Crescat
Sententia

I was headed out down a long bone-white road, straight as a string and smooth as glass and glittering and wavering in the heat and humming under the tires like a plucked nerve. I was doing seventy-five but I never seemed to catch up with the pool which seemed to be over the road just this side of the horizon. Then, after a while, the sun was in my eyes, for I was driving west. So I pulled the sun screen down and squinted and put the throttle to the floor. And kept on moving west. For West is where we all plan to go some day. It is where you go when the land gives out and the old-field pines encroach. It is where you go when you get the letter saying: Flee, all is discovered. It is where you go when you look down at the blade in your hand and see the blood on it. It is where you go when you are told that you are a bubble on the tide of empire. It is where you go when you hear that thar's gold in them-thar hills. It is where you go to grow up with the country. It is where you go to spend your old age.[2] Or it is just where you go.
. . . . . . . . .
For after the dream there is no reason why you should not go back and face the fact which you have fled from (even if the fact seems to be that you have, by digging up the truth about the past, handed over Anne Stanton to Willie Stark), for any place to which you may flee will now be like the place from which you have fled, and you might as well go back, after all, to the place where you belong, for nothing was your fault or anybody's fault, for the things are always as they are. And you can go back in good spirits, for you will have learned two very great truths. First, you cannot lose what you never had. Second, that you are never guilty of a crime which you did not commit. So there is innocence and a new start in the West, after all.

If you believe the dream you dream when you go there.
- Robert Penn Warren, All the King's Men, Ch. 7

Part of the dream of the West, of the horizon, is that it's different. The land itself is part of that. Virginia's Blue Ridge mountains are calm and pretty, and because of that they'll never have grandeur of the ones out west, where if you slip too much, you're a goner. Not in Wisconsin, not in West Virginia, not in Florida, not anywhere east of the Mississippi can you find these shots of standing on the top of the world [ok, enough with the photos, until that happy future August day when I take some of myself standing there. But back on point...].

Take a tour of a Frank Lloyd Wright home and you'll hear about his desire to build buildings that harmonize with the landscape. There's hardly enough land around the Robie House to judge if it worked there, but it certainly succeeds better than the eye-offending shoeboxes of Best Buy, Bed Bath & Beyond, and the like. Ideally, those things would belong in the abandoned missile silos, not out despoiling the view. Throw them into a place like Fairfax County, Virginia, which is already condemned to be dominated by the things built on top of the land, and you haven't changed much; throw them in the midst of an amazing view like those in the article's photos of Idaho and Nevada, and the result is depressing.

I'm a college student: I sympathize with the desire for cheap towels of better quality than the ones you get in a Motel 6. But it's not the old-field pines that are encroaching today. Instead it's the new housing developments and McMansions where there are no trees left worth speaking of. Maybe they'll look ok in another thirty years. But until then, I want to either live somewhere where the neighborhood trees are tall (as is the one towering outside the window of my second-floor apartment) or I want there to be places to escape to where there just are no neighborhoods, only trees. I want to go some place where cell phones just don't work [but I've got my broad band internet access]. God help us if there's never a West to go to. Where will we go when we want to flee, when we want to be reassured that all of America isn't like the place that we currently find ourselves hating?

* * *
[1]: North Carolina is hardly new; it's the Old North State. Ohio and California are both more of "horizon" places, if one judges by when states were admitted to the union, a rather traditional way of going about things.

[2]: [Is it too early to start dreaming about becoming a prof emerita at UC Boulder?]

If you want a school system in Baton Rouge that doesn't look severely out of whack, you must discriminate on either the basis of race or on the basis of some proxy that looks a whole lot like race. This violates the Brown v. Board II requirement for school systems to create attendance rules such as "are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases." The school system run by the Catholic Archdiocease is alone one-third the size of the public school system. It's white flight (there are other private schools, and there are majority black private schools, but overall, that's how the numbers break down).

The city is slightly more black than white; the parish is about 55% white and most of the rest are black. But the school system is 70% black. If you ran a strict neighborhood schools program for attendance districts, you'd create racially identifiable schools (not that you could... no new school has been built on a new site since 1966, so there are plently of recently built subdivisions without anything remotely close to a neighborhood school).

So what on earth is unitary? Shouldn't there be some sense within it that you don't think there's something funny going on when you see the graduates of Capitol High (public) standing next to graduates Broadmoor (public), or of St. Joseph's or Episcopal High (private)? "Unitary" was defined in Green v. County School Board (1968), a case arising out of New Kent Cty, Virginia, where a "freedom of choice" system and no patterns of residential segregation still gave rise to a de facto segregated system. Only, no white student chose to apply for a majority-to-minority transfer, and only 15% of the black students did. The opinion doesn't help much in figuring out what "unitary" is. New Kent County fails the "quack like a duck" test, so the Court didn't need to get any more precise. And then,

The obligation of the district courts, as it always has been, is to assess the effectiveness of a proposed plan in achieving desegregation. There is no universal answer to complex problems of desegregation; there is obviously no one plan that will do the job in every case. The matter must be assessed in light of the circumstances present and the options available in each instance. It is incumbent upon the school board to establish that its proposed plan promises meaningful and immediate progress toward disestablishing state-imposed segregation. It is incumbent upon the district court to weigh that claim in light of the facts at hand and in light of any alternatives which may be shown as feasible and more promising in their effectiveness. Where the court finds the board to be acting in good faith and the proposed plan to have real prospects for dismantling the state-imposed dual system "at the earliest practicable date," then the plan may be said to provide effective relief. Of course, the availability to the board of other more promising courses of action may indicate a lack of good faith; and at the least it places a heavy burden upon the board to explain its preference for an apparently less effective method. Moreover, whatever plan is adopted will require evaluation in practice, and the court should retain jurisdiction until it is clear that state-imposed segregation has been completely removed. See No. 805, Raney v. Board of Education, post, at 449.

The East Baton Rouge Parish School System is, by this point in time, acting in good faith to dismantle state-imposed segregation. But how much does that count for, if you've got a society that wants to re-establish it? The school district was struggling with the problem that, once a school becomes more than a certain (floating) percentage black, a lot of parents don't want to send their kids there, so those families flee to the private schools or the neighboring parishes like Ascension. People voluntarily chosing will sometimes chose against integration, so what's the problem with allowing the school systems to discriminate on the basis of race in order to combat these trends? Those kinds of programs — m-to-m transfers, admitting entering classes in magnet schools as 50% black, 50% non-black, some busings — become much more constitutionally suspect if they're not protected by a Brown court order. As they disappear, it's likely that the schools will be come more racially identifiable than they were when the court order acknowledging unitary status was granted. Just look at the Chicago public schools, which have been declared in compliance. Was this the dream of Brown?

I'll say right off the bat that I've only looked at his two short papers, Is Copyright Property? A Comment on Richard Epstein's Liberty vs. Property and Locke's Labor Lost; it's possible everything I'm about to say is persuasively refuted in his longer piece; if so, I'll post an update when I finish it. In the meantime, here goes.

Mossoff argues that people dismiss Locke's labor-mixing idea as absurd because they refuse to put the idea in context; if you properly appreciate how labor-mixing is a metaphor for "productive activity" that ties into Locke's broader view of the world being given to the industrious, as opposed to the lazy, then the reductios typically attached to it just don't follow. When Nozick pours his radioactive tomato juice into the ocean, for example, he's being wasteful and silly; far from being forced to give him the ocean, Locke can condemn him as immoral; the same goes for Waldron dropping his sandwich into a block of cement.

All that is fine as far as it goes. But I think this misses an important point: modern glosses on Locke have a tendency to abstract away from his supporting arguments and larger philosophical commitments precisely because most readers would reject those arguments. If A, then B isn't a great argument if nobody accepts A; "God gave the world ... to the use of the Industrious and Rational" isn't quite the stuff of which a wide overlapping consensus is made. The conclusion "if I make something, it's mine" has a lot more (popular) support than any single argument one could make to generate it; it's that intuition that philosophers find themselves drawn to confront, not the specific argument Locke makes.

But I have a more specific problem with Mossoff's pieces. This is actually more of an issue with the "Copyright" article, which apparently I'm not supposed to distribute or quote; I'm not really sure what to make of it, but since he put it up on SSRN I'll assume he doesn't mind my discussing or linking to it. He says that those who think IP isn't really property are mistaken; the historical argument is not one-sided in favor of consequentialism, but also reflects natural rights language, but more importantly, the same concern with owning what one makes animates both tangible and intangible property.

Now, he acknowledges that property shouldn't have the exact same consequences for music that it does for chairs, but nevertheless claims that getting, using, and disposing of one's property is absolutely central to the concept; I'm not really sure where he would change things. Exclusion, he admits, just doesn't seem as natural with IP as with tangibles; but he doesn't turn this into a specific policy critique. His policy advice, in fact, is to relax: we don't know the best solution, so we shouldn't yell at Congress for trying to figure something out.

Well, when faced with a difficult decision, we should ask ourselves, "WWJD?" What would John [Locke] do? Luckily, we have Mossoff himself to explicate this. Apparently, Locke would tie property rights fairly closely to the idea of productive use. Just as suicide is out, it's not clear that one even has the right to destroy or waste one's property a la Nozick or Waldron. Heaping up more than you can use in the state of nature isn't okay; only money makes it work, because then other people can pay you in order to (productively) use it.

So if you've made something of value, you can't just destroy it; "nothing was made by God for man to spoil or destroy." You're supposed to use it productively, "for [mankind's] benefit and the greatest conveniencies of life they were capable to draw from it." But this is a much more constrained dominion than the classic property jurisprudence Mossoff cites would have it, and it has pretty radical implications for, to take an example, digital music. If a piece of music can be copied perfectly and essentially costlessly--if all of mankind could have it--what right does a Lockean have to deny it to the world? How is this not waste, on a level with fruit rotting on the vine, which he so explicitly condemns? (On a side note, many films from the early part of the century--films without any real commercial value today, and hence not (to the studios) worth restoring or releasing--will rot inside their containers before they are freed into the public domain. There are nontrivial transactions costs here, Coasians.)

But I digress. The Lockean natural rights doctrine Mossoff sketches out is a tightly constrained one--not as domain-specific as the Constitution's copyright clause, but more binding, because it's more perfectionist. Property exists for the greatest conveniencies of life, not just some of them. The point is that what we have is at least a prima facie case for, not Blackstonian despotic dominion, but rather something like compulsory licensing in digital music. This is, in fact, exactly the sort of thing Lessig and others have advocated (Mossoff in his paper treats Lessig as something of an extremist).

In fact, it's not crystal clear that Lockean theory even requires compensation for such compulsory licensing; at the very least, it's unclear how much. If I have a bushel of apples, and I eat them, that's fine. If I give them to someone else who eats them, that's fine. If I ask the recipient to give me some shiny metal in exchange for my apples, and he eats them, that's fine. But am I allowed to gather a bushel I know I can't eat, and hold out for X pieces of metal? That is to say, am I allowed to say to a buyer willing to pay X-1, "Sorry, nothing doing. Give me X, or I let them rot"? How can I legitimately threaten to do something I have no right to do? Locke skirts this issue by assuming, basically, perfect markets of price takers, but it's a real issue, one that definitely rears its head with IP and digital music.

If I have no right to deny the world's file-sharing network my song, what right have I to insist on X level of compensation? In the case of one apple, if no one is willing to meet my price, I can eat it myself; hence, there's no moral case against my demanding whatever the market will pay, and I can perhaps be said to "deserve" whatever I can get. But that's just not true here. It doesn't seem like an artist can legitimately hold out against any offer of compensation, even zero. (It's not clear that we can simply seize his computer files and put his music on the network against his will, although in a state of nature perhaps we could, as Locke speaks of punishment against those who waste; here, though, we're just talking about the artist's right to refuse, not ours to take.)

In his discussion of money, Locke himself introduces a heavily consequentialist element: how could we take advantage of the division of labor and efficiencies of scale without the expectation of profit and payment? So here, perhaps, we have our answer: compensation to artists can be justified in the Lockean theory by the incentive effects, because only then will we get the optimum amount of music, which is what God wants (you could accuse me of slipperiness here, saying that music is purely the artist's, and has nothing to do with mixing labor in the commonly owned world, but a strong case can be made that artistic creativity requires the existence of a world to be artistically inspired by).

So what's the upshot of all this? I'm not saying Locke's theory should guide IP policy; as I said, the God-gave-us-(the-hard-workers!)-the-world-to-use-well part is a bit of a nonstarter. But if you're going to insist on fleshing out the full contextualized Lockean argument for property, there's something a bit odd about turning around and using the Cliff Notes "if I make it, it's mine, full stop" version to justify a new application of the theory. This seems especially true in cases when the fuller version actually cuts against the conclusions the author wants to draw. Sure, there are strong intuitions behind "I made it, it's mine." But our intuitions can be misleading--and when our notions of property were formed in a world facing quite different production functions and the like, we ought to be very careful about analogizing to new situations.