 Welcome, folks. This is Gene Bosler, your host. This is Episode 8 of the Gene Bosler Show, formerly called Anarcho-Environmentalism. Today is Sunday, May 30th, 2010, and I'm pleased to welcome as my guest, Stefan Kinsella. Are you there, Stefan? I'm here. Glad to be here, Gene. Thanks for coming on. Let me read Stefan's profile on Wikipedia. Kinsella is General Counsel of Applied Opto-Electronics, Incorporated of Sugarland, Texas, a practicing intellectual property attorney and former adjunct professor of law at South Texas College of Law, where he taught computer law. Kinsella is actively involved with libertarian legal and political theory and is adjunct scholar of the Mises Institute, as well as the former book review editor for the Institute's Journal of Libertarian Studies. He is also a contributor to the news and opinion blog at LewRockwell.com and is the creator of libertarian papers, a peer-reviewed online journal published under the Creative Commons Attributions 3.0 license. He writes that after college, he, quote, began to put more emphasis on Austrian economics and paleo-libertarian insights of Rothbard, Hans-Hermann Hoppe, and Rockwell, end quote. Kinsella's legal publications include books and articles about patent law, contract law, e-commerce law, international law, and other topics. Kinsella has also published and lectured on a variety of libertarian topics, often combining libertarian and legal analysis. Kinsella's views on contract theory, causation and the law, intellectual property, and rights theory, in particular, his estoppel theory, are his main contributions to libertarian theory. In contract theory, he extends Murray Rothbard and Williamson Evers' title transfer theory of contract, linking it with in-the-alien ability theory, while also attempting to clarify that theory. Title transfer theory of contract, Kinsella sets forth a theory of causation that attempts to explain why remote actors can be liable under libertarian theory. He gives non-utilitarian arguments for intellectual property being incompatible with libertarian property rights principles. He advances the discourse ethics argument for the justification of individual rights, using an extension of the concept of estoppel. Welcome to the show, Stephen. Thanks very much, Gene. Okay. Here at the environmental, anarcho-environmentalism, we, namely I, argue that there are indeed real environmental concerns out there. We argue that air pollution, water pollution, et cetera, are indeed real environmental concerns. That global climate change ain't one of them. And that market and voluntary solutions are preferable to government or policy-based solutions. I guess my first question for you is, as an expert in patent law, do you think the existence of patent law is really nothing more than just one more way government runs block for favored and well-connected market participants by protecting environmentally irresponsible means and methods of production? And if so, this not logically followed that patent law harms the environment? Well, that's an interesting connection. I mean, for years now, I've been trying to make, trace out all the harms from patent law. Environmentalism is not one I've made yet. I could see that there could, some arguments could be made. I do think that patent law is a type of protectionism similar to minimum wage law and antitrust law, sort of counterintuitively, and that they do protect the larger companies. For example, you know, most of the smaller entrants to businesses or to new markets don't have a large patent portfolio or the ability to get it, but you get these large established market participants, you know, they amass large patent portfolios. And what this does is it basically protects them from suits from each other. Because if, you know, if one guy suits another guy, then they can be countersued based upon the other guy's portfolio. So you can think of these guys as big porcupines, right? They all have large defensive quills, but they're sometimes afraid to suit each other, or they do suit each other, and then they all come up with a settlement and they cross-license to each other their patents. Of course, what this does is it lets them keep operating. Now they pay a hefty fee to do this. They pay a lot of fees to lawyers and the patent office, but they get these monopolies to practice that basically isolates and insulates this kind of, you know, cartel. A new market entrant has no protection. He has no porcupine quills. So basically, he's at the mercy of all these established cartels, and it's much harder to get into the new market. How this leads into environmental abuse, I'm not quite sure. I'd be open to the argument. So this is why, let's say I were to pepper my one-acre property in Wind Whipped Cypress, Texas, with windmills and solar panels and back-feeted into the grid, and suddenly I would be, find myself providing energy for my next door neighbor, and then everyone on the street, and then everyone on the HOA. They put a stop to me right quick, even though I wasn't actually polluting anything, they have the energy companies have a monopoly on the provision of energy. Is that not correct? Well, certainly the energy market is heavily regulated in some ways. It's less regulated than it used to be, but certainly there's not a completely free market in the provision of energy. So yeah, I would agree with you to that extent that, you know, you can't just, that's another, yet another limit on the ability of small companies and small entrepreneurs to come up with, you know, new ideas and disruptive services and to enter into these kind of markets. Okay, well, I want to state that, say here that Block and Rothbard both posit the view that government protective legislation serves to provide a green light for industry to pollute with the impunity. And this is consistent with what you say about patent law providing similar protection. So even without any further deeper study, I do see some basic level consistencies with those two positions. I got another question for you, since we're on the topic of patents. Are those people merely conspiracy theorists who claim that there are patents sitting on shelves for all manner of human friendly and environment friendly technologies from 200 mile per gallon carburetors to Tesla and ionospheric energy capture technology, etc. Are these people just conspiracy theorists or is there in your opinion some substance to these claims? Well, in a word, yes. They're basically ignorant conspiracy theorists. I understand their skepticism. I understand the motivation to distrust the establishment and the entire patent system. But the essence of a patent is that it's a public document. So if there's a patent on something, you can look it up right now in the patent database. So if there were 200 mile per gallon carburetor inventions out there that were being kept off the market by some patent power of some patent holder, at least we would know about it. Now there are some, there is the ability of the military or the government to, you know, when you submit a patent application to the patent office, it's done in secret. And before you can file it in another country, you have to get permission from the US government. So what they do is you submit a patent to the government, the PTO in DC, Virginia area. And the first thing they do is they send it to the NSA and all these secret groups and they review it first to make sure there's nothing really that they want to get their hands on, right? No nuclear technology or something, something extremely useful to the military or dangerous for other people to find out about. If they find that, which is rare, then they would send them a secrecy order to the, to the applicant and tell the guys, look, we're taking over this idea, we're going to pay you some money. And you have to keep quiet about it. And too, too bad, so sad. But thanks for filing it. Now that is really rare. But that wouldn't be a patent. That would just be someone's idea that the government has told them, you better keep this quiet and we're going to keep a cap on it. But the normal process is you file the patent, you get your permission to publish from the government after it passes the review of these, of these other agencies. And then it becomes published at 18 months after you file it. And so it's public to the world, even if you don't get a patent on it. So, you know, I think this is a type of conspiracy theory that undermines the credibility of libertarianism, in my opinion. Excellent. Okay, just to be clear, you're opposed to this, this federal government's first right of refusal, right? Oh, absolutely. Well, absolutely, I'm opposed to the entire patent system in the first place. I mean, I'm opposed to the federal government existing and the federal government is a criminal organization. So, you know, in fact, from an environmentalist point of view, I mean, I'm hesitant to say I'm an environmentalist because of the connotations and baggage and socialist and private property ignorance undertones of a lot of social of a lot of environmentalism. However, of course, if you were in favor of the environment, the last agency you would entrust to protect it is the is any government, especially the United States central government. Yes, I understand that the the hesitation, the reluctance to take seriously anything that has the term or the stamp of environmentalism on it, I would direct your attention to block who stated in an essay called something something like the case for free market environmentalism. He said, oh, it's called environmentalism and economic freedom, the case for private property rights by Walter Block. He states, before making this seemingly quixotic endeavor, we must be sure we are clear on both concepts. Environmentalism may be noncontroversially defined as a philosophy that sees great benefit in clean air and water and to a lower rate of species extinction. Environmentalists are particularly concerned with the survival and enhancement of endangered species, such as trees, elephants, rhinos and whales, and with noise and dust pollution, oil spills, greenhouse effects and the dissipation of the ozone layer. Now, this version of environmentalism is a very moderate one. Moreover, it is purely goal directed. It implies no means to those ends whatsoever. In this perspective, environmentalism is, in principle, as much compatible with free enterprise as it is with its polar opposite, centralized governmental command and control. Basically, he goes in and he describes the various types of environmentalists from the watermelons who are green on the outside, red on the inside who actually see environmentalism as a movement, nothing more than a means to achieve their world socialistic ends. He also talks about true greens who believe the humans are the blight on the planet. In order to save the planet and all life on earth, the species has to check out and he and Rothbard both note that they are never the ones to volunteer their kids to check out first. Right. I read almost everything Walter has written. In fact, I set up and I run his website for him and I agree with almost everything Walter says. I agree with that. Although that may be a slightly uncharitable characterization of some libertarian environmentalists. I mean, you know, in a strict sense, I would say I'm an environmentalist and so are all libertarians in the sense that their policies that followed would, of course, optimize the ability of environmentalists to protect their values and achieve their values and also will protect the environment itself. Now, the particular goals, I think Walter is right that we have to focus on means and ends and that if your goal is to minimize the reduction in species and things like this, you know, that as long as you choose peaceful means, it can be compatible with libertarianism. I don't think it is libertarian itself. That is, it's not implied by libertarianism. I personally don't have a strong desire to prevent species from going extinct. I mean, if you understand the history of the earth, this has been going on for millions and millions of years and it's a natural part of life that some species evolved into life and some, you know, go extinct. And I think man is a natural part of life as anyone else. That said, I don't think government should be involved in interfering one way or the other with these processes. And, you know, I think that a proper environmentalism has to strictly respect property rights. Good. That's our position that through the strict application and defense of private property rights, all environmental concerns boil down strictly to torts. And if it can't be boiled down to torque, then basically it ain't a real environmental concern. Yes. This is Rothbard's position. Go ahead. I don't know. Well, I mean, a couple of recent examples, obviously the BP spill. Now, I cannot say whether this was a result of government intervention, although, you know, ideally in a government free world, we would be about 100 times richer and presumably, you know, with a lot more wealth at our disposal, many more safety devices would be used in all kinds of activities. So these kinds of things would be probably less likely to happen anyway. But the $75 million cap that Congress granted the industry 10, 15, 20 years ago when they did this, which BP is apparently going to ignore and pay claims anyway. That cap obviously was un-libertarian, although it's not libertarian for the government to step in and enforce torque claims either. So, you know, you can't say that the $75 million cap should be abolished in the sense that the state should hold BP liable for all the torque claims because what you're doing is favoring one criminal mafia, which is the government, you know, going out to pursue justice on behalf of all the people that it rapes and pillages on a daily basis. Right, which is a complete, you know, logical fallacy. Exactly. Rothbard discusses this somewhat in law property rights and environmentalism, which as you noted preparing for this interview, you may not have read in a few years, but he does talk about the illegitimacy, not as it pertains to the environment, but particularly, but the illegitimacy in general of class action lawsuits. If I am not even aware of this class action and then yet imbound by its outcome, do you agree with, do you agree with Rothbard on that? Well, I can't say I agree completely. I mean, I don't disagree with him. I think it was a provocative idea he had. Rothbard was so broad-sweeping in his, the scope of what he covered, and he sometimes, you know, went without a net, and he sometimes ventured into areas that not many people had talked about before. And so I think sometimes he just, you know, blurted out what his view was, and he could only give so much attention to all these views. And I think class actions was one that he, you know, he gave a reasonable sort of first approximation approach to. I am not so sure that in a free market that a class action type idea would not emerge in some form. Number one, you could have, you could have it done contractually, which I'm sure Rothbard would agree with. For example, you could have some kind of networks of private defense agencies and insurance company agreements and inter-agency agreements that basically provided for something like this. And if so, then that would be... Inter-arbitration agency agreements included. Yeah. Absolutely. And number two, I mean, there are a lot of sort of practices that we frown upon now because they're established by the legislature like the statute of limitations or class action lawsuits. But, you know, of course we can understand the idea behind them. And sometimes it makes a little bit of sense. Even trademark law, for example, you know, in my IP writings, intellectual property writings, most of my fire is aimed at patent and copyright, which are the biggest offenders. But even trademark and trade secret have big problems. And trademark, for example, although you could say that, and one aspect of trademark could be justified on libertarian grounds, and that is the extent to which there's fraud being committed upon a consumer, right, by a merchant. So let's say, you know, you sell someone a fake Rolex watch and, you know, but, you know, this actually example proves that this almost never happens. I mean, the guys that buy Rolex watches on the street for $10, they're not really being defrauded. They know it's a fake Rolex watch. And the seller knows it's fake. The buyer knows it's fake. So there's no fraud being occasioned upon the consumer. But, you know, you could say that, let's say there's a really good knockoff merchant that succeeds somehow in getting a bunch of fake Louis Vuitton purses and in the actual Louis Vuitton stores and Neiman Marcus in the gallery or something. I suppose you could imagine a case where the law evolves so that Louis Vuitton itself has the right to sue on behalf of the defrauded customers because they're too diffuse to sue on their own. And you could sort of presuppose their consent. Like they'd be outraged that they were ripped off and they would all, you know, consent to Louis Vuitton being their agent to sue on their behalf. Now, I think this theory is a stretch, but you could see how some of these sort of presumed consent causes of action might emerge. And I think something like class actions could possibly emerge, but I'm not aware of any good work that's been done based upon solid libertarian principles to argue in favor of class actions. So I would say that, you know, barring that and until someone comes up with one and I don't have one, I would tentatively go with Lockbard's negative opinion about class actions. Right, well, he considered a class action suit to be legitimate as long as all the parties involved kind of like know about it. And maybe even if, you know, he, I think he cites the example of 292 polluters polluting the air in Los Angeles County, a county of seven million inhabitants. And if I'm one of those seven million inhabitants, and I didn't know about the lawsuit. And I, but I would be required under current or existing federal statutes to, I would be subject to the outcome of that suit. Right, I mean, that means that I myself would never have recourse to sue one or some or all of the 292 polluters myself. So it seems to me like that protection actually helps to limit the liability of the polluter and actually, because if you had the risk of an obscene number of lawsuits from an indeterminate number of complainants, all of whose property had been trespassed by your polluted water or your polluted air, then you would really have a much, much stronger incentive to engage in non-polluting methods of production, in my opinion. Well, you know, I've never heard it put that way. There's something to that. I think it's possible. I mean, I think the state's mechanisms mess up everything. But for example, something like what you're proposing is happening with the Google, the Google Books, Google print thing they're doing where they're trying to digitize all the books. So Google's, you know, they're worried about copyright liability. And so they actually wanted there to be a class action lawsuit. And it was instituted by a small group of librarians or something like that. And Google is happy to settle. They just want a final judgment, right? And they know that once they get this final judgment, it's going to basically bind everyone who's in this class, even if they didn't officially join the class, and will basically immunize them from liability going forward. Now, in a way, that's a good thing in this particular case, because copyright is problematic in the first place. But the point is they're using the class action kind of mechanism in their defense because no one else is going to be able to have the clout and the size and the stature of Google to go negotiate the similar thing. So basically it would give them sort of a unique exemption from copyright liability to let them proceed with their Google print project, right? But, you know, the other complaint about class action is usually the other way around. Like let's say, I mean, I would say the typical libertarian complaint about it is that it violates the rights of the plaintiffs who are forced into it, not the rights of the defendant, the victim. Because, you know, you say that the liability is lessened for the defendant, but it's not really because the plaintiffs who never actually joined in are considered to have joined in. So their damage is counted as part of the damage. Now, I know that one big lawsuit is less damaging than 100 smaller, 1,000 smaller lawsuits, but still the sum total of the damage is added up. But these individual plaintiffs who are left out, you could argue that their rights are the ones that are violated. But this is why I mentioned the statute of limitations and things like this. I could see sort of rules evolving where, you know, there's notice given in newspapers, and you don't take advantage of your rights. After a certain point of time, it's either practically or legally difficult to assert your rights once you've had a chance to do so. And if this was the venue to do it and you didn't join in when you could have and you didn't opt out, then I don't know if this is the biggest libertarian travesty of all time. Probably not, but you do agree with the supposition that statutes of limitations would likely emerge in a market arbitration environment. Well, I mean, not technically, because the statute is a decree by legislature of a state. So of course- Right, but the concept would likely emerge. I think it would arise for a couple of reasons. Number one, it could arise by virtue of these private agreements among arbitration agencies, like I mentioned, but it could also arise just as a matter of practical necessity. Let's say, for example, in theory, let's say you have a legal system that recognizes the right that you own your property unless and until someone else shows up that has a better claim. Yeah, right. But the problem is there's a time limit on that because even if, in theory, some long descendant of an Eskimo or some Cro Magnon from 75,000 years ago could show up and show that somehow you're on his ancestor's property that was taken from him and he has a legitimate claim to it, basically at a certain point in time, it's just impossible to gather the evidence needed to establish to prove your case. So at a certain point in time, it's going to be a practical matter if nothing else impossible to prove your claim. So after 100 years, 50 years, 500 years, something like that, it's going to be impossible. And I could imagine rules of thumb arising that say, listen, a strong burden of proof arises that the property of someone that holds it now is valid property after a certain period of time. And that's why I think property, title insurance would be a much bigger player on the market in a free market. You would basically just have title companies that would be their business. They would specialize in trying to find out who has a good claim to this property and they would give insurance. And so if you own a house and some Native American can show that his ancestor owned it 240 years ago and you have to give your house up, then you get a reparations claim from your insurance agency and you move on. All right, okay. I don't want to go too far from my topic here, but this really captures my interest here. You're familiar with agorism, correct? Absolutely. The principle of the practical application of market anarchism and advocating the widespread use of black market and gray market activities, engaging in free exchange without including the state is a third-party hand snatcher in the transaction. You are familiar with that? Yes, or I think Lou Rockwell or Murray Rockwood one time mentioned the gray market or the black market. And they said, in other words, the free market. Oh, that's great. That's beautiful. I've never heard that. Oh, you mean, oh, in other words, you mean the free market. Okay, we're in no gang of thugs extract his pound of flesh off the top of any transaction. Right, calling it a black market is almost a majority. It's implying there's something shady about it, right? It's like, well, it's a little shady because you have to be shady to get away from the government's clause, but really it just means the free market in operation. That's beautiful. Well, the reason I bring that up here is because you talk about market insurance policies. Mm-hmm. Why not? We'll call it the Concella and Bosler title insurance company. Why not start homesteading vast tracts of federally owned land and communally unowned ocean just on paper say, hey, here, everybody, claim your title. So that in 2012 or 2015 or 2020, when this whole pyramid global pyramid collapses, people could have already established their claim to various acres of land or water. Well, I mean, I mean, it would be a fun exercise. I know that it would have no, I'm not opposed to it. I think it's, it would be one of many competing theories about how to deal with the disposition of assets. Well, no, the question would arise, whether are these assets that are actually owned right now by the federal government or are they not owned by the federal government? Now, arguably the federal government asserts ownership claims, and at least with respect to forest lands and things like that, where they own them in the sense that they, you know, they physically prevent people from using them in ways that they don't permit. So in a legal sense, the federal government is the owner of these things. Of the ocean, not so much. I mean, really, there's no strict ownership claims of the entire ocean established. Okay, but in the highly unlikely event of a total societal breakdown, Armageddon a la Gerald Salente. And in the government, albeit illegitimate under libertarian law, claims to ownership of these properties are unenforceable anyway. Why not have already in place a title recording agency? Well, you could. In fact, I've proposed with some of my libertarian friends kicking it around with four similar ideas about let's go ahead and have a libertarian, Nuremberg war crimes tribunal right now because we're gonna have too many people to pass judgment upon when our day comes. So let's go ahead and decide now, get the go ahead and get them decided. So let's go ahead and decide George Bush's fate and Dick Cheney's fate. So that when the day comes and all the librarians who work for the government, what was their fate for taking government money and policemen and school employees and let's go ahead and make a decision. But I mean, in a way, these armchair exercises, I mean, what's the point? The only point of this would be to build your argument up and be ready to present it to who? To people that are willing to listen to reason. And in my opinion, that's only gonna be useful if we achieve anarchy in a peaceful process of illumination. And that is not as the result of some societal breakdown because I think the result of societal breakdown would not be good right now because we would just get something even worse. The federal government might go away but the reason the federal government exists now is because most people have the delusion that the federal government is legitimate and that the state is legitimate and that institutionalized violence is legitimate. And I don't think that that delusion will disappear when the state disappears. They'll just be ripe for the next demagogue or something like that. So I don't think any of these claims would do any good because who you're going to address them to, the next warlord that takes over. Now, on the other hand, if we do achieve anarchy by a peaceful process, a gradual evolutionary process of enlightenment, will people become gradually more economically literate, for example? Which could happen over time. For example, right now, most people are much more literate about the evils of communism than they were 20 years ago. Just the fall of Russia itself educated almost everyone to a degree. So it's possible that this can happen even without formal education. So if we achieve anarchy the peaceful way, it will only be with a gradual enlightenment of the human species. Basically, we'll become more and more libertarian in our thinking. And if that happens, then of course, these people will be more susceptible to libertarian arguments. And to the question, what do we do with the state parks? What do we do with the roads? What do we do with the assets that are held by the government that we've now disbanded? Who do we give them to, to do justice, right? Do we give them to the neighboring people? Do we give them to the taxpayers? Do we give them to the victims of bombings in Iraq? Who's the first claimant on these resources? But I don't think it would be the guys that wrote who filled out a book on a website that said, I stake my claim to Yellowstone. They mainly serve as a means of furthering an argument. We're speaking with Stefan Kinsella, Libertarian Legal Theorist. And Stefan, you just got done stating that through gradual human enlightenment, are we going to achieve anarchy? It sounds like a generation's long process. Might I posit at least the claim that if we overcame a few obstacles like state-funded or state-monopolized education, that there may be a few obstacles that might speed along that process? I agree with you. I, and, you know, in my wish list sometimes when I'm asked, you know, what is the worst thing that is in society or the worst thing the government does or the first thing I would choose to change if I could. I mean, there's a long list of things that you would choose, you would change first if you could. It could be abolishing the outrageous and immoral and evil drug laws. It would be abolishing the income tax. But I think if I had to choose one thing, it would be abolishing all involvement of the government in education. That would be the first thing I would change probably because I think that is the primary way that the government indoctrinates society and creates cannon fodder and Democrat zombies who go around saying that, you know, if you don't like it here, leave. Or, you know, they'll create... Creates idolaters to the state. Yeah, they say, well, you know, I know it's bad, but we got the right to vote, we are the government, you know, they say all this bullshit. You hear it over and over and over again, you know, and you can almost predict what their answer is to something you say. Especially here in Texas. Well, I think so, but, you know, I see it everywhere I go. You know, you can, someone should write an article on the expected program responses to arguments. Like, you know, if you shouldn't vote because your vote is wasted. And of course, the automatic response is, but if everyone thought that, you know. Yeah, right? So there's just a litany of things that they learn on these Saturday morning cartoons and in the government schools. I wanna ask another question regarding free market environmentalism. Is nuclear energy, as we know it today, merely a stepping stone on the way to other forms of energy that may soon emerge on the free market horizon? Well, I'm an electrical engineer background. I'm Pat an attorney. So I have some familiarity with this. I can't claim to be an expert on this and to predict what's going to happen. And of course, the government has heavily distorted the energy industry, including the nuclear industry in both ways, in both terms of subsidies in the past from corporate subsidies and limitations of liability. And in terms of the imposition of liability from outrageous toward type awards and regulatory controls and things like this. Now, my opinion is that the only mass scale source of energy in the world that is safe and clean is nuclear. The other would be natural gas and fossil fuels, but they're not necessarily safe or clean, although natural gas is somewhat clean. And those are going to someday run out unless the abiogenic theories are correct, which I'm not convinced that they are. Soft sources of energy are fine to a degree. They shouldn't be subsidized by the state, of course, which they are now, but there will never be anything more than a drop in the bucket. Now you'll have the environmentalist say, well, we should conserve more. Well, that's nonsense. Energy is life, right? We need more energy, energy feeds production. And so nuclear is the, I think we should go 100% nuclear, in my opinion. Well, I think the free market should be allowed to go 100% nuclear. Nuclear. If the market were unfettered, that's what it would do, you say. That's my opinion, yes. I think it certainly would. I think nuclear would be by far the most prevalent. It would probably provide almost all of our, now this is especially if the pollution of caused by fossil fuels was internalized and not externalized. Now, if fossil fuels were the only fuel source available to us, I think we should use it. It's better to have somewhat polluting energy than to have none, okay? But we do have nuclear, which would be just almost a perfect energy source. I'm talking about fission. And yeah, there's some nuclear waste, but it can be dealt with. At least it's localized that it doesn't go into your lungs and we know what to do with it. Now down the road, whether the other types of nuclear that use the actual waste itself, there's promising research with thorium and there's the possibility- Thorium with a T-H, correct? Yes, thorium. And then there's a possibility of even fusion. But the problem is that environmentalists, whenever, this is another one of these programmatic things. If you mentioned nuclear fission, they'll say, well I'm a favorite of nuclear, but nuclear fusion. But they know that this is 100 years away. So they're just coming up with something to pretend like they agree, but they don't really agree, right? So in other words, a real human life here and now and for the next five generations, they're not in favor of any clean, you know, mass source of energy. And by the way, this is my litmus test for environmentalists. If someone claims to be environmentalist and they're not in favor of nuclear power, then in my opinion, either they're an idiot, they're ignorant or they're evil, that they're misanthropic. In other words, they really want humanity to starve off because of lack of energy or they knew nothing about physics and engineering and technology, in which case they should really be quiet and just read their papers. Or they are of the camp that environmentalism is merely a tool to be used to advance the further the cause of world socialism, the environmentalism. Right, which is misanthropic, right? Which I view as an environmentalism. Yeah, right. But certainly, what is your view about nuclear power? Well, I think that in a free market, it'd be a whole hell of a lot more nuclear power plants all over the world. And that in a free market, I again, view nuclear energy as a stepping stone to other methods. I also feel that the nuclear waste argument that the stuff never breaks down is akin to Carl Sagan, who had to admit his apocalyptic predictions about the Kuwait oil fires were incorrect and that in just a short amount of time, I can't remember when Carl Sagan died. I remember him coming out saying something about, well, my dire predictions about the Kuwait, that the virtual nuclear winter that was gonna be caused by the Kuwait oil fires was incorrect and that the environment righted itself much more quickly than any of us, any of us doomsday predictors had ever predicted. And that's kind of my opinion about nuclear waste where it's a pretty clean energy as energies go and that markets and what Terry Anderson calls and viropreneurs have ways of dealing with such things. Well, okay. First of all, it's bizarre that you have just an average consumer who's an environmentalist and when you mention nuclear power, they'll say, well, what do you do about the waste? I mean, it's not really their business what you do about it. That's an entrepreneurial problem. I mean, if I invite someone to dinner at my house, they don't say, well, what do you do with the waste of the... What are you gonna do with the bones? I mean, I'll figure it out. It's up to me. It's my problem. It's not your problem. Yeah, I mean, and not only that, the volume of nuclear waste produced by nuclear power plants is so many orders of magnitude smaller than what's produced by conventional processes that it is just such an easier problem to deal with. Not only that, nuclear power comes from radioactive materials that are already radioactive in the ground. We take them out, they're spread out all over the place. We take them out, we use them up and now we know, if we get rid of them, we know where they are now, right? So we know they were in the ground, radioactive. Now they're back in the ground, radioactive but we know where they are. Fourth of all, it's either high level or low level radioactive waste. If it's high level, that means it's burning out at a fast rate, which means it's not going to be radioactive for very long. If it's low level, it's going to last a lot longer but it's not as much of a problem. And furthermore, right now, the regular energy production processes already generate low level radioactive waste, even coal and things like that. So I mean, there are just so many ignorant views about nuclear power. Now granted, it is too mixed up with the government and it should be completely free but humanity needs energy to survive. And that means nuclear. And in my opinion, we will go nuclear. There is no doubt about it. There is no debate. There is no stopping it. It's only a question of do we do it soon enough to stop tragedy or do we do it later? I mean, but we will go nuclear because there's no choice. So you state that we will go nuclear not because I say it's a good idea but because the simple economic laws dictate it. Yeah, I think the only way we won't go strongly nuclear is if there's more fossil fuels than we were aware of or the abiogenic theories are correct. And you know, you would just have somebody with the shale oil extraction techniques and things like this for natural gas and other things. So it could be, but I still think they're inferior because it kills a lot more people with all these accidents from transportation, explosions, the mining, and not to mention pollution and going in people's lungs. Do you support the idea of unilateral nuclear disarmament while we're on the topic of nuclear? That's a difficult question. My first answer is yes because I don't trust these governments that we have in place right now to have these weapons at their disposal. So my view, any state that exists should disband and any state that has nuclear weapons should get rid of them. So I guess that would imply unilateral nuclear disarmament. I guess it's kind of pushing Rothbard's button, isn't it? How trustful are you that the other guys are not gonna shoot them at you as soon as you do it? Well, certainly. I mean, yeah. I mean, obviously I would prefer the United States territory to be free to govern itself, right? And would private defense agencies and insurance agencies of the people that live here develop deterrence against external status nations? Yeah, I think they would and they should be able to. So to me, nuclear disarmament means, you know, taking it away from states because states are nothing but big criminals. Well, nuclear weapons or weapons that are designed to kill civilians, they could only be conceived of by the sick mind of the state. Yeah, I think that's true. I think that's true. I don't think that as a libertarian, you can say that nuclear weapons are per se aggressive or illegitimate. There are some imaginable uses of nuclear weapons that are peaceful. For example, maybe we should use a tactical nuke to stop this BP thing in the Gulf, but of course no one would ever consider that because that's not politically correct, right? It wouldn't be politically correct. Well, I mean, you have to weigh your options if that's the best solution, we should do it, right? But it would be terrible, but. Well, that would be the nuclear equivalent of dynamite or TNT, which is something that was invented, I guess, arguably for market purposes and pervertedly used for warfare. So I can see the free market using the going from nuclear energy as a form of providing energy to a grid to using it to make an explosion for the tactical purposes of whatever method or means of production or cleaning up whatever accident might arise on the part of the market. Well, I agree with that possible invention on the market. Well, and your comment calls to mind what we talked about earlier about like any trust laws of these things. I mean, most people think of these things as being the government imposing a regulation on big business and the big business grumbling about it and not liking it, where in reality we know that basically it helps a lot of these big businesses by basically erecting barriers to competition. Well, likewise, I think in a way, although the US has the biggest nuclear arsenal, you know, there's too many constraints to really using it. So it's not that useful. So they get this nuclear disarmament or nuclear, you can't use nukes mentality going. And how does that help them? Because we're the only nation that really can build these conventional weapons like the ones we used in the last Iraq war, like what they call the Moab, right? The mother of all bombs. They're conventional, they're dynamite or something like that, right? But they have the yield of some of the early nuclear weapons. They're incredibly powerful and no country in the world almost, except some of the superpowers could even conceivably build these things. Right. Except us. And yet we're permitted to use them because, well, it's not nuclear, right? So basically we're the only nation that's permitted to use what's the equivalent of nukes because we prevented everyone from using the nukes that we have. Interesting. Do animals have rights? Some of them do, humans do. So, but other than humans, I don't believe that animals have rights. What is Aristotelian essentialist realism? You got me there. The concept of individual natural rights is most at home in a theory of reality that sees the world as a plurality of determinate classes or kinds of entities that act in accordance with their natures. Humans are one such class. An entity's nature, established by what kind of thing it is, is, can either be realized to some degree or not. The more an entity's nature is realized, the more good we say it is. We speak of a good peach as a peach that has most fully realized its nature as a peach and has the best taste when one bites into it. I'm reading from the Journal of Libertarian Studies, Putting Humans First, Why We Are Nature's Favorite by Tibora Mc... How do you say his name? Tibora McHen, yeah. I find this interesting because the concept of animals having rights is at the forefront of some types of environmentalists' argument. Are you familiar with this whole idea of... Yes, I'm close to Tibor and I've read that piece, actually, and I know that he specifically himself has addressed, well, he's more of a neo-Ristotelian type of libertarian philosopher and he has addressed the animal rights claim himself. And I mean, I've met, I mean, literally, I've met environmentalist animal rightsors, I should say. You know, and if you push them, do rocks have rights? I mean, they've looked at me in the eye and said, yes, rocks have rights. So in other words, they have no conception of what rights means. They basically, they're not really rigorous thinkers. Most of the people I'm talking about, the ones that will just sort of widely say, yes, animals have rights, so do we. Because they associate the wrong characteristics with these entities. They give them rights. I mean, basically what they're saying is they like rocks. They like nature, you know? They don't have it in their hands, it's rock. And animals can feel pain, for example, which is one of the arguments. So we all feel pain, that's the basis of rights. So I think they grab onto the wrong characteristics for rights or they conflate morals with rights, which is a typical thing of non-memoritarians, right? If they think something is bad or wrong, then it right away occurs to them that, well, it must be a rights violation, because they're willing to make a law based upon it. Interesting. So that's the premise behind people who, okay, they think that if it hurts, then it must be a violation of rights. Well, yeah, that was a good point. Peter Singer, right? I think that was his idea about it. It's based upon the idea of the capacity to feel pain. But other people based upon just sort of a, they're kind-hearted people and they're kind to their pets, they don't wanna see animals unnecessarily suffer. And so they think it's wrong to torture an animal, which it probably is. And therefore, the government should make a law about it because they have no coherent theory about what the natural role of the government is. What the proper role of rights are, right? So they just, you know, I asked my grandma one time, you know, do you believe people should do drugs? No. No, I said, do you think it should be illegal to do drugs? Yes. Why not? Well, I don't think people should do that. So, you know, it just, they go right- Yeah, completely logical, you know, non-sequitur. Okay, I get that. There's no difference between this is wrong and this should be illegal. But they don't realize that this should be illegal has a correlative that there's a right being violated somewhere. And they have no theory of rights to back it up. They just have their, you know, their preferences, their moral preferences or their value judgments about what they like and don't like or what they think is wrong or right. Do you agree with Rothbard's position that we will assign rights to dogs and cats just as soon as they write on a placard and agitate for them? Yes, I do. I think Leonard Pieckoff had a similar thing about mosquitoes. You know, he'll give them mosquitoes rights when they ask for them. I mean, I think that's a, it's a kind of acute statement, but there's a grain of truth in it that, you know, they don't have the intelligence necessary to even ask for rights, which is correlated with their ability to respect our rights, which is the basis of rights. And in my opinion, other rights, it's a correlative, it's a relational thing, right? It's like, I respect your rights, you respect mine. It's like an agreement. So morals by agreement in a sense, right? So an animal cannot agree to respect your rights. That's why they don't have rights themselves. Although I don't claim to be an expert on this. This is a little bit beyond what I claimed to. Okay, well, as it pertains to environmentalism and our claim that environmentalist concerns are only solved through the rigorous protection and enforcement of private property rights, this does have, you know, this is, you know, on topic in that regard, because we're talking about rights. And I guess, are there such things as collective rights or only individual rights? There's only individual rights. And is there such thing as collective property ownership? Or I guess, you know, I guess in an anarchistic society, there's no reason why there couldn't be collective property ownership. I agree with that. I think there certainly could be collective ownership because people can act cooperatively. So of course, there can be collective or cooperative action among people. But that doesn't mean that the collective agencies exist as some kind of separate entity with separate rights. The society or some community is only composed of individual human beings that themselves have rights. Are there such things as positive rights? I think there are such things as positive rights. I think libertarians go a little bit astray when they so widely say there's no positive rights. For example, if I contractually agree to do something, now the person I've obligated myself to has a positive right to expect that I perform what I've promised to perform. So there can be a positive right as a result of a contract, for example. Or if I commit a tort or a crime, I think there's a positive right on the behalf of the victim to expect remediation or compensation or even rescue. Let's say I maliciously push someone into a lake. Well, I think I have an obligation, who can't swim, let's say, who's drowning? I think I have an obligation to jump into a lake and rescue that person, right? So I created the obligation. So I would say there's no uncreated or unchosen positive obligations. And correspondingly, there's no positive rights that don't correspond to such kind of voluntarily chosen positive obligations. Now, I also believe that having children, for example, is a way of creating positive obligations. You voluntarily created a rights-bearing entity that by its nature has certain dependencies and needs. And I think that's analogous or akin to pushing someone into a lake. Creating an infant that has certain needs and who would die without being cared for is akin to pushing someone into a lake who can't swim. And so you created that by your purposeful, voluntary human action. And I believe that that gives rise to a positive obligation to care for the child as well. But other than these cases, which are all the results of voluntarily chosen human action, I don't think there are any positive rights. Wow. So how would the violation of such positive obligation to care for an infant through say neglect be enforced in the market, do you think? Well, I don't know if it could be. I mean, I don't think perfect justice is possible. And sometimes an institutional mechanism to enforce some kinds of rights could be worse than the harm we're trying to prevent. Abortion may be an example of this. I mean, even if you argue that abortion, at least at a late stage, is some kind of active murder, the nature of the relationship between the mother and the fetus and the privacy of that relationship is such that the only way to prevent it and to monitor these kinds of things is to basically assume some kind of right to supervise and to monitor and invade the privacy of people who presumptively have committed no crime. And theoretically a woman could become pregnant and abort a child at two months, three months without anyone ever knowing she was pregnant. And it's just something that sort of metaphysically, she can get away with, right? Now I'm assuming that it's some type of arguable proto-crime, I'm not saying I agree with that. I'm the gray area to me. But the point is there are some things that you just cannot assume that we can enforce. However, in the case of a parent that is not fulfilling their obligations to care for their kids, I think that the only realistic and forcible way to enforce that would be number one, to respect the rights of the child to run away or to choose a new guardian or even the rights of someone else to come in and liberate that child when it becomes presumptively obvious that the child is being so abused that the child would, goodnight, 10 minutes. So the child would, you know, we can presume the child would prefer to have a different guardian. And that is sort of in accord with Rothbard's idea that when the child says I want to run away, he gets the right to run away. No. And I think I can see a private arbitration agency absolutely, I mean. Now as a practical matter, what's going to happen realistically? You're gonna have a cousin or a sister or a grandparent or a friend who's going to just see what's going on. They're just gonna take the law into their own hands. They're gonna risk their lives and they're gonna go steal the child basically. And then the question would be in some kind of ensuing arbitration, who gets to keep the child? Now, I would say that the liberator gets to keep the child in a sufficiently egregious case. And now, if in the rare case where the parent was wealthy, then I suppose that you could actually take some of their assets to support the child until they're 18 or something like that. But as a practical matter, that's almost never going to be the case. The kind of parent that is going to abandon the child. Is that one of means? It's not gonna have means. So it's kind of. Well, I think the theoretical case is probably, as a practical matter, probably gonna be extremely rare because things like marriage and parenthood in a market society would very likely have pre-arranged contractual setups in which the parties would have agreed not to engage in abuse or neglect and et cetera, et cetera. I agree with the problem. I agree with the problem with these contracts is they can only bind the parties to the contract. They can never bind the child, for example. So let's say a husband and wife agree that if the wife is abusive, the husband gets the child kid. Well, what if the husband is abusive too? Then their agreement doesn't mean they get to decide for the child who has independent individual rights. But their agreement would contain some sort of clause stating that third-party arbitrator will, we agree to submit to the decision of a third-party arbitrator as the fate of the child. They could. I mean, the contracts already do that. Yeah, they could in that case. But I just think that the arbitration agreement is only the sort of pre-stated desires of the parents. And that's only relevant when the parents' desires is relevant. And sometimes what the parents want is not relevant. Right? I mean, if the parents are abusive, let's say, then who cares what they want? I mean, they both want to keep their kid, but they don't get to. You know, right now in the law, or at least in some states, or at least it was before, I was adopted myself. And in Louisiana, and the law in Louisiana, based on a civil law jurisdiction, was that if you're adopted legally, say by a new set of parents, now you have this right to inherit from your parents. And in Louisiana, there's something called forced airship, which means that the parents cannot disinherit you. Really? You have to get what's called a ledger team, or a forced portion. And I- So there's no such thing as I disown you under the full kind of code? Well, you can, but there's enumerated causes. In other words, you can disown someone if they, like if your parent, if the child strikes you, or if you're in jail and the child refuses to bail you out when they have the ability, whether it's the 18 causes listed. And any one of these things, if you do one of these, then your parents can disinherit you if they want to. But if you don't do any one of those things, then you can't be disinherited. Now, actually, this was the law until about 15 years ago. And then the constitution in Louisiana was changed to permit disinherit at age 23. So now the law in Louisiana is that until the age 23, they're forced to airship. But anyway, it's an interesting concept because I always thought that there was something slightly libertarian to this in the sense that it sort of recognizes the parent's obligation to care for a child that they brought into the world, right? To support this dependent being. Now, whether it should be 23 or forever or what, I don't know. But there's something I like about the idea. But anyway, the thing I was mentioning is what the interesting part about it is that if you're adopted by new parents, then you have the right to inherit from them. And in Louisiana it would be a forced airship. So you have to inherit. But the funny thing is you don't lose the right to inherit from your biological parents. Really? It stays there. Now, technically, one of the causes for disinheriting is if you don't contact your parents for more than two years. So I suppose you could say that the adopted child could be disinherited because they didn't contact their unknown long lost biological parents for more than two years. Because they didn't know who they were. It's not really their fault. And they might not even know they're adopted. But it's interesting that a lot of adopted children, say, in civil law jurisdictions, like France and Louisiana and Spain, et cetera, if you're adopted, you technically have the right to inherit from two sets of parents. Yeah. Very interesting. We've been talking with Stefan Kinsella, libertarian legal theorist. I very much appreciate your time on the show. Thanks for taking the time to talk to me. We've gone just over an hour. I don't get to kiss my kids goodnight because they're in Missouri for the month of June. So we'll go ahead and end it here. And after you hang up, I'm going to share some of your bibliography with my listeners. Thanks again for joining me on the show. Thanks, Gene. Enjoyed it. All right, goodnight. Okay, that was Stefan Kinsella. Very interesting. We didn't really get off topic as much as you might think. This is really why I had him on because he's an attorney and he's a patent attorney and he discusses libertarian legal theory. Things like rights, things like property rights, things like patent law and things like government corporate partnerships are kind of what he talks about. And I probably could have asked him a ton more questions if I had had more time to prepare. He agreed to this interview just about 45 minutes before we had it. Those of you who listened in or who are listening in on the podcast because now that the live streaming portion of this show is over with, feel free to email me at gene.bosler at Bartlett, gene.bosler at genemail.com. Stefan Kinsella keeps a blog called StefanKinsella.com at Osteroanarchist Libertarian Legal Theory. Let me read you a little bit of what he says here. Statism and the Global Warming Bandwagon by Stefan Kinsella November 2nd, 2009. Now note this date. This is kind of when Climate Gate was still in the news and hadn't been conveniently swept under the rug. An edited version of my reply to a global warming alarmist on another thread. Quote, I'm against the state. I'm against junk science. I'm against science used by liberal arts and women's studies majors from Brown who now infest the state to advance their anti-capitalist interests. I believe we are in an interglacial period. I believe the evidence trotted out so far by global warming advocates is spotty and selective and almost always insincere and agenda driven or driven by pure ignorance. I believe that global warming would probably be good but is not going to happen. I suspect that even if it were happening and even if it were bad, the cost of stopping it would far exceeded damages. That is, that it's not worth it to stop it. That human survival is more important ultimately than environmentalist economic, environmentalist concerns. Moreover, I would never trust the state to make this assessment or to impose the right regulations to ameliorate the problem. I think that the global warming advocates are not interested in real science or real debate. They wanted to just take their temporary popularity in the polls and among the arts and croissant crowd, among the DC jet set board housewives and ditzy Hollywood stars and parlay that as quickly as possible into legislation sponsored by corrupt polls like Nancy Pelosi. I.e. they just want to win right away as quickly as possible before the public starts to catch on or yet another pseudoscience fad catches its eye. The primary enemy is the state. Any scheme that involves them is as a part of the solution to a positive problem is obviously flawed. I have no wish to cooperate with or endorse that criminal gangs legitimacy. Period. Very good, very interesting. I would point out to Stefan, vis-a-vis his statement before the public starts to catch on or yet another pseudoscience fad catches its eye, the next pseudoscience fad is here and it's big and it is making its way into mainstream media coverage and that is the fact that overpopulation is going to cause the planet to dry up and destroy the environment, a la Easter Islands. So global population control in the form of a worldwide one child policy we'll see. It is making its way into mainstream discourse. So I am not a conspiracy theorist. There are people out there positing this. Stefan Kinsella also says, Stefan Kinsella also talks about Howard C. Hayden. Stefan Kinsella, physicist. Howard Hayden's one letter disproof of global warming claims. I should probably read this in a separate podcast because this is really good stuff but it directly relates to Stefan Kinsella and when it came out back in October 2009, I read this back then. Stefan Kinsella quote, physicist Howard Hayden, a staunch advocate of sound energy policy sent me a copy of his letter to the EPA about global warming. The text is also appended below with permission. As noted in my post, Access to Energy, Hayden helped the late great Peter Beckman or Piotr Beckman found the dissident physics journal Galilean Electrodynamics, brochures and further Beckman information here, further dissident physics links here. Hayden later began to publish his own pro-energy newsletter, The Energy Advocate following in the footsteps of Beckman's own journal, Access to Energy. I love Hayden's email sign off quote, people will do anything to save the world except take a course in science end quote. Here's the letter. I read this letter a while back so I'm particularly interested in this. October 27th, 2009, the honorable Lisa P. Jackson Administrator Environmental Protection Agency 1200 Pennsylvania Avenue Northwest Washington DC. Dear Administrator Jackson, I write in regard to the proposed endangerment and cause or contribute findings for greenhouse gases under section 202A of the Clean Air Act, proposed rule 74 Federal Regulation 18,886, April 24th, 2009, the so-called endangerment finding. It has been often said that the science is settled on the issue of carbon dioxide and climate. Let me put this claim to rest with a simple one-letter proof that is false. That one letter is S, the one that changes model into models. If the science were settled, there would be precisely one model and it would be in agreement with measurements. Alternatively, one may ask, which one of the 20-some models settled the science so that all the rest could be discarded along with the research funds that have kept those models alive? We can take this further. Not a single climate model predicted the current cooling phase. If the science were settled, the model singular would have predicted it. Let me next address the horror story that we are approaching or have passed a tipping point. Anybody who has worked with amplifiers knows about tipping points. The output goes to the rail. Not only that, but it stays there. That's the official worry coming from the likes of James Hansen of NASA GIS and Al Gore. But therein lies the proof that we are nowhere near a tipping point. The Earth, it seems, has seen times when the carbon dioxide concentration was up to 8,000 parts per million. And that did not lead to a tipping point. If it did, we would not be here talking about it. In fact, seen on the long scale, the carbon dioxide concentration in the present cycle of glacial, circa 200 parts per million, and interglacial, circa 300 to 400 parts per million, is lower than it has been for the last 300 million years. Global warming alarmists tell us that the rising carbon dioxide concentration is A, anthropogenic, and B, leading to global warming. A, carbon dioxide concentration has risen and fallen in the past with no help from mankind. The present rise began in the 1700s, long before humans could have made a meaningful contribution. Alarmists have failed to ask, let alone answer, what the carbon dioxide level would be today if we had never burned any fuels. They simply assume that it would be the pre-industrial value. The solubility of CO2 in water decreases as water warms and increases as water cools. The warming of the Earth since the little ice age has thus caused the oceans to emit carbon dioxide into the atmosphere. B, the first principle of causality is that the cause has to come before the effect. The historical record shows that climate changes precede carbon dioxide changes. How then can one conclude that carbon dioxide is responsible for the current warming? Nobody doubts that carbon dioxide has some greenhouse effect, and nobody doubts that carbon dioxide concentration is increasing. But what would we have to fear if carbon dioxide and temperature actually increased? A warmer world is a better world. Look at weather-related death rates in winter and summer, and the cases overwhelming that warmer is better. The higher the carbon dioxide levels, the more vibrant is the biosphere as numerous experiments in greenhouses have shown. But a quick trip to the museum can make that case in spades. Those huge dinosaurs could not exist anywhere on Earth today because the land is not productive enough. Carbon dioxide is plant food, pure and simple. Carbon dioxide is not a pollution by any reasonable definition. A warmer world begets more precipitation. All computer models predict a similar temperature gradient between the poles and the equator. Necessarily, this would mean fewer and less violent storms. The melting point of ice is zero degrees Celsius in Antarctica, just as it is everywhere else. The highest recorded temperature at the South Pole is minus 14 Celsius, and the lowest is minus 117 Celsius. How prey will a putative few degrees of warming melt all the ice in inundated Florida, as is claimed by the warming alarmists? Consider the change in vocabulary that has occurred. The term global warming has given way to the term climate change because the former is not supported by the data. The latter term, climate change, admits all kinds of illogical attributions. If it warms up, that's climate change. If it cools down, ditto. Any change whatsoever can be said by alarmists to be proof of climate change. In a way, we have been here before. Lord Kelvin proved that the earth could not possibly be as old as the geologists said. He proved it using the conservation of energy. What he didn't know was that nuclear energy, not gravitation, provides the internal heat of the sun and the earth. Similarly, the global warming alarmists have proved that CO2 causes global warming, except when it doesn't. To put it fairly, but bluntly, the global warming alarmists have relied on a pathetic version of science in which computer models take precedence over data and numerical averages of computer outputs are believed to be able to predict the future climate. It would be a travesty if the EPA were to countenance such nonsense. Best regards, Howard C. Hayden, Professor Emeritus of Physics, University of Connecticut. All right, that's all I've got, one hour, 15 minutes. Thanks for tuning in. Feel free to email me if you have any questions, comments, refutations, arguments, insults, hurl them, gene.boslerageemail.com. Thanks for tuning in. Good night.