholes. However, what is the appropriate course of action?

 

Qualified Immunity has protected scrupulous police officers from being accountable for their transgressions.  Putting into question whether America still holds its founding ethos of Classical Liberalism in high-esteem.  If public officials can violate our rights with little to no repercussions, our experiment has failed.  Giving credence to all of the subterfuge and rent-seeking behavior that distinguishes Public Choice Theory.  We as a society pay the cost for the few that benefit from this privileged legal status. We pay for it through the sacrifice of our civil liberties. Demonstrating the concept of “concentrated benefits and dispersed costs“.  In some instances, we require protection from our designated protectors. Creating an atmosphere of pessimism and incredulity. Amounting skepticism of justice and equality under the law in the United States. Leading the most disenfranchised Americans to resort to violent demonstrations. If the microphone or the pen does not convey your point, maybe the sword will.

 

That is not to say that all of the protests in reaction to the murder of George Floyd have been violent. I applaud my own community of Maricopa, Arizona for keeping demonstrations civil. Unfortunately, that can’t be said for every community.  Every community should keep their conduct civil. Despite the violence perpetrated by state actors. Why?  Because looting and wanton vandalism is not a vocalization of injustice. Its a deterioration of civilization. It is an erosion of the informal norms and values that keep our passions in order. It merely victimizes innocent parties. The business owner that had their store looted did not participate explicitly or implicitly in killing Mr. Floyd. How is this action even remotely connected to the issue at hand? Or even justifiable?  It isn’t. Sure, there are probably proverbial “bootleggers” hiding under the moral guise of demonstrating against police brutality. Creating the perfect pretext for taking advantage of the situation.  There are those on the side of the “baptists” who believe the use of force is justifiable, even when directed at uninvolved third-parties.

 

Destroying private property in protest is not justifiable. If anything it mirrors the same folly of police brutality. Both are property rights violations. Hence, why crimes against person and property are often parceled together. This is far from a novel concept in Libertarian thought. Many proponents of a natural rights approach have already made this observation. We as autonomous actors are owners of ourselves. In turn, we own our bodies. As slavery has long since been abolished. An adult of normal intellectual capacity possess self-ownership. Meaning they can choose what they ingest, read, listen, and so on. Involuntary and undue harm induced by injurious actions taken by a second actor is a clear property rights violation. While more of a peripheral violation, the destruction of a storefront is nevertheless a similar transgression. In other action, you are depriving the elementary freedoms of the individual. However, the property rights pertaining to “self-ownership” takes primacy.

 

Putting aside these abstract philosophical tenets, violent protest is not justifiable under current law.  The First Amendment of the  U.S. Constitution is not absolute and does have a number of notable exceptions.

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

For instance, the use of  “fighting words” is not protected speech under the First amendment.  This legal term was defined in the case Chaplinski V. New Hampshire, 315 U.S. 568 (1942).  This excludes words mean to incite violence or other forms of unrest. The Arizona chapter of the ACLU has a running list of varieties of prohibited speech. There are a number of well-defined restrictions when it comes to protesting demonstrations.  Which includes civil disobedience, any dangerous actions, obstructing roadways without a permit, harassment, or interference with private property.  Violation of any detailed criterion will make the demonstration an unlawful assembly.

The statues explicitly pertaining to unlawful assembly and riots in Arizona state law include the following.

ARS 13-2902:

A. A person commits unlawful assembly by:

1. Assembling with two or more other persons with the intent to engage in conduct constituting a riot as defined in section 13-2903; or

2. Being present at an assembly of two or more other persons who are engaged in or who have the readily apparent intent to engage in conduct constituting a riot as defined in section 13-2903 and knowingly remaining there and refusing to obey an official order to disperse.

B. Unlawful assembly is a class 1 misdemeanor.

 

ARS 13-2903:

A. A person commits riot if, with two or more other persons acting together, such person recklessly uses force or violence or threatens to use force or violence, if such threat is accompanied by immediate power of execution, which disturbs the public peace.

B. Riot is a class 5 felony.

 

Both laws are quite clear on the defining parameters of acceptable forms of protest. Neither statue condones the destruction of private property. Individuals who were not involved in incidents of police brutality should not be punished by the fallout of violent demonstrations. I should note that not all of the protests have been violent. I fully acknowledge this point. Any instance of violent protests is unacceptable. Mirroring the fact that police officers using excessive force to subdue a suspect is never permissible. Either action violates the natural rights of the victim. The Non-Aggression Principle asserts that we should not inflict undue harm on others any such action is inherently transgressive. However, this philosophical tenant does not apply to self-defense. The only circumstances under which violent actions are ethical is in self-defense or defense of your property. Under any other contingency, you are the one at fault.

 

Please note that I am equally repulsed by the abuse of police power as I am by the violent protests.  I would surmise are not as prevalent as the media portrays.

 

There are also examples of police officers assaulting peaceful protestors.

A Numeric Argument for Jury Nullification

 

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This essay will present something of a heterodox argument for jury nullification. It will not rely on Constitutional, Common law, or case precedence. Nor will it rest on a philosophical refutation of enforcing unjust laws. It will be based upon a specified contingency under which the impact of juror bias has a negligible impact on the verdict. The scenario in which this premise is applicable is limited to a provincial window of conditions. Some crafted by circumstances and others shaped by state law.  In the demonstrated hypothetical example, whether the juror excuses themselves from the case due to bias or motions to not indicate the suspect (even when a probable cause has been established).

 

As the previous paragraph has hinted, the contingency is specific to grand jury proceedings. The function of a grand jury is not determining guilt but rather based upon witness testimony if there is a strong likelihood that a crime has been committed. The job of the jury is to make a probably case determination based upon the evidence. Essentially, the jury helps the state ascertain if there is enough evidence to pursue charges. When you have been called to serve on a grand jury you are not reviewing just one case. Typically, you convene weekly and review a multitude of various cases throughout a couple of months. Differentiating this process from that of a criminal trial. Due to the variety of potential cases a juror will decide on, the judge tends to be more lenient in the jury selection process. Being biased towards drug cases for, for example, is not automatic grounds for disqualification for jury duty. Rather you are requested by the judge to excuse yourself from that specific case. Then rejoin your fellow jurors on the next case.  Making grand jury hearings quite a bit different than a criminal trial.

 

In the state of Arizona, grand jurors are read the daily admonitions at the beginning of each session.  The admonitions are essentially a reading of state statue 16A A.R.S. Rules Crim.Proc., Rule 12.2:

 

Rule 12.2. Grounds to Disqualify a Grand Juror

A grand juror is disqualified from serving in any particular matter if the juror is:
(a) a witness in the matter;
(b) interested directly or indirectly in the matter under investigation;
(c) related within the fourth degree by either consanguinity or affinity to a person under investigation, a victim, or a witness; or
(d) biased or prejudiced in favor of either the State or a person under investigation. [1].

 

This statue is a means of preventing juror bias influence the probable cause ruling. I particularly take issue with part (D). I believe that part D only is applicable if the individual is prejudiced towards the interest of the state. From purely a mathematical standpoint, it does matter if I excuse myself or motion to not indicate the subject under investigation. Both operate in favor of the suspect.

 

 

Example:

 

Grand Jury Ruling:

 

Crime : Possession of Marijuana (Class 6 felony in Arizona) [2]. Possession of Drug Paraphernalia (plastic baggie containing Marijuana)(Class 6 felony in Arizona) [3].

 

 

Scenario #1: True Bill- 15/1 ( One juror opted to vote against indictment. Did so on grounds of the Marijuana laws in Arizona being unjust. In other words, they actively engaged in juror nullification.)

 

Scenario #2– True Bill- 15/0. (One juror opted to be excused  from the hearing due to their beliefs about Marijuana use).

 

 

 

Does either action truly influence the results of the ruling?  No.  This should be self-evident to anyone with even the most rudimentary math skills! If it does not skew the results of the ruling from a mathematical standpoint, why would this be problematic? Voting against indictment and excusing yourself has the same numeric impact. It is similar to what people were saying back in the 2016 presidential election. ” Don’t vote third-party, because you are throwing away your vote.”  or ” If you vote third-party that is just another vote for Trump/ Hillary (depending on which side of the fence you were on). It is a similar principle from a numeric standpoint. Ideologically the consequences are quite different (disclaimer: I am third-party voter).

 

 

The fact that Rule 12.2 explicitly disqualifies those biased towards the suspect is absurd.  As demonstrated above, the numbers do not change. Excusing myself from the hearing is due to bias has the same numeric impact as opting to drop the charges. It could be argued that excusing yourself from the case isn’t doing the right thing, but is rather a legally enforced formality. To the best of my knowledge, no one else in the state of Arizona has commented on this paradox. I am surprised by this due to the simplistic nature of this observation. Nevertheless, what is the point of refraining from engaging in juror nullification if it will have the same outcome as excusing ourselves from the case?

 

 

Complying with the part D clause of Rule 12.2 is the epitome of mindless legal positivism. It does not take into consideration the actual results of the juror’s self-removal from the hearing. It functions as a codified deterrent from engaging in jury nullification.  A practice that has been long defended morally and in common law. It also has historical precedence for combating unjust laws. Such as the Fugitive Slave Act of  1850. I would suggest that it is fair to wanting down-vote levying two felony charges against someone for possessing 1 gram of pot. Above all, a victimless crime.

 

 

Please keep in mind the contingency of this argument is self-limiting. It only applies to the specific conditions cultivated by the unique conditions of grand jury hearings and Arizona state law. Please note that this observation of compliance with part D of Rule 12.2 is only applicable to bias in favor of the suspect. The numeric impact has the opposite effect if the juror is biased in favor of the state. I cannot justify such actions on the grounds of the numeric argument.

 

 

Contingencies for the Numeric Grand Jury Paradox:

 

  1. Only applicable to Grand Jury hearings.

 

2.Only applicable to Arizona state law or similar statues having specific conditions for       juror disqualification.

 

  1. This theory is only applicable to clause D of Rule 12.2. Maybe applied conditionally.

 

  1. It is only applicable clause D if the juror in question is biased in favor of suspect.

 

  1. The bias towards the suspect is only applicable to the paradox if it is on moral grounds.  Only if the juror either takes issue with the law or how the law is being applied to the suspect.

 

 

 

Arizona Doesn’t Have Any Price Gouging Laws?!

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Amid the COVID-19 pandemic, many have witnessed an economic phenomenon that is synonymous with times crisis. That is the practice known as price gouging. This practice has the proclivity to ignite a universal cascade of outrage and indignation. Superficially such a reaction seems understandable. Considering by definition it is a sharp increase in the price of a good that is in high demand [1]. On the surface, it would seem morally base to take advantage of an emergency situation such as a hurricane. The general consensus would extend to the outbreak of an emergent pathogen such as COVID-19.

 

There is a general consensus on pricing gouging is morally objectionable. However, there isn’t much agreement on what constitutes price gouging. Approximately two-thirds of all states have some sort of price gouging law on the books [2]. It appears as if most states have a different interpretation of what price gouging entails. For instance, the state of Alabama provides clear and concise guidelines for defining price gouging :

Ala. Code §§ 8-31-1 thru 8-31-6

Prohibits “unconscionable prices” for sale or rental of any commodities or rental facilities during a declared state of emergency. A price is prima facie “unconscionable” if it exceeds 25% of the average price during the last 30 days immediately prior to the declared emergency and that increase is not attributable to reasonable costs. [3]

 

In contrast, the state of Texas provides a vague description of what is considered price gouging. Per Texas state law: “exorbitant or excessive” prices in connection with sale or lease of necessities during a declared disaster” would be illegal [4]. What defines “exorbitant” prices? I would not suggest that there should be federal standardization of price gouging laws. That should be left up to the states. At the very least be clear about the parameters defining the criminal act. Too much ambiguity can make enforcement problematic.

I currently reside in the state of Arizona. Arizona does not presently have any price gouging laws enacted. It is speculated that the reason being is that natural disasters are a rare occurrence [5]. Being a mountainous and landlocked state we are insulated from tornadoes and hurricanes. We have the good fortune of not experiencing the seismic activity that afflicts California. The prospect of a natural emergence putting a strain on the supply of essential goods is relatively foreign to Arizona. The one exception being the event of the 2003  Kinder Morgan pipeline burst. Which resulted in fuel shortages [6]. The significant increase in fuel prices passed along to the consumer was viewed as exorbitant [7]. Many residents at the time viewed it as vendors supplying fuel were engaging in some form of price gouging.

Seventeen years later some are now calling for corrective action to price gouging in Arizona[8]. Many vendors have been reacting to the COVID-19 outbreak with higher retail prices on essential goods. These higher prices are due to an increase in demand and the stockpiling of commodities such as toilet paper.

Personally, I am very incredulous when it comes to price gouging laws from an economic standpoint. Being a proponent of states rights’, Arizona can in my view pass price gouging laws. As states should cater their laws to what best suits their economy and culture providing it does not violate the Constitutional. Due to such measures not being pertinent in Arizona prior to COVID-19 is why such laws did not previously exist. I do know of at least one person who has referred to Arizona as “backward” for not having such laws in place. This is a misguided opinion.

As I mentioned earlier Arizona is relatively isolated from circumstances that would make price gouging more prevalent. This isn’t like hurricane-prone Florida or South Carolina not having price gouging laws in place. There is also the implied assumption that more laws and regulations are a net good for society. States and municipalities with fewer laws are unevolved. A law that is  either pointless, ineffective, or unjust is not universally positive due to the fact is merely another constraint.

 

I grew up in New England where there are still a litany of archaic laws and ordinances still on the books. What is colloquially known as “blue laws”. Laws that are no longer culturally or economically relevant. Frequently prohibit actions that most likely victimless crimes. While some history buffs find these laws quaint and harmless, I disagree. Even if these laws are never enforced, philosophically I oppose them. What is the purpose of laws? Depending on your answer to that question, it will shape your perception of what laws are just and reasonable. I feel that most blue laws only reinforce my rejection of legal positivism. The law should not determine what right, but it should protect what’s right. This perspective is codified in our Bill of Rights. Nowhere did I see any guarantee of economic equity or immunity from making bad decisions. The Bill of Rights were  established on the grounds of natural rights. Suppose to government decree and guarantee of positive rights.

 

In my next blog post, I will discuss why price gouging laws are economically illiterate. If lawmakers here in Arizona are persuaded by public outrage, I can only hope that they are reasonable. Provide firm guidelines that define what constitutes price gouging. That they opt for justifiable limitations. Unlike, Connecticut which cites any increase in prices during a  time of an emergency as illegal [9].

United States v Microsoft (1998)- Licensing Agreements

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At the roaring apogee of the 1990’s era tech industry, Microsoft was king. Naturally, astronomical success will be with skepticism. The presumption being that such gains must result from dishonest conduct. The merits of such assumptions at times can be questionable considering the broad and preemptive nature of most antitrust legislation. Notably, the Clayton Act (1914).

 

The extreme amount of flexibility in the interpretation of per se antitrust violations can be problematic. We encounter the potential issue of judicial bias influencing the outcome of the case. When the ruling does not even operate as a form of consumer protection. The commonly purported function of antitrust legislation. Making the potential for top performers in the industry being targeted more probable (McKenzie & SHUGHART II,1998, P.31) [1]. To some extent, the Rule of Reason helps counterbalance any anti-market bias resonating from the misapplication of judicial digression. Some economists and jurists believe that back in the 1990’s Microsoft was being unfairly targeted for antitrust complaints due to their success. Institutional and public bias may have been potentially been reflected in the United States V. Microsoft (1998).

 

In my podcast, I discussed how the 1998 suit included complaints the tech giant engaging  in tying agreements. That isn’t the whole story. The case was built upon multiple complaints. I would be remiss to represent this case as being built solely on a tying agreement complaint. Per the Department of Justice’s Website:

 

III. Prohibited Conduct

  1. Microsoft shall not retaliate against an OEM by altering Microsoft’s commercial relations with that OEM, or by withholding newly introduced forms of non-monetary Consideration (including but not limited to new versions of existing forms of non-monetary Consideration) from that OEM, because it is known to Microsoft that the OEM is or is contemplating:
  1. developing, distributing, promoting, using, selling, or licensing any software that competes with Microsoft Platform Software or any product or service that distributes or promotes any Non-Microsoft Middleware;

  2. shipping a Personal Computer that (a) includes both a Windows Operating System Product and a non-Microsoft Operating System, or (b) will boot with more than one Operating System; or

  3. exercising any of the options or alternatives provided for under this Final Judgment. [2]

 

There may be some credence to the claims of a tying agreement. However, it would be more less reasonable to blindly accept the claims of Microsoft’s licensing practices. Which is why it is important to acknowledge the potential for bias in judicial proceedings. Back in the late 1990’s the media lambasted Microsoft for its business practices. Microsoft was already crowned a monopoly with quips oozing antimarket sentiment. Microsoft back then was often paralleled to Philip Morris (McKenzie & SHUGHART II,1998, P.4) [3]. Such an equation is not only hyperbolic but puts into question if popular perception influenced the outcome of the case.  Licensing agreements deployed to secure proprietary applications and coding seems like a reasonable measure. This is merely speculation on my end.

The bigger question is how a licensing agreement can constitute an antitrust violation?  Per Shenefield and Stelzer in most instances licensing agreement are perceived as being competitive market behavior.

 

“ Licensing arrangements, like other agreements involving intellectual property are routinely pro-competitive because they increase the rate of diffusion of new technology.” (Shenefield  & Stelzer, 1998, P. 89) [4].”

 

The water becomes a little murkier when we get into the royalties attached to licensing arrangements. When royalty rate is based off a factor other than use of the patent trouble can arise. Microsoft mandated a licensing fee for each computer even if  their software wasn’t installed (Shenefield  & Stelzer, 1998, P. 91) [5]. On its face, it does seem like a blatant barrier to entry. However, is it possible that Microsoft is attempting to protect their product?

 

The attempt to cite Microsoft’s licensing practices can be seen as more than just a misuse of licensing fees.  It could be argued that that the DOJ perceived the Microsoft operating system as an essential facility (McKenzie & SHUGHART II,1998, P.27) [6]. Essentially facility doctrine entails that firm provides access to facility at a “reasonable price” [7]. Through Microsoft requiring licensing fees for developers creating software compatible with the Windows operating system. Due to the fact developers would require the operating systems code to make their application fully compatible, this could be seen as protecting a trade secret  (McKenzie & SHUGHART II,1998, P.28) [8]. Allowing access to their own proprietary code makes it very easy to replicate Microsoft’s operating system. Depleting the value of the product that Microsoft put a significant amount of money and man hours into developing.  It may be fair to charge a fee to access such information to account for the resources spent to create their operating system. While such gate keeping measures may seem like a barrier to entry, in most instances it is the prerogative of the firm. The possibility that if Microsoft didn’t possess a large market share would they have even been prosecuted for their licensing practices? Especially, when they were only engaging in sensible recourse to protect their bottom line.

The Antitrust Exemptions for Private Conservation Collectives

blue fishing boat
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Introduction

 

It is intellectually dishonest to frame an argument in a misleading manner. In my previous essay, I explained how antitrust laws obstruct collective conservation efforts. However, I would be remiss if I did not expound upon the antitrust exemptions for specific collective conservation arrangements. Such examples include the Fishermen’s Collective Marketing Act and harvest collectives. There is certainly a formidable argument that antitrust laws could be made less restrictive to facilitate private conservation initiatives. It is still important to acknowledge what exemptions do exist for the sake of conservation.

 

The Precedence of Antitrust Exemptions

 

Antitrust exemptions for various collective arrangements run across many industries. Ranging from Major League Baseball [1], agricultural collectives, to even labor Unions (Adler, 2004, P.37) [2]. Per Adler (2004) the structural architecture of most antitrust exempts stems back to the Capper-Volstead Act.  This act originally provided small-scale farmers with more leverage against large distributors. Enabling them to engage in collective efforts that were mutually beneficial to collective members (Varney, 2010, P.2-3) [3]. The Capper-Volstead Act was oriented towards agricultural collectives but did influence legislation such as The Fishermen’s Collective Marketing Act. Which allowed members to :

 

“Specifically, the FCMA authorizes “persons engaged in the fishing industry” to “collectively catch, produce, prepare for market, process, handle and market… such products of said persons so engaged…”

 

The act does not allow associated firms to initiated prohibited boycotts or refusals to deal. Due to the specified nature of the above exempt activities (Adler, 2004, P.39) [4]. The market behaviors permitted under FCMA are to the benefit of collective members. Unfortunately, there aren’t any terms to enforce catch quotas (Adler, 2004, P.41) [5]. Presents a major problem pertaining to the ability of the FCMA to reduce the environmental impact of over fishing. The facts are once the prices rise the temptation to breach a cartel agreement increases over time.

 

 

Harvest Collectives:

 

Due to the lack of formal property rights and quota enforcement legally acknowledged harvest collectives prove to be effective alternatives. The Pacific Whiting Conservation Cooperative and North Pacific Pollock fishery being fine examples. Often legislation can be easily circumvented. For example, Magnus Act attempted to impose catch limits through a licensing system (Adler, 2004, P.42) [6]. A natural consequence of such measures is the creation of a “race to fish” scenario. Limited licenses, pushed producers to exhaust quotas within 14 days (Adler, 2004, P.42) [7]. Clearly not aligning the incentives of fishing companies with conservative harvesting practices.

 

On the other hand, the Pacific Whiting Conservation Cooperative has achieved greater success.  The cooperative operates by “… allocating portions of the catch among its members, creating informal property rights in the harvest..” (Adler, 2004, P.43) [8]. The allotments were easily determined due to the “coordination costs” being low enough to do so with little hassle (Adler, 2004, P.43) [9]. Per Adler, the implementation of the PWCC increased the recovery of saleable fish by approximately 20%.  Beyond that, it has reduced the number of operating vessels and increased overall fish volume and quality (Adler, 2004, P.43) [10]. The implementation of such collectives not only are more ecologically congenial but are more economically productive. Making it a winning solution and preserving the balance between free markets and environmentalism. Striking the balance that most assume to be unattainable.

 

Does the question now become how do collectives such as PWCC fair under the scrutiny of antitrust laws?  Better than you might think. The Department of Justice (DOJ) found the practices of PWCC to be lawful despite the broad nature of current antitrust laws. The participating companies agreed to “… continue processing, marketing, and selling their products…” in a competitive manner. It was deemed by the DOJ that such coordinated efforts would not substantially reduce supply nor inflate prices (Adler, 2004, P.43) [11].

 

 

Conclusion:

 

Free-market Capitalism and conservation efforts do not need to be adversarial. The PWCC is proof. The interaction between private conservation cooperatives and antitrust laws can contemptuous. Depending on the agreed-upon parameters of the collective it may still be legal. While the ambiguous quiddity of antitrust statues can be an obstacle they are not necessarily a brick wall. Unfortunately, you are somewhat held hostage by another individual’s interpretation of vague laws.

 

Navigating antitrust laws much like another aspect of the law is far from cut-and-dry. It can be mildly tainted with subjectivity. My natural inclination is to abolish such statues. Such a hasty reaction ignores the potential impact on the consumer. There certainly should be a great deal of nuance when addressing the issue of antitrust laws alone. Never mind the extra layer of complexity by examining how these laws interact with conservation initiatives. While such statutes can be restrictive, depending on the circumstances they may not impede the privatization of conservation efforts.

 

 

 

How Antitrust Laws Impede Conservation Efforts

yellow and white sail boat on sea
Photo by Dimitry Anikin on Pexels.com

Introduction:

Quite often capitalism and environmentalism are viewed as being at odds. The very word “industry” conjures up images of factories releasing caustic smog into the air. Filling our waterways with toxic sludge. This perpetuated image is somewhat anachronistic. Stringent environmental regulations strongly discourage such wanton disposal of production byproducts. It should also be noted that the majority of industrial production has shifted overseas.

Despite the persistence of such misconceptions, business interests, and conservation efforts are not antithetical. The proliferation of the “Green” Business movement solidifies this point exquisitely. Environmental consciousness is absolutely imperative for anyone in the business of harvesting natural resources. That includes fishermen, loggers, and even recreational hunters. All groups that have it within their own interest to conserve finite resources. Limited resources in which access is not constrained by definitive property rights.

Due to resources being scant and access unfettered we soon are faced with the Tragedy of the Commons. This concept was first postulated by William Foster Lloyd back in 1833. Then was revived in the modern era and applied to population ethics by Garrett Hardin. Hardin elaborates upon Lloyd’s grazing rights example by stating:

“… the rational herdsman concludes that the only sensible course for him to pursue is to add another animal to his herd. And another; and another…. But this is the conclusion reached by each and every rational herdsman sharing a commons. Therein is the tragedy. Each man is locked into a system that compels him to increase his herd without limit-in a world that is limited. Ruin is the destination..” (Hardin, 1968, P.2) [1].

It only stands to reason that consumption limits need to be placed upon commonly shared resources. Typically, such restrictions take the form of government regulations. Couldn’t private fishing firms merely mutually agree upon daily catch quotas? Per researcher Bruce Yandle “… Ronald H. Coase has taught us, every firm is a transaction-cost minimizer..” (Yandle 1998, P.7) [2]. Another way of putting it is that private firms could more efficiently and effectively coordinate such measures. Private enterprises face one large obstacle and that is antitrust laws. Frequently antitrust laws hamper conservation efforts made by private businesses (Yandel, 1998, P.4)[3]. In this essay, we will examine how mutually agreed upon conservation efforts qualify as antitrust violations.

Per the Law Conservation Collectives = Collusion

Coordinated efforts among private enterprises to conserve a commonly shared resource may be a novel solution. Unfortunately, under current antitrust statues could be defined as a collective effort to constrain competition.  Collusive behavior among competitors is explicitly prohibited under the Sherman Act (1890). Section 1 of the Sherman Act states:

“… every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce…” (Shenfield & Stelzer, 1998, P. 15) [4].

The emphasis on cooperative efforts is considered a major legislative flaw in the Sherman Act (Shenfield & Stelzer, 1998, P. 16) [5].  However, it is broad enough to encompass privately formed conservation collectives. Restricting supply can be construed as an indirect form of pricing fixing. One of the more salient behaviors associated with cartel arrangments (Shenfield & Stelzer, 1998, P. 43)[6]. It seems like such an effort would qualify as an antitrust violation.

The Conspiracy or Cooperation?

The broad interpretation provides some malleability to the application of the law. Which can be a double-edged sword. Above all the intent of Antitrust laws is to act as a form of consumer protection. Insulating patrons from inflated prices and artificially reduced supply (Alder, 2004, P.20) [7].  A laudable goal that could, unfortunately, conflict with other genuine interests such as environmental conservation. For this reason, the courts need to carefully access any potential benefit of the anticompetitive behavior (Adler, 2004, P.21) [8].

Unless protected by statutory exemptions most agreements that seem anti-competitive can be prosecuted under the Sherman Act (Alder, P.10) [9]. The problem becomes that in most cases intentions of the participating businesses are not taken into consideration.  In the case of Manaka v. Monterey Sardine Industries (1941)reflects such a misstep.  Frank Manaka was prohibited from fishing in Monterey Bay by the Monterey Sardine Industries. To make matters worse the local canneries wouldn’t purchase fish from  Manaka. The efforts of the collective were clearly “.. to conserve fish stocks..” (Adler, 2004, P.4) [10].  The court wasn’t on the same page:

“Such an association as that of the boat owners is not freed from the restrictive provisions of the anti-trust act, because they profess in the interest of conservation of important food fish to regulate the price and the manner of taking such fish “unauthorized by legislation and uncontrolled by proper authority.” (Adler, 2004, P.31) [11].

Unless there is clear documentation intentions are subject to speculation. Even there is still the threat of a Per se antitrust violation. Defined as “… the rule permits the court to make a categorical judgment as to the permissibility of a given business practice..” (Adler, 2004, P.22) [12]. Leaving individuals at the mercy of a judge’s digression.  Incredulity towards the claims of colluding businesses seems reasonable. The waters muddied by the faults of human nature.  Cases such as Hawaiian Tuna Packers Ltd. v. Int’l Longshoremen’s & Warehousemen’s Union (1947) the motives were much murkier. The plans to manipulate prices of fish sold to the Hawaiian Tuna Packers cannery by members of Local 150 were not overtly environmentally minded (Alder, P.13) [13].

Have Conservation Regulations Failed?

Informal restrictions in a resource “commons” are far from a new concept. Gentlemen’s agreements managed rights to hunting grounds in medieval Europe. Native tribes indigenous to Pacific Northwest established customary rules for managing salmon fishing (Yandle,1998, P. 9) [14]. It wasn’t until nascent years of the Progressive era that such arrangements became problematic.

In theory, antitrust laws are aimed to protect the customer. However, aren’t “… high-priced fish are preferable to no fish at all?” (Adler, P.11) [15]. This question may sound exaggerated but does hold some merit. Circling back to the case against the Monterrey Sardine Industries, overfishing decimated the fish population in the area (Yandle, 1998 P.14) [16]. Despite the implementation of regulations restricting fishing quotas, 65% of all fisheries are either “.. fully exploited or overexploited…” (Adler, 2004, P.6) [17]. Regulations have made a meager recovery to nearly depleted fish stocks globally. Overall, government initiatives to replenish fish stocks globally have failed (Adler, 2004, P.7) [18].

It is only natural to questions why such efforts end up falling short. It is expected that in the absence of property rights formal restrictions would aid resource conservation. As Bruce Yandle would put it governments often adopt a “one-size-fits-all” solution. When the Canadian government implemented a system of fishing permits, even individuals not actively fishing purchased them. Reducing the fisheries once again to a state of common access (Yandle, 1998, P. 10) [19]. While this is only one example of regulatory failure it demonstrates a common pattern. The porous nature of many regulatory solutions leaves them open to loopholes. Gaps that can be easily exploited.