Monthly Archives: April 2009

Obama at 100 Days: Meet the New Boss…

Shortly before President Obama took office, I posted a freedom scorecard by which I could judge his presidency. Although it was hardly a formal assessment document, it’s a nice framework for a post reviewing Obama’s first 100 days.

I started with a list of some discrete things Obama could do to make us more free:

Stop the federal government from raiding medical marijuana users and suppliers.

Done. Eventually. At least for a while, although the Obama administration sure isn’t bothering to help Charlie Lynch.

End warrentless wiretapping.

Obama doesn’t seem much better than Bush, and he may be worse

Allow needle exchange.

Nope. And, in general, Obama sucks on the drug war.

Fire U.S. Attorney Mary Beth Buchanan.

The bitch is still in office.

There were also some things Obama could do to make us less free:

Reinstitute any version of the Fairness Doctrine.

There’s talk, but it’s more Republican fear mongering than Democratic legislation at this point.

Ban assault weapons.

Obama’s still in favor of this, and he’s playing it up as a solution to the drug-war-related violence in Mexico. No legislative movement to speak of.

Prohibit gay marriage.

Nope. But he hasn’t gone the other direction either.

I also listed a number of general trends. For example, the population-adjusted size of the prison population is a negative indicator. I’d like to find indicators or discrete events I can use to track some other subdivisions of our national freedom:

Government transparency.

Obama has released a lot of documents, but he hasn’t kept his promise to post legislation on the web for five days before signing, and he’s actively obstructing queries into torture under the Bush administration.

Free trade.

I don’t think there’s been much action, but there’s been a lot of nasty anti-free-trade talk.


Meet the new boss, same as the old boss.

Right to keep and bear arms.

As always with the Democrats in charge, our right to keep and bear arms is threatened. There hasn’t been much activity other than talk of renewing the assault weapons ban.

Property rights v.s. civil forfeiture.

Meet the new boss, same as the old boss.

Property rights v.s. eminent domain.

Meet the new boss, same as the old boss.

Access to elected office.

Meet the new boss, same as the old boss.

I didn’t even bother to list the economy or the war on drugs, I guess because they seem so large and obvious (and hard to measure). Perhaps I should have included them.

Obama is actively taking parts of the economy away from the free market, building on the financial panic started by the Bush administration.

As for the war on drugs…meet the new boss, same as the old boss.

A few other notes:

Obama’s release of information about waterboarding and the Gitmo detainees is a good thing, but I have a hard time getting excited about it because (1) it seems to be a niche issue that doesn’t affect most Americans, (2) it seems to be more about scoring partisan points than about justice, and (3) it’s not clear Obama’s approach will be much better.

Obama appointed the Mother of All Nannies, Chuck Hurley, to head up the National Highway Traffic Safety Administration. Look for more of MADD’s crazy policies to become federal law.

How Much Government Should We Have?

Jamie Spencer has a question about the size of government:

But the big “L” libertarians often use a certain phrase that I just don’t understand. For example, my friend and Dallas criminal defense lawyer Robert Guest uses it in a post about tea parties:

As a libertarian I’m for anything that reduces the size and scope of government.

You’re for anything that reduces the size and scope of government? How about…

  • Closing down all the public schools?
  • Doing away with the fire stations?
  • Reneging on our promises and cutting off Medicare for the elderly?
  • Shutting down all the prisons (not just the 50% filled with drug war victims)?

… anything that reduces government? Isn’t that going too far?

Literally speaking, of course it’s going too far, which is why most of us small-government folks don’t mean it literally.

As is often the case these days, my own answer to this kind of question is based in economics. The free market can solve many problems, but sometimes it fails, and that’s where government can and should step in.

Many common market failures involve externalities, where either the social cost or the social benefit of some activity affects people other than the person who controls the activity. This screws up the incentives, which leads to inefficient results.

Consider, for example, what happens when you throw a piece of litter from your car. The benefit to you is that your car is cleaner now, without having to wait until you stop someplace that has garbage cans. The cost is that the road you drive on is slightly less attractive. Multiply that slight unnattractiveness by the thousands of people who will pass the place you littered, and the resulting aggregate cost is probably much higher than the benefit of your cleaner car.

However, you don’t pay the aggregate cost. You just pay the cost to you. Chances are, having one less piece of litter in your car is better for you than having one less piece of litter on the highway. So the selfishly rational act is to throw your trash out the window. In fact, that’s the selfishly rational thing for everyone to do. The result is that we all end up driving clean cars down filthy roads littered with debris.

Remember, however, that we said the cost of dirty roads is greater than the benefit of not having to wait until we stop to clean out our cars. So we would all be better off if people didn’t throw litter out the window. Personally, we have an incentive to throw trash out the window, but collectively, we’re better off not doing it. Our incentives are not aligned with our interests.

This is where government can help, by outlawing littering. Essentially, the fine for littering raises the personal cost of littering and re-aligns our incentives with our interests.

Similar logic applies to other activities such as crime and air pollution, and government can increase the personal costs of these activities to bring them in line with the average social costs.

The opposite situation is also a problem. Suppose you and nine of your neighbors are worried about crime, so you consider hiring a night watchman to patrol the neighborhood. Let’s say a watchman would be worth $6000 per year for each of you, so that the combined value of the watchman is $60,000. If the guard service only charges $45,000 a year, you’ll each pay $4500 per year for a service that’s worth $6000, a net surplus of $1500 each, and a total surplus to the neighborhood of $15,000.

The catch is that you don’t have to pay. If your nine neighbors each kick in $5000, that will cover the cost of the guard, and they will still receive $6000 in protection, so it’s still a good deal for them. But it’s probably an even better deal for you: The guard they hire will scare theives out of the neighborhood, which will protect you too, even though you aren’t paying for it. You might not get as much protection—maybe only $3000—but since you pay nothing, it’s all surplus, and a $3000 surplus is better than the $1500 surplus you’d get if you paid.

Disaster strikes, again, when more neighbors begin to think this way. If everyone tries to seize the advantages of not paying, there won’t be enough money to hire the guard, and without the guard, the entire $15,000 surplus will vanish.

This is, again, where government can step in, by forcing everyone to pay the cost of the guard: This is also known as using taxes to pay for a police force.

There are lots of other examples of this effect, the most prominent of which is national security—it’s hard to protect just the people willing to pay when the enemy troops arive at our shores, so it makes sense to tax everyone to protect everyone.

Flu shots are another example of this effect. If you’re innoculated against the current strains of influenza, that protects you and everyone who would have caught it from you. If you’re young and healthy, the full cost of the vaccine might be more than you’re willing to pay yourself—you’ll get over a little flu. But more vulnerable people who could catch it from you might benefit a lot if you get vaccinated, and the combined benefit might be more than the cost of the shot. You don’t get everyone’s benefits, however, just your own, so you might not want to buy the vaccine, even though the social benefits would be worth it. Government can change your incentives by subsidizing the vaccine to make it worth your while.

There are other cases like this—although not as many as some would have you believe—but this is the general idea. Government should be large enough to improve the general welfare when the people can’t do it themselves through the free market. But no larger.

Subpoena of an Encrypted Hard Drive

Jon Katz writes about the Boucher case, where the government is trying to get a look at the contents of Boucher’s encrypted hard drive:

, who talked of the Fifth Amendment right not to reveal one’s computer password. On appeal to District Court Judge Sessions, the prosecution fashioned its argument as not seeking a password but seeking an unencrypted copy of the hard drive of Boucher’s laptop.prevailed with the magistrate judge belowBoucher

Boucher is, of course, accused of having child pornography on the hard drive. I say “of course” because when the feds want to chip away at our rights, they try to pick a crime where you’d really hate to see someone get away with it on a technicality.

(These days, the government has stretched their power to search for contraband at the border so it even covers data on your hard drive. It makes no sense, but no one is stopping them.)

Unless I’m thinking of the wrong case, Boucher’s computer was searched by Customs agents when he entered the country under the you-have-no-rights-when-crossing-the-border exception to the Constitution.

I hate this crap.

For some reason, the agents did not preserve the ugly evidence at the time. Now they have Boucher’s computer but they can’t read it any more because the hard drive is encrypted. So they’re trying to force Boucher to help them decrypt it.

In the infosec trade, this is called “rubber hose cryptography”—why go through the trouble of trying to crack the code when you can coerce the information out of someone?

Right now, it’s only under narrow circumstances, and of course they’re trying to save the children. But once that that camel’s nose pokes through the tent flap, the whole stinky beast isn’t far behind.

Anyway, I am not a lawyer, and what little I know about subpoenas comes from my unpleasant experiences with Illinois civil procedure, but I think if I were Boucher’s lawyer, my response would be that my client does not possess an unencrypted copy of the hard drive.

Somehow, though, I’m sure the prosecutor and the judge will figure out a way.

Conservatives, Carry Permits, and Secular Liberal Evangelism

Hi there. My name’s Joel, and I’ll be your occasional Second Amendment issues blogger here. This particular essay is posted both at True North and at Windypundit, the latter of which is set up to handle comments.

Why a Minnesota radical moderate is posting a blog entry about conservatives and liberals on a Chicago area blog is one of those little mysteries of life, kinda like why flammable and inflammable mean the same thing.

But I digress.

I’m always a bit cautious about mentioning who has taken their carry class with me.  It’s not a legal thing — actual permit data is protected by the Data Practices Act, and isn’t for public consumption, anymore than your 1040 is, but that’s a different matter — but more of a propriety thing:  getting a carry permit is a personal decision, and whether or not that’s to be kept private is, well, not my call*.

I did a private class, not too long ago, for, well, somebody who has a: some statewide prominence in Minnesota, and b: a stalker.  He or she asked me not to mention his or her name publicly, so that made it easy.  (I think it was probably the right call in that case, but, heck, I’m utterly sure that it’s not my call, so . . . )

So I’ve been thinking a bit about how to discuss this last weekend’s class.  Which was, well, a blast. 

A bunch of the MOB folks asked if I was willing to put on a private class for them a while back, and we made it happen this last weekend, and it was even more fun than usual, for a lot of reasons. 

Over at Eckernet, Kevin, who sat in on the class — and helped out; it was great to have him around — had some comments on it.  Other than the nice things he said about me — like I’m going to disagree? — I think he had a good spin on one part of the class, but I was thinking about another matter.

Normally, when I do a carry class, I go to some trouble to try to keep my own politics out of it, most of the time.  Seems only fair; after all, people aren’t signing up to spend a day being lectured to me on who they should vote for or what political positions to take. And, besides, politically speaking, I’m a radical moderate; nobody agrees with me.  

There’s a couple things I feel very strongly about where I take off those restraints, though; I’m strongly of the opinion that the Second Amendment to the US Constitution recognizes a fundamental human right — self-defense — and that all rights come with responsibilities.

But this time, I took all of the self-restraints off.  It wasn’t just that, by and large, I find myself agreeing with conservatives — and, like most of the MOB crowd, these folks are definitely conservatives — on many matters, but more it’s that, by and large, conservatives tend to be more tolerant of differing opinions than liberals are.  (Yes, there are intolerant conservatives and tolerant liberals — and I know some of both — but I’m talking about definite trends.) 

And there have been some definite political implications around the gun stuff, of late.  Like, say, this award that I’m not entirely sure Obama is thrilled with having received.

All of which, by kind of a long road, leads me to a point I do keep making:  self-defense — and that includes carry permits — aren’t a conservative issue, or a liberal issue, but a human rights issue. 

That doesn’t mean that this stuff doesn’t have political implications; it does. If you can persuade your liberal (and moderate) as well as your conservative friends to consider getting a carry permit and carrying a handgun as part of their personal safety strategy, you won’t might be doing something with political implications.

Right now, we’ve got just over 60,000 Minnesotans with carry permits.  While the heavy lifting in getting the law passed that made that possible was done almost entirely by conservative Republicans, it would not passed without votes from a (small, granted) number of liberal DFLers. 

And it’s not just conservatives who have gotten carry permits, either.  My admittedly liberal, tree-hugging wife was the first woman in line in Hennepin County to apply for her carry permit back in 2003, just to pick one example.

So, here’s the pitch:  if you’re a conservative, try to get your liberal friends — and I don’t know a conservative who doesn’t have liberal friends — to get their permits.  Sure, I’d love to have them in one of my classes, but that’s not the point — there’s more than a hundred certified organizations, and hundreds upon hundreds of instructors, all across Minnesota, who can put them through a class.

How many people with carry permits do you know who would be real eager to vote for a politician who wants to take their rights away?

Yeah.  I didn’t think so, either.

Yup.  From one perspective, a right-wing gun nut can be just a liberal who got a carry permit, just like a conservative is a liberal who got mugged, and a Sixth Amendment radical is just a conservative who got thumped by a cop.

But I digress.


* Except, of course, for me.  Then again, ever since I testified in front of the MN House and Senate Committees, some years ago, on the necessity of reforming our (now-formerly) antiquated, bureaucrats-know-best carry laws, I’ve been more than a little out of the gun closet.


My mother used to take care of my father, who has a lot of medical problems. Five weeks ago, when she got sick, I moved in with my dad to take care of him. The plan was that I’d stay with him until mom got back, and we’d see what happens then, but instead my mother died.

I’m still taking care of my father, but it has become increasingly clear that this situation is untenable. I have a computer here, and I can get some work done, but I’m not earning enough money. And I miss my wife. She comes to visit several times a week, but she won’t be able to keep it up.

The only real solution is to put my father into long-term nursing-home care. Even if there were some way to make this home care situation work out, my father is just one more medical complication away from being beyond my ability to care for him. The social worker who helps us with his care has implied I’ll start to develop stress-related problems myself in another month or so.

So, putting my father in a nursing home is the obvious next step, but I’ve been dreading telling him about it. I didn’t want to pull the rug out from under him right after his wife died, but I haven’t been sure how to bring it up to him.

My dad’s got a pretty good thing going here—someone ready to take care of whatever he needs at a moment’s notice—and he doesn’t seem to know it’s got to end. If he knows this isn’t the way things are going to be forever, he’s given me no sign.

Until today. This morning, out of the blue, he told my wife and I that it’s time to think about putting him in a nursing home.


Coming Soon: How to Cross-Examine Witnesses

I’ve just started a new project that I’m really excited about. I’m about to start a 12-part series explaining the best techniques for lawyers to use when cross examining witnesses. Among the topics I’ll be addressing:

  • Civil Trials and Criminal Trials: What’s the Difference?
  • How to Sneak Your Theory of the Case Into Your Questions For the State’s Witness.
  • When to Strenuously Object.
  • Three Ways to Make an Expert Witness Look Bad.
  • “Can You Handle the Truth?”: How To Goad a Witness Into Blurting Out the Truth.

What’s that I hear you saying? You think I’m just a blogger, so what could I possibly know about conducting a trial? Well, I figure if lawyers without blogs can teach blogging

Happy Birthday, Ginny.

Today is Virginia Heinlein‘s birthday.  That’s her, with her husband.  You may have heard of him. 

If the world was a fairer place, Mrs. Heinlein would be 93, today, and in good health.  A very nice woman.

Which reminds me of a story. 

So, there I was, pounding away at the keyboard, when the phone rang.  It was my daughter Judy’s science teacher.

“Uh-oh,” I said, and “hold one.”  I knew I was going to need at least one cigarette, and probably a drink.  “What did she do now?”

“You’re not going to believe this one.”

It hadn’t been a great year.  Homework hadn’t been done, or had been ‘lost’.  Classes skipped, authority constantly challenged — well, that was okay, by and large, but . . . — and then there was the series of excuses with my name signed to them, written in my style, and which I had nothing to do with.  Catch Me If You Can wasn’t supposed to be a training film, you know.

“Okay.  Issue?”

“The usual.  Her homework is not in.  You’re not going to believe her excuse this time.”

I sighed.  “Okay.”  Missed another connection at JFK?  Fifth grandmother died?  What?

“She claimed that she couldn’t get to it this morning because she was too busy chatting online with Mrs. Heinlein.  Virginia Heinlein.  Robert Heinlein’s widow.”

“Well, she does have to do her homework, but, yeah, she was.  They do that pretty much every morning.  Mrs. Heinlein looks forward to it, she says.  I know Judy does; first thing in the morning, she gets to Instant Messenger and they talk for awhile.” 

Long pause.  “Really?”

“Yeah.  She still has to get her homework done, but, yeah.”

“What do they talk about?”

Asshole.  “Would you eavesdrop on Mrs. Heinlein’s private conversations with a young friend of hers?”

“No, of course — “

“Me, neither.”

“I mean, I, err, well, but, sheesh, and . . . “

“I know.”

He managed to get off the phone, not completing a sentence.  Understandable.  I got on Instant Messenger.  Mrs. Heinlein was on, and I ratted Judy out.

There was a long pause, and then . . .

May I still chat with her in the mornings?  I so enjoy our conversations.

Of course, Ginny.  (She had long before told Felicia and me — among many others — to call her “Ginny,” and it was all I could do not to answer, “I’d be honored to call you Ginny, Mrs. Heinlein.”  She was like that.)

Thank you so much, Joel.

My pleasure, Ginny.

Talk turned to other things. I think that was the day I told her my Pournelle story, and she told me about how she’s made Jerry’s jaw drop by opening her pocketbook.  (Other stories, for other days.  Remind me.)

Every morning after, when Judy would sign on to Instant Messenger, a message would pop up.

Judy, is your homework up to date?

Yes, Mrs. Heinlein.

Every morning.


Agnostic that I am, I don’t have any strong opinion about life after death and such, but it would be kind of nice to think that maybe, somewhere, she’s reading this and thinking fondly of me and my kid.

We surely are thinking fondly of her, and not just once a year, either.

So:  Happy Birthday, Ginny.  Please pass along my respects to the Man Who Traveled in Elephants. 

Videoblog: Looking for Lawyers in All the Wrong Places

(Alternate title: The Return of Mumbles)

I’m taking another shot at videoblogging. This is just a random story about some legal stuff on the web.

(This was supposed to go up yesterday morning, but I had technical difficulties.)

Here are some of the links mentioned:

Thank you for indulging my behavior.