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. 

Prisoner’s Dilemmas-XV: Sugar Tariffs

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“..Look at the United States. There is no country in the world where the law is kept more within its proper domain—which is, to secure to everyone his liberty and his property. Therefore, there is no country in the world where social order appears to rest upon a more solid basis. Nevertheless, even in the United States, there are two questions, and only two, that from the beginning have endangered political order. And what are these two questions? That of slavery and that of tariffs; that is, precisely the only two questions in which, contrary to the general spirit of this republic, law has taken the character of a plunderer…” Frédéric Bastiat- The Law (1850).

The tendency for people to favor protectionist policies is an understandable fallacy, but a fallacy, nevertheless. Some Americans are under the erroneous assumption that they have a moral duty to keep domestic jobs from being outsourced. Much of this sentiment; was fostered by campaigns waged by organized labor throughout American history. It is difficult to tell if the buy American fallacy is the byproduct of union propaganda or an intrinsic sense of nationalism and economic jingoism. Regardless of whether the American public is receptive to their pithy buy domestic slogans, the union interests frequently get their way. The best example is the enduring specter of import tariffs that have plagued American economic policy for centuries. The earliest example is the Tariff Act of 1789, which was strongly favored by none other than Alexander Hamilton.

Arguably one of the most notable tariffs on the books is related to the importation of sugar. The tariffs placed on foreign sugar have been upheld through various laws over the years, starting from the nascent period of the republic.

“…On brown sugars, per pound, one cent. 

On loaf sugars, per pound, three cents. 

On all other sugars, per pound, one and a half cents

(Tariff Act of 1789, P. 25)..”

From a game-theoretical standpoint, consumers are the first ones to defect. If imported sugar is cheaper American consumers gravitate toward buying the less expensive Caribbean sugar. The lobbyists for the sugar industry work to pressure lawmakers into keeping import taxes on foreign sugar. The collective pressure placed on Congress to place and uphold tariffs can be considered a defection by the domestic sugar producers. Many economists and political scientists assume that the marginal increase in the cost of sugar would be negligible to an individual customer. In turn, fulfilling the enduring axiom of Public Choice theory; concentrated benefits and dispersed costs. Few households consume enough sugar to desire to change their baking and coffee flavoring habits. Although, these costs are salient to commercial confectionary producers who purchase mass quantities of sugar for domestic and international retail goods. It has led to firms relocating production facilities to countries without sugar tariffs (Life Savers plant moving to Canada, p. 4). Technically, this could be a defection, but the irony is that it undermines the moral initiative of keeping domestic jobs within the bounds of the United States. But not every company opts to move their factories abroad, another substitute for cheaper inputs. Hence, the rise of soft drink producers using high fructose corn syrup instead of cane sugar. One noteworthy example would be when Coke and Pepsi switched to using corn syrup in their sodas for the US market in the 1980s (p.5) (Mexican cola still uses real sugar). There has been much debate over whether high fructose corn syrup is more unhealthy than sugar. If it is more injurious to one’s health, then a Prisoner’s Dilemma is afoot, the suboptimal result being the American people doing unnecessary damage to their bodies merely to appease a small subset of the overall constituency.

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 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.

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.

Editorial Graveyard- Part III: The Bootlegger and Baptists of Woke Capitalism

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Op-Ed submission was rejected by the Foundation For Economic Education for being too “abstract” and “academic”. The corresponding paper proposal for George Mason was also rejected. I am currently working on another proposal for GMU focused on intellectual property.

Introduction:

Bruce Yandle’s Bootlegger and Baptist (1983)  theory of regulation presents a practical explanation for why such unorthodox coalitions are effective vehicles for camouflaging rent-seeking behavior by a firm. In brief, armed with the public appeal of the moral arguments posited by the Baptists, the Bootleggers can quietly lurk in the shadows, funding initiatives that will advance their self-interest. In other words, the ethical advocates create a smokescreen that provides cover for the business interests, superficially obscuring the stigma of corporate advocacy, since few examples of political action invoke the ire of the average citizen than policy campaigns that line the pockets of big business.

           The trend of “woke capitalism”, however, is bringing the Bootleggers out of shadows and into plain sight. CEOs are now openly standing in unison with political activists, speaking out against topics ranging from police brutality to environmental issues. The Bootleggers can work openly with the Baptists to promote a positive image while still silently providing monetary support in the background. Moreover, the social justice messaging of “Woke Capitalism” extends beyond corporate activism and is observable in the product market and advertising. Some companies, for example, adopt marketing that emphasizes social consciousness to secure the business of Gen-Z. A clear example is Gillette’s 2019 advertising campaign addressing “toxic masculinity”. Typically, companies use this tactic to target younger consumers with higher preferences for ethical products and brand authenticity, requiring companies to go beyond philanthropy and mandating community services hours for their employees; their woke ethics are thereby conveyed in their branding.

The Four Main Categories of Woke Capitalistic Coalitions:

           The most recent alliances forged between business interests and political activists take the form of four main taxonomical categories. Some of the various types of Bootlegger and Baptist coalitions feature collaboration between firms and activists. Other coalition types  form within the technocratic structure of the corporation or emerge between different departments within the organization. Woke coalitions thus have several notable classifications of “woke” corporate alliances. Two further subcategories include proactive and reactive forms of rent-seeking.

Reactive Coalition Models:

           The reactive models for “woke” coalitions include two subtypes of collective action organization, the interaction between external actors and collaboration between internal employees. The first variety of reactive coalitions are rent-seeking alliances formed to restore the company from a sullied reputation caused by criticism, the objective being to mitigate the loss of sales and reputation amid public controversy. Some firms thus attempt to distance themselves from the controversy through their activistic partnerships. By way of example, Bank of America in the past was accused of engaging in “discriminatory” lending practices. To counteract this negative publicity, last year BOA pledged to donate $1 Billion over the next four years to community programs to address economic and racial inequality. Such an act of philanthropy can easily make the general public forget about the firm’s past indiscretions.

The second type of reactive “woke” coalitions are the intracompany factions designed to divert attention from potentially costly internal controversies. In instances of hostile work environment ligation, the legal team, the human resources department, and executive management band together to deescalate the publicity nightmare. Human Resources and management work together to legally distance the company from a harassment incident and shield executive management from more scrutiny and accountability. Legal navigates the statutory and tort concerns and works internally to establish an anti-harassment campaign intracompany. A prime example of an internal diversionary coalition was Vice media’s response to sexual harassment claims. After settling several cases, the company decided to form an advisory board to educate employees on diversity and proper workplace deportment. Even if such an initiative on the part of the human resources department failed to soften the bad publicity, at least it may decrease the probability of another incident.

Reactive Coalition Models:

Finally, the last two variants of “woke” coalitions aligning business interests with moral advocates to facilitate proactive forms of rent-seeking. Similarly, these proactive coalitions can be delineated into examples of internal and external collaboration models. Proactive partnerships form to capture potential gains and avert the costs of prospective controversies. The most salient example of such external cooperation would be firms standing behind a woke cause, anticipating that such an alliance will obscure the firm attempting to shape current regulation (regulatory capture).  A notable example was detailed in the Fall 2021 issue of Regulation magazine, which showed how providers of cloud computing services IBM and Oracle joined forces in 2017 to advocate for the passage of  the Stop Enabling Sex Traffickers Act (SESTA) and the Fight Online Sex Trafficking Act (FOSTA); effectively becoming bedfellows with various factions of human rights activists. Both laws intended to attribute liability to digit platforms for any user content that promotes sex trafficking. The article’s author Thomas A. Lambert speculates that IBM and Oracle could have done this with the hopes crafting potential exceptions to the platform liability portions of SESTA and FOSTA.

Additionally, we cannot forget the proactive inter-department coalitions that are emerging within corporations. For example, several companies are hiring diversity and inclusion “coaches” as a peripheral subset of human resources. The demand for this job role has become so prevalent that a number of colleges offer programs to become a certified “diversity practitioner”. The human resources department defends the existence of these staff members by emphasizing the need to educate employees to avoid instances of harassment and discrimination. The diversity coaches preach the virtues of cultural sensitivity and other tenants of the “woke” philosophy, thus producing a self-reinforcing spiral justifying further diversity initiatives.

Conclusion:

 Superficially, these alliances between big business and “woke” activists seem relatively benign, but in reality, these coalitions have profound consequences for the integrity of capitalism and the rule of law. The four types of woke B&B coalitions described above undermine capitalism and the rule of law because woke capitalism has made it easier than ever for business interests to create the façade of morality but are unjustly bending the rules-of-the game in their favor. Wokeism provides the veil obscuring corporate America’s hand in the legislative till. Generating more anti-competitive laws that undermine both the rule of law and free trade. 

The emphasis on firms getting involved with “woke” causes not only disguises crony capitalism and rent-seeking behavior, but also distracts companies from their primary custodial duty to their shareholders. As Nobel laureate Milton Friedman expresses in his own Friedman Doctrine , a firm has a duty to maximize its profits for its shareholders. After all, these individuals have invested in the company expecting a higher return. Without this financial support the firm could not achieve its current level of success. Diverting funds that could be used for investment in capital to increase productive efficiency for political activism is tantamount to theft.

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.

Terri Schiavo- From the Perspective of Lockean Property Rights

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Here is a hypothetical situation that presents us with a challenging conundrum that would drive most legal scholars and moral philosophers mad. There is as a person in a vegetive state who is hooked up to a variety of life-sustaining medical equipment (feeding-tube, ventilator etc.). Let’s say that the individual is married, and their spouse has been their legal guardian since they have become clinically brain dead. Does the parents of the incapacitated person have a say over the end-of-life decision making for their child? Should this heavy burden be left to the spouse and rightful guardian? It should be noted that the moral analysis must be separated from the determination of legality. All because something is legal does not necessarily make it moral. For instance, abortion in the United States is sanctioned around quasi-arbitrary timeframes with little consideration for situational context or biological development of the fetus. The decree of legislative fiat does not automatically make a policy moral. There are many legal protections within American statutory law that prevent individuals from facing criminal penalty or ligation. If crimes against persons and property cannot be subjected to restorative justice then there is no point in calling a legal system just.  In other words, we will be reviewing this situation from a philosophical standpoint, specifically from the perspective of individual property rights.

The above scenario is not quite so hypothetical but is a concise description of the Terri Schiavo case. However, one striking difference between the scenario presented above and the Schiavo case is that :

Terri Schiavo breathes on her own. She is not on a ventilator or respirator. Although she swallows, she is sustained through a gastric feeding tube. She is not in distress or imminent danger of death.(P.5).

Despite Schiavo’s lack of cognitive functionality for the most part she was able to “live” in the most basic sense of the term.  It should also be note that prior to her cognitive impairment she made no will directing her “wishes” for medical treatment. Also including end-of-life decisions. Therefore, leaving the variable of individual consent obscured by Schiavo’s incapacitated state. There was a rift between Schiavo’s husband/ guardian wanted to remove her feeding tube while her parents staunchly disagreed with this decision. Ultimately, the courts sided with the husband and Terri ended up dying after having her feeding tube removed. This may have been the legally permitted course of events, but was it moral from the paradigm of individual property rights?

The economist and Libertarian Philosopher Walter Block provides a remedy to this quandary squarely from the standpoint of Lockean property rights. A grown adult who has lost their cognitive faculties is analogous to a child and exist in purgatorial grey area when it comes to the prospect of Lockean ownership (p.5).Block takes the Rothbardian approach to addressing a parents required commitment to child rearing, which in fact allows parents to relinquish this right (p. 6). Much like how Lockean homesteading does not preclude an economic agent from taking ownership of an abandoned patch of land, this analogy can be applied to raising children. If an adult within the community is willing to devout the resources to raising a child discarded in dumpster, this should count as a transfer of guardianship (p.7). Based upon the premise of Lockean homesteading the Supreme Court of Florida was morally wrong in assigning the right to end Terri Schiavo’s life to her husband. Through wanting to end her life with no prior record or request of her wanting such measures taken, he effectively relinquished his guardianship. Clearly he did not do so in the modern legal sense, but he did so within the context of Lockean property rights. If her parents were willing to assume guardianship of their daughter then the court’s decision is nothing more than perverse.

And if they are, then whoever is at first control of her must maintain her; if he refuses, her guardianship reverts to the second closest party, her parents. If they will not homestead her, then perhaps her siblings. If not them, then anyone who wishes to take up this burden. Based on the number of protests at the callous way she is being treated ( Block, 2011, p.7)

Prisoner’s Dilemmas- I: Gun Control in Arizona

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There is a battle brewing in Arizona. The municipal government of Tucson is looking to enact gun control ordinances that are contrary to Arizona state law. The city passed a resolution requiring federal gun laws to be followed within Tucson’s city limits.  From a superficial standpoint, this does not sound so radical. As any careful observer of the Arizona political scene can tell you this outright rebellion. Arizona has always been a very 2nd Amendment friendlily state. Back in April, Governor Doug Ducey signed HB 2111. The bill prevents any institutions from utilizing state resources or promulgating rules that violate state gun laws.

“…Specifies that pursuant to the sovereign authority of this state and Article II, Section 3, Constitution of Arizona, the state of Arizona and its political subdivisions are prohibited from utilizing any financial resources or state personnel to administer, cooperate with or enforce any law, act, order, rule, treaty or regulation of the federal government that is inconsistent with any law of this state regarding the regulation of firearms…”  (HB 2111).

Many outside spectators may view this measure by Arizona lawmakers a superfluous or even paranoid. Objectively, there has been a precipitous erosion of gun rights over the decades. Generally resulting from a tightening of federal gun regulations. One only needs to look towards the  Brady Handgun Violence Prevention Act (1994) and subsequent laws to see this pattern emerging. Although, most gun enthusiasts would most likely reason that this pattern emerged before 1994. However, this legislative game of red rover isn’t an illusion caused by the slippery-slope fallacy. It is also important to not frame the legislative encroachment of the 2nd Amendment as devolving into a frenzied conspiracy climaxing to a dystopian gun grab campaign.  

Arizona lawmakers not being quite so sanguine about the Biden administration’s respect for gun rights is understandable. Especially when you consider his platform regarding gun safety, which seeks to impose more restrictions. It is well known that the City of Tucson has been at odds with state gun laws for a while, being an uncharacteristically left-wing city in a conservative state. The state legislator fearing that Biden would tighten up federal gun regulations they drafted HB 2111, effectively making Arizona a “2nd Amendment Haven”. The state of Arizona is not alone in drafting us preemptive measures as several other states have drafted similar bills.

The officials of the City of Tucson have stated that if the state government intervened they would take it up with the federal courts.

“….Steve Kozachik, the councilman who introduced the resolution last month, said he believes the state’s sanctuary law to be unconstitutional. 

“Let them challenge us,” he told The Arizona Daily Star….” (Business Insider).

Insinuating that under the Supremacy Clause of the U.S. Constitution the city would have the higher ground from a legal standpoint. Because the Supremacy Clause states that federal law supersedes state law. Even the causal jurist knows that U.S. Law is complex and riddled with a plethora of loopholes. Holding such an axiom as unwavering is at best an overly simplistic interpretation of the law. It should be noted that the Supremacy Clause was intended to apply to the promulgation of laws in the scope of congress’s enumerated powers. After re-reading Article I, Section 8 several times, I simply could not find a sentence, never mind a paragraph conferring the power of formulating gun control laws to the federal government! Nevertheless, when Tucson petitions their complaint to the SCOTUS it will make for an entertaining case, to say the least.

It is important to remember that the state government does have a very compelling bargaining chip for negotiations. That is state tax dollars. The city of Tucson does receive a portion of tax revenue from the state (like most municipalities do), the state of Arizona could very well withhold these funds as a condition of noncompliance. It is estimated by going rogue on the gun issue, the city stands to lose “… half of its state shared revenue..”. The conflict here is the typical example of conflicting political interests at various layers of the political hierarchy. Mirroring the conflicts between the federal and state governments. Because both factions have divergent interests, rather than compromise both groups prefer fighting to the bitter death. Gun control like most wedge issues has a winner-take-all payoff. Primarily due to political polarization. However, losing ground policy-wise does turn into a slippery slope quickly. Incrementally evolving into long-term losses.  

Since the incentives structure is skewed towards winner-take-all payoffs, neither party can trust the other in the event of a compromise. Completely dispensing with any good faith bargaining; leaving logrolling off the table. This lack of good faith between the state government and the city of Tucson creates fertile ground for a Prisoner’s Dilemma. A Prisoner’s Dilemma is a concept in game theory where individuals working together could produce better results than working against one another. In certain situations, if both parties lack trust, they will defect and work against the other individual. Paradoxically, both actors would be better off if they worked in unison. If both Tucson and the state government brokered a deal with some carefully considered concessions, everyone would be happier. Instead, they both would rather hardball a gluttonous attempt to have all of their policy preferences fulfilled. Does nothing more than waste resources and generate more drama.