Despair Meta Miscellany

Cover, Dispersion, and the Defense of Schools in Depth

The principal problem with liberal gun rights policies in the modern age is the same problem that has bedeviled all modern warfare: firepower. What do you do when a single rifleman with enough ammunition can wipe out hundreds of people per minute?

This was, of course, a problem with which militaries were much concerned between 1914 and 1918 in particular. One might have expected that the principles that they developed in response would have been put to use already by school defense planners, especially since those principles govern the way all armies today deal with the same problem of firepower that schoolchildren now face.

But they have not been applied.

To my knowledge, the principal principle employed today by schools is that of concealment. If a shooter enters the building, classroom lights are to be turned off, doors are to be locked and barricaded, and children are to hide.

Concealment is, indeed, one of the methods that World War One tacticians identified as a means of dealing with firepower.

But it’s just one, and far from the most important—especially when the enemy has a rough sense of where you are. If he knows you’re behind a wall, or a door with a few chairs and desks up against it, he doesn’t need to know exactly where you are. With enough firepower, he can shoot up the entire wall or the entire door, and everyone behind. Just so, the modern soldier is taught to distinguish between concealment and cover.

Cover as in armor or concrete: stuff that stops bullets and negates firepower.

Cover is another method that World War One tacticians identified as a means of dealing with firepower. But it, too, is not enough. Cover works, but only if you can prevent the enemy from closing with you and pulling you out of your cover. In war, that is done by marrying cover with firepower of your own. You can close on a tank that has no gun, but not so easily on a tank that has a gun.

But it’s hard to marry a school with firepower of its own. The trouble has to do with the element of surprise. You need to have a lot of guards on duty at any given moment in order to minimize the advantage an attacker gets from surprise. Guards get bored and fail to notice things. They panic. They run. And they get shot before they can reach for the arms that they have careless cast aside. You would need a garrison effectively to support an armored school.

Absent such a garrison, you can armor your doors and make desks and chairs from concrete, but all the enemy needs to find is one unlocked classroom door and he’s in—and will have plenty of time to step behind every concrete desk or chair therein.

Cover, too, does not exhaust the principles developed by World War One tacticians.

Another is: dispersion.

Modern weapons can bring astonishing amounts of firepower to bear on discrete areas, but they can’t bring astonishing amounts of firepower to bear on everything at the same time. That is especially true for a lone rifleman.

The more dispersed the targets, the longer it takes to hit all of them.

Which brings us to one of the principal school design flaws from the perspective of modern defense: schools concentrate students. Once the shooter has entered a classroom, the walls of the classroom corral his targets whereas modern tactics demand that targets disperse in order to defend successfully.

But the most important lesson that tacticians learned in World War One was something else: combination.

A successful defense cannot be mounted using any one of these principles alone. Concealment alone won’t do it (the enemy will just shoot all the concealed places). Cover won’t do it (the enemy will just close with you and pull you out). Dispersion won’t do it (given enough time, the enemy will find a bullet for every target).

You have to use them in combination.

If you disperse and conceal yourself behind cover, the effects of the enemy’s firepower are much reduced. It will take him longer to find you, make it harder for him to hit you, and take him longer to hit all of you.

This was the rationale behind the defense in depth developed by the Germans toward the end of the war.

Rather than concentrate thousands of defending troops in a frontline trench against which the allies could bring to bear massive firepower, the Germans created a deep patchwork of trenches, lightly manning each. They took advantage of natural obstacles, like hills, by stationing troops on reverse slopes. And they devolved authority onto commanders of small teams of defenders whose job was to adjust their positions dynamically as the battle evolved to maintain dispersion. This approach soon became a staple of modern tactics.

Modern militaries deal with firepower by deploying cover, concealment, and dispersion in combination. The least schools can do for their students is to deploy same.

The first and most important change that must be made to school defense is to eliminate the corralling effect of classroom walls. As soon as an attacker is known to be inside a school, the walls separating the classrooms from the outside world must disappear. Make them garage doors, say, and program them to spring up at the first sign of trouble. (A more fanciful approach is illustrated below.)

Interior walls should be armored and stay in place, as one doesn’t want temporarily to increase the number of available targets—concealment and cover still matter within the building—but the exterior walls should disappear, allowing students and teachers to disperse as fast as their legs will carry them.

But that, alone, is not good enough.

Rather than disperse into open fields enabling our rifleman to mow down fleeing students like a World War One machine gunner overlooking no-man’s land, students must disperse into concealment and cover.

To achieve this, schools must be ringed by concrete blocks in irregular patterns (irregular to deny the shooter an unobstructed field of fire in any direction). (Even better, they should be great concrete busts of historical figures, so that they both teach and protect.) As soon as the outside walls go up in response to a threat, students must be able to flee into cover and concealment of this kind. The blocks must be spaced closely enough to conceal and cover, but not so closely as to prevent students from continuing to run and run and run; for they must not stop behind these blocks, but weave through them, continuing to disperse (according to arrows conveniently painted throughout this field of cover) until they have arrived behind the cordons set up by first responders.

Here the box-like outside walls of a schoolhouse are tethered to a boom which jerks the walls away at the first sign of trouble. Students are then free to flee to safety in all directions using the cover and concealment provided by a dense assemblage of irregularly-spaced concrete blocks.

In this way, the rifleman’s firepower is almost completely negated. In seconds, his targets disappear behind cover and concealment. He must chase them down on foot, close with them, one by one, and each time he pauses, all the other targets recede further from him. He cannot see them. He cannot shoot them from afar.

A country that gives each person a right to that hallmark of modern warfare—firepower—must give its students the benefit of modern defensive combat tactics. It must give them the defense in depth.

Of course, another approach would be not to honor an individual right to modern firepower in the first place.


Ressentiment in the Pacific Theater

The Japanese in New Guinea:

I still remember well when we retreated from Buna. It was the night of 20 January 1943. . . . There were many soldiers wounded, or too sick to retreat. Five or six of us were standing around with Captain Kondo when he said to one of the wounded, ‘We are going to leave now. But there is no one who can carry you. It would be a big problem if a soldier like you, who is still clear in his mind, should become a prisoner of war. So, you should kill yourself here.’ The wounded soldier said, ‘Yes sir. I will die here, sir.’ Kondo said, ‘I’ll give you my pistol. Please die now.’ But the soldier didn’t have enough strength to pull the trigger of the pistol. He told Kondo that. The Captain said, ‘Alright. Give it to me. I’ll shoot you.’ The soldier pleaded with Kondo to wait. Kondo said, ‘Now what! Are you scared?’ The soldier asked if he could call out to His Majesty, the Emperor. He shouted ‘Long Live the Emperor,’ then the Captain shot him in the head and killed him. It was the first and last time I saw someone calling out the Emperor’s name before he died. We all knew that it was not his real feeling, because everyone else called out for their mother. To call out ‘long live the Emperor’ was just for show.

Peter Williams, Japan’s Pacific War: Personal Accounts of the Emperor’s Warriors 62-63 (2021).

The Americans on Guadalcanal:

I was passing a line company when I heard the company commander berating a Marine for walking along the top of the ridge. Because of sniper fire it was against regulations. I knew this captain was a Reserve officer, and stopped to watch. The Marine on the skyline did not immediately come down as ordered. The captain proclaimed that he had one minute or the captain would shoot him on the spot for refusing a direct order. He looked at his watch and placed his right hand on his sidearm, a showy, chrome-plated, ivory-handled, Smith and Wesson revolver. A few yards behind, a Marine was cleaning his rifle and seemed to be paying no attention. He replaced the bolt, loaded the magazine, and put a round in the chamber. Then he cradled the rifle in his arms and gazed off into the distance. I noticed that the piece just happened to be pointed right at the captains back. The Marine on the ridge ambled down, the captain took his hand off his revolver, the rifleman took the bolt out of his rifle, and I continued on my way.

Eric M. Bergerud, Touched with Fire: The Land War in the South Pacific 437 (1997).

In both of these stories there is abuse. In the Japanese story it is from the top and in the American story it is from the bottom.

I find the American story more frightening, I think.

For there is nothing more frightening than resentment.

All the more so, here, because, fifty years later, the American historian who recounts the tale, Eric Bergerud, remarks that the officer was inadequate—because he tried to exercise authority.

I am struck by how different the American experience was, also, from another army that, like the Japanese army, was authoritarian—that of Germany in World War One. Here is Ernst Junger:

As we hurried on, I called out for directions to an NCO who was standing in a doorway. Instead of giving me an answer, he thrust his hands deeper into his pockets, and shrugged his shoulders. As I couldn’t stand on ceremony in the midst of this bombardment, I sprang over to him, held my pistol under his nose, and got my information out of him that way. It was the first time in the war that I’d come across an example of a man acting up, not out of cowardice, but obviously out of complete indifference. Although such indifference was more commonly seen in the last years of the war, its display in action remained very unusual, as battle brings men together, whereas inactivity separates them.

Ernst Junger, Storm of Steel 194-95 (1961) (M. Hoffman, trans. Penguin Books 2004).

Junger fought almost continually from 1915 to 1918.

Authority means freedom from resentment—you accept your position.

On the other hand, the Americans came out on top in both wars.


The Author as Adversary at Iowa Law Review

If there were a law professor named Frankenstein, what would his creation be?

Maybe Iowa Law Review.

Rather than treat me as a partner in publishing an article of mine that the journal accepted back in 2019, the journal treated me as an adversary—just as people treat each other in the materials that we teach in law school.

First, an editor played the sort of power game with me that parties to litigation use against each other. He threatened to publish the article without my consent because I was late turning in revisions. That caused me to submit a final draft that was rough at best.

When I later told the editor-in-chief what happened, the journal doubled down, telling me I was the only one at fault, refusing to update the article in the legal databases to a satisfactory version, and asking me to reach out to University counsel if I had any further questions—just what overenthusiastic law students might think is the proper way to resolve a dispute.

Throw in a bit of, well, law-professor-like imperiousness—the journal told me it expects any article submitted to it to be ready for publication, the implication being that the journal can go to press with an author’s work whenever it wants—and Law Professor Frankenstein’s creation is complete.

Here is how events unfolded.

A few months after the pandemic hit, I found myself about twelve hours past deadline in returning final edits to Iowa Law Review. I had found a major flaw in the argument of my paper and didn’t know what to do.

Then I received this email from the managing editor: “we regrettably must move forward with publishing the piece with the previously edited version we sent.”

This is, of course, every author’s nightmare: that a journal will go to press without the author’s consent. Which is why most publication agreements have a clause like this one in the agreement I signed with Iowa Law Review: “The Work shall not be published by the Review unless the Author reviews and approves the Work.”

Authors and journals are natural partners because their interests are aligned: both are on a mission to get quality scholarship into print. The editor—and, as I later learned to my dismay, the entire Iowa Law Review—had lost sight of that mission, transforming a partnership into an adversarial affair.

What I should have done was to remind the editor of both the publication agreement and the journal’s mission to publish quality work, and to ask that the article be bumped to the next volume—or, in a worst-case scenario, withdrawn so that I could resubmit it in the summer submissions cycle.

Instead, I panicked.

I’d already been up all night trying to get the draft into shape. All I could think about was how I would feel if my flawed draft wound up in print. It was supposed to be my tenure piece.

So, rather than do the right thing, I raced madly to complete my revisions and sent an updated draft to the journal about nine hours later.

The editor replied: “Although we have already spent the balance of the day conducting the final review of the earlier version, we will accept this updated copy.”

Yes, he was so confident of the journal’s right to publish without my consent that he thought he was doing me a favor by accepting my draft.

I had almost completely rewritten the paper. The blackline I sent showed that more than half (54%, to be precise) of the text was brand new. I also attached a folder containing twenty-six new sources.

Threats aside, that should have been a red flag for the editor.

The only way for an editor to handle these changes responsibly would have been to buy time to review them by bumping the piece to the next volume—or to rescind my publication offer.

Instead, the journal went to press, explaining that “the only thing we will have time to do is check Bluebook formatting one final time and make sure nothing is egregiously out of place above the line[.]”

Of course, you can’t rewrite half an article from scratch in a few days’ time and expect it to be anything but rough.

A month after the article appeared in print, I phoned the new editor-in-chief to ask if she might be willing to swap a revised, finished draft for the current one in the Heinonline, Westlaw, and Lexis databases.

I figured she might decline to make the switch, but I thought that, regardless, she would be horrified to hear that an editor had threatened to publish my work without consent—and that she would apologize.

Instead, she sent me what might best be described as a legal memo.

“I have located and reviewed all relevant communications between you and the Iowa Law Review,” it began. Over five single-spaced pages, the memo picked through nearly all of my email exchanges with the editors over the previous year, going back nearly to the date I accepted the journal’s publication offer.

The gist of the memo was: This is your fault because you missed our deadline.

I replied that it didn’t matter who was at fault. What mattered was that a rough draft of an article had wound up in print. Something had to be done about that.

“If you have any further requests, please direct them to our university legal counsel,” the editor replied.

I was floored, of course. But I couldn’t say that my students would not have drawn the same lessons from my classes about how to conduct business as these students seemed to have drawn from their two years of legal education.

I wrote to Iowa Law’s dean, Kevin Washburn. He did not reply.

Unsure what to do next, I consulted with a colleague, who suggested I phone the faculty advisor and propose the following: The journal publishes a straw reply to my article that points out that it looks incomplete; I publish a response that explains that due to a “hiccup” in the publication process an incomplete draft of the paper had wound up in print; I attach a revised draft to the response.

The journal agreed. I thought this meant the editors had understood that threatening to publish without consent is wrong—or at least that publishing rough drafts is bad for the journal. I soon discovered that the editors again thought that they were just doing me a favor.

The following spring, after the straw reply—which I had tapped my colleague Brian L. Frye to write—had been published, the journal’s new board decided that I wouldn’t be permitted to mention the “hiccup” in my response after all.

“[W]e do not feel comfortable including the ‘hiccup’ language as from our perspective there was no hiccup in the publication process,” wrote an editor.

No, not even a hiccup.

Did the new board really understand what had happened the previous year?

Yes, I was assured. The threat to publish work without consent didn’t matter, the new editor-in-chief explained via Zoom, because (in paraphrase): “we expect that, when you submit an article to us, it is ready for publication.”

That, of course, will be news to most authors submitting articles to Iowa Law Review, not to mention the Iowa Law 2Ls slaving away checking cites.

After nearly two months, the students offered to restore my original “hiccup” language.

But I was done with the reply-response fix.

The “hiccup” language was both a whitewash of the journal’s threat to publish without consent and a pact to mislead readers about the evolution of academic debate regarding the article. It was also unlikely that a reader would find the corrected draft attached to a response to a reply to the original article.

I wanted an acknowledgment that threatening to publish without consent is wrong—a betrayal both of the author and of the journal’s readers. And I wanted to renew my request that the journal substitute a revised draft in the databases. After placing a few phone calls, I learned that Heinonline, Lexis, and Westlaw all routinely substitute new drafts for published articles. All it takes is an email from the editors.

The journal again refused.

I can think of plenty of reasons why a journal might hesitate to substitute a revised draft.

It might confuse readers. (Solution: Append an editorial note.)

It would mess up citations to the original. (Solution: Add a decimal to the new page numbers, as in 1749.1.)

Everyone might want to do it. (Solution: Limit it to victims of threats to publish without their consent.)

There’s no one available to cite-check the revised version. (Solution: Find someone. Or don’t—54% of the version that is currently in print was not cite-checked either—but that didn’t prevent the journal from publishing it when it was expedient for the journal to do so.)

But even though I begged the journal for a reason, the only one I ever got was that, as the editor-in-chief put it, “[i]t has never been Iowa Law Review’s policy to replace a published piece with an updated or revised version.”

In other words: because.

To this day, there has been no resolution. The rough draft of my article is still available in all the legal databases—and displayed on Iowa Law Review’s website—without any warning to readers regarding the unsavory circumstances of its publication. And the journal has never acknowledged that what it did was wrong—or explained to me why it will not implement a quick and effective fix.

I do think that Iowa Law Review is a troubling reflection of the lessons students absorb in law school.

Fortunately, it is not the norm.

I have worked with eleven journals. Only Iowa Law Review has treated me as an adversary—across three successive boards.

(The article as it should appear in Iowa Law Review is available here.)

UPDATE (September 3, 2022)

When I wrote the forgoing last spring, I had assumed that the buck stopped with the student editors, and that apathy and avoidance explained why the Iowa Law administration had not stepped in to put this right—after all, Iowa Law’s Dean Washburn never had responded to the email I sent him back in summer 2020.

It never occurred to me that the Iowa Law administration might approve of the students’ behavior.

I decided to write to the dean again this past July (copying the journal’s editor-in-chief and faculty adviser), only to learn that I had been naive.

The dean wrote this in reply to my message:

Thanks you for your message, Professor Woodcock. I did receive your previous message and, afterwards, I followed up with the journal.

The ILR has significant editorial independence – that is the meaning of “student-edited.”  However, I did satisfy myself that the ILR published a document that you provided.  That resolved the case for me.  I regret that I did not write back to let you know. 

When you sent your article to the ILR and asked that it be accepted and published, there was a risk that just an event might occur. I am sorry that the final result did not meet your satisfaction, but it was your work so I see no question of their integrity.

If it make you feel any better, almost every article I have published gives me a pang as I read it after publication.  I see arguments that I might have framed better, rhetoric that could have been more artful or more precise, or even an additional source that I could have cited. I think that this is one of the risks of writing for publication.

I am confident that succeeding student editorial boards have learned from their correspondence with you, but they have a new round of articles that they must work hard to publish. I encourage you to do the same. You are obviously quite thoughtful. I suspect that you have a lot more to contribute.  Thank you for reaching out. 

Kevin Washburn

Note the dean’s position:

  • If you submit an article to Iowa Law Review, you accept the risk that the editors will use threats to publish an incomplete draft without your permission in order to compel you to sign off on publication. (“When you sent your article to the ILR and asked that it be accepted and published, there was a risk that just [sic] an event might occur.”)
  • So long as the flawed draft that is published has not been altered by the editors, the Iowa Law administration sees no problem. (“I did satisfy myself that the ILR published a document that you provided. That resolved the case for me.”)

Dean Washburn’s email is a warning to scholars everywhere not to trust the quality of the scholarship that they find in Iowa Law Review. And a warning to authors that their interests count for almost nothing at this journal.

Indeed, it is remarkable to me that, despite having received two years of protestations from me regarding the quality of the article that Iowa Law Review published, neither the editors nor the Iowa Law administration has shown any interest in reviewing the substance of the article in order to understand the extent of the problems with it. Nor have either of them shown any interest in, at the very least, warning readers that the author considers the article as it appears in the journal to be seriously flawed.

One gets the impression that Iowa Law Review, and the Iowa Law administration more generally, wish to be left alone to go through the motions of running a top-ranked law review without having to concern themselves with the actual quality of what the Iowa Law Review publishes.

This is the only way to understand how the journal could use threats to compel an author to meet a deadline and still expect to receive a draft of passable quality, then waive its own quality control checks in order to rush it into print, and then refuse to update the article in the databases when the author brings his concerns about the article’s quality to them.

And what is one to make of the half-admission in the dean’s email, to wit, “I am confident that succeeding student editorial boards have learned from their correspondence with you”?

Unlike the editors, who refused to let me describe my experience as a “hiccup” because in their view “there was no hiccup”, Dean Washburn seems to think that something did transpire from which the editors might learn.

It is Accountability 101, however, that an organization will not learn unless it acts to correct its mistakes, even when doing so is costly (which it would not be in this case). And Iowa Law Review has been unwilling to fix my article.

What I find most troubling about this episode is that it is a study in organizational evasion of accountability carried out by students who are supposed to be in the process of training to ensure that the organizations of the future will take responsibility for their misdeeds—and ratified by the lead trainer himself.

If any member of the three Iowa Law Review boards with which I have dealt on this issue goes on to advise a Peloton to stonewall the Consumer Products Safety Commission after its exercise bikes start chewing up toddlers, the former law review editor will have good reason to protest that she learned how to do that at in law school. (Fortunately, the stakes of this particular lesson have been comparatively low.)

I responded to the dean’s email.

Dear Dean Washburn,

. . .

As much as everyone would like the problem here to be one of run-of-the-mill author’s remorse, those are just not the facts that we actually have.

ILR did something highly unusual and totally indefensible in this case: it threatened to publish work without an author’s consent.

Until the significance of this fact is properly appreciated, this matter cannot be properly resolved. The notion that there is no question of the journal’s integrity when it procured a draft from an author by such means is something that I think any outside observer would reject.

I have published nearly a dozen other articles and, just as you feel about your own publications, there are things I would change in every one of them. But the only journal I have ever asked to make a change is ILR.

That’s not an accident.

It’s because the journal caused me to sign off on publication of a draft that I never would have signed off upon if an editor had not threatened to publish my work without my permission. As a result, the problems with my article are orders of magnitude worse than for anything else that I have published or indeed for any article that anyone might voluntarily publish.

It’s one thing to find problems in a piece you published—they are on you—but quite another thing to find problems in a piece you didn’t want to publish but which wound up in print because an editor strong-armed you. What ILR did is so beyond the bounds of normal practice that I am confident that you have never experienced what that feels like. But if you were to experience it, you would understand why this matter is so important to me. 

ILR has never taken responsibility for this obviously wrong behavior. I can understand why a group of students would feel defensive when confronted with shortcomings in their conduct, especially when that criticism is coming from an outsider from another school. That’s all the more reason why, in a matter such as this, students need guidance from leaders within their own institution to get to a just result.

The pity of it all is that there is literally no cost at all to ILR to fix the problem—the journal can make it right with a couple of emails and move on to this volume’s crop of articles. All the more so because this problem is rooted in such an extraordinary and (I assume) unique lapse in professionalism that providing a remedy here sets no precedent whatsoever in relation to cases of run-of-the-mill author’s remorse.



There has been no reply.

Miscellany Philoeconomica

An Economics of False Advertising

The first fundamental theorem of welfare economics states conditions under which any price equilibrium with transfers, and in particular any Walrasian equilibrium, is a Pareto optimum. For competitive market economies, it provides a formal and very general confirmation of Adam Smith’s asserted “invisible hand” property of the market. A single, very weak assumption, the local nonsatiation of preferences . . . , is all that is required for the result. Notably, we need not appeal to any convexity assumption whatsoever.

Andreu Mas-Colell et al., Microeconomic Theory 549 (1995).

Wow. So there is a mathematical proof that a “competitive market economy” is always efficient? And all that is required is “[a] single, very weak assumption, the local nonsatiation of preferences,” which translates into the reasonable assumption that people always tend to want more?

If only.

Page forward 70 pages and you encounter the following proviso:

We have, so far, carried out an extensive analysis of equilibrium equations. A characteristic feature that distinguishes economics from other scientific fields is that, for us, the equations of equilibrium constitute the center of our discipline. Other sciences, such as physics or even ecology, put comparatively more emphasis on the determination of dynamic laws of change. In contrast, we have hardly mentioned dynamics. The reason, informally speaking, is that economists are good (or so we hope) at recognizing a state of equilibrium but are poor at predicting precisely how an economy in disequilibrium will evolve. Certainly, there are intuitive dynamic principles: if demand is larger than supply then the price will increase, if price is larger than marginal cost then production will expand, if industry profits are positive and there are no barriers to entry, then new firm will enter, and so on. The difficulty is in translating these informal principles into precise dynamic laws.

Andreu Mas-Colell et al., Microeconomic Theory 620 (1995).

So, that great proof of the efficiency of competitive markets applies only to an economy in “equilibrium,” but economics has no idea how any economy would actually get into equilibrium?

Yes, that is exactly right.

Economics has shown that if buyers and sellers happen to trade at competitive prices in all markets, then the invisible hand will work great. But economics has never been able to show that buyers and sellers will actually bargain their way to competitive prices, even in “competitive market economies,” and even if they are rational profit-maximizers and all that.

Actually, even this proviso is false advertising. Because economics has actually gone and nearly proved the opposite of the proposition that buyers and sellers will always bargain their way to competitive prices: that buyers and sellers in competitive market economies can bargain their way to almost any set of prices—not just competitive prices—and, moreover, that they can bargain prices in circles forever, never achieving any equilibrium set of prices at all, much less the efficient competitive equilibrium set.

The entire project of free market economic theory is, in other words, a failure, and has been since these results appeared in the 1970s.

But you wouldn’t know it from reading the canonical graduate textbook in economics.


The Peril of Reasonable Inferences

Cortes goes to Mesoamerica, discovers a great empire, and plunders it.

Pizarro goes to South America, discovers a great empire, and plunders it.

Soto, who was with Pizarro in Peru, infers that there must be a great empire to plunder in North America.

He leads a military expedition through Florida, Georgia, Alabama, Mississippi, and probably Arkansas, finds no great empire to plunder, and dies of fever on the banks of the Mississippi.


The Spanish therefore give up on North America, more or less. No native empire had done the hard work of finding and extracting the continent’s gold for them. And no native empire had done the hard work of marshaling the population into labor units that could be exploited from the top by invaders. It seemed obvious that the hemisphere would be most easily dominated from the places at which native civilization was most advanced.

What saved North Americans from the slavery that befell Mesoamericans and South Americans in the 16th century was that they had not been brought under the centralized control of their own native emperor prior to the European invasions. In the language of James C. Scott, they, unlike their Aztec or Inca neighbors, had not yet been domesticated; they were still free. And that made it impossible for the tiny groups of Spaniards who were carrying out the colonial project to dominate them. For those groups operated by killing the native emperor and substituting themselves at the top of a pre-existing power structure.

Inframarginalism Miscellany Monopolization

Notes on the Frysian Theory of the NFT

My colleague Brian Frye has been busy reducing the non-fungible token to theory. Herein some thoughts inspired by Brian’s work.

But first, a definition. An NFT is a ledger entry in a blockchain that (1) indicates a purchase and (2) describes the subject of the purchase, often just with a url link to a picture of the subject. As an approximate matter, when someone posts a digital photo on the Internet and you purchase the NFT to that photo, you obtain a ledger entry in a blockchain that indicates that you made a purchase and describes that purchase using a url link to the photo.

Now for those thoughts.

  1. As a legal matter, the NFT is nothing special. It can be one of two things. It can either be a legally-valid transfer of title to the underlying subject. Or it can be a legally-valid purchase of the service of updating the blockchain ledger to reflect a “purchase” of the underlying subject (without that purchase being legally valid in any way with respect to the underlying subject).

    In other words, the buyer of an NFT clearly pays for the service of having the blockchain ledger updated to reflect a purchase. If the seller’s act of indicating a purchase can be considered a legally-valid expression of intention to transfer title to the subject, then the NFT buyer also gets title to the subject. Otherwise, the NFT buyer just gets a hollow incantation on the blockchain, and nothing more.

    The NFT is a digital version of Berry taking a piece of paper, going up to Apple, and saying to him: “I’ll indicate on this piece of paper that I’ve sold you my Y, if you pay me X”. Apple pays the money. Berry writes on the paper: “sold to you one Y.” Has Apple purchased Berry’s service of writing “sold to you one Y” on the piece of paper or has Apple purchased Y?

    As a general matter, a manifestation of a present intention to transfer title will transfer that title (which is why when someone says, “it’s for you,” you can legally keep the gift). But the law imposes all sorts of qualifications on this rule that are designed to make sure that the intention really was there.

    Does the blockchain-equivalent of shouting “sold” and tendering a url link manifest a present intention to transfer title to the link alone (which is generally not owned by the NFT seller, but rather the platform upon which the NFT is sold, in which case there can be no sale)? If the link leads to a digital photo, does shouting “sold” and tendering the link manifest a present intention to transfer title to the thing depicted in the photo? Or does it manifest a present intention to transfer the seller’s intellectual property rights in the photo itself? If so, which rights? Does the buyer get the right to make a copy of the photo, or does the buyer get the entire copyright?

    Judges will decide these questions.

    If the answer is “no” to all of them, then all that we can say is that purchase of an NFT gets you the service of having a ledger entry placed in the blockchain indicating that you have made a purchase and describing the subject of that purchase. But not title to the subject itself, whatever that may be.

    (Technical note: The foregoing considers the simplest possible form of an NFT transaction, one that is not complicated by any advance written agreement between the parties providing further detail about the character of the transaction. The seller simply makes a promise, expressly or implicitly, to indicate, on a blockchain, sale of some description of a subject if the buyer pays a certain price. This is a unilateral contract offer. The buyer then pays the price and the seller is legally bound to carry out his promise to make the ledger entry in the blockchain. The key question is whether the carrying out of that promise manifests a present intention to transfer title to something, or not.)
  2. If it turns out that the NFT does not transfer title to anything, and instead represents the purchase of the mere service of indicating a sale on a digital ledger, then the NFT is rather interesting as a social matter. Because in that case the market for these things—tens of millions have changed hands for individual NFTs—is a market to buy and sell ledger entries, nothing more. It is for this reason that Brian calls the NFT “the ownership of ownership.”

    In this case, we have in the NFT a further step in the familiar human chain by which a practice that starts out as necessary for survival is progressively abstracted until it persists only as ritual or play. First, men hunted to survive. Then they hunted for fun, though they did not need the meat. Then they played paintball, and took home no meat. First men bought and sold things they needed to survive. Then they bought and sold things that served no practical or spiritual purpose (contemporary art). Then they bought and sold NFTs.

    Nietzsche saw this coming, in a way:

Commerce and Nobility.—Buying and selling is now regarded as something ordinary, like the art of reading and writing; everyone is now trained to it even when he is not a tradesman exercising himself daily in the art; precisely as formerly in the period of uncivilised humanity, everyone was a hunter and exercised himself day by day in the art of hunting. Hunting was then something common: but just as this finally became a privilege of the powerful and noble, and thereby lost the character of the commonplace and the ordinary—by ceasing to be necessary and by becoming an affair of fancy and luxury,—so it might become the same some day with buying and selling. Conditions of society are imaginable in which there will be no selling and buying, and in which the necessity for this art will become quite lost; perhaps it may then happen that individuals who are less subjected to the law of the prevailing condition of things will indulge in buying and selling as a luxury of sentiment. It is then only that commerce would acquire nobility, and the noble would then perhaps occupy themselves just as readily with commerce as they have done hitherto with war and politics . . . .

Friedrich Nietzsche, The Gay Science: With a Prelude in Rhymes and an Appendix of Songs (Walter Kaufmann trans., 2010).

The same information age powers that have given rise to the NFT—making possible a publicly-accessible and (mostly) immutable global ledger system—are also swiftly rendering markets—buying and selling—obsolete.

One day, perhaps sooner than we think, firms and governments will know enough about what we want in order for firms and governments to be able to make allocation decisions for us that are better than we could obtain by bidding for products in markets. And when that happens, we will enthusiastically embrace central planning and forsake markets.

Where today that last seat on the flight is allocated based on ability to pay—a very imperfect method of determining who places the highest value on the seat—tomorrow the airline (or the government agency regulating the airline) will know, based on reams of data about all those who want the seat and that for which they want to use it, that you (yes, you) actually value the seat the most, even though you wouldn’t be able to bid the highest price for it. And so you will get the seat.

In such a world, most of us will cease to buy and sell as a matter of daily life. But perhaps we will continue to play the buying and selling game, just as some of us continue to hunt.

The NFT will be that game.

(Nietzsche didn’t foresee that America would succeed at democratizing and commercializing all things noble, including the hunt, and so he didn’t foresee, either, that the NFT could be more than just the pastime of an aristocracy.)

  1. Brian argues that the NFT could be a solution to the inefficiency of copyright. It is not completely clear to me how this might be so. But there are some possibilities.

    The problem with copyright is that the only efficient way to sell intellectual property is through personalized pricing. That’s because the marginal cost of copying intellectual property is zero—it costs nothing to make a digital copy of an image, for example—and so there are gains from trade to be realized from distributing copies to everyone who places a non-zero value on the work. If you think it’s worth something, you should get access to it. That doesn’t mean that you should not have to pay for the work, or that the work has no cost of production. It means only that those costs are “overhead costs”—they’re the costs of making the work, not of distributing it—and each purchaser should be charged a price no higher than the purchaser’s willingness to pay, for a higher price would prevent the sale and so destroy potential gains from trade.

    Thus the pricing of intellectual property should always be personalized to ensure that it prices no one out of the market. Everyone who cares should be able to buy Steal This Book, but only those who can afford to pay should be charged a price for it, and that price should be no higher, for each, than what he can afford. But those who actually steal it should go to jail, for otherwise there would be no book to steal.

    The problem with copyright is that copyright holders often do not know what their customers are willing to pay and so they do not personalize the prices they charge to licensees. Instead, they impose one-size-fits all prices that prevent some people who place a non-zero value on the work from getting access to it. The price of the paperback is written on the cover. If you can’t afford it, you go home empty handed. Both you and the copyrightholder would be better off if the holder gave you a discount. But the holder thinks (mistakenly) that you’re lying when you claim you can’t afford the official price, so no deal gets done.

    How can NFTs solve this problem?

    Suppose that purchase of an NFT buys only the right to a ledger entry. The buyer does not obtain a general right to the work, or even a license to use a copy of it. If buyers nevertheless continue to love playing the buying and selling game, they may direct sufficient cash to artists to cover the overhead cost of production of their works, and in so doing eliminate the need for copyright protection. That is, if the NFT craze proves long-lived, and spreads enough cash across the creative industries, then we may no longer need to use copyright to fund the arts. Artists could give copies of their works away for free to anyone who wants them, and make a living selling NFTs to fans of the buying game.

    Of course, it might be the case that NFT buyers have less taste than copyright licensees, in which case this new approach to funding would push the arts in unfortunate directions. But the reverse might be equally true, and we might end up with better art. Or, most likely, there would be no change in quality.

    Suppose instead that the purchase of an NFT buys a license to a particular copy of the work. It buys you access to a copy of the Kaufman translation of Nietzsche’s The Gay Science, for example, though not the full copyright to that work. In this case, the NFT format of the sale doesn’t do anything special relative to any other form of digital sale of a copy of a work.

    But the fact that NFT sales are often structured as auctions—buyers bid for the NFT—pushes the pricing of copies in the right direction from the perspective of efficiency. For auction pricing means personalized pricing. If you require no minimum price in your auctions, and keep selling copies ad infinitum, then you will price no buyers out of the market and will end up selling copies at a range of prices personalized to the willingness to pay of buyers.

    Of course, savvy buyers will take advantage of this format to pay you little or nothing (if you know an infinite number of copies are going to be sold, why bid more than zero for any copy?), but we are at least on the right track. (Or not, if you end up getting paid so little that you give up on producing art in future.) The next step would be to use more complex auction structures designed to force buyers to reveal their willingness to pay, or to acquire data on buyers that would enable accurate dictation of personalized prices to them. But none of this, again, requires NFTs. Indeed, one can expect that, regardless whether NFTs persist or not, the information age is going to make it easier for copyright holders to personalize their prices and so much of the inefficiency of copyright will eventually disappear.

    Personalized pricing won’t solve all problems associated with copyright, however, for copyright also creates a distributive problem associated with excessive pricing, and personalized pricing enables owners to extract the maximum possible value from buyers—value that may be far in excess of the cost of producing art. In that case personalized pricing would exacerbate the wealth distributive problem associated with copyright even as it eliminates the efficiency problem. NFTs, in either their fee-for-service guise or their fee-for-license guise can’t solve the distributive problem of copyright, because there’s always a chance that buyers will pay prices for their NFTs that more than cover the cost of producing the arts.

    But that’s a story for another day.

Libertarianism as Opposition to the Electoral Process

The libertarian says: “when government intervenes in the market, it prevents the people from imposing their preferences on the market. People may claim to hate Facebook, but the fact that they use it belies their words. The people have voted in the market for Facebook, which is why Facebook became so successful. If the government destroys Facebook, it goes against the will of the people.”

The trouble with this line of argument, which the libertarian applies to all government interventions in the market, not just antitrust interventions against Facebook, is that in a democracy the people vote in two ways, not one. They vote in the market. And they vote for their political leaders, who in turn decide whether the government should intervene in the market. So it is not possible for a libertarian in a democracy to say that government intervention in markets goes against the will of the people. For it is the people who will the intervention in markets into existence.

The most that the libertarian can say is that the will of the people as expressed through their purchase decisions is more authentic than the will of the people as expressed through their electoral votes. And so it may be. But I have never heard a libertarian address this question directly, even though it is necessarily the heart of libertarianism, at least in a democracy. Instead, the libertarian tends to rail against government intervention as though every government were a tyranny and all market regulations dictated by some unelected politburo rather than, as happens to be the case in the libertarian ground zero that is the United States, by duly elected representatives of the people.

The libertarian asks, “why should the Federal Trade Commission get to decide whether Facebook is right for you or not?,” as if the Federal Trade Commission were a hereditary aristocracy. If the Federal Trade Commission breaks up Facebook, then it is the people who have broken up Facebook. The natural conclusion to draw is not that the people are oppressed but rather that the people have decided that they no longer wish to have Facebook as an option in their markets.

Why ever would a people decide, electorally, not to have a particular market option? The obvious answer is that people might wish to bind themselves to the mast. It could be the case that people find it easier to make deliberative, non-impulse-prone decisions about which products are good for them in the context of electoral voting rather than market voting through their purchase decisions. They think more carefully about what they really want when they vote for President than when they are logging in to Facebook.

Regulation in a democracy is, then, nothing more than the deliberative faculties restraining the impulsive faculties of the brain. It has nothing at all to do with tyranny, domination, un-freedom, or control, except insofar as it represents self-control.

If this is right, then why do libertarians nevertheless object to regulation? It could be that they reject the notion that the electoral process is more deliberative than the market process. Perhaps they believe the reverse: we choose more deliberatively in the market than in the electoral process. Or perhaps they believe that impulsive decisions better reveal our true preferences than do deliberative decisions, in which case the market, to the extent that it encourages impulsive decisionmaking, does a better job than politics at revealing our true preferences.

Or, more likely—because this libertarians do talk about—they believe that the layers of intermediation associated with representative government—the politicians and bureaucrats who stand between the electoral voter and the regulation—are not in fact responsive to voters, or only minimally so, and so the regulations government imposes reflect neither the deliberative preferences of voters nor their impulsive preferences, or reflect them only very weakly.

Whatever the reason, the libertarian position must be that the electoral process is a flawed voting system relative to the voting system that is the market.

Civilization Miscellany World

The Danger of Climate Certainty

We know from the study of social insurance that uncertainty—regarding whom a misfortune will strike—is a great spur to social behavior. It is the veil of ignorance that makes the healthy pay for the medical care of the sick. It is only because the healthy pay their premiums before they learn, at the end of life, that they did not in fact need to pay them, that the sick can afford medical care.

By the same token, the great spur to collective global action against climate change, such as it exists (and admittedly it does not much), is the fact that no country knows yet quite what the effects of climate change will be. As with all complex changes, that of climate will make winners as well as losers, at least in the medium term. Some countries will be submerged. Otherwise will thaw, or be the beneficiaries of rains diverted by changing weather patterns. But because no country knows yet into which category it will fall, each has some incentive to pay to insure against climate change, just as each of us has an incentive to pay a heath insurance premium.

But as climate change advances, and the consequences for individual countries become easier to predict, that incentive will lessen, at least for the countries that stand to benefit. If it becomes clear, for example, that the zone of arable land will shift northward into Canada and Siberia, then Canada and Russia—or the countries in the best position to invade or dominate them—may find it more expedient to promote climate change than to ward it off, just as improvements in the use of genetics to predict health outcomes may one day give some people the confidence not to buy health insurance.

Indeed, one can imagine not only Canada and Russia pulling for climate change if the arable zone ends up moving northward, but also China, which teems on Siberia’s southern border and has a historical claim to the territory. As soon as it were to become clear that Siberia would replace America as breadbasket to the world, China would have an immense prize right on her doorstep. It would be in her interest to carry climate change forward, at least long enough to cement her new strategic advantage.

Civilization Despair Meta Miscellany

The Possibilities of Hierarchy

We can represent the possibilities of hierarchy with a matrix of hierarchy. It looks like this:

Person B
Believes himself to be inferiorBelieves himself to be superior
Person ABelieves himself to be inferiorClassical Equality (each looks up to the other)Domination
Believes himself to be superiorDominationConflict (each believes himself to be better than the other)
The matrix of hierarchy.

In a world of hierarchy, each of us believes himself either to be better or worse than others, but never equal. When two people meet, there are therefore four possible relationships that can appear between them.

Two are relationships of domination, which occur when one believes himself to be better than the other and the other agrees.

One is a relationship of conflict, which occurs when each believes himself to be better than the other.

And the third is a relationship of equality, which occurs when each believes himself to be worse than the other, with the result that each seeks to follow the other and do for the other. I call this a relationship of “classical” equality because it is the only equality known before the modern period.

The matrix of hierarchy explains why domination is so often associated with hierarchical thinking: it is the most common outcome (i.e., you find it in two of the four boxes in the matrix).

It also explains why conflict is often associated with hierarchical thinking.

Finally, the matrix of hierarchy explains why romantic love so flourished in the premodern world, for is romantic love not an example of a relationship characterized by mutual feelings of admiration—of looking up at the beloved?

The new conception of equality that came into being with the modern world can be represented by a box of equality:

Person B
Believes himself to be no better or worse
Person A Believes himself to be no better or worse Modern Equality
The box of equality.

The modern conception of equality eliminates domination and conflict. It also eliminates that sweetest of all relationships, that of mutual admiration, which I have called classical equality. It eliminates love.

Question: Can we have classical equality without domination or conflict? Can we have a world in which each man looks up to every other?

That would be the best of all possible worlds.

It might require only that we change the way we look at others.

Or it might require that we change ourselves.

Civilization Meta Miscellany

Two Equalities

There is the equality in which one man looks up to another, and the other looks up to him. The first is convinced that he is inferior to the other. And the second is convinced that he is inferior to the first. The first therefore wishes to follow the second. And for the same reason the second wishes to follow the first. In the end, they follow each other. This is an equality bred of hierarchy and hierarchical thinking, of domination and obedience, of excellence and humility, of admiration and connection.

There is another kind of equality in which one man looks straight across at another and says to himself: “he is no better or worse than I.” And the other man looks at the first and says: “he is no better or worse than I.” This is an equality of isolation, mediocrity, resentment, orgeuil.

Give me the first equality. Never the second.