- Yalta: one of the greatest wrongs of history David Reynolds, New Statesman
- Individualism does not necessarily imply small government Branko Milanovic, globalinequality
- On socially influenced preferences Chris Dillow, Stumbling & Mumbling
- A better defense of capitalism “djf,” askblog (comments)
Sunday Poetry: Hermann Hesse’s Stages
Not much to say about this one. Helps me to take the edge off stressful times.
Phases
As every flower fades and as all youth
Departs, so life at every stage,
So every virtue, so our grasp of truth,
Blooms in its day and may not last forever.
Since life may summon us at every age
Be ready, heart, for parting, new endeavour,
Be ready bravely and without remorse
To find new light that old ties cannot give.
In all beginnings dwells a magic force
For guarding us and helping us to live.
Serenely let us move to distant places
And let no sentiments of home detain us.
The Cosmic Spirit seeks not to restrain us
But lifts us stage by stage to wider spaces.
If we accept a home of our own making,
Familiar habit makes for indolence.
We must prepare for parting and leave-taking
Or else remain the slaves of permanence.
Even the hour of our death may send
Us speeding on to fresh and newer spaces,
And life may summon us to newer races.
So be it, heart: bid farewell without end.
I wish you all a pleasant Sunday.
Nightcap
- Do quarantines work? Eleanor Klibanoff, Goats and Soda
- Trump’s Middle East plan Nathan Thrall, New York Times
- Trump’s Middle East plan Michael Koplow, Ottomans & Zionists
- Texans don’t want any more Californians Derek Thompson, Atlantic
The problem of value in regulatory takings
Regulatory takings law is a mess. The Fifth Amendment promises: “nor shall private property be taken for public use, without just compensation.” This constitutional mandate encompasses direct acquisition of property, government action that damages or restricts property, and regulation of property that effectively results in a taking. Defining what constitutes a regulatory taking has vexed the courts for decades.
I believe much of the trouble comes from the Supreme Court’s fixation on loss of value. The primary test for a regulatory taking looks to reasonable investment-backed expectations dashed by the regulation (i.e., I’d amassed resources and did a lot of footwork to build a house, but a new shoreline buffer prohibits construction), the resulting economic loss, and the character of the government action.
Examining value creates intractable line-drawing problems and fails to establish a predictable rule. How much loss of value is too much? As one might expect, courts come out with wildly different answers, though all of them tend to lean toward not requiring compensation. A Massachusetts court, for example, recently held that a regulation that forbade any development on a parcel of land and resulted in a 91.5% loss of property value was not a taking that requires the government to compensate the property owner.
Hence, no one going into court with a takings claim really has any way to predict what a court might do, though it’s safe to guess that the result will be bad. Courts are reluctant to draw a line in the sand, so they just hand wins to the government. This is not to say that loss of value is wholly irrelevant, of course, but it’s more relevant to the question of how much compensation is due, not whether a taking has occurred in the first place.
Takings law doesn’t have to be this way. In fact, nineteenth-century takings law took a totally different approach. Early courts looked to the burden on the property interest, not the loss of economic value. Most fledgling regulatory takings law developed in the state courts, for two reasons: the Fifth Amendment wasn’t applied against the states until the Fourteenth Amendment was ratified in 1868, and the federal government in the nineteenth century wasn’t much in the business of regulating land.
The early state cases didn’t even consider economic loss in their approach to what constitutes a taking. For instance, in Woodruff v. Neal, an 1859 Connecticut case, a government granted ranchers licenses to graze their cattle on public rights of way that crossed over private land. The private landowners sued for a taking and won because their property rights included rights over the “herbage” that the cows ate. The economic loss had to have been puny, but the court didn’t even bother addressing this, probably because they saw economic loss as pertinent only to the question of compensation due.
Most of the other regulatory takings cases of that time period involved riparian rights–wharfage rights and so on. So it was with one of the United States Supreme Court’s early forays into regulatory takings–a case where, like the state cases that preceded it, did not even bother to mention loss of value. The case was Yates v. Milwaukee (1870). Yates owned land adjacent to a river and had built a wharf that extended out into the water. The city didn’t like his wharf, so they declared it a nuisance and sought to tear it down. Yates argued this was a regulatory taking, and the Supreme Court agreed. They didn’t bother to mention how much the loss of the wharf would cost Yates. They just held that access to a river was among the rights held by owners of a riverbank. The city had destroyed that right, so a taking occurred and compensation was due.
Strangely, seven years later, the Supreme Court started to retreat from regulatory takings altogether and didn’t really return to the doctrine until the early twentieth century. Much later, when the Supreme Court thought up its value-based regulatory takings test in a 1978 case called Penn Central v. City of New York, the Court completely ignored Yates and all the many non-value-based takings cases in the state courts of the nineteenth century. In fact, the Court seemed to believe that regulatory takings law was a twentieth-century creation that began with a 1920 case called Pennsylvania Coal Co. v. Mahon. This bizarre blindness to the real history of regulatory takings law has resulted in an incomprehensible labyrinth of takings jurisprudence. The Supreme Court could learn a few lessons from the state courts of two centuries ago.
Nightcap
- Keeping the cow and brahmin apart TM Krishna, the Hindu
- A leftist view of Peru’s recent elections Dan Collyns, Guardian
- Adam Smith and a science of civilization Nick Nielsen, The View from Oregon
- Socialism via futarchy Robin Hanson, Overcoming Bias
Nightcap
- Same old story, same old song and dance Johanna Möhring, War on the Rocks
- Why Britain Brexited Tom McTague, the Atlantic
- Is it rational to vote? Julia Maskivker, Aeon
- Large countries and bad government Arnold Kling, askblog
Second Nature
Michael Pollan gets me. Highly edumacated middle class white guy whose in to food and gardening. Last year I read Omnivore’s Dilemma and became convinced that Pollan occupies essentially the same position as me (challenging my preconceptions): the humble anarchist. Pollan has a sense of emergence, and skepticism of the beneficiaries of government policy. He might not take public positions as an anarchist, but that doesn’t mean I don’t see Ol’ Spooner’s ghost whispering in his ear.
This Christmakwanzakkah I read an older book of his. Second Nature is his record of the same experiences I’m currently going through as a gardener. This is from way back in 1991, and in it gives some evidence that he might be an epistemological anarchist:
As it happens, the etymology of the word true takes us back to the old English word for “tree”: a truth, to the Anglo-Saxons, was nothing more than a deeply rooted idea.
p. 159
Here he is appreciating emergent order in markets:
More than a work of art, I like to think of the garden as if it were a capitalist economy, inherently unstable, prone to cycles of boom and bust. Even the most prosperous times contain the seeds of future disaster. A flush year in the perennial border usually means lean times ahead; now spent, the perennial need dividing and won’t peak again for two years. Unless pruned in spring, my asters, phlox, and delphinium willput out way too many shoots, a form of herbaceous inflation that will cheapen all their blooms come summer. Wealth is constantly being created and destroyed in the garden, but the accounts never blanace for very long–a shortage of nutrients develops in this sector, a surplus in that one, the value of water fluctates wildly. Who could hope to orchestrate, much less master, so boisterous an assembly of the self-interested? The gardener’s lot is to try to get what he wants from his plants while they go heedlessly about getting what they want. …
The garden is an unhappy place for the perfectionist. Too much stands beyond our control here, and the only thing we can absolutely count on is eventual catastrophe. Success in the garden is the moment in time, that week in June when the perennials unanimously bloom and the border jells, or those clarion days in September when the reds riot in the tomato patch–just before the black frost hits. It’s easy to get discouraged, unless, like the green thumb, you are happier to garden in time than in space; unless, that is, your heart is in the verb. For the garden is never done–the weeds you pull today will return tomorrow, a new generation of aphids will step forward to avenge the ones you’ve slain, and everything you plant–everything–sooner or later will die. Among the many, many things the green thumb knows is the consolation of the compost pile, where nature, ever obliging, redeems this season’s deaths and disasters in the fresh promise of next spring.
p. 131-2
Pollan is showing as a great an ability to appreciate the market as a process as any Austrian economist.
Nightcap
- Slavery and Anglo-American capitalism Gavin Wright, The Long Run
- How the law creates both wealth and inequality Adam Tooze, NYRB
- On immigration, Democrats should listen to Gorsuch Ian Millhiser, Vox
- Separatists arrested for fraud in Indonesia Arya Dipa, Jakarta Post
The open secrets of what medicine actually helps
One of the things that I was most surprised by when I joined the medical field was how variable the average patient benefit was for different therapies. Obviously, Alzheimer’s treatments are less helpful than syphilis ones, but even within treatment categories, there are huge ranges in actual efficacy for treatments with similar cost, materials, and public conception.
What worries me about this is that not only in public but within the medical establishment, actually differentiating these therapies–and therefore deciding what therapies, ultimately, to use and pay for–is not prioritized in medical practice.
I wrote about this on my company’s blog, but its concept is purely as a comment on the most surprising dichotomy I learned about–that between stenting (no benefit shown for most patients!!) vs. clot retrieval during strokes (amazing benefits, including double the odds of good neurological outcome). Amazingly, the former is a far more common procedure, and the latter is underprovided in rural areas and in most countries outside of the US, EU, Japan, and Korea. Read more here: https://about.nested-knowledge.com/2020/01/27/not-all-minimally-invasive-procedures-are-created-equal/.
Watson my mind … while I walk the streets of Moscow
I’m running a teacher training program this week in Moscow. While I will have wordier thoughts later, this piece of street art needs no commentary:
Nightcap
- Holocaust remembrance under communism (and after) Tim Judah, Financial Times
- Viruses and globalisation Johnathan Pearce, Samizdata
- Britain’s forgotten citizens Jorge Giovannetti-Torres, History Today
- On leaving Facebook alone John Samples, Cato Unbound
Climate crisis or censorship crisis?
Yesterday, the Chair of the U.S. House Select Committee on the Climate Crisis wrote an ominous letter to the CEO of Google. For the second time, the Chair is leaning on Google to police and remove “dangerous climate misinformation” on YouTube. The letter doesn’t threaten direct legal action against Google, but it nonetheless raises serious concern because it runs so counter to the free speech tradition and the value of a robust internet.
According to the Chair, “YouTube has been driving millions of viewers to climate misinformation videos every day, a shocking revelation that runs contrary to Google’s important missions of fighting misinformation and promoting climate action.” The Chair states her own unequivocal commitment to “promoting ambitious federal policy that will … eliminate barriers to action, including those as pervasive and harmful as climate denial and climate misinformation.” It’s hard not to see the veiled threat here.
Note the letter’s subtle casting of the consumers of information as passive actors that must be protected, rather than rational actors who choose what information to consume, a choice they’re entitled to make. She says “YouTube has been driving millions of viewers to climate misinformation” and that Google should “correct the record for millions of users who have been exposed to climate misinformation.” This language strips accountability and action from the viewers, as if they are a captive audience held down and forced to view climate denial videos with eyelid clamps like a scene from A Clockwork Orange. But if that content is promoted and viewed, that’s because there’s a consumer demand for it. The passive language used in the letter exemplifies the paternalism that often lurks behind censorship: for their own welfare, we must protect the public from information they wish to consume.
Note also the absolutism woven into the letter. Google cannot both be committed to climate action and committed to an open culture of public discourse. In the war for humanity’s survival, one priority must dominate above all others.
The letter also relies on the tired tactic of impugning speakers’ motives. Anyone who expresses “climate misinformation” on YouTube just wants “to protect polluters and their profits at the expense of the American people.” It’s impossible for an absolutist to consider that views opposed to her own might be sincerely held. Plus, research has shown that political views frequently do not line up with individual self-interest. Only a shallow thinker or someone with an agenda assumes a political viewpoint is rooted in a selfish motive.
As for the constitutional implications of the letter, there is no question that the federal government cannot impose on Google the duty to remove “climate misinformation” or “climate denial” content. False speech is not exiled from the sanctuary of First Amendment protection. Of course, some false speech can be penalized, such as libel, slander, or fraud. But these are circumstances where there’s some other legally cognizable harm associated with the false statement for which recovery is warranted. There is no general rule that false speech is unprotected.
Government should never be in the position of arbitrating truth. Particularly in the context of hotly debated political controversies, allowing government to label one side as gospel and penalize dissidents opens the door to legally enshrined orthodoxy. As Justice Robert Jackson said 80 years ago: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” That’s what the power to ban “climate misinformation” entails.
Indeed, government refereeing of truth will almost always shade toward discrimination against disfavored viewpoints. For example, there is “misinformation” out there on both sides of the climate debate. Those who peddle wild doomsday predictions are just as unhinged as those denying the realities of climate change. Yet the Chair does not propose to censor such misinformation.
When I see such zealous effort to shut someone up, I can’t help but ask myself why the censor is so afraid. The targeting of this speech is likely only draw attention to it. Why worry about the hacks? I’ve always believed what John Milton expressed centuries ago in the Areopagitica: “Let [Truth] and Falsehood grapple; who ever knew Truth put to the worse in a free and open encounter?” Of course, that doesn’t mean that falsehoods lack convincing power, but truth in the end has the edge. Rather than pick the winner in advance, we do much better by letting truth emerge through open debate, bloodied but victorious.
Nightcap
- Libertarians can’t save the planet (but is this a bad thing?) John Quiggin, Jacobin
- Great piece on class and contemporary film in the US Robin Hanson, Overcoming Bias
- Against the “balance sheet” approach to colonialism (or, how Leftists turn conservative) Robert Heinze, Africa is a Country
- If a monopoly gives away free services is it a problem? Izabella Kaminska, Alphaville
Nightcap
- The first Great Powers: Babylon & Assyria John Butler, ARB
- We don’t want economic growth Chris Dillow, Stumbling & Mumbling
- Comparative disadvantage Oren Cass, Law & Liberty
- The Nazification of the Ku Klux Klan Assael & Keating, Politico
Nightcap
- The science of Roman history Alberto Prieto, Inference
- On some newly translated Brazilian books Sheila Glaser, New York Times
- Postcolonialism does not exist in France Haythem Guesmi, Africa is a Country
- In cold blood (reversing death) Philip Jaekl, Aeon
Notes On Liberty 