SOUND BITES

On The Importance of the Right to Property

[T]here is no such thing as "property rights." Property does not have rights. People have rights, including the right to hold property. Efforts to draw a distinction between "personal" rights or "human" rights and "property" rights are mistaken, and produce mischief. (p. 31)

Widespread distribution of private property, of a material stake in the orderly operation of the society, is essential to the long-term survival of democratic government. (p. 47)

This gut-level acceptance of the tradition of property rights has helped make the people of the United States free and rich, and it holds great promise of letting them continue and improve this happy state. . . . . We reject the [tradition] only at great peril. (p. 74)

On Political Legitimacy

Too many legislators, bureaucrats, and judges approach decisions not in the spirit of "How do we deal with the complexities so as to make this Lockean system work?" but with the question "How can we get the use of this property without paying for it?" (76)

This catalog of characteristics that define political legitimacy was not drawn out of thin air or pure introspection. It is basically a list of complaints made by people who believe their rights to property are being trampled. They think the government is acting illegitimately. These people are saying something very serious, and they deserve serious attention. (83)

Unlimited authority, once created, lies around like a sharpened axe, ready for any hand that grasps it. . . . eventually the environmental movement and activist judges swung it. (p. 130)

Most of these arguments used against proposals for increased protection of property rights rely on distortions of standard doctrines of property and nuisance law. The federal government, in particular, is devoid of any sense of professional responsibility or craftsmanship. If the documents submitted to congressional committees by the Departments of Justice and Interior were submitted as papers in any respectable law school, they would get a D. (p. 303)

On The Endangered Species and Wetlands Programs

Endangered species and wetlands protection have a lot in common. Each program responds to a problem serious enough to justify concern and action. In each case, the response is to conscript private property to national environmental causes with no compensation. In each, some of the most troublesome aspects were not enacted by Congress; they were added later by agencies and courts through aggressive interpretation of ambiguous statutory language. Congress has since squirmed and evaded, claiming credit or denying responsibility according to the immediate political winds. Both programs are run by federal agencies on a mission, with no sympathy for any values, such as economic efficiency or individual economic pain, in conflict with their goals. Neither program exhibits any sense of tradeoffs or limits; each claims absolute priority for its purposes over all other possible uses of the land. The agencies give as little ground as possible, and only under intense political pressure. Each program grows steadily more intrusive, and each resists reform. (pp. 91-92)

You . . . probably think that a wetland must be wet. How silly of you. (p. 134)

The need to scorch the earth to prevent confiscation goes deeply against the human grain. No landowner likes doing it, and it is particular anathema to people raised on the land and inculcated with an intense relationship to it. It is a testament to the strength of this feeling that only a small proportion of people in jeopardy from endangered species seem to be following their economic self-interest. Those who do destroy habitat look on the destruction as yet another grievance chalked up against the government and resent deeply the government's role in compelling them to perform such an act. (pp. 104-05)

Periodically, news accounts tell of some eccentric who discards nothing, and whose home fills up with old newspapers, magazines, letters, and other junk. Eventually, the occupant lives huddled in a corner, imprisoned by his own mania. To argue that we humans cannot afford the loss of a single piece of genetic information, regardless of the impact of its preservation on our living space, is to argue that the whole world must be turned into a home for mad magazine savers. (pp. 111-12)

On each of these points, you will find rules, guidance documents, and law suits. The whole business sounds funny from a distance, like something out of a particularly awful Soviet Government central planning manual, but the stakes are hundreds of thousands of dollars and criminal convictions. The players see no humor in it. (p. 139)

On 'Single-Mission' Agencies

We would regard it as absurd to give the Secretary of Defense the power to commandeer "such resources as shall be necessary to provide for the defense of the United States." A military given such open-ended power would always find some further need that must be met to ensure that the U.S. is truly defended. . . . [Nor is it] wise to give an agency like EPA, which has the single mission of protecting the environment, the authority and responsibility to determine when the environment is now officially protected and it is time to think about other, possibly conflicting values. It will never reach this point. (pp. 151-52)

On Rational Ignorance

"Rational ignorance" is a simple idea. My resources of time and concentration are limited, so I ignore many topics, including some of great importance. . . . "Being well-informed" is not an achievable state. There are too many different areas, and . . . most people are too sensible to try to be well-informed on things outside their ambit of immediate concern and influence. Rational ignorance poses a dilemma for democratic government. The larger the number of areas in which the government is active, and the more removed these are from the individual citizen's ability to affect them, the lower will be the overall level of public knowledge. As the number of policy areas escalated to a federal level increases, the general level of rational ignorance among the citizenry about any one of them increases. . . . . Politics becomes more and more the product of general impressions, sound bites, symbolism, and manipulation. (pp. 93-94)

On The West

Starting in the nineteenth century the federal government saddled the West with a system that makes everyone's right to use property ambiguous and insecure. "Ownership" became and remains vague and fragmented, and resources are allocated by political rather than market mechanisms. This makes it impossible for people to make the bargains that smooth the shift of resources to new uses. As is always the case when vague and insecure property rights are up for political grabs, this system favors the rich and powerful. They can buy political power, both to get and to protect. (pp. 156-57)

The concept that it is wrong for people to be denied access to the natural resources needed to make a living is deep in our bones. The denial is more than wrong. It is a cause to overthrow a sovereign [such as George III]. (p. 161)

On the whole, recreation users pay less than 10 percent of the cost of servicing them. One special class of recreationists is especially blessed by the government. This is a group composed of "male[s], relatively young, well-educated, affluent, white, and employed as professionals or executives." These are the users of areas designated as wilderness or similarly locked away from general use, and an increasingly large chunk of the public domain is being reserved for them. (pp. 198-99)

[E]nvironmental protection is becoming a highly valued good in the West. . . . . Since environmental amenities are within economic reach, and since they are valued, they will be supplied in the marketplace. The key is the creation of the transactional capability. (p. 218)

On Environmentalism

[Professor] Robert Nelson . . . . has written extensively about the religious foundations of much contemporary environmentalism. Practitioners describe the human race as a cancer, or as "the AIDS of the earth." As Nelson says, "Such dark visions hark back to the Calvinist and Puritan conception of a depraved world of human beings infected with sin." (p. 117)

Environmentalism itself is now a big business, involving money, power, access to resources, and interesting travel. (p. 95)

The legal profession can feel virtuous for supporting the environmental groups, help write laws ensuring that taxpayers at large will pay a good chunk of the litigation bill, and then make millions defending corporations that are adversely affected by the environmentalists' actions. Hey, is this a great country, or what! (p. 334)

You should be able to call yourself an environmentalist even if you are not willing to become a thief. The pro-property forces should stand firmly where they belong, on the moral high ground. (p. 341)

On Land Use Regulation

To see "nature, red in tooth and claw," . . .trot down to your local zoning board. As two experts concluded, after full body immersion in half a score of bitter land use fights, "something about zoning brings out the beast in people." (p. 229)

The idea of separating land uses to keep like with like and avoid conflicts is so obvious that the practice probably went on back in Ur. You can imagine irate homeowners picketing the new Temple of Moloch on the grounds that the screams from human sacrifice diminish their property values and the chariot jams make it hard to get to market. (p. 231)

Comprehensive land use planning has always been more dream than reality, a spin-off from the faith in central planning of the Progressive Era and the New Deal. . . . . Planning is one of those frogs that looks like it might turn into a Prince, but then just keeps turning into an older frog. (p. 238)

Californians pay the price for the state's anti-development bias. In 1960, the median value for California houses was 27 percent higher than the median value of houses in the U.S. as a whole. By 1990, the California value was 147 percent higher. (p. 299)

On Historic Preservation

Preserving things important to the nation's historical heritage is a quintessential public good. The incongruity of providing this preservation by stealth and regulatory taking rather than by honest purchase is an ironic commentary on where that noble history is trending. (p. 264)

On Forfeitures of Property

Forfeiture practice is becoming the cesspool of law enforcement and the favored instrument of local tyrants. (p. 276)

Much forfeited property is kept by law enforcement agencies. If your new car is seized because you are accused of using it for solicitation, it can -- assuming it is up to their standards -- be assigned to detectives for official use. The rationale is that undercover cops cannot drive low-rent Chevies; they need top-of-the-line wheels. Of course, you might want to check the department's policies on whether cops get to drive their official vehicles home at night, and whether "official duties" include visiting the shopping mall on Saturday mornings. (pp. 276-77)

On The Legal System

As many, many commentators have noticed, this body of law is thoroughgoing mush. No clear line of analysis emerges. Results are unpredictable. Cases are inconsistent. Many of the tests make no sense. . . . . Because of all these uncertainties -- absurdities -- an argument in a Takings case is not an orderly analysis conducted within a logical structure. It is a battle between competing aphorisms. The parties lob quotations at each other, like shooting mortar shells at a dim target in the hope that something will hit. (pp. 289, 291)

Another problem runs through the cases: the theory of government underlying them is about sixty years out of date. . . . . During the past half century, most disciplines concerned with government have reoriented themselves away from the New Deal's smiley-face view . . . . The law has not kept pace, and the world of government depicted in Supreme Court opinions is far from the messy world of rational ignorance, single value agencies, personal advantage, capture by special interest groups, political action committees, pure ego, and policy entrepreneurs with a sharp eye for the main chance. (pp. 293-95)

The political class is increasingly composed of lawyers, and this is a marriage made in Hell. Law school does not train anyone to function in the real world of producing goods for the market. Lawyers are taught to maneuver within a system of self-contained logic, and over the past half century this system has come to consist largely of government controls over private activity. (p. 333)

The picture that emerges from this chapter is somber. It shows not just an area of the law in a state of intellectual anarchy but a whole legal system in disarray. (pp. 304-05)

On Intellectual Property

The fact that intellectual property is not exhausted by use has another crucial impact. We need not devise rules for property rights in the use of the intellectual commons. If only so many sheep can eat the grass on the village green, the rights to the grass must be allocated somehow. . . . . But we can all graze our mental sheep on the intellectual commons at the same time without displacing anyone. (p. 312)

Without government acquiescence, commercial-scale piracy is a difficult way to make a living. (p. 315)

The entertainment industry is a political giant, largely because quirks in the campaign finance laws give it tremendous fund-raising clout. . . . . People used to worry that war and peace might hinge on the interests of the arms merchants or the oil industry. Now, it may hinge on the interests of Hollywood. Maybe Arnold Schwarzenegger's next role will be to play a two-fisted Secretary of State defending the vital U.S. interest in controlling reruns of The Brady Bunch. (p. 316)

Once you get beyond the area of entertainment, information is always about something. To consider it seriously you must bring the about into focus because information, as an abstract concept, is too mushy to analyze. The emptiness of information that floats free of any about is illustrated by much of TV (50 channels and nothing on), by Web discussions that are all opinion and no fact, or by 500 e-mail messages per day. Hell is being trapped in the Net with a disabled logoff. (p. 317)

[P]onder the impact of the information revolution on land use patterns in the West. People who want to live close to nature and telecommute will not be happy to learn that most potential homesites are locked up as wilderness, unavailable even for environmentally sensitive development. (Incidentally, this will raise the prices of available sites even higher, which will ensure that the urban rich not only appropriate the Wilderness areas for their own use but are the only ones who can afford to live near them.) (p. 327)

In the area of information and intellectual property, as in so many others, property rights are the key to justice, economic efficiency, political freedom, and personal autonomy. (p. 328)

On Solving The Problems

The world is full of prisoners dilemma situations, instances in which people are better off if they cooperate over time, but in which the short-term incentives to cheat are substantial. . . . . The constitutional dimension of the legal system is our way of solving serious, and potentially deadly, prisoners dilemma issues. (p. 338)

The bargains that solved our collective prisoners dilemma and let us each be secure in peaceful enjoyment of the types of property we value have broken down. It is important to all of us that they be reconstituted. In the end, reform will come if, and only if, enough of us make clear to our elected representatives that we understand that we have created a terrible prisoners dilemma problem and that we expect them to solve it. If enough of us make this into a voting issue, then our public servants will act. So tell them you are on board this train. And tell them you are not motivated by concern for abstract justice, or out of concern for the community, or by any other noble purpose. They are used to outwaiting such transitory emotions. Tell them you have decided that ignorance about property matters is no longer rational and that you are acting on the basis of the most reliable motives: greed, fear, and a clear understanding of your own long-term interests. That is a motive the political class can understand. (pp. 341-42)