 Joe Becker is a Mises U graduate and a Mises Institute-associated scholar who earned his master's degree in economics under Murray Rothbard at UNLV. Today, Joe heads up the Nevada Public Research Institute's Center for Justice, where he sues government agencies on behalf of plaintiffs with sympathetic libertarian causes. Joe is a dedicated Rothbardian libertarian, and you'll enjoy his thoughts about the illusion of judicial remedies for most Americans, how he's attacking cronyism in Nevada, how a Rothbardian legal system might deal with torts, crimes, and externalities, and how the state's 20th century course created a phony legal distinction between fundamental liberties and economic liberties. Stay tuned. Ladies and gentlemen, welcome once again to Mises Weekend. I'm your host, Jeff Dice, and I'm very pleased to be joined this weekend by not only an old friend of mine, but an old friend of the Mises Institute, Joe Becker, who is calling us from Reno, Nevada. Joe, how are you this weekend? I'm doing all right. Of course, the person with an old friend is old, and I don't especially like that, but it's supposed to attack him, Joe. Well, I prefer the term middle age for both of us, but let me ask you this. Joe, you sue federal and state agencies for a living, as we alluded to in the intro, and of course, many of your clients themselves don't have the financial means to hire private lawyers and protect themselves against government agencies that aggress against them. Let's take, let's say, Mark Cuban, who has billions of dollars in armies of lawyers and he was able to successfully defend himself against the SEC. I just wonder if, for the average American, the notion of redress in court has become an illusory remedy, so to speak. Yeah, well, it's certainly tough. I mean, we're what's called a public interest legal foundation here that I had, and we represent people with no legal fees to them, but of course, that means we have to find donors who are willing to contribute to help stop the expansion of government. We sue people, we sue government. I should say when government sees its constitutional limits, which of course is very frequent. I'm reminded of a case I did in Arizona a few years back where we had the first past food owner in the town of Page, Arizona, just on the southern tip of Lake Powell. And he hired 95% Navajo from the reservation around him, and at some point you got a couple of bad hires, and they started sexually harassing the customers as well as their fellow employees in Navajo. So in order not to run afoul of the EEOC's hospital workplace regulations, he decided to implement a language program where when they're on the clock, they could speak English, so he and his manager could monitor what was being said to try and protect against this hostile workplace. So of course, in fact, he got sued for natural origin discrimination against Navajos. He wound up trying to do that on his own, and he racked up about $150,000 in legal fees before he finally decided to let the public interest firm represent him. And I mean, that's kind of what happens. In fact, in that vein, what the government does in that case is there's no, the law was on its side, but the problem is that they try and bully the EEOC who tried to bully people in the settling because they liked the idea that language is a protective class or a discriminatory class. And so they would, you know, basically two people bully them and the settling and then they would run press releases and said, too, this is what happens when you have a language policy in your workplace. So yeah, it could be daunting and almost impossible for some people to stand up to their constitutional rights. That's why organizations like ours is this. Now, before you came to NPRI and before you became a lawyer, I know that you studied under Murray Rothbard at UNLV and you were even kind enough to introduce me to him at that time. Tell us a little bit about your master thesis at UNLV and having not only Murray, but also Hans Hermann Hoppe on your thesis committee. Yeah, that was a conscious decision. I mean, this goes back to the 88 libertarian, the president campaign of Ron Paul. That's kind of how I first got introduced to the Austrian school and Ron sort of directed me towards the Mises Institute and the Mises University, which back then, of course, was being operated out at Stanford University. I went there, I met Murray and Hans and just became, I studied a lot of undergraduate economics. I think I had probably 24 hours of undergraduate econ at the time, but no mention, of course, of the Austrian school or curriculum. Those days, I understand it's slightly better now. Thanks to your group. But yeah, so I got directed towards them and I made a conscious decision that I would go to UNLV where they were and that's where I would do my graduate work in economics and it was turned out to be probably one of the best decisions in my life. You mentioned the master's thesis. What I did, you know, and in retrospect, it probably wasn't as good as it could have been because I hadn't yet been to law school, but I certainly had a sound understanding of real economics by the time I got through two years with Hans and Murray and I wrote a master's thesis. It was an Austrian examination of a recent Supreme Court decision at the time, which was Lucas V. South Carolina Coastal Commission. This was a, I don't know, a landmark regulatory taking case. The regulatory taking being distinguished from the per se taker, the physical invasion take because, you know, here we had a guy in South Carolina that spent, I think around a million dollars for some lands to develop and through the time he bought it and when he first put up the structures, the Coastal Commission has enacted a law that prohibited any permanent habitable structures from being erected on this particular piece of land that he bought and he's like, wait a minute, I mean, sure you didn't physically come on my land and put some government device there, but he in essence regulated away my right to make certain physical uses of that property. And of course, you know, the government didn't want to pay him because they said, well, you still have files of the property and the decision was good only in a factual way, but it's not a bad precedent. I mean, it requires for someone to be paid basically all economically viable use to be taken away. And of course, then you've got to fight between the center majority with the same thing. Hey, you can still fit your tent on that property. It's not worthless. And so you get sort of a bad rule, but because the court determined it was a factual matter that they had denied him all economic liable use of the property, you know, he wound up not being quite as bad off as he could have them, but yeah. So, you know, I looked at the, you know, kind of applied the Austrian school methodology to, uh, you know, that opinion and, uh, you know, came up pretty hard against both majority and minorities. I recall. So later you go on to law school and you wrote a law review article also featuring an Austrian school critique of I guess the legal cases behind this phony distinction we now suffer under between so-called fundamental freedoms, let's say personal freedoms and what courts increasingly call mere, in quotes, mere economic freedoms. Yeah, that was, uh, I think that was a much better piece in retrospect. I, you know, I can still hear Murray Rothberg was talking about, you know, what good is freedom of the press if you don't have the right to own paper and ink. And of course, you know, we're, we're a number of years later. So maybe we would say, uh, like to own a laptop and, and, uh, an ISP, you know, service with an ISP, but no, I mean, the distinction between so-called fundamental liberties, which get a completely different level of protection, uh, under constitutional reviews and economic liberties, uh, it's senseless to try and say, you know, that economic liberties are entitled to certain protections and personal liberties are entitled to more. And that, yeah, that was, uh, that was, I, I did an end because it wasn't really an economic journal. I did a good amount of explaining the Austrian School of Methodology and applied that to, you know, sort of the, uh, the New Deal court's treatment of, of these two different liberties, which are, yeah, inextricably in a time that can't be separated and given different levels of judicial scrutiny. So, yeah, that was, uh, but again, that was, you know, that was, uh, the time I spent with Murray Hond is invaluable in law school as well as, you know, what I do now, like, I'm always making economic arguments as to why the constitution be should pass to the interpretive, uh, to mean the government should be entered into the marketplace. And of course, that was the constitutional doctrine at the time as well. Well, we were speaking off Mike about the lawsuit that you're currently prosecuting involving the Nevada, Nevada, Nevada Governor's Office of Economic Development, which from what, how have you described it sounds like a cronious office designed to subsidize politically connected companies. Can you tell us a little bit about this suit? Yeah, I can certainly do that. It's kind of this race to the bottom that, uh, states seem to be engaged in. And, uh, you know, many of the western states, including Nevada, perhaps all of the states, uh, to some, I don't know, they have something in their constitution called the gift clause, which prohibits the state and sometimes political subdivisions from giving gifts to, uh, to private corporations unless they're charitable or educational, so sometimes there are exceptions for those. So, you know, here we have a situation where, um, the state of Nevada just decided to give, you know, millions of dollars to various companies. Uh, we represent an alternative energy entrepreneur who is, you know, doing everything he can to get his business off the ground without subsidies. Meanwhile, a company named Solar City, uh, is being subsidized between the 1.2 million, you know, clearly competitive disadvantage. So they're taking his tax dollars, giving them to, you know, private corporations to, you know, to compete against them. So, both of, you know, to statusize a taxpayer as well as his, as a disadvantaged competitor gives a standing to, to see the government to invoke this, you know, this, to challenge, you know, what the, what Nevada is doing. And like I said, it's not unique to Nevada, but, uh, the organization right now is, is focused on what's going on in Nevada, so that's, that's what we're doing. Well, it's interesting to me that your client, even as standing to see the state of Nevada, given the doctrine of sovereign immunity that in effect protects the political class and protects government against lawsuits by private citizens. I know that in your line of work, you have come up against the doctrine of sovereign immunity quite frequently. I was hoping you could discuss and elaborate on what the doctrine means for us. Well, it's really a nomination. And, um, you know, it's, it's a holdover from a market at times when the notion was that the King could do no wrong. And so, I mean, in a nutshell, what it means is that you, you can only see the government when the government gives you permission to do so. Now it's a little bit easier in the case of, uh, the, the GO, the GOF case, the governor's office of economic development because they were operating under, directly under a, you know, challenging their unconstitutional action. The thing we're really asking for and not money down is we're asking the government to stop violating the Constitution. We're looking for a declaratory relief saying a declaration from the court saying, hey, this is unconstitutional and that injunctive relief. Well, what we're doing is we're asking for the court to enjoin the other branch, another branch of government, the executive branch from carrying out this, uh, this violation of the Constitution. When you run into sovereign immunity being a bigger problem is when you're looking for monetary relief from the government, that's especially tough. I'm doing another case here in Nevada which is suddenly split into three courts and, uh, in that case, we're definitely looking for financial relief. I represent the church camp down in southern Nevada that spent half a million dollars for a 40-acre, uh, camp where they could operate the church camp and, uh, in the name of this case, the ministerial request to meet a person in the U.S. And the reason against, it's against the U.S. is because shortly after they bought the camp, uh, there was this beautiful, uh, spring-fed strain that ran through their property since at least, at least the 1870s and perhaps earlier, uh, shortly after they purchased the land, U.S. Fish and Wildlife dammed up the water where it entered their property and they routed it completely around and outside their property but through the high side of the property and then they reconnected it at the other end of the property where it used to flow. So in essence, they stole, they stole the spring which was the baptismal water for the church camp as well as recreational and spiritual, provided spiritual benefits. They did it in such a way, in fact, that the first time that it rained after, uh, they, uh, diverted the spring flow, it flooded their properties and tried to go back to its historic path. They did about $90,000 worth of damage. So, you know, here we have, of course, a free exercise violation because they took away their baptism by immersion. Uh, we have the torrid negligence because they negligently rerouted the water. Of course, it's a taking in addition to that because, you know, water rights in Nevada is such that, you know, respected water rights have been appropriated by the agricultural use of this water, you know, years and years and years ago, going all the way back to the 1800s, taxes paid to show that. So when you go out to the government for the torque damages of roughly $90,000, and you ask for a taking, you know, because the government took the money, or took the value of the property as well as the water value itself, now you run into a problem because getting money damages against the government, you know, that's where sovereign immunity comes from. As a bar, you can only do that when they say that you can. It took until the mid-40s post-World War II for sovereign immunity to be, or for you to be able to see the government in negligence or in tort when recovering money. In fact, it was a result of a plane crash into the impact state building in 1945 that actually finally prompted Congress to pass the Federal Torque Claim Act to allow that. And as far as taking, you know, when you're trying to, even though there's a constitutional provision that says government, you know, can't take for anything but public use and when they do, they have to pay for it. You know, it took government a while to come up with the Tucker Act, the Big Tucker Act and the Little Tucker Act, which allows you to sue government when they actually take the property. So there, even though there's a constitutional provision in order to recover money, you have to sue under the Tucker Act and of course this requires certain courts and certain limits and it's more technical than interesting, but what is interesting is that, you know, this whole doctrine of sovereign immunity, which really has no place in American jurisprudence. You know, it's very much alive and well. You know, it's a problem. You know, it makes things, it makes things tough. Well, you mentioned torts and externalities. Let's talk a bit more about, for instance, the torts system from a Rothbardian perspective. Many people on the right, for example, suggest that medical malpractice is out of control in the United States and the answer to that is to cap damages to set a specific cap on monetary damages for, let's say, wrongful death or loss of a limb. And I'd like to get your thoughts on tort reform. Well, you know, of course, every state has a little different approach. It kind of reminds me of, you know, the necessity emotion that there really are only two choices. You've got capitalism or socialism because if you choose anything between, you know, the intervention that you initially choose to move away from capitalism, you know, true capitalism, not, you know, probably, people think of capitalism now, it's just, you know, corporate capitalism. But when you deviate from capitalism, of course, that intervention results in negative effects. Those negative effects, then people run back to government to try and correct that negative effect with yet another certain venture, which of course only digests the next and sort of, you know, you march halfway down the river, maybe not so halfway down the road to socialism. You know, here's the case where, you know, like if we talk about medical malpractice, for example, a little bit away from the externality, but when you talk about that, you know, if private actors, you could go to your doctor and say, hey, you know, I'd like to have you, you know, perform some sort of surgery or something on me. I'm willing to, you know, agree not to sue you for punitive damages or something, but if something goes wrong, that's your fault. You know, obviously I don't want to be able to do that. You can negotiate some sort of a contract to the limit liability between, you know, the contracting parties where there's privity and that would be fine. But, you know, to the extent government has done that, now you wind up with government in essence stepping in and deciding for everyone what the right amount of damaged liability should be capped at. And, you know, I think that's a problem. Well, I know it's a problem because, you know, that's what you do then, maybe not in the context of medical malpractice exactly, but, you know, if, for example, you're going to be involved in some sort of a manufacturing project which ultimately winds up harming someone else's property in the libertarian sense, whether that be particular matter or, you know, some sort of scorched earth thing. And the government steps in and they cap the damages that someone can get against the corporation. You know, just because the corporation happens to be, you know, chromed up, if you're all with the government people passing the form, then what you've done is you've capped the externalities, you've allowed, you know, one entity to harm another and the whole goal, you know, should be, you know, setting up property rights just to internalize the cost upon the person with the manufacture in this case. And so, yeah, I mean, there's some real problems with. I mean, it's one of those, I suppose, quick legislative solutions that, you know, ultimately winds up resulting in yet another harm that needs to be remedied because then people, you know, because then the costs aren't internalized and someone, you know, can damage another without paying the full cost of it and you wind up with the distortion in the market of what resources should be used to what end because simply because someone doesn't have to pay the cost of their action. That's, I guess, sort of a general description or general answer to your question. But, yeah, legislatively limiting damages. And so, of course, it applies to corporations generally, you know, when government allows liability to be limited, it's, you know, it creates distortion to the market and misallocation resources and, you know, attendant career. Joe, I will leave you with one last question. I know that you know personally Judge Andrew Napolitano, also a friend and a board member at the Mises Institute. He recently spoke at NPRI's annual dinner. You know, he gives a talk at the Mises Institute that really revolves around the famous Lochner versus New York case, which happened in 1905. Oliver Wendell Holmes had the famous dissent in that case. Can you just speak briefly about sort of what that case and its dissent has meant for, for really for economic activity in the U.S.? Yeah, it's, you know, it really was the turning of the tide. You know, I'd read some mankins. It's really good on all the Wendell Holmes. And, you know, people have tried to figure out to you as Holmes the liberal or the conservative, what, you know, of course, trying to pitch in Holmes. And what Mankin explained is that really Holmes was just an extreme, I don't know if this is even a word, but deferentialist. He was extremely deferential to whatever the, you know, whatever the legislatures tend to pass at the time. Of course, that's dangerous. And so far as the courts are supposed to check on the tyranny of the majority, you know, there are certain things that no matter how big a majority support, of course, there's the constitutional amendment process. But I mean, philosophically, you know, no matter how many people think some rights should be taken away, you know, that's a right that's inherent to the individual in the state of nature or God given rights. Sometimes people explain those. But in essence, the lock the decision was sort of the beginning of the end, because shortly after that, he had the Nebbi decision, which, you know, one year, same constitutional amendments, economic regulation of labor rates or maximum labor hours are unconstitutional. And then, you know, just a couple of years later, and the court turned suddenly sending milk prices or restrictions on milk production are constitutional. And what really happened, and this is what I talked a lot about, I wrote a lot about in the law school, is that when you give only rational basis for your audience, I'll explain basically what that was. Courts will, in essence, pass on economic regulation if there's any conceivable benefit that legislature could have had for passing some regulation of people's private property or labor. And it's not even necessary that they announce what that rationale is. The rational basis test simply means that the court is not going to strike down as unconstitutional legislation that may somehow, in the minds of some legislators, have had a rational basis. There's some, even if it's not about the only thing that will get stricken by the courts is unconstitutional for so-called pure economic regulation as something that's totally arbitrary and totally capricious. And that's a very difficult standard to meet. And remember when you're litigating against the government, they're given every presumption of legitimacy and the burden of proof is on, you know, the person challenging the economic regulation to win. Now, the other side of that coin is so-called fundamental liberties. The government has the burden to show that they're trying to satisfy some compelling governmental interest and they've chosen the least restrictive means by which to do that. But yeah, I mean, this was certainly the beginning of the end of economic liberty. And now here we are, how many years later, not so many, not even 100 years later. And we've got things like Obamacare, which require people to buy a product from a private company. Even that probably would have not passed much under, you know, under the Navier test. But you know, maybe like this, I just want to fight the boldest way to pass it to the government. Joe Becker, thanks so much for your time and for a fascinating interview. Ladies and gentlemen, have a great weekend.