Liberty and Patterns

There’s been a pretty big controversy over some comments made by Rand Paul about the Civil Rights Act of 1964. Julian Sanchez has an article in Newsweek describing some of the conflict, along with a discussion of Rand’s and (his father’s) mixed record on race. Most interesting to me, though, were some of Sanchez’s arguments about how a libertarian could come to consistently support the Civil Rights Act of 1964. In short, Sanchez makes the argument that because the government enforced and perpetrated wrongs against African Americans in the past, the Civil Rights Act was justified:

Unfortunately, history happened. Rules for utopia can deal with individual crimes—the mugger and the killer and the vandal—but they stumble in the face of societywide injustice. They tell us the state shouldn’t sanction the brutal enslavement or humiliating legal subordination of a people; they have less to say about what to do once we have. They tell us to respect the sanctity of the property rights that would arise as free people tamed the wilderness in John Locke’s state of nature. They have less to say about the sanctity of property built on generations of slave sweat and blood.

In this passage, Sanchez makes an analogy between the Jim Crow south and “individual crimes” for two reasons: to point out that the discrimination faced by African Americans was not merely private but also had a component that was empowered and enforced by the government; and also, in order to make an argument to libertarians. The argument for libertarians is that since discrimination and injustice perpetrated against African Americans was in-part inflicted by the government, African Americans are entitled to restitution that is analogous to the restitution libertarians believe exists for individual victims of crime. Basically, under this analogy, the Civil Rights Act of 1964 is justified as a restitution measure rather than as a moral prohibition on discriminatory conduct.

Sanchez realizes that this would require us to consider the Civil Rights Act and similar anti-discrimination measures very differently than how we consider them today:

How far it [the Civil Rights Act] could be extended to other forms of discrimination—against the disabled, the elderly, women, gays—should be determined not by a blanket assumption that government can always restrict associational rights in the name of equality, but by a fact-intensive, case-by-case inquiry that factors in both the state’s past complicity in depriving groups of their rights and the extent to which those groups would in practice be systematically denied equal participation in society absent state correction.


Liberals and progressives, for their part, should also reconsider whether the civil-rights era’s expansion of federal power ought to be seen as a norm or an exception.

An interesting view, to be sure. Julian expands on his discussion here. But since the law itself already included religion and gender, and the law was followed by anti-discrimination law covering age, pregnancy, disability status, and even genetic information, I would guess that it’s unlikely we’ll ever see anti-discrimination law that way. For most people, the Civil Rights Act was not merely a measure of restitution for the government-perpetrated wrongs of the Jim Crow south, but a prohibition on conduct that is unacceptable — with good reason. Contrary to libertarian theory, associations and inactions can injure in such a way that they can and should be made illegal. Anti-discrimination law is an example of such a criminalization, as well as a declaration that morally arbitrary characteristics should not determine a person’s destiny.

In fact, I would argue that the Civil Rights Act of 1964 (and other related remedies of private discrimination) are a more fundamental challenge to libertarianism than even Julian Sanchez might think. Discussing a debate between Robert Frank and David Friedman, Will Wilkinson made an excellent short summary of a foundational conflict between libertarianism and egalitarian liberalism:

The standard libertarian views on distributive justice are (a) that there is no objection to patterns of holdings that arise from exchange of justly owned goods according to just rules, and (b) because we are in society with our trading partners, and because our trading partners span the globe, the pattern of holdings that arise from exchange is an international pattern.


Despite Hayek’s and Nozick’s devastating attacks on pattern conceptions of justice — that constantly intervening to “correct” the pattern is inconsistent with the rule of law (Hayek) and would require the constant violation of individual rights (Nozick) — Frank nevertheless seems to assume libertarians have a pattern theory, but simply prefer market patterns. That’s wrong. Most libertarian accounts of justice do not require that the pattern of incomes be made (by government redistribution!) to mirror the pattern that would be produced by unregulated private markets. Libertarian justice requires unregulated (or lightly regulated) private markets, period. The pattern they produce is not important.

“Straw Libertarianism”

The argument is simple: libertarians do not care about the distribution of income. Vast inequalities of wealth? No problem! If anything (the utilitarians among them argue), the unequal rewards of society motivate those at the bottom to work harder for the prize. But the problem is where this argument goes. What if racial segregation, and its effects of suffering, poverty, social dysfunction, deprivation of political power, and violence, had all emerged without the government interference libertarians use to justify the Civil Rights Act? What if, under conditions of liberty, a pattern emerged that systematically denied African Americans the opportunities available to white Americans?

The unfortunate conclusion of the argument that the “pattern of distribution” doesn’t matter is that libertarians cannot justify government intervention against discrimination. And that’s quite frankly unacceptable to the vast majority of people, because it seems wrong for people’s opportunities in life to be based on something as arbitrary as race. To those people, the color of your skin should not determine whether you get a job or not, or get served or not, and feel that a necessary precondition for that thing we call democracy to take place is that such conditions do not exist. Furthermore, the arguments that libertarians put forward do not work with this example — we’ve seen neither totalitarianism nor a break-down of the rule of law with the introduction of equal opportunity in the workplace. Private racism can provide a more poignant and powerful example of problems with libertarianism than even economic inequality.

The Rand Paul flap-up doesn’t show us that the Civil Rights Act is actually a restitution measure meant to rectify government discrimination against African Americans. What it shows us is that sometimes, patterns emerge that are unacceptable — and when those patterns emerge, the government can — and should — take action. What it shows us is that there’s something fundamentally wrong with libertarianism, specifically, how it fails to rectify private injustice.

Posted in Uncategorized | Leave a comment

Bryan Caplan’s Secret Libertarian Plot

(from a conversation with alison)

Bryan Caplan recently had a post on EconLog about transitioning from the status quo to a libertarian society. I was alerted to a particular section of the post, where Caplan describes one method for libertarians to create the libertarian utopia:

6. Strategic fertility.  Standard twin methods find that political philosophy and issue views (though not party labels) are at least moderately heritable.  But wait, there’s more: Since there’s strong assortative mating for political agreement, standard methods seriously understate the heritability of politics.   The upshot is that if libertarians can get and keep their birth rates well above average, liberty will actually be popular in a century or two.  And even if this plan to free the world fails, it will still create a bunch of awesome people.

The reason I found this particularly interesting was because of Caplan’s forthcoming book. The book’s title, Selfish Reasons to Have More Kids, is self-explanatory; Caplan advances several arguments aimed at providing people with selfish reasons to have more kids.

This got me thinking. Perhaps this is all part of a libertarian plot!

Strategic fertility, eh? It all fits into place. Caplan will sell his book (of course, being a relatively well-known libertarian professor, the book will disproportionately sell to libertarians), convincing like-minded (and selfish!) individuals to have more kids. These selfish, libertarian types will then come to outnumber everyone else, fulfilling Caplan’s own prophecy about strategic fertility!

Caplan is no stranger to nefarious schemes. After all, this is a man who confesses a wish to clone himself!

Now that we’ve uncovered this fiendish political plot, what shall we do? Is it a selfish reason to fear for the future, or is it just another selfish reason to have more kids?

(I am just kidding)

Posted in Uncategorized | Leave a comment

Eyes on the Prize: Solving the Antibiotics Shortage

Monetary prizes are all around us. Whether it’s prize money for winning horse races or stock car races, or prize money for awards, they are ubiquitous. A prize is the simplest economic incentive: set up the rules, decide on a winner, and distribute the benefits.

While the traditional domain for prizes is sports competitions and awards, public competitions have recently become more common in another sphere: the business marketplace. In 2006, Netflix began the “Netflix Prize,” an open competition to improve the algorithm for movie recommendations on their service. On September 21 last year, they awarded the $1,000,000 prize to a team that improved their recommendation service by 10%.

The Netflix Prize, however, is dwarfed by the Ansari X Prize, a space competition launced by the X Prize Foundation that offered $10,000,000 for the first non-governmental organization to launch a reusable manned spacecraft into space twice within two weeks. That award was given out in 2004; a later competition by the same foundation in partnership with Google, the “Google Lunar X Prize,” is ongoing. It will award $20,000,000 to the first team to land a rover on the moon that successfully roves more than 500 meters and transmits back high definition images and video (as an aside — how cool!).

These public competitions are examples of prizes in another sphere altogether: simply making the world a better place. The most recent prize idea that’s been discussed is a partnership between the X Prize Foundation and public health NGOs to create a prize to benefit public health.

Over at stone soup, David Yin recently proposed a “no-fault antibiotic injury program.” The program, modeled after the Vaccine Court created by the National Childhood Vaccine Injury Act of 1986, would shield antibiotic manufacturers from many tort claims and create a fund for paying the injured financed by a surcharge on vaccine purchases. The intended effect of such a proposal would be to cut costs for antibiotic manufacturers and thus encourage lifesaving research into antibiotics.

After reading this proposal, I was somewhat skeptical. While the benefits of the program for victims and the antibiotic manufacturers seemed intuitive and accurate, I wasn’t sure that a similar set-up to that of vaccine manufacturers would transmit a sufficient incentive to begin incredibly important (but expensive) research on antibiotics.

David’s description of why antibiotic research is important was particularly insightful. As he writes,

A few famous examples of MDR bacteria include multiple-drug resistant tuberculosis (MDR TB), and Methicillin-resistant Staphylococcus aureus (MRSA). Drug-resistant TB requires treatment with more expensive and dangerous second-line TB drugs, and if the TB develops resistance to those second-line drugs as well, there are few good options for the third line. MDR TB is a serious public health problem in the developing world where the WHO is seeking to eradicate TB. Resistant staph infections are a pressing concern in the First World. In the United States, a Department of Health and Human Services study estimated 390,000 hospitalizations from MRSA cases in 2005, and researchers estimated 17,000-19,000 deaths were attributed to MRSA. It’s important to remember that despite antibiotics, infections remain the second-leading cause of death in the world, and this is a problem not limited to the Third World, but right in our backyards, in our local hospitals and community health clinics.

What I was unsure of was whether David’s plan would be enough to get prescription drug companies working on the problem. As David writes, “Antibiotics are less profitable than drugs like Lipitor and Viagra that are used to treat chronic conditions and that are chronically consumed.” While David’s plan would shield prescription drug companies from litigation while their drugs were on the market, it was unclear that it could by doing so also make antibiotics as profitable as drugs like Lipitor and Viagra.

(By the way, with all these mentions of Viagra in my first post, you’d think that WordPress is starting to suspect I’m a robot.)

This brings me back to the increasing ubiquity of prizes.

While shielding antibiotics from litigation would make research less costly, a prize for the creation of antibiotics would make them more viable. It could spur research into areas where there is no current market (because they were made for resistant strains expected to surface in the future) or no sustainable market (because they are needed in the Third World, where there isn’t, well, much of a market and even worse, patents aren’t respected) without outside intervention. Prizes could provide drug companies with a gigantic incentive to research drugs that would be in the public interest. They could also justify more risky research methods that would otherwise go unexplored.

In addition (or perhaps instead) to David’s proposal, the government (or maybe non-governmental organizations with money, like the Gates Foundation) should offer prizes for antibiotic drugs that are sorely needed but are currently unprofitable. One cool aspect of the proposal is that prizes, unlike all other government programs, are costless until they achieve their goal. President Obama would likely have some interest in the proposal, being a prize money award winner himself.

Posted in Uncategorized | Leave a comment