Legal Creep

Cafe Hayek’s Don Boudreaux has an interesting quote from a 1905 work on English law (“Lectures on the Relation Between Law & Public Opinion in England During the Nineteenth Century,” by Albert Venn Dicey).

Law-making of this sort [i.e., legislation meant to protect certain people from contractual outcomes deemed by the legislature to be undesirable for those people] generally passes through two stages. In the earlier stage the law places upon some kind of contract an interpretation supposed to be specially favourable to one of the parties, but allows them to negative such construction by the express terms of the agreement between them. In the later stage the law forbids the parties to vary, by the terms of their contract, the construction placed upon it by law. The difference between these two stages is well illustrated by the case of a lease made by a landlord to a tenant farmer. As the law originally stood the tenant had no right to compensation for improvements made by him during his tenancy, unless he was entitled thereto by an express term in his lease. This was felt to be a hardship. Parliament, therefore, enacted that it should be an implied term of every lease, unless the contrary were expressly stated therein, that the tenant should receive compensation for improvements. So far there was no interference with the contractual freedom either of the landlord or the tenant, for it was open to the parties by an express term of the lease to exclude the tenant’s right to compensation. It was found, however, that, upon this change in the law, the tenant’s right was habitually excluded by the terms of the lease, and that he did not therefore receive the benefit which the legislature hoped to confer upon him. The next step was for Parliament absolutely to prohibit the bargaining away of his right by the tenant.

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187 thoughts on “Legal Creep

  1. I don’t understand your characterization of this as “creep,” which I generally understand to mean a gradual expansion of purpose. In this case, the legislature enacted a fix to a problem that didn’t work (what Dicey is referring to as the first stage), then enacted a second fix. The purpose didn’t expand, it took a couple of tries to accomplish the purpose. That doesn’t seem like “creep” to me, so what am I missing?

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      • Oh… you mean like how when you sign up for a credit card or a cell phone you can totally negotiate all the terms of the contract?

        Okay, that was a bit hyperbolic but not by much. I was a renter for thirty years — we didn’t buy our first house until 2008 — and it was always the case that the “negotiations” over the rental contract amounted to “here’s the lease, take it or leave it.”

        Now an agricultural land lease you might imagine as being a more balanced negotiation. You would be wrong. The landlord would have been an aristocratic type, quite possibly an actual hereditary title-holder like Lord Pompousfuck.

        The loss of the freedom of contract that you decry was only a loss for one side. The other side never had any actual freedom of contract to lose.

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      • My issue with this kind of analysis is that it seems to forget the history of landlord-tenant relations in the UK. Most if not all of the landlords were rich aristocrats who dominated British political life for centuries and this lasted well into the early 20th century and did not really switch until the Liberals managed to institute real curbs on the veto power of the Lords right before WWII.

        There was a time after the Black Death when surviving members of the working class were able to lift up their incomes and living conditions but Edward the III quickly put an end to this.

        http://en.wikipedia.org/wiki/Ordinance_of_Labourers_1349

        To me the changes of law represent Democraticization and the expanding vote. The old system where Laborers and Tenants were not compensated for their improvements was probably when the Lords and Aristocracy controlled all. The middle stage probably came during a Liberal government (I’d bet Gladstone if you did the research) but did not recognize the absolutely asymmetrical power that the landowners held because of the amount of land that they owned and the lack of options. The last stage was either with a more radical labor government (Asquith or Lloyd George) or potentially even Labor dealing with asymmetrical power arrangements.

        Though asymmetrical power relationships will always be one of those things that liberals and libertarians potentially never agree upon. I don’t see Coasean negotiating opportunities as being axiomatically good.

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      • Looks like cohesion to me.

        There is much the same thing going on in the US right now with the legality of click-wrap agreements; and especially so in the matter of amendment to such agreements.
        Holding: It’s a matter of state law.
        The principle of law is that one side cannot unilaterally amend a contract, and any provision to that effect is unlawful in nature; due to the fact that an offer cannot be accepted without awareness of the offer; and an amendment without acceptance is an offer rather than a contract.

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      • Though asymmetrical power relationships will always be one of those things that liberals and libertarians potentially never agree upon. I don’t see Coasean negotiating opportunities as being axiomatically good.

        The point to make about Coasean negotiating opportunities is not that they are axiomatically good. The point is that they maximize individual utility by not placing limits on what an individual is free to bargain away.

        If you do not see this as a good, then I submit that it’s because you uphold some supposedly universal conception of the good that transcends an individual’s conception of what is good for him or her. That is where the point of conflict between libertarians, progressives and conservatives lies.

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      • That’s assuming that meaningful bargaining is taking place.

        I have never been a 19th C tenant farmer, but I have been an apartment tenant in a tight housing market, and I know exactly how much meaningful bargaining was taking place there.

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      • I take no position here on what “should have happened” – but I know how much bargaining was actually happening, and that was none at all: This is the monthly rent, this is the rental agreement we use, sign here, here, and here, or get out of my office.

        I don’t know of anyone who got any language in an apartment rental agreement changed from the pre-printed contract the landlord provided.

        That’s different from instances of renting a suite or room in a house, where the owners have only one or two tenants, and often live in the same building – in that case, the agreement is negotiated as two humans of equal worth coming to a mutually agreeable arrangement. The prospective tenant can offer alternative payment schemes, or propose changes to what the landlord is offering.

        I think it’s mostly not because there weren’t efficiencies an apartment building landlord could have gained from flexible negotiation, but because of an attitude of viewing tenants impersonally, more like livestock from which to extract predictable profits, than people with whom one has come to an arrangement. Also a frequent “we don’t do that here” mentality – anything the tenant proposes is immediately suspect because they’re renters – you know, that sort of people – and so the default assumption is that it must be part of an attempt to scam something.

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      • While Coasean bargaining is not, I suppose, axiomatically “good,” ‘s got it exactly right as to the “why.” I’ll add, though, that perfect Coasean bargaining is technically not possible in most situations – and Coase himself would have acknowledged this – there are always information asymmetries, for example. But that’s not an argument for getting rid of bargaining altogether in any given situation. Instead, it’s an argument for weakening the information asymmetries/transaction costs in order to get closer to a Coasean situation. So, instead of requiring certain clauses to be in contracts, you might require certain information to be disclosed (as in my suggestion below), make it clearer to both parties as to with whom rights are initially vested, or encourage parties to negotiate individual events (essentially what the modern British ag tenant laws seem to do).

        Mandating that contracts have certain provisions that are inalienable will have the effect of creating a one-size-fits-all solution that prevents any situation from being optimally negotiated. In the case of this provision, the response by landlords would be to increase rents by the amount they expected to have to pay for improvements that they otherwise would not have paid for, on average. These costs will be distributed amongst all of a given landlords’ tenants, because there would be little way of knowing which tenants were and were not more likely to make improvements to the property they were leasing.

        What’s more, you’ve incentivized this to be a quite high cost, because tenants are more likely to make improvements for which they have less of a need but can essentially make for free. So tenants who don’t make improvements wind up having their rents increased by the same amount as tenants who do, and thus wind up subsidizing the latter group, who are larger than they otherwise would be. It’s the equivalent of a law mandating that all apartment buildings have shared utilities, where everyone pays the same utility bill, and there’s no incentive for any individual to limit their utility usage. Except it’s worse in this case, because you’re saying that the landlord has to pay the bill directly himself and thus can (and certainly will) just add an “estimate” of the pro rata bill to the base rent that the landlord charges everyone, without disclosing his actual costs or what portion of the rent is attributable to this.

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      • Brandon,
        In Pittsburgh? the kind of bargaining that we call the “legal” kind. You see, they have a standard apartment-lease contract — which is thoroughly illegal in multiple ways and places.

        But, um, you actually have to hire a lawyer to realize that “they can’t make you do that” — and also, that if there’s ever a problem, you can get the judge to invalidate most of the leases in the city.

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      • I think it’s mostly not because there weren’t efficiencies an apartment building landlord could have gained from flexible negotiation

        For example? You said it was a tight housing market, which implies that the landlords had no shortage of people willing to accept the standard contracts. What sort of alternate payments schemes would be mutually beneficial?

        but because of an attitude of viewing tenants impersonally, more like livestock from which to extract predictable profits, than people with whom one has come to an arrangement. Also a frequent “we don’t do that here” mentality – anything the tenant proposes is immediately suspect because they’re renters – you know, that sort of people – and so the default assumption is that it must be part of an attempt to scam something.

        Well, sure, landlords—you know, that sort of people—are all a bunch of bigots. They’re not enlightened like we regular folks are.

        can confirm or deny, but my understanding is that a lot of states have laws that are very “pro-tenant,” i.e. anti-landlord, and that consequently there’s a pretty strictly defined script that landlords have to follow to minimize their exposure to legal troubles and tenant problems. For example, eviction proceedings take a very long time, so you have to get started at the first sign of delinquency. And if you’re willing to make special arrangements for that one tenant who has always paid his rent on time but not for that other tenant who is not quite so reliable and by the way is a member of a different race, you’re vulnerable to discrimination lawsuits.

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      • a tight housing market

        The first adjective there is absolutely the key. I don’t think everyone really grasps how the relative amount of supply vs. demand affects the bargaining position. We owned a manufactured home that we effectively could not sell because of the mortgage crisis. So we were renting it out in a market that had a glut of rental units. Despite being landlords we were absolutely unable to dictate terms.

        In a tight market, where demand is very high relative to supply, then, yes, landlords can do more dictating. But there are two ways to respond to that. One way is to add regulations that set limits on what can be bargained (or in the particular case, what can be dictated, given the differences in bargaining power). The other way is to reduce regulations that restrict increases in supply. Some folks seem to instinctively gravitate toward the first solution, while others seem to instinctively gravitate toward the second solution. In the conflict between those two visions, I offer the suggestion that the first solution merely treats symptoms, while the second solution eliminates the root cause of the problem.

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      • Or to put that in terms of the discussion of Coasean bargaining, Saul’s claim that it’s not axiomatically good, and j-r’s response to him…. We can respond to the problem of disparities in bargaining power by eliminating bargaining, or we can respond to it by eliminating the factors that cause the disparities. Again, one method treats a symptom, the other method treats the cause.

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      • James,
        “we were absolutely unable to dictate terms”
        … I’m pretty sure you were able to dictate at least some terms. “No Pets”? A buyer’s market is a buyer’s market, but unless you only had one applicant, you got to select the best one.

        I suspect that folks really don’t know where a “balanced negotiation” happens (not that I mean to imply that a buyer’s market is one!)

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      • solicits some insight from my body of experience in reference to:

        …my understanding is that a lot of states have laws that are very “pro-tenant,” i.e. anti-landlord, and that consequently there’s a pretty strictly defined script that landlords have to follow to minimize their exposure to legal troubles and tenant problems. For example, eviction proceedings take a very long time, so you have to get started at the first sign of delinquency. And if you’re willing to make special arrangements for that one tenant who has always paid his rent on time but not for that other tenant who is not quite so reliable and by the way is a member of a different race, you’re vulnerable to discrimination lawsuits.

        I can speak to California (pretty durn pro-tenant no matter what perspective you look at it from) and Tennessee (balanced, IMO, so some might call that pro-landlord). And the overwhelming bulk of my experience is from California.

        Evictions can take a long time, if by “long time” we mean lasting more than an arbitrary amount of time that I’ll call two months. They can also be quite short, if the arbitrary definition of “short” is, say, two weeks. Some tenants get their 3-day notice, know they’re in default and can’t cure it, and move out in the three day period. Others you file on, they don’t answer for whatever reason, and you take a default and prevail that way. (About half of my office’s cases resolve that way, by default.)

        In my experience, the tough cases are not the ones where landlords view tenants as fungible consumers. In those cases, the landlords tend to have their ducks in a row, meeting (although typically not exceeding) their legal duties to provide habitable housing and appropriate accounting of payments.

        Tougher cases are the amateur landlords who form personal relationships, or worse friendships, with tenants they put in their former starter homes after trading up. Because they have personal affection for the tenants, they let late payments slide, they let partial payments slide, they fall for the sob stories and by the time we get to court, the tenants are saying that the landlord agreed to reduce the rent to help them out and now is reneging on that deal and the landlord is literally crying in the hallway about being stabbed in the back by someone they thought was a friend.

        The toughest cases of all are the ones where the tenants manipulate the legal system, often quite cynically, to cause delay and additional expense. But that’s another story for another day.

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      • That’s quite true that a lot of residential leases are inflexible in large part because of residential landlord-tenant laws. I’m not sure how far that concept extends beyond the specific clauses that landlord-tenant laws require. It’s possible that it extends quite far – certainly, it’s worth noting that commercial leases, even when it’s a small business and a giant landlord, are just about always heavily negotiated, and commercial leases are not subject to anything remotely approaching the level of regulation of residential leases.

        On the other hand, I think there’s a bigger reason for why most residential lease terms are non-negotiable (though my experience is that you can sometimes at least negotiate a modest discount on rent even with large residential landlords). Specifically, it’s worth mentioning that within residential leases, there tends to be a pretty big divide between small properties and large properties. A small residential landlord is typically going to be willing to negotiate just about every term in the lease other than those terms that are legally mandated or mandated by their property owners’ insurance, if that’s what the tenant wants to do (within reason, of course – there’s a point at which a tenant trying to negotiate everything becomes a signal that the tenant is going to be a real PITA, but I’ve yet to get to that point in the five or six residential leases I’ve been intimately involved with). This is, again, also true of commercial landlords, both large and small.

        It’s large residential landlords that are typically inflexible. At most, you might be able to negotiate a modest discount on rent (or on a scheduled rent increase) if you’re a renewing tenant or if it’s a renter’s market.

        But what makes these landlords so different is that the units they rent out, unlike small residential landlord-owned units or any type of commercial unit, are generic and non-unique. Tenants all have the same purpose as one another for renting a given type of unit, whereas commercial tenants have vastly different purposes for the properties they rent. The building needs to have uniform rules, partly for the reasons you cited (especially concerns about waiving eviction rights), but also because uniformly enforced rules are essential to the building’s ability to market itself to potential new tenants and to keep other existing tenants. There’s also a bureaucracy problem – the process of negotiating large numbers of different leases for essentially identical units is potentially costly in and of itself, and keeping track of the various terms once negotiated is a bureaucratic nightmare. Last but not least, any “improvements” made by a tenant would be of negligible utility to the landlord, and may actively hurt the value of the unit to the landlord even if it nominally increases the value of that landlord. This is because the large landlord generally has to market the building and style of units available as a whole – it wouldn’t usually make much sense for them to market a specific upgraded unit. They’d also need to go through the hassle of coming up with a separate base rental price for just that unit as compared to the other, standardized units while also trying to figure out if the market for an “Improved” unit with the higher price is different from the market for the other, “unimproved” units.

        Where the properties are unique, as in a commercial or small-landlord situation, though, these costs are either necessary (and thus readily folded into the value of the lease) or minimal, respectively.

        Regardless, it seems like, with some exceptions, the lack of negotiability in large-building residential leases may have less to do with power differentials and more to do with the nature of large residential buildings combined with, as you point out, the residual effects of tough residential landlord-tenant laws.

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      • Kimmi,

        “Not able to dictate terms” does not mean “the other side was able to totally dictate terms.”

        When your unit is sitting empty for months and you’re making mortgage payments on it, you have a very weak bargaining position. But still everything is a cost-benefit analysis.

        I could dictate terms like “no meth labs” because on a c/b analysis I was willing to keep paying the mortgage out of my own pocket to avoid that. Was I willing to pay the mortgage out of my own pocket to avoid a tenant with pets? How much damage would I expect a pet to cause, and how many months of no-income is that equal to? I might say no to pet-owning prospective tenants for the first month or two, but after 4 or 5 months I might change my mind.

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      • residential leases are inflexible in large part because of residential landlord-tenant laws.

        On a slight tangent, just relating to the concept of law, there can actually be a tremendous advantage in renting an illegal apartment. Johanna and I did so for a while in San Francisco. The landlord was generous with us, the rent was lower than median for that type of unit, and we had the run of the backyard.

        In a nutshell, if a landlord is renting illegally, they just might realize they don’t want to piss off their tenant.

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  2. Parliament at first trusted the market in leases to arrive at the optimal outcome of encouraging improvements (which are positive-sum investments.) That didn’t work, because the asymmetries in power and wealth between tenant and landlord had their usual effect, so it became necessary to put the incentives into law. Sounds good to me.

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      • This assumes any improvements are made. Did the lease contracts mandate improvements? If not, your point is irrelevant.

        Broader point: Most here seem to miss a very valid point: That parliament “gave” a right, which it had no authority to give, to someone else. It’s one thing to mandate a contractual interpretation, quite another to take from one private party to give that to another. Society usually refers to that as “theft” when I try to do it. Funny how it morphs into something else when “govt” does it, at least by it’s supporters, because that makes it all better.

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      • The alternative amounts to a 100% tax on improvements. That’s generally considered a bad idea

        If taxing things diminishes their frequency, then the old rule diminished the frequency of improvements. But that was a choice made by landowners who refused to allow compensation for improvements in their contracts. If they were willing to forgo the improvements on their own land, that would be identified as their preference. If it meant lower returns for them, as we might expect, then we have to conclude they were satisfied with lower returns.

        Keep in mind that ultimately it was the landowner’s property. The new rule put them in the position of having to pay for improvements to their own property that they did not want.

        Of course we can fairly object that the system that made it their property was an illiberal one. But the better solution then is to condemn their property, pay them fair market value (which, due to the very lack of improvements their preferences created, would be less than otherwise), and then re-sell it (whether as a whole or in parcels).

        The advantage of the latter is that the public benefit is achieved by the public purse. The method actually used achieves a public benefit at the expense of one party. Relevant to this is the SCOTUS case of Lucas v. South Carolina Coastal Commission, in which the Commission tried to deny Lucas the right to develop a coastal parcel so the public could enjoy the benefit of the open space. SCOTUS correctly identified this as a de facto taking of his land without compensation–Lucas was being forced to provide a public amenity at his own cost.

        Related to this is one of the arguments against rent control, that it provides public benefit without the public paying for it, by imposing the cost on one set of disfavored individuals. Far better from that perspective (if not without its own particular problems) is publicly provided housing or publicly provided housing assistance.

        The concept of “we want this, so you must pay it,” is just free-riding attempted to be justified through superior political force.

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      • “The concept of “we want this, so you must pay it,” is just free-riding attempted to be justified through superior political force.”

        It’s also the foundational bedrock of civilization, almost definitionally so.

        Not that it matter so much in this argument. It’s just that in politics, as everywhere else, marketing matters. Calling this phenomena “free-riding” is true, but it is also spin.

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      • Property Law was about six years ago but IIRC, under English law, Landlords did not have fix problems with the tenant’s housing like they do in the United States. If my heater breaks down, the landlord is expected to fix it. Under English law (or English law once upon a time), the tenant needed to do all their own improvements. This puts the tenant in a bind of do you put up with horrible housing or do you seek to make it habitable at your own expense and then have the landlord-aristocrat not choose to compensate you.

        I have yet to see how libertarians is going to fix this or your preferred negotiating system.

        What would the libertarian solution be to landlord who refused to fix things for rent-paying tenants because they wanted to get the tenant out so they could get higher rents? Shouldn’t being a timely rent payer come with some protections?

        http://www.nytimes.com/2015/01/25/nyregion/a-year-after-suing-their-landlord-brooklyn-tenants-still-lack-heat.html?_r=0

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      • Mike Schilling,
        Your repeated misreadings make you a bore.

        Tod Kelly,
        I disagree. Taxing all of us to provide collective benefits may justly be said to be foundational to civilization, but I said nothing against it. But forcing a disfavored group to bear the cost of a benefit, while the rest of us free-ride on it? No doubt civilizations have always done so, but to call it the foundation of civilization is to inadvertently justify slavery, feudalism, and kleptocracy, all of which follow that model.

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      • Mike,

        There are a number of liberals here who are capable of thinking about what libertarians are actually saying. Each time you respond, it has the character of a strawman. After a certain amount of effort, it seems pointless to try to have a serious conversation with you, as you seem either unwilling to, or incapable of, thinking about libertarianism at the level of Stillwater, Saul, Lee, North, Road Scholar, or several others to whom I’m doing a disservice by not remembering their name.

        There’s just no point in making any more effort to talk to you about these things. So I’m going to content myself with continuing to note when you are once again pointlessly off-target, but I’m not going to burn any more calories trying to get you to understand what’s actually being said.

        If you show signs that you’re making an actual effort to understand, instead of just making strawman misrepresentations, I’ll happily discuss the issues with you.

        Note that this has nothing to do with asking you to agree. I’m just asking you to try to accurately portray.

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      • The concept of “we want this, so you must pay it,” is just free-riding attempted to be justified through superior political force.

        I’d like to harken back a little to ‘s point above about the Statute of Labourers in 1349. That was a situation in which the aristocracy* tried to impose something like free-riding through their superior political force. (What the practical effects were, I don’t know.) We can probably look at that statute and the process identified in your OP as a turnaround being fair play. The class of owners/workers (in this case, tenants) had more political power, or probably more accurately given the realities ca. 1900, the landowners had less blatant political power qua landowners, and while they would have before used the state to do all sorts of mischief, why not let the mischief be done on behalf of people for whom less had traditionally been done?

        Even so, the “legal creep” is still mischief and creep-y. And I understand part of your argument is that the cost probably spread to the tenants in less visible ways. I can also imagine that the rent-improvement regulations may very well have played into the hands of powerful landowners who wished to marginalize less, err, marginal landowners. And just because “people have always done this” doesn’t make it right.

        The above is more an observation than an argument. I’m still mulling over whether the creep you describe is necessarily a bad one. I haven’t read the linked-to article, just the part you quoted. I will say now, however, that at first glance, I do like the idea of less sophisticated persons being protected when it comes to contracts of adhesion like credit card contracts and other contracts, like leases and mortgages (and, I’ll add in all seriousness, gym contracts), which may not necessarily be according-to-Hoyle contracts of adhesion but can involve situations where one party has more power and/or information.

        *Or baronetcy, or feudal lords, or manor owners….I’m sure my terms are imprecise. US History ‘ai my specialty, but the middle ages ain’t.

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      • I think it’s putting it mildly that using an article about the travails of a rent controlled complex in an argument with libertarians where you’re arguing that tenants are badly disempowered vis a vis the landlords ranges somewhere from a ironically bad idea for the liberal side of the agreement to worse.

        The article in question is like a caricature of the absolute disaster of rent control. The building was acquired (with its’ rent controlled tenants firmly attached) from the previous owners bankruptcy; the new owner makes noticeable efforts to try and retain or placate their non-rent controlled tenants; there are at least 3 layers of new programs/administration cited in the article that have been larded on top of the rent control to try and deal with the problems caused or intensified by rent control. It’s like a poster child for why rent control is a bad idea. If I were an alien viewing the issue in a vacuum I could be forgiven for assuming that rent control’s primary purpose was an employment program for the middle class city government employee population.

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      • , the landlord is still engaging in acts that violate landlord-tenant law and possibly more than a few others in an attempt to get out the rent control clients. He is also causing some very really misery to people in the meantime. Mr. Miller knew that the apartment was rent controlled when he purchased it out of bankruptcy and what that entailed. Using bullying tactics to get rid of tenants is unforgivable.

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      • I certainly disapprove of everything he’s doing but it’s the policies that have primarily caused the issues in the article and in this case the policies are a total clusterfish. When arguing that liberal intervention is desirable/laudible in a market I think it’s not a good idea to put up an example of a especially ineffective, counterproductive and destructive liberal market intervention.

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      • I certainly disapprove of everything he’s doing but it’s the policies that have primarily caused the issues in the article and in this case the policies are a total clusterfish. When arguing that liberal intervention is desirable/laudible in a market I think it’s not a good idea to put up an example of a especially ineffective, counterproductive and destructive liberal market intervention.

        I agree.

        When I think of predictable consequences of policies that are supposedly aimed to level bargaining positions by removing any semblance of bargaining, this is the first thing I point to.

        If I were an alien viewing the issue in a vacuum I could be forgiven for assuming that rent control’s primary purpose was an employment program for the middle class city government employee population.

        And what good has it done? Regulations are put in place. Landlords respond accordingly and either break the law and dare the bureaucrats to come after them (I don’t approve of this, but it’s predictable) or interpret the rules in much of their favor as possible and force tenants to take action knowing that the means to resolve disputes is a bureaucratic black hole in their favor (see the article as an example). The violations process is a joke and landlords know it.

        I don’t know about you but being a “devil in the details” kind of guy, examples like this and payday lending make the ideologically-driven conversations on markets as some abstract construct (it goes on here at least once a week) a pointless exercise. All it does is provide some guidance as to how people think they should intervene and says nothing about whether or not an intervention will accomplish the desired objectives.

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      • and

        I think there’s another reality here — changes in laws that make it obvious certain behaviors aren’t ok take time to percolate through culture. In 1960, a woman taking bc was controversial; now the stand that women shouldn’t be able to take bc is controversial. I remember my grandparents having arguments about how she was going to vote — my grandfather’s stance was that if she voted opposite to him, she’d just cancel his vote out — and I cannot imagine most husbands making such an argument today. The racist things my grandparents took for granted as normal and acceptable would shock my children’s generation.

        So that the results sought aren’t immediate isn’t surprising; probably should be expected, and I don’t think lack of immediate results is a very good argument.

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      • While it’s likely that laws can cause changes in beliefs, it is more likely that changes in beliefs cause changes in laws, and that the social evolution that produced enough belief-change to cause political change in on-going and has a larger influence on continuing belief-change than the changed law does.

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      • I think there’s another reality here — changes in laws that make it obvious certain behaviors aren’t ok take time to percolate through culture.

        I can see how that can apply towards women, but I can’t see how that applies towards economic regulations, seeing as that the role of economic regulation is to set ground rules, level the playing field in some cases, require disclosure, etc. Whether or not those regulations are ok in the opinion of some people should be irrelevant because no matter what they think, to the extent they choose to transact in a given market, they are bound by the rules of that market.

        If market regulations produce sub-optimal outcomes, the last reason that comes to my mind is that we need more time so people accept the rules as written. The problem isn’t cultural, but rather with the incentives that are created (or thrown out of whack) as a result of the rules. Another example – landlords that own buildings with a lot of rent control tenants aren’t going to be as incentivized as those that own market rate buildings to commit capital to renovations (since they’ll get next to nothing out of it in terms of rent increases). That may explain why the J-51 program exists allowing landlords to receive property tax abatements when they do renovations.

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      • Dave,
        the acceptable amount of rentseeking on the backs of the poor is a great example. That’s a value judgement, more than anything else. I’d cite the recent spate of laws about payday loans, but that would be an extraordinarily bad example.

        I do, in the main, agree that most financial laws ought to be merely about “setting up the right incentives”… But a lot of them aren’t. Our laws concerning lending and housing are much much more stringent than our laws concerning auto lending (title loans, specifically), because we assume that houses are Important, and that automobiles are less important (our laws assume poor people live in cities…).

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      • we’re having a blizzard, I have the typical cognitive issues I experience with weather change, and did confuse threads, but I think what I said still applies.

        I’d also point out that in the case of the rent-controlled apartments, the owner purchased the building through bankruptcy proceedings, and would have known that 1) there were rent-controlled apartments in the building and 2) he had certain obligations as a landlord, and 3) the building would require certain ongoing maintenance costs.

        So here, buyer beware. Perhaps he made his purchase on some presumption that he could force tenants out and raise rents? If so, that sort of proves my point; he presumed rights of ownership he did not have under existing law. (I’m not a fan of rent control, and do not say this to defend it; but it was the reality of that particular building.) Instead of abiding by the laws, he’s opted to ignore it and subvert the legal process through ongoing gumming-of-the-works.

        I’ve seen the slowness of cultural change and assimilation in environmental law; when the Clean Water Act passed, people had no problem discharging open sewage into streams, and continued to do so for some time. Now, we’d be aghast at someone doing that. The mechanisms of this might appear differently from culture-war issues, but I think they’re every bit as part of economic regulation as cultural regulation. That I have to prove I’m a US citizen when I open a bank account is pretty standard fair now, but when people first had to do this, it was shocking and perceived as an undue burden by many people I know.

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      • you have my sympathies, my great aunt would get migraines whenever the weather changed; and she lived in Nova Scotia (where the weather changes every couple hours)! So I feel for you.

        With respect to the discussion I don’t think your example applies. In the case of liberals, women and birth control we’re talking about the liberal order tearing down barriers and regulation to enable access to birth control. Rent control, on the other hand, involves liberals erecting barriers between property owners and tenants, then erecting new barriers to deal with the distortions caused by the first barriers, then erecting new barriers to deal with those distortions. Your example is pretty much opposite to rent control.

        And to be clear, I’m not defending the landlord. He sounds like a pretty despicable fellow. But if no one bought the building it’d pretty much sit derelict and that is not unheard of in rent control regimes. My point is not that the property owner in Saul’s example is defendable but rather that rent control is a terrible awful no good example of liberal market interventions. If I were supporter of liberal market interventions (and in many cases I am) I’d bring up the FDA or fisheries quotas or the EPA or some such salutary examples; not a glaring example of liberal failures like rent control. It’d be like conservatives defending the second amendment by bringing up that cattle ranching standoff.

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      • I’d also point out that in the case of the rent-controlled apartments, the owner purchased the building through bankruptcy proceedings, and would have known that 1) there were rent-controlled apartments in the building and 2) he had certain obligations as a landlord, and 3) the building would require certain ongoing maintenance costs.

        He also would have seen 1) upside in lease rollover even if it meant “poisoning the water”, figuratively speaking of course: 2) understanding his obligations and keeping those obligations at the bare minimum to keep the authorities off his butt and 3) same as (2) hence multiple violations on buildings that can stay that way for a long time.

        So here, buyer beware.

        Believe me, buyers in NYC are very aware. The ones that buy properties know how to play the game and deal with the system.. They have to be savvy or else they’ll lose their asses. Some of the larger owners own thousands of units across the city.

        Perhaps he made his purchase on some presumption that he could force tenants out and raise rents?

        In a roundabout sort of way, perhaps or maybe he thought they’d all kick the bucket in the next five years or so. I can’t say for sure.

        If so, that sort of proves my point; he presumed rights of ownership he did not have under existing law. (I’m not a fan of rent control, and do not say this to defend it; but it was the reality of that particular building.) Instead of abiding by the laws, he’s opted to ignore it and subvert the legal process through ongoing gumming-of-the-works.

        They know what their rights are under law and they know what they can get away with absent enforcement of those laws. As a matter of course, they act in a fashion consistent with the latter until they are told otherwise, which may or may not happen for quite some time.

        Laws are created to prevent landlords from being a PITA and they find other ways to do so.

        You ought to see how they file tax returns. To the extent there are capital renovations done to units or the building, they try to expense everything. It’s crazy.

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    • That didn’t work, because the asymmetries in power and wealth between tenant and landlord had their usual effect

      When you feel the urge to explain something in terms of “asymmetries in power and wealth,” you need to stop and try to figure out how to explain it with actual economic logic.

      As I mention elsewhere on this thread, this is very much the sort of situation where Coasean bargaining makes sense and is not likely to be thwarted by transaction costs. If there was some sort of win-win outcome like the owner compensating the tenant for the post-tenancy share of the value of the improvement, it’s not clear why they would consistently fail to arrive at such an agreement.

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      • A tenant wants to make an improvement. It costs $50,000. The net present value of the use the tenant expects to get out of it during his tenancy is $30,000. The NPV of the value it will add to the the property at the end of his tenancy is $30,000. His tenancy being over, the landlord will capture this. That’s an NPV of $30,000 to the tenant and $30,000 to the landlord if the improvement is made. It costs $50,000, so it’s economically efficient.

        The landlord should be willing to chip in $20,000-$30,000 towards the cost of the improvement.

        So there’s a situation where it makes sense for the landlord to chip in to make an economically efficient improvement. Elsewhere in this thread I described how economically inefficient improvements can be made if the government forces the landlord to compensate the tenant.

        Can you describe a scenario where an economically efficient improvement doesn’t get made if the government doesn’t force the landlord to pay? Aside from the obvious case where the efficiency gains are small enough that transaction costs prevent Coasean bargaining, of course.

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      • That’s a great idea – let’s use actual economics to determine whether the measure was a good one or not. In particular, since this happened in the 19th Century, the pre- and post- periods have both already happened, so we may not need to speculate about whether Coasean bargaining would have been a better or worse model, whether this would have led to more or fewer improvements, tenancies, profits to tenants or landlords.

        If economics wants to be considered a science, surely the number one thing it needs to do is look to actual data in cases where it’s likely to exist, and rely on theory only when the data aren’t in yet (with the advantage that the theory will then be backed by more and better testing against reality).

        While I haven’t the time to research the effect of the change in the 19th C, I will note that it apparently wasn’t so terrible as to result in its repeal during the intervening century or two: https://www.gov.uk/agricultural-tenancies (see “Compensation for Tenant’s Improvements” about a third of the way down)

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      • The provision wasn’t fully repealed, but it seems to have been modified in a couple of essential ways that return it to permitting a Coasean bargain. From your link:

        A tenant is entitled to compensation at the end of a tenancy for physical improvements they have made to a holding – provided the landlord has given consent to the improvement.

        A tenant can also obtain compensation for intangible advantages, such as getting planning permission or milk quota which increase the value of the holding, provided they leave them behind when they vacate the property.

        Landlords and tenants can now agree an upper limit – or cap – on the amount of compensation, usually to reflect how much it will cost the tenant to make the improvements.

        The two key changes here are: (1) that the improvements must be agreed upon by the landlord; and (2) that the parties are allowed to set a cap on the amount of compensation. That means that the improvements have to be negotiated – the tenant can’t just make a bunch of improvements to the land unilaterally and demand compensation from the landlord, which is what the law seemed to have previously authorized. Instead, he has to negotiate permission for the improvements and, if he gets that permission, has to negotiate how much the landlord will actually contribute. Now, the only limitation is that the landlord can’t simply authorize an improvement and then refuse to contribute. In other words, it really only prohibits blanket clauses where the landlord tells the tenant in advance that they have permission to make whatever improvements they wish, but they won’t get compensation for any improvements, which is a limitation that I think even and would find a lot less objectionable since the parties can agree that the landlord will provide compensation only for those improvements he specifically authorizes, and then only up to the amount he authorizes.

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      • Yes, more data would be helpful. The context of my comments in this thread is that people were pontificating based purely on the excerpt above. Here in particular, Mike was asserting that economically efficient improvements were being prevented by a lack of laws compelling the landlord to pay for them, because “asymmetries.” All I did was point out that that’s unlikely given the ability of tenants and landlords to engage in Coasean bargaining.

        The modern law, to which you link, says that the landlord must authorize the improvements, and also that the landlord can specify in advance a limit to the amount he will compensate. This does prevent inefficent improvements, although it’s not clear how much the law has changed since then.

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      • which is what the law seemed to have previously authorized

        What are you basing that on? There’s language to the effect that the cap is new, but I don’t see anything there that indicates (or rules out) that tenants used to be entitled to compensation for improvements made with or without the landlord’s approval.

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      • When I say “previously,” I’m referring to the final piece of legislation discussed in the OP.

        Since that indicates that the law “absolutely” prevented the tenant from bargaining away his right to compensation for improvements, my assumption is that this meant it was unnecessary for the landlord to consent to a given improvement for the tenant to be entitled to compensation.

        All I’m doing here is saying that the newer legislation seems to support your contention that the type of legislation discussed in the OP led to inefficiencies and was problematic since the newer legislation effectively seems to have gutted those rules and replaced them with rules that explicitly permit this to be the subject of bargaining. I’m also pretty sure you’d agree with me that the addition of a right to negotiate a limit to the landlord’s contributions is a significant alteration that effectively protects Coasean bargaining.

        Shorter me: I’m just saying that you’re right.

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      • Shorter me: I’m just saying that you’re right.

        That’s why I’m suspicious. It’s too easy to be credulous when it comes to evidence that supports your priors.

        Although I actually didn’t say that the law did that. As I said further down in this thread, the devil is very much in the details, and the OP didn’t really provide any of those.

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      • I did turn up this one paper http://www.bahs.org.uk/AGHR/ARTICLES/51n2a4.pdf

        Which contains this brief passage to suggest that, while landlords might have been theoretically able to reach agreements on reimbursing improvements to the land, they tended not to – even if it amounted to cutting of their noses to spite their faces:

        Another cost faced by the landlord was the incentive the outgoing farmer had to ‘whip’ the land and skimp on repairs during the final few years of his term of occupancy. Infrequent changes of tenantry, therefore, would reduce the number of occasions that the landlord was at risk of suffering asset stripping, avoiding the problems at Nidd, West Riding, where the crop yield was said to be ‘a very deteriorated one from the land being much run out from the frequent changes of the tenantry’.

        In a development that should surprise no one, economic arguments based on the assumption that everyone is a perfectly rational efficiency-seeking homo economicus tend to miss some important stuff.

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      • The fact that the legislation was further altered to correct previous inefficiencies doesn’t the first version of the law was a complete failure, just that it wasn’t a perfect success – or possibly merely that circumstances changed since the 19th C enough that the law needed updating.

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      • I don’t think that paragraph can be interpreted as saying that landlords in fact tended not to negotiate to pay for improvements. It’s actually making the opposite point – that those examples provided landlords with strong incentives to keep their tenants happy, and they typically did so. Indeed, the study’s conclusion is precisely that “There is a widely held belief that despite short, often annual leases, the turnover of eighteenth- and nineteenth-century rack rent tenants in England was typically ‘low’…..The evidence indicates that the
        widespread belief of generally low turnover is not in need of significant revision.”

        In other words, the article is making clear that “the problems at Nidd, West Riding” were the exception rather than the rule.

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      • Additionally, the changes to the law can’t just be dismissed as correcting inefficiencies. The changes are so significant as to almost entirely eliminate the aspects of the law that is criticizing and that we’re discussing here. The changes allow Coasian bargaining; the objection to the previous law was that it did not. It misses the point of the objection to say that the changes don’t mean the entire law was bad or ineffective.

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      • – I concede on your second point, that the changes to the law were in fact quite drastic.

        I still think that quote (to the extent it’s representative of the situation throughout the country) supports the idea that tenants did not negotiate to pay for improvements, despite not being allowed to.

        Yes, they had a motive to keep their tenants happy and renewing the lease whenever it came up – precisely because tenants who intended not to renew the lease often stopped doing maintenance they knew would cost only them more than it benefited them in the short time they would have access to it. If it was commonplace for tenant and landlord to have an agreement about cost sharing on improvements or maintenance done toward the end of a lease that wasn’t being renewed, the motive to keep the same tenant would be lessened.

        Whether the change introduced by the law ultimately would be an improvement for landlord, tenant, both, or neither, is unclear, but it still sounds to me like it was a change, not a needless enforcement of what was already the status quo in most tenancies.

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      • I think that puts the cart before the horse a bit. To be clear – it may well be that the law complained of in the OP was a significant change to the relationship between landlord and agricultural tenant. There may have also been other reasons for that, as well – it may well have just been a function of Parliament wanting to incentivize industrialization.

        However, I don’t think we can say that this issue could not have generally been a basis for negotiation just because it would have been a tenant-friendly term. Again, it may well have been that landlords generally succeeded in getting tenants to waive the right to compensation for improvements, but the issue itself may have been a basis for negotiation in terms of the amount of rent the landlord charged. In other words, tenants may well have been receiving a discount on rent in exchange for waiving the right. Indeed, it’s worth mentioning that landlords are often willing to pay a premium for certainty in the right circumstances – they often, particularly in commercial lease situations (where we’re often talking about a giant landlord and a small business tenant), will make improvements at or prior to the start of a new lease, and then fold those costs into the negotiated lease itself.

        Regardless, while I suppose it’s possible that a given tenant-friendly term in a contract would obviously marginally decrease the incentive for landlords to seek to keep that particular tenant, it’s also true that in a market where landlords had incentive to keep their tenants, they would be more likely to agree to any given tenant-friendly term. The point of the article you linked seems to be the latter – that landlords had strong incentives at the time to enter into tenant-friendly contracts.

        It’s also worth mentioning that this particular term – landlord paying for improvements – would probably actually incentivize trying to keep a given tenant, since the value of a given improvement made at a given tenant’s request would generally be greater to that particular tenant than it would be to any given other potential tenant, especially to the extent that the given improvement did not require the landlord’s consent.

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  3. Yeah, why is this creep?

    There have always been implied things in contract law like the Implied Warranty of Habitability and the Implied Warranty of Merchanability. These implied warranties have never been workable around and I don’t see why they should be.

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    • While I know nothing about UK real estate, I know a few things about US real estate and looking at the OP, it’s not at all hard for me to see the next issue down the road. Landlords won’t accept a lower rate of return. They’ll jack rents and tenants will complain and we’ll be at all over again.

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      • This. There is a tendency to believe government can effectively set prices, and a lack of recognition that prices will still be responsive to real market forces, whether that means side-payments, queuing, or some other form of hidden payment.

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      • Landlords won’t accept a lower rate of return. They’ll jack rents and tenants will complain and we’ll be at all over again.

        This ignores certain facts from the OP. The landlords at issue aren’t investors in the contemporary sense. They didn’t purchase the property but instead are hereditary title holders. So basically they already enjoy what amounts to an infinite rate of return. (Otherwise known as free money.)

        Second, there’s no reason to believe that they aren’t already charging the maximum that the market will bear. If anyone has a rate of return and a profit margin to consider it’s the tenant farmers who are the only real capitalists in this story.

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      • I think the truth lies somewhere in the middle. The supply of land being more or less fixed, it’s unlikely that this law would have much of a supply-side effect. I suppose it’s possible that it might induce some landowners to hire people to work the land as employees rather than lease it to tenants, but I’m not sure how big that effect would be.

        However, insofar as such a law made the opportunity to lease the land more valuable to tenants, it could have caused a demand-driven increase in rent. Actually, on second thought, maybe this alone would cause the landlords to recapture most or all of the lost value.

        The more interesting question, to me, is why landlords consistently declined to lease the land under the default terms. Those who did offer to compensate tenants for improvements would have been able to increase the rent accordingly, so why did they not find that appealing? Perhaps the law required that tenants be paid more for the improvements than they were actually worth to the landlords?

        This is exactly the sort of situation where Coasean bargaining should work well. If it consistently resulted in tenants not being compensated for improvements, maybe that was the economically efficient outcome.

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      • It seems to me that the details matter very much here. If the tenant were entitled to be compensated at cost for all improvements made, then that’s a lousy deal for the landlord. The value of the improvement may be largely specific to the current tenant, either because the improvement loses value over the course of the tenancy through wear and tear, or because it’s unlikely to be suitable to uses towards which the next tenant may employ the land.

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      • The landlords at issue aren’t investors in the contemporary sense. They didn’t purchase the property but instead are hereditary title holders. So basically they already enjoy what amounts to an infinite rate of return. (Otherwise known as free money.)

        Second, there’s no reason to believe that they aren’t already charging the maximum that the market will bear. If anyone has a rate of return and a profit margin to consider it’s the tenant farmers who are the only real capitalists in this story.

        Good points, but I’m still not convinced. The fact is that no matter what the landowner’s basis is, I’m assuming it’s low if it’s hereditary title holders, they’ll get the maximum rent payments from a tenant. On your second point, you are correct but up to a point. That applies to unimproved land. Rent for improved property is not the same thing and will just about always be higher.

        My question is in what sane universe would a landholder, whether a modern real estate investor or hereditary title holder, accept an arrangement where he/she has to construct improvements, compensate a tenant and get nothing in return unless the law prohibits it? Forget the infinite returns. They’re irrelevant unless you’re suggesting that the presence of these returns would lead someone to not charge a cost for any additional capital. If you know of a world like that, let me know. I like dumb money.

        It also leads me to another question: why would landlords want to provide the tenant control over the process of constructing the improvements when they are the ones paying for it? Right there is a situation where two parties have interests that are completely opposite one another.

        Feel free to think that the landholders aren’t capitalists, but if something other than the land becomes involved (like capital), I would fully expect them to behave like capitalists unless laws are put in place to prevent that, which is much easier said than done.

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    • I think the “creep” comes in because the legislature makes a rule that seems to make a certain sense and seems less objectionable, and when that rule doesn’t work, it makes a tougher one that makes it more objectionable and makes a little less sense. In other words, we go from a regulation that tweaks how things are done but allows some wiggle room to a stricter one that allows less wiggle room. The “creep” here is the tighter and tighter regulation(s).

      In theory, I think that one can acknowledge that the creep happens and yet say it’s not necessarily a bad thing. However, Dave’s, James’s (and others’?) points about the effect being to pass costs on to the tenant need to be considered in any assessment of whether it’s good or bad. Maybe if I read the entire article, or were a lawyer, or knew more about real estate, I could comment more knowledgeably on the case in question.

      I’m too ignorant of the law (and business practice) to comment knowledgeably on implied warranties. But they seem like a good thing, at least to me, even if in practice they pass the cost to consumers by an increase in price (and even if I never take advantage of them….the fear that I might could be the incentive to the manufacturer to make a better quality product).

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  4. Yeah, I’m going with the points others have already made. Your argument is basically that it’s bad that the overwhelming power of the landed aristocracy relative to tenants was slightly reduced, because doing that required slightly more government action than the government at first anticipated?

    No, definitely not a bad thing. Just making the economic playing field very, very, slightly less tilted against poorer people.

    This kind of thing is why libertarians irritate me.

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    • OK, so everyone seems to think the principle is just about the aristocracy v. The peasantry, so anyone who disapproves the action must be pro- aristocracy. This is particularly interesting with Mike Schilling as just yesterday I noted that he was assuming disagreement on mean means disagreement on ends.

      The curious thing about this position is it doesn’t oppose government using it’s authority to determine winners and losers, to bestow privilege; it just wants government to bestow privilege upon their favored group.

      There are other means of displacing the aristocracy’s privilege beyond parliamentary authorization of privilege. In fact the history of the decline of aristocracy in England is far more a history of those other means than it is of legislating privilege.

      I think issues like this reveal the vast gulf between two different mind sets, or values systems.

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      • , I think one problem liberals have with libertarian theories on contract is that it least has a very difficult time of dealing with power differentials between groups or people. Libertarians might recognize that power differentials exist when it comes to contracting but argue ultimately that they are not important enough to overcome the more important right to contract or they could just argue that they don’t exist and that everybody has equal power in creating contracts.

        Liberals and those further to the left believe that it is a valid to use government power to at least even out power differentials in contracting by creating a minimum base line for what could be in a contract. Collective bargaining is another way that liberals and leftists believe that you could even out power differentials. A rich mine owner might have more power than one person seeking employment as a minor but if those seeking to work out miners could pool together and bargain as one than things get evened out a little at least.

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      • The curious thing about this position is it doesn’t oppose government using it’s authority to determine winners and losers, to bestow privilege; it just wants government to bestow privilege upon their favored group.

        It’s very easy to substituted ‘favored group’ for almost anything here, and so to discount that one group is seeking special consideration to eliminate structural, ongoing disadvantage. I do not know if that’s the case, but ‘favored group’ does a lot of heavy lifting in obscuring those important details.

        There are other means of displacing the aristocracy’s privilege beyond parliamentary authorization of privilege. In fact the history of the decline of aristocracy in England is far more a history of those other means than it is of legislating privilege.

        Is it possible (even likely) that the ongoing decline of aristocracy in England rests pretty squarely on a number of things including legislating the restriction of privilege, not just bestowing it?

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      • Libertarians might recognize that power differentials exist when it comes to contracting but argue ultimately that they are not important enough to overcome the more important right to contract

        It’s not just that, although many libertarians phrase it that simply. It’s that they believe the power to substantively constrain contracts is a much broader power than most people believe and is likely to be abused. There may be no natural stopping point with it, no “prominent solution,” to use Thomas Schelling’s term.

        It’s worth noting that the Framers of the Constitution put an explicit ban on the states impairing the obligations of contracts. Which does not mean, of course, that states can’t pre-emptively set up rules limiting contracts, but which does indicate that they saw danger in government meddling with contracts. Of course they were the elite at the time, and likely were concerned about the masses impairing their own obligations, to the elites’ detriment, so there’s that critique of their position.

        But in general, the libertarian will argue that any time you approve government going beyond setting neutral ground rules you give it the authority to grant privileges, to officially favor one group over another. If one believes in a government that is generally wise (enough) and benevolent (enough), that may not seem worrisome. To those who are much more skeptical of either the wisdom or the benevolence of government, that seems foolish.

        And there, I think, is one of the essential differences between libertarians and liberals. Liberals are more optimistic about the possibility of wise and benevolent government than libertarians–not that they think it’s inevitable or easy, but that they are far less pessimistic about its prospects than libertarians are. Liberals tend to see the foolish and malevolent actions of governments as deviations to be corrected, whereas libertarians tend to see them as the norm to be expected.

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      • It’s very easy to substituted ‘favored group’ for almost anything here,

        Exactly. Everyone has a group they would like to see favored, so this makes government just a contest to see which group can gain enough political power to make itself the officially favored one, to others’ disadvantage.

        Is it possible (even likely) that the ongoing decline of aristocracy in England rests pretty squarely on a number of things including legislating the restriction of privilege, not just bestowing it?

        Eliminating legal privilege, yes. Mike Schilling incorrectly suggests favoritism of feudalism. But feudalism proper involved peasants being legally obligated to remain on the lands to which they were born, a great legal privilege for the landed nobility. The plague began to break that down, leading to urban labor shortages that enticed people to violate their legal obligations and leave the land. It’s a shame it took a devastating plague to break that system down, when ideally Parliament would have legally recognized each individual’s right to move freely. But eventually the breakdown of the system forced Parliament into recognizing that right, removing the landed nobility’s privilege.

        First the merchant class, then the capitalist class, further broke down the privilege of the nobility. It became exceedingly difficult for the hereditary landed to be able to afford to maintain their estates. All of that had far more effect on breaking down privilege than Parliament’s dinking around with contractual rules. Heck, the very existence of contracts between landlords and tenants was evidence of the collapse of privilege, even if power relations were still tilted in the landowners’ favor. That may have been a remnant effect of feudalism, but it was also a signal of fedualism’s collapse.

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      • “There are other means of displacing the aristocracy’s privilege beyond parliamentary authorization of privilege. In fact the history of the decline of aristocracy in England is far more a history of those other means than it is of legislating privilege.”

        A fan of Robspierre and V.I. Lenin, are we?

        What would be the libertarian solution to getting the aristocracy to negotiate with their tenants? Do you think it would be as simple as?:

        Tenant: I would like to be compensated for improvements I make to your land.

        Lord Such and Such: Okay, that sounds perfectly reasonable.

        I would say that liberals are pessimistic about stuff like this happening without law unless you want a violent revolution which would go further than most liberals want. See Lenin.

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      • , libertarians tend to see the state or the government has being alien and separate from the people that are composed of it more than liberals do. Some are more explicit about this than others like Damon. Others might recognize that the state or government is indeed composed of people rather than being separate from them but for various reasons will always be capable of malevolent or at least foolish actions that can not be corrected. Liberals think that the government will be as good or as bad as the people who are in it or will be a compromise between any deals that could be worked out.

        Liberals are more worried about the foolish or malevolent actions of powerful elites or corporations. We believe that these groups need to be checked by a group of equal or equivalent power. This is usually the government but it doesn’t necessarily have to be so. Unions are also recognized as a group that could counter-act powerful elites or corporations. The problem is that elites and the corporations tend to wage war on unions for their self-interest because it is easier to deal with workers on individual rather than a collective basis for them.

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      • eliminating structural on-going disadvantage can at least sometimes involve violating liberal neutrality. And we abandon liberal neutrality at our own peril.

        And not eliminating ongoing structural disadvantage can also violate liberal neutrality; it means accepting that, say, it’s okay to deny some group (say women) the right to vote. That’s an argument that also goes both ways, and I go back to my main point with Hanley: the devil’s in the details, and ideology too serves as proxy for those details.

        But I would suggest that governing is an ongoing thing, and not a fix-it-and-forget-it sort of thing; that’s great for an informercial and little else.

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      • Lee,

        libertarians tend to see the state or the government has being alien and separate from the people that are composed of it more than liberals do.

        Agreed. Or they see it as being captured by discrete sectors of the people. It’s odd to libertarians that liberals also see that capture, but interpret it, or at least interpret the solution to it, in different ways. And unlike libertarians, liberals seem to be less concerned about capture itself than about who captures it (re: my point about liberals not minding government granting privilege, as long as it grants it to the right people).

        Liberals think that the government will be as good or as bad as the people who are in it or will be a compromise between any deals that could be worked out.

        Whereas libertarians think the power involved in government, and its self-justification of how it uses that power, largely overwhelm any distinction between good people and bad people. Others also argue that the power inherent in government will draw more bad people than good people, and that bad people will have a competitive advantage in attaining that power, and that our attempts to constrain that are mere rearguard actions of limited effectiveness. I honestly believe liberals don’t have a persuasive response to that concern.

        Liberals are more worried about the foolish or malevolent actions of powerful elites or corporations.

        I don’t agree. I think this is a means/ends argument again. Libertarians also believe, to use your words, “that these groups need to be checked by a group of equal or equivalent power.” They just believe that competitive markets will normally achieve that end. Conceivably they’re wrong, but the argument is about means, not ends. (FWIW, I don’t think most libertarians properly grasp that, either.)

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      • And not eliminating ongoing structural disadvantage can also violate liberal neutrality; it means accepting that, say, it’s okay to deny some group (say women) the right to vote.

        No. Denial of right to vote is not liberal neutrality toward a private imbalance of power, but an action of government denying legal equality. Murali’s talking about the government being neutral toward individuals, which explicitly does not allow for creating a disfavored group that is denied political participation rights.

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      • , libertarians think by limiting the power of government to what is deemed its essential roles you can create competitive markets. Liberals are skeptical of that claim because of history. From our prospective, government oppression of unions and forces opposed to corporations is perfectly in line with minimalist government because it can fall under the police power. The 19th century United States government had no problem calling in the troops on striking workers in the name of law and order. The same was true for many ostensibly minimalist governments in Europe. During the late 18th and early 19th century, the minimalist British government cracked down on nascent unions by prosecuting them under the common law crime of conspiracy. To liberals, this oppression was all done in the confines of minimal or night watch men standards of government.

        Liberals believe that even within limited government, corporations and the elites still have plenty of state tools with plenty of state tools to crack down upon working people with. Corporations and the rich could also just hire private security forces like the Pinkertons to spy on unions and break up strikes. Or build up their own union-busting police forces like Ford’s Sociology Department.

        Liberals are also more prone to see competitive markets as being a product of the government preventing things like monopolies, etc. than things that exist without interference.

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      • perfectly in line with minimalist government because it can fall under the police power. The 19th century United States government had no problem calling in the troops on striking workers

        As long as you call using the troops to break up strikes “minimalist government” libertarians are going to shake their heads in wonder at you. Nothing more directly demonstrates the great gulf between the liberal and libertarian understandings of the world.

        Of course we can distinguish between peaceful strikes and violent strikes, strikes that damage property and restrict people’s legitimate access to it and strikes that do not.

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      • But that’s not what Murali said; and neutrality can also be read as neutral (resisting) to change, even if that change is one that includes groups excluded by tradition. There is nothing in the US constitution that says women or minorities could not vote, for instance. Yet it took a view of these groups as favored (meaning singled out for special treatment under the law) to have them included.

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      • No doubt, there are some, probably lots of structural inequalities brought about by features of a government that violate liberal neutrality. But you missed my point. I’m not objecting to rectifying structural inequalities per se.

        I’m objecting to focusing on removing inequalities to the extent that you fail to realise in a set of given situations that you’re nowhere even in the ballpark of liberal neutrality. Some concern for rectifying inequalities can be justified on liberal neutral grounds. (i.e. standard Rawlsian story about maximin-ing some set of primary goods). The point of neutrality is that a social order should be, as far as possible, justifiable or acceptable to everyone who lives in it, regardless of their value commitments. One of the consequences of such a commitment is a set of (fairly stringent) side-constraints on what someone may permissibly do in the pursuit of their political goals, whatever those goals may be. On this site, when I’m not doing the socratic thing, this is usually where I am coming from on a lot of political issues. Liberal neutrality is not just one more value to balance off against other values. It is, in a sense, the ultimate consideration. All other considerations are relevant only to the extent to which they satisfy the liberal neutrality constraint and no further.

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      • most of history seems to suggest that liberal neutrality typically comforts the comfortable, and the voices of the discomforted are afflicted tiny and perceived as shrill, and often ignored. Your neutrality is only as good as the success of agitators for inclusion over time; and at any given time, the agitation will not be perceived as permissible, but as radical and threatening.

        I don’t think the one survives without the healthy pruning and innovation of the other.

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      • To add on, the history of gaining equal rights is only superficially one which grants special recognition to groups and that is wholly an artefact of the peculiarities of the American legal system which labels such “favoured” groups as “suspect” classes. The struggle for equal rights, for freedom of conscience and freedom of speech has throughout history been one against governments which imposed some conception of the good life on its people regardless of whether that doctrine was justifiable to them.

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      • took a view of these groups as favored (meaning singled out for special treatment under the law) to have them included.

        Eh, no. It took a recognition that they had been singled out, which resulted in an explicit statement that they were to be treated equally. It’s an odd perspective that treats equal treatment under the law as “special treatment.”

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      • [Lee]: perfectly in line with minimalist government because it can fall under the police power. The 19th century United States government had no problem calling in the troops on striking workers

        [James]: As long as you call using the troops to break up strikes “minimalist government” libertarians are going to shake their heads in wonder at you. Nothing more directly demonstrates the great gulf between the liberal and libertarian understandings of the world.

        I think that exchange illustrates one of the misunderstandings between liberals and libertarians, and I think the misunderstanding is more than just liberals purposely mischaracterizing what libertarians say about freer markets or “minimalist government.” There is in ‘s statement a certain assumption that the world will never have the minimalist government that libertarians prefer, that there will always be vying for power and special privilege, and that it is best to recognize that fact and 1) try to favor the “just” side and 2) establish some minimal guarantees to social welfare and 3) establish some minimal guarantees to civil rights.

        The libertarians would probably object that minimalist government may never be realized perfectly in practice, and would probably further object that it’s a mistake to see minimalist governance as a discrete idea, set in stone for all time. Rather, libertarians would probably say that it is a good goal to get at, and chipping away at privilege and promoting freer and freer markets–which in their view is a shorthand for more and more choices–is a good direction to go in. But that means 1) not purposefully choosing ahead of time who wins and loses (unless it is those who are most likely to succeed under a minimalist system, but even then, the libertarian will point to positive externalities even in the event some benefit more than others); 2) maybe endorsing some sort of minimal welfare provision; 3) establish some minimal guarantees to civil rights.

        tl;dr: both libertarians and liberals believe they are arguing not about what’s ideal, but about what they see as “living in the real world.” For liberals, the real world is one where the powers that be need to be constrained by the tools that be (government and special privilege). For libertarians, the real world is one where the powers that be need to be broken down by blunting the sharpness of the tools that be (government and special privilege).

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      • I understand the logic of what you’re saying, but the discourse I hear taking place doesn’t jibe. For instance, in the culture wars, culture warriors talk of the gay agenda, the special treatment gays want in seeking the rights heterosexuals take for granted. The references to women seeking special treatment in efforts to have equal access to health care or physical safety or employment equality get much the same treatment; they’re seeking something extra, the framing often goes.

        The status quo, which often does unfairly infringes on some people, is presumed the normal state of affairs, and people agitating for shifting that status quo in an effort to be included are typically framed as seeking special favors. In the whole campus rape discussion, this is often raised — women are seeking an extrajudicial remedy is the logic. Never mind that colleges have long had disciplinary responsibilities that are extrajudicial, that don’t rely on the justice system, but on enforcement of campus rules of conduct.

        I think my issue here is that you’ve (at least in the words used here) implicated government in limiting people’s lives, but in fact I see that non-government institutions (Churches and religions, mostly, but not exclusively) actively do the limiting, often through government, but also through traditions and controlling standards of what’s acceptable. But those same institutions do not typically have the power to stop restrictive and discriminatory practice without resorting to government; and outside groups require government to limit those non-government practices. That is not to say government cannot be discriminatory, but we don’t get inclusion without it, either. (The laws overturned by Griswold, for instance, don’t seem to have prevented the sale or use of condoms in CT.)

        So I’m not disagreeing with you that government can be the cause; it’s just not the only cause, and it’s frequently the only remedy.

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      • Okay: So we agree that government is sometimes the cause of structural inequalities. We also agree that private non-coercive activities (e.g. conservative values preached in churches) can contribute to structural inequality (e.g. by creating norms against the usage of contraception and the norm in turn can contribute to women lacking financial independence. Or it can lead to employers being reluctant to pay for contraception…). We even agree that there are some actions that a government could, in principle, take that could not be performed by any other agency and would in fact rectify some of the inequalities.

        Where we disagree is whether the government can permissibly do those things which would bring about that outcome. I am arguing that the set of private sources of structural inequality that it would be impermissible for the government to rectify is much larger than you believe. The reason for this is complicated, but I will attempt to show why. What drives acceptance by any given person of a given set of social rules is the extent to which that set permits and facilitates the pursuit of one’s conception of the good. Conflict between persons arises because the pursuit of certain parts of one person’s conception of the good is incompatible with another person’s pursuit of certain parts of their conception of the good. Now, if we set the rules such that only some conceptions of the good (say egalitarian ones) could be pursued effectively and all others were curtailed in order to ensure the success of the former, those with non-egalitarian conceptions of the good may not have adequate reason to accept that set of social rules. All acceptable sets of rules must be set up in such a way that anyone regardless of their conception of the good has adequate reason to accept it. One solution that has met with reasonable success (to the extent that it has been implemented) so far is to give each person a sphere of activity in which her preferences trump others. The solution that best satisfies the justificatory condition is the one which the smallest sphere of activity is larger than the smallest sphere of activity in any other set of rules. Moreover, this should be done within each domain of activity. Having a larger sphere in one activity cannot compensate for having a smaller sphere in another one. We should also note that when such a set of rules is implemented, no one has reasonable grounds for complaint. If anyone does complain that they have too little, in order to rationally assert that their space is too small, they must also agree that anyone who has less than they currently have would have even better grounds for complaining. If my demand for more is reasonable, then any demand that I settle for less is unreasonable. Since in any other set of rules, there is someone who would have less, this maximin set of rules is the only reasonable one.

        I would argue that the classically liberal set of rules better achieves this than some progressive offerings.

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      • I think there’s a huge gap in classical liberalism; particularly the view that it’s the ‘power of government’ that needs to be limited. Sometimes, that is exactly the case. But sometimes, it’s the power of the government that’s needed to eliminate other wrongs, too.

        The government is not good or bad, it’s the how of government that’s good or bad; and the same how applies to non-government institutions. As a woman, as someone who’s access to full citizenship depended on acts of government, I hope you can understand why I’m objecting to the focus being on limiting the power of government instead of on limiting the power of favored groups, to borrow a phrase from Hanley up this subthread. It’s not the who performing the action, in other words, it’s the action itself that matters.

        Limited government is great; government shouldn’t be regulating who I marry or what I do to control my family size. But the arguments for limited government are generally put fourth to argue the right to do just those things.

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      • I think one problem liberals have with libertarian theories on contract is that it least has a very difficult time of dealing with power differentials between groups or people.

        No, I really don’t have any difficulty at all with it. Every time I see someone on the left talking about “power differentials,” they’re describing what I would describe as contributors to the process of production receiving the marginal product of their contributions, which is exactly how things are supposed to work because it gives people an incentive to maximize their marginal productivity.

        Can anyone here describe a coherent economic model in which so-called “power differentials” (as seen in, e.g., employer-employee relationships as opposed to government-citizen relationships), as opposed to marginal productivity or supply and demand, explain the low wages of fast-food workers, or some similar phenomenon where you think we libertarians just don’t get it?

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      • Brandon,
        it’s one thing for an employer to hire the most desperate people (that’s just capitalism, on the low side). it’s another thing when the employer makes people more desperate in a deliberate attempt to pay people less.

        You should see some of the plans on Wall Street’s books.

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      • As a landowner, I don’t think marginal productivity often has much to do with it; there are a lot of other values that come into play; including short-term vs. long-term productivity, what’s being produced, and what values are given some sort of rent support.

        For instance, in my state, there is a tree-farm tax subsidy; land kept in tree growth is taxed at a much lower rate. To get this tax break, one has to 1) not develop the land, if you do, back taxes are owed on the difference, and 2) have the land in production, meaning you must have some economic gain from that land over a ten-year period. Now it would be entirely reasonable to have that flipped; that land without any economic production receive the lowest tax burden; it depends on the values you bring to the table. The original tree growth was designed to maintain a working forest for a specific industry — paper. My alternate proposal would be designed for an alternative value — maximum carbon sequestration. But even accepting the marginal productivity of land as a net good, what that marginal productivity might be is still based on personal choices outside pure economics; aesthetics, wildlife, water, jobs, maintenance of roads all are huge considerations, and often the return on the land over time is less a concern then the value of the landholding in general or the values of the land holder.

        So I don’t mean to suggest your argument isn’t without merit, so much as to suggest that it’s far too narrow and based on a set of assumptions that could be (and in other places are) different. Were the values of employment in society such that we valued people having work and making a living wage as of equal importance to shareholder return, I think we’d have a very different mix of taxes, regulations, etc. In the US, the highest priority is placed in shareholder return, and a lot of what you perceive as marginal productivity falls out of that decision.

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      • Sure, if the government uses taxes and subsidies to change the incentives, you get a different outcome. Sometimes that’s even a good thing, when they’re correcting legitimate externalities (not to be confused with “externalities,” the magical rationalization for any government intervention whatsoever).

        Psychic benefits are also taken into account. If you could earn $1,000 a year using a plot of land to do one thing but derive a psychic benefit which you value at $1500 (net of expenses) doing something else with it, then the marginal productivity of the second thing is higher, and by all means you should do it.

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      • The curious thing about this position is it doesn’t oppose government using it’s authority to determine winners and losers, to bestow privilege; it just wants government to bestow privilege upon their favored group.

        No. It’s about wanting government to decrease the extent to which a group is already underprivileged. The situation you’re talking about is one where the two parties do not have anything resembling equal levels of power. They are not engaging in free and equal negotiation of the terms of their contract.

        It’s the same concept as, for example, having laws against sexual harassment, because just because you need a job and your employer has more bargaining power than you doesn’t mean you should have to put up with that crap.

        It is true that I’m not picky about political methodologies in the way that you are – I’m not going to oppose a government action that achieves a positive end on the basis of its means unless the means are, in some way, ethically objectionable or otherwise problematic to me. In this case, I have no objection to the methods. I think governments making society more fair and equal for their citizens is a key part of what they should be doing.

        Objecting to the means, in this case, means that you care more about the means (government making contract laws) than the results which the means are preventing (poor people getting screwed over by their landlords). I fundamentally disagree with your priorities.

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      • @James Hanley I understand the logic of what you’re saying, but the discourse I hear taking place doesn’t jibe. For instance, in the culture wars, culture warriors talk of the gay agenda, the special treatment gays want in seeking the rights heterosexuals take for granted. …

        Are you accepting the anti- equality framing, or at least granting it some legitimacy? That would easily be the most bizarro-world moment I’ve ever had here at the OT. I half expect to see Dave arguing for a diet of Ho Hos and root beer, or Saul DeGraw criticizing Israel’s right to exist.

        I honestly can’t comprehend why you’re using that framing, but it’s a very illiberal framing. Liberal neutrality can’t accept it. That is, it might work as an external critique of liberal neutrality and for non- neutrality, but it can’t work as an internal critique that liberal neutrality produces non-neutrality because it relies on a framing that is foreign to, and incompatible with, liberal neutrality.

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      • I have no idea what you even mean.

        Bigoted framing exists; there are all sorts of examples of it, all sorts of efforts to either enshrine it as legal status or protect it as legal status or enforce social norms that maintain the bigotry without any legal status. Pretending that bigoted framing doesn’t exist doesn’t make it go away, and acknowledging it does exist doesn’t grant it legitimacy; at least as far as I’m concerned.

        But I humbly bow to your superior knowledge and freely admit I must be stupid on this topic. Because nothing you or Murali are saying here makes any sense at all to me; which is why I keep pressing at it; it feels completely unhinged from the actual real world I witness; and more concerned with some purity of thought based on tyrannical past governments than actual things that effect people today living in liberal democracies. As I said, I’m certain this is completely due to my ignorance.

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      • : “it feels completely unhinged from the actual real world I witness; and more concerned with some purity of thought based on tyrannical past governments than actual things that effect people today living in liberal democracies.”

        That seems to me to encapsulate libertarianism very well.

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      • I would go further than James, it is not just a matter of framing. Framing is not falsifiable. But calling a neutral set of rules non-neutral or vice versa actually is. Are conservative social rules motivated by appeals to a particular conception of the good? yes. Is there any logically consistent (and empirically informed) argument for e.g. bans against gay marriage or legal racial or sexual inequality that does not appeal to particular conceptions of the good? No. Are there arguments for legal racial and gender equality that anybody can in principle find acceptable? Yes

        Does this asymmetry matter? Yes.
        Why? Because one just blatantly ignores evidence by supposing that the neutral position is one in which there is extensive legal discrimination.

        Let me try to explicitly summarise the move that you are making. You are arguing that previous gains in equality were the result of having special consideration towards women and minorities. You are arguing that other rules which provide special consideration and would reduce inequality are also similarly legitimate.

        But your argument is not sound. The first set of rules can in fact be justified by neutral principles. But not all egalitarian policies can be so justified.

        Let me put it this way. We both acknowledge that the power of government is necessary to eliminate certain wrongs. We may even agree with what those wrongs are. Pointing this out to me does not constitute a new argument. The point about neutrality is that even if government could do something to correct some wrongs, it ought not to do so for some subset of those wrongs. To put it crudely, sometimes the lesser evil is substantive structural inequalities*.

        *Its not exactly what’s going on, but it is close enough for a short comment

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      • Zic–Both. It rejects the bigotry that would deny equal treatment to some, and it rejects the framing that claims pursuing equal treatment is actually seeking special treatment. Here’s a relatively straightforward discussion at Bleeding Heart Libertarians.

        Michael M.–What a deep and thoughtful argument. Do be sure to give us more of that incisive analysis.

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      • If you mean that as a compliment, thank you. But I don’t mean it as a critique of libertarianism, unless libertarianism = liberal neutrality; which Murali tells me is radical. Liberal neutrality and libertarianism both seem to hold focus on limited government in common; but I have it on the word of the libertarians I’m speaking with on this very subthread that libertarianism does not mean lack of appropriate regulation or safety net; and while I’m never quite clear on just how much that might be, but I take them at their word.

        It’s just, as I keep saying, government action was required for me to be equal; and without that action, I would not be. So their notion of limited seems to limit me right out of the equation. I’m sure they’d both like that, I can be a real pain in the ass here. But they’re kind and tolerate me and try to explain things to me, and let me rile now and again.

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      • It’s just, as I keep saying, government action was required for me to be equal; and without that action, I would not be

        It was government action that denied you the right to vote. It was government action that treated men as the presumptive executors of an estate when none was named. It was government action that treated women as chattel of their fathers and husbands.

        Did it take government action to undo government action? Yes, but it would be silly to praise government action on that basis. If I am punching a helpless person and somebody stops me by punching me, we don’t praise punching. Liberal neutrality would not have done those things to women in the first place, as government did.

        Now you can very fairly argue that it took government action to guarantee equal pay in the private sector, and in that case the government action wasn’t actually correcting another government action. That, indeed, is a case where liberal neutrality might do you no benefit, as it would probably leave that structural inequality in place (as Murali has suggested).

        But against that consider that liberal inequality would not have denied you the right to vote, would not have favored men over you in being selected executor, would not have treated you as chattel.

        So in thinking about what government action has done vis a vis what liberal neutrality would do, you must consider not only what government has done for women that liberal neutrality would not do, but also what government has done to women that liberal neutrality would not.

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      • What government action, denied me the right to vote? It’s not in the constitution; it’s in tradition, and that tradition stretches right back to Plato’s day. It simply was not writ into law at the federal level; I’ve yet to go start looking through state constitutions, thought that is something for a rainy day activity. The US constitution, as originally drafted and before amended, is rather quiet about who gets to vote; something that might surprise most Americans, I think.

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      • You’re not going to go all plain meaning of the text on me are you?

        The early constitution would have prevented women from voting if the judges who were interpreting the constitution interpreted it as only granting men the right to vote. Mutatis mutandis for denying non-whites the right to vote. No explicit textual provision is necessary.

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      • Zic,

        You’re not familiar with Susan B. Anthony’s trial and conviction for voting?

        Also, in the link, note this little tidbit:

        Of special concern to Anthony was the Court’s decision in Bradwell vs. Illinois, where the Court had narrowly interpreted the Fourteenth Amendment’s equal protection clause to uphold a state law that prohibited women from becoming lawyers..

        And of course any Supreme Court decision that is a victory for women’s rights through the striking down of a law or public policy is necessarily an indicator that there was in fact a government action denying women equality. E.g.,

        Reed v. Reed (1971)struck down an Illinois law that required that “males must be preferred to females” when determining who would be the executor of an estate.

        Frontiero v. Richardson (1973) struck down a federal law that granted automatic benefits to male members of the military for housing and benefits for their wives, but required female members of the military to demonstrate that their husbands were actually dependent on them.

        Taylor v. Louisiana (1975) struck down a Louisiana law that discriminated against women in jury selection, leading to a frequency of all male juries.

        United States v. Virginia (1996) struck down the Virginia Military Institute’s (a public school) males-only policy. Later the Citadel, also a public military school, was also required to abandon its males only policy.

        There are others. These are laws–actions by governments–that women challenged because those laws denied them equality.

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      • I would have been surprised if voting rights had been specifically or solely granted to men, Murali. But I did check yesterday, after this subthread began, and they’re is nothing one way or the other because it was so embedded into culture and tradition that it was inconceivable that women could vote, St. Francis and all that; yet when they won the right to vote from our government, we were still away from modern birth control, too; so the yoke of biology presumed to subjugate wasn’t nearly as limiting as lack of education.

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      • Knowing that Michigan has replaced its Constitution in toto several times over the years, I checked out voting rights in the 1835 Constitution.

        Article II: Electors
        Qualifications of Electors

        In all elections, every white male citizen above the age of twenty-one years, having resided in the state six months next preceding any election, shall be entitled to vote at such election; and every white male inhabitant of the age aforesaid, who may be a resident of this state at the tie of the signing of this constitution, shall have the right of voting as aforesaid;

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      • No. It’s about wanting government to decrease the extent to which a group is already underprivileged. The situation you’re talking about is one where the two parties do not have anything resembling equal levels of power. They are not engaging in free and equal negotiation of the terms of their contract.

        I don’t mean to pick on you, because I see this sort of thing all the time, but I just threw down the gauntlet on this just a few comments above yours:

        Can anyone here describe a coherent economic model in which so-called “power differentials” (as seen in, e.g., employer-employee relationships as opposed to government-citizen relationships), as opposed to marginal productivity or supply and demand, explain the low wages of fast-food workers, or some similar phenomenon where you think we libertarians just don’t get it?

        To make this an actual argument, you need to define “unequal bargaining power” and describe a coherent economic model for how it causes market outcomes to differ from what you get with supply and demand working exactly as they’re supposed to. Otherwise you’re just throwing around a meaningless shibboleth.

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      • It’s not in the constitution; it’s in tradition, and that tradition stretches right back to Plato’s day. It simply was not writ into law at the federal level

        Virtually nothing about the qualifications for voting was written into the US Constitution, because, like most issues at the time, it was not seen as a federal concern. This most certainly was explicitly written into state law. From the original (1820) version of the Maine Constitution:

        Every male citizen of the United States of the
        age of twenty-one years and upwards, excepting paupers,
        persons under guardianship, and Indiaus not taxed, having
        his residence established in this State for the term of three
        months next preceding any election, shall be an elector for
        Governor, Senators and Representatives, in the town or
        plantation where his residence is so established

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  5. I think part of the problem with envisioning a minimal state which rests upon neutrality is that it simply assumes there exists some self-evident objective reality which can grant undeniable legitimacy.

    For instance, property claims are all based upon the assumption that certain historical facts don’t matter- the theft of land from the native inhabitants, for example, or the accumulation of wealth via slavery.

    Or “meddling in contract”- that actually did make me laugh out loud, being so much like “keep the government out of Medicare!”

    The enforcement of contracts is really based on an assumption of WHICH contracts are valid, and which are not. We – collectively, by majority vote- decide that contracts with minors are invalid and not to be enforced, while contracts made by women are (recently) made valid and enforceable.

    The entire framework of which rights are recognized and enforced, which property claims are legitimate and enforceable, are constructions which we agree to. I know that on some philosophical level they are asserted to be preexisting and independent from state recognition, but operationally, if it isn’t recognized and enforced, it doesn’t exist.

    That framework of recognition and enforcement is premised upon what? Where does it arise from?

    Basically, it springs from the consensus of norms; e.g. yesterday gay people were suffering from a psychiatric disorder, today they are embraced as married persons.

    Appeals to some objective neutral state invariably just take some arbitrary norms and codify them as universal truths.
    Not that there’s anything wrong with that! I just think we should arrive as such a point honestly, and acknowledge the input of the entire community, rather than imposition by fiat.

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      • As long as you insist on phrasing things in a way that is comforting to liberal sensibilities but misrepresentative of what libertarians–or in this case, me–are actually saying, you’re just signaling your lack of interest in an honest conversation.

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      • Strange. I was summing up about eight paragraphs into a single sentence. I never mentioned you, didn’t reply to you, didn’t say your name, didn’t even claim to agree with it.

        I realize internet threads make it difficult to determine who is speaking to whom at times, but what on earth made you think I was talking to you?

        Or was summing up LWA’s point in what I thought was a somewhat amusing, pithy manner (which I’m prepared to be wrong on. Humor is in the eye of the beholder after all), somehow an offense against libertarians? Or specifically, as you note, you.

        Or, shorter version: “Why so touchy? I wasn’t even talking to you.”

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      • Well, Morat, I did talk about government meddling with contracts. LWA was writing–poorly–about what I wrote. So you were pithily summing up a bad critique of my words. Apparently without reading my words. Shrug.

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      • Well, Morat, I did talk about government meddling with contracts. LWA was writing–poorly–about what I wrote. So you were pithily summing up a bad critique of my words. Apparently without reading my words. Shrug.
        Why would I address your words when summing up the words of someone else?

        By definition, I can’t use YOUR argument to sum up someone ELSE’s argument.

        I am very confused.

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      • Really? Because mutatis mutandis that’s what you did.
        Really? Because, um, I’m not seeing it.

        What part of “If it wasn’t for the meddling hand of government, that contract would be a useless piece of paper” describes YOUR argument and not LWA’s?

        Because, you know, my intent was to sum up LWA’s post. You seem determinedly certain it’s some sort of stealth attack on your argument, despite me repeatedly telling you my entire intent was to boil down LWA’s lengthy post to a sentence or two.

        Why you keep insisting you or your point it somehow involved is beyond me. The sole, entire, total basis for my short post was LWA’s post. Your words did not factor into it, unless you wrote LWA’s post.

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      • Apparently you have no idea what LWA was referencing. OK, then, carry on.
        I think you and I have different views on what ‘summing up’ someone’s statement means.

        I think it means ‘summing up what they said’. You think it means ‘summing up what they said and what someone else said’.

        I do not get your weird insistence that, in summing up what I felt was LWA’s point, I must somehow include yours.

        If I write an abstract of a paper, must I also include an abstract of the paper it’s refuting?

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    • just take some arbitrary norms and codify them as universal truths.

      I’m at a loss to comprehend how this charge could not likewise be directed at your beliefs. It’s delightfully easy and empty of substance; just label any other person’s norms “arbitrary” and you don’t have to go to the trouble of thinking about their claimed value.

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    • We – collectively, by majority vote- decide that contracts with minors are invalid and not to be enforced, while contracts made by women are (recently) made valid and enforceable.

      Curiously, this is not even a rebuttal to what I wrote. It’s part of the ground rules I talked about, rather than an attempt to limit the substance of comments.

      The entire framework of which rights are recognized and enforced, which property claims are legitimate and enforceable, are constructions which we agree to.

      As the kids say, “well, duh.” I’ve long argued, here and elsewhere, that property rights are socially constructed. Again, you’re not actually arguing against me in any way here.

      I know that on some philosophical level they are asserted to be preexisting and independent from state recognition, but operationally, if it isn’t recognized and enforced, it doesn’t exist.

      I’ll give $100 to the charity of your choice if you can find any place where I’ve ever asserted that. And of course I’ve said nothing here that either implies or relies upon such an assertion. You really should address the actual me that’s here, and my actual words, rather than the stereotyped libertarian you seem to assume wrote this.

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    • The idea that all contracts and agreements between individuals are worthless without the government is just plain false. People come to agreements and honor the stipulations of those agreements all the time without involving the law.

      I just concluded a fantasy football league with a bunch of friends and acquaintances. We all paid in relatively on time. We agreed on and followed rules. And the winners were paid out in the agreed upon manner. At no point did we have to call the police or threaten to sue each other.

      Government is itself a set of mutually agreed upon agreements and arrangements, meaning that if what you are saying where true, government could not exist in the first place.

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      • “Y’all print your own money?”

        hahaha.

        Winner gets a hundred-dollar dollar gift certificate for Ruth’s Chris. Bam, printed his own money. “But that’s just money in a slightly different form!” What if the winner’s a vegetarian? Won’t have much use for a gift certificate to a steakhouse. On the other hand, a beef enthusiast might be quite happy with the gift certificate because now they have an excuse to go there. “Well, honey, the only place we can use this is Ruth’s Chris. Giddyup.”

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  6. What would be the libertarian solution to getting the aristocracy to negotiate with their tenants? Do you think it would be as simple as?:

    Tenant: I would like to be compensated for improvements I make to your land.

    Lord Such and Such: Okay, that sounds perfectly reasonable.

    If I’m the “Lord”, this is what I say:

    1. You are being charged a rental rate on the land that is based on the fair market value of the land as unimproved.

    2. You and I have entered into a long-term agreement that extends well past 50 years and could be as long as 100 if you or your successors decide to exercise said renewal options. I may own the land, but I can not re-lease the land to another tenant if in the event the market rents triple in five years. Subject to the terms and restrictions in the ground lease, you have control over it and I can not wrest that from you.

    3. Because of the nature of the lease, to the extent that you build the improvements, I am not benefiting financially in any way from your capital and labor (as I get a rent based on unimproved land value). To the extent that you put capital improvements into my land, the excess value that is created accrues 100% to you.

    4. You will be compensated for your capital contributions to the extent that you and I agree to give me the Landlord a purchase option on those improvements. If you wish to protect your position and demand that the purchase price be the greater of your cost or fair market value, I’m willing to go along with that. Note that this would terminate our ground lease.

    I’m writing this from a commercial real estate perspective (and land leases are used all the time by hospital systems if the ancillary medical buildings are owned by third parties).

    I can’t say anything about the UK, but “the market” (hospitals, owners, developers, etc.) seem to have worked this out just fine and have no qualms about not requiring landlords to compensate tenants for improvements (nor should they).

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    • Tenant’s Counteroffer:

      Tenant has consulted with the 50%+1 majority of voters, and it was agreed that such lease terms as what has been offered will not be recorded as valid by the County Recorder, and not enforced by any court or police power.

      Please revise your offer and resubmit.

      Regards,

      Peasant Interests, LLC.

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      • Tenant has consulted with the 50%+1 majority of voters, and it was agreed that such lease terms as what has been offered will not be recorded as valid by the County Recorder, and not enforced by any court or police power.

        Internet polling would have resolved a lot of problems back in feudal times.

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      • What’s amazing, LWA, is that you totally ignored the substance of David’s comment, and replied with an assumption that superior numbers make right. It seems to me that 1) it’s rather cowardly not to address his substance, and 2) hypocritical for you to assume the legitimacy of the majority given your critique of “simply assume[ing] there exists some self-evident objective reality which can grant undeniable legitimacy.”

        I mean, it’s not surprising if you didn’t actually think about what Dave wrote, but it’s a bit odd that you apparently didn’t think about what you yourself wrote.

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      • The substance of Dave’s post was an interpretation of standard commercial lease terms, which is premised exactly on the regime of moral and legal norms currently in place.

        Which is kind of my point.
        All the norms we currently accept- the existing land claims, definition of rights, definition of who those rights apply to, who is covered by contracts and who isn’t- all these things were and are recognized and enforced by majority rule, or force of arms if you will.

        Again- I’m not talking about philosophical legitimacy- I’m talking about how we as a functioning society decide what rights we will enforce.

        Or do you have some definition of legitimacy that DOESNT depend on majority, or force of might?

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      • Dear Peasants, LLC,

        In light of your request, I will now provide you three options:

        1. You can accept the offer as written.

        2. I can construct the improvements and charge a higher rent based on a higher rate of return for said land and improvements; or;

        3. You can take your 50% + 1 majority and shove it up your ass.

        So long as the lease is compliant with state law, it is not up to the country recorder to choose whether or not he/she will recognize it on his/her terms. If you really believe that you can tilt the playing field in your favor by attempting to use a 50% + 1 majority to work to institute a new law, know that the politicians you need for that to happen are bought and paid for by the business lobbyists that take the proverbial bug spray to the folk economist gnats such as yourself. While I can understand and gladly accept certain forms of regulation on the basis that they do address a private power imbalance, I’m not sure how my arrangement disfavor you in any way.

        Personally, I hope you take Option 3. I have plenty of other interested parties that would take the deal as written and see tremendous upside in being able to lease my land and capture 100% of the value of the work they put into it. People like you aren’t worth my time.

        Sincerely,

        Grumpy Asshole Landlord

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      • The substance of Dave’s post was an interpretation of standard commercial lease terms, which is premised exactly on the regime of moral and legal norms currently in place.

        It was written in a way to demonstrate the case that even though landlords do not compensate tenants for improvements made on the the leased land (and by and large, they do not), the tenants are still getting a lot in value in return for entering into that lease.

        Again, applied to US commercial real estate (which would also include residential to the extent that it’s rented on the basis of a leasehold – though most of it is not).

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      • @james-hanley

        “If you really believe that you can tilt the playing field in your favor by attempting to use a 50% + 1 majority to work to institute a new law, know that the politicians you need for that to happen are bought and paid for by the business lobbyists …”

        So, here we are then.
        The conversation starts out as “liberty” and “free market”, only to devolve into “I have men with guns, and you don’t.”

        What, you thought that Monty Python quip about the violence inherent in the system was a joke?

        This, James, is why the legitimacy of land claims is not objective or incontestable. All land claims are traced back to illegitimate violence, and the current system is nothing more than an agreed upon framework whereby we agree not to kill each other.

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    • No, LWA, it was an interpretation of how real people with an eye out for their own interest would be expected to act in response to certain rules.

      Or do you have some definition of legitimacy that DOESNT depend on majority, or force of might?

      And this is why you are in fact the most frightening commenter here. I think nearly everyone else here has some conception that might does not itself make right, and that the majority’s actions toward the minority are not inherently justified merely by their majoritarian status. In the perspective you propose, slavery us legitimate until a majority decides otherwise and is able to impose its will; it is in no way intrinsically wrong. You might object, but I challenge you to explain how your assertion of the basis of legitimacy here can support a claim that slavery is inherently illegitimate in cases where it is supported by a majority that controls the reins of power.

      It is truly odd that you continue to write as though there is no other conceivable basis for legitimacy, when the philosophical literature is chock full of such suggestions. Do you really fancy yourself such a superior political philosopher that vanishingly few of them are capable of seeing what seems so self-evident to you?

      How much political theory have you read? Any? Are you even passingly familiar with any of the various theories of justice? At all? Or is all of that irrelevant because a majoritarian principle that can legitimize slavery and all other forms of minority oppression–or indeed, by focusing on power as the kegiti stir, can justify minority tyranny over the majority–is the only concept you’re able to understand?

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      • Yes, there is in fact a huge volume, entire libraries of political theories that propose different bases for legitimacy.

        Which is exactly the problem, isn’t it?

        How do we as a society pick one that will be defended with force?

        “slavery is inherently illegitimate ”

        What do you mean, “inherently”?
        I’m not asking for a citation from a book- I’m asking who gets to decide what is inherently illegitimate? How do we decide if it will be defended or ignored? Is there a philosopher king somewhere? A Secular Pope?

        You seem to keep assuming that there is somewhere, a wholly objective and incontestable legitimacy to which every knee should bend.

        There are only opinions, ideas, thoughts. Some are popularly embraced, some are not. They evolve over time, fluctuating and changing. We can believe in an objective truth, a God of all things, but in order to structure society we have to yield to majority rule and consensus.

        Sorry if that’s a frightening thought.

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      • I’ll answer your question to any depth you want, if you’ll but clarify this one point for me,

        Assume a society–call it Hanleystan–where chattel slavery of people of African descent is legal, and over 95% of the public approve of it. Would you say in that case that slavery is legitimate? If not, what is your argument against the majority’s determination of slavery’s legitimacy?

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      • Assume a society–call it LWAVille–where slavery/abortion/ animal experimentation/ capital punishment/ sales of human organs is legal, and over 95% of the public approve of it. Would you say in that case that slavery/abortion/ animal experimentation/ capital punishment/ sales of human organs is legitimate? If not, what is your argument against the majority’s determination of slavery/abortion/ animal experimentation/ capital punishment/ sales of human organs legitimacy?

        I mean, we can play this all day. How do we find “legitimacy”?

        To answer your question, there are certain things which are so contrary to my personal moral values, that I would be willing to impose them upon the majority by force if need be. Abolition of slavery is one of them.

        But notice how dangerous this argument is!
        Its the old saw about once you step outside the law, you lose the protection of it.

        What stops Operation Rescue from protecting the rights of the unborn in this same manner? Animal rights activists? Etc? We all, every single one of us here, have in mind some moral value system that is precedent to and superior to majority decisions.

        Majority rule isn’t some magic balm that makes all things legitimate; but respecting its outcome is (almost always) preferable to any other system I have heard of.

        Again, I’m not aware of any method to determine legitimacy that doesn’t come down to “My Opinion says….”

        But I’m willing to hear of alternatives.

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      • “it seemed that the difference of opinion, tastes and purposes increased just in proportion to the demand for conformity.… It appeared that it was nature’s own inherent law of diversity that had conquered us … our ‘united interests’ were directly at war with the individualities of persons and circumstances and the instinct of self-preservation.”

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      • Yeah, what Heffman said.

        It’s weird for LWA to now say majoritarianism “isn’t some magic balm that makes all things legitimate,” after sneering at the suggestion of other bases for legitimacy. Does he believe there are non-majoritarian bases for legitimacy (in which case why challenge me on that), or not (in which case why say majoritarianism doesn’t always create legitimacy)?

        So I’ll wait now for LWA to answer the question. Is slavery justified by majoritarianism, despite his personal abhorrence? If not, what non-majoritarian principle trumps the majority? (Personal abhorrence, of course, is not a principle.)

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      • I don’t sneer at other principles for legitimacy- I just have never heard one articulated.

        The phrase “Is it legitimate” is nonsense-
        I don’t believe that there is no such thing as objective legitimacy, ever.

        All majority rule does is create a framework by which we can minimize harm.

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      • Maybe the problem is conflating “Moral” or “Just” with “Legitimate”.

        I use the word “Legitimate” to mean an “outcome I am willing to accept without resorting to violence”.
        For example, a parking ticket which I consider to be unjust is still legitimate.

        Abortion may be immoral, but is still legitimate.

        Slavery? No, that is something that I would resort to violence about and can’t be legitimate, even in the majority.

        But see, my process (and yours too, from what I can discern) for assigning legitimacy still at some point, requires a personal moral decision. There doesn’t exist any such thing as “legitimacy divorced from our personal moral decisions”. This is why I use the word “assigning” legitimacy- it isn’t discovered like gravity. It doesn’t exist outside of our frame of reference. We simply point to things and judge them as legitimate or not.

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      • Slavery? No, that is something that I would resort to violence about and can’t be legitimate, even in the majority.

        OK, you’ve answered the first part of my question, and I like your answer. (Truthfully, I didn’t expect a different answer.)

        Now for the second part. What non-majoritarian principles prevents majoritarianism from legitimating slavery?

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      • “legitimating”

        I honestly have no idea what you mean by that word.

        As I explained, for me, things are judged as legitimate or not, by the individuals- they each carry a separate definition around with them.

        In most political circles, I usually see the term “legitimate” used only to refer to things like slavery that are so popular as to not be seriously contested.

        So explain what you mean when you use the word “legitimate”.
        I’m genuinely curious.

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      • Your word.
        assumes there exists some self-evident objective reality which can grant undeniable legitimacy

        If you won’t take responsibility for your choice of word but want me to defend it, then we’re done. I’m not going to entertain that kind of game playing.

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    • 1. Commercial is not residential.

      2. I think it is a big mistake to confuse modern day commercial real estate negotiations with those which would have happened in 18th century or 19th century England based on the interests between landed aristocracy and their tenant farmers and presume the same things and standards apply.

      3. I have a hard time crying me a river for the plight of 18th and 19th century British aristocrats having to compensate tenants for their improvements. We aren’t talking about adding some nice fixtures to the bathroom from Home Depot. We are talking about wholesale errecting of cabins (which will be leased out in the future to other tenants) and improve agriculture (of which the landlord probably received a share).

      4. Yes I think it is a perfectly valid thing for government to act as an equalizer/leveler and I don’t see as taking privileges from one group and giving it another. This is why liberals tend to like Corey Robin’s The Reactionary Mind and don’t see conservatism as really being about limited government and preserving liberty, it seems to me that odes and appeals of limited government and preserving liberty have a strong effect of preserving rank and privilege. Pompous talk of liberal neutrality be damned.

      5. The changes mentioned by James above still represent broader representation and democratization and changes from the rotten boroughs to the people of the U.K. actually having a true franchise and people and parties of their own.

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      • 1. Respectfully, if residential properties are being rented, yes, it’s commercial, even if it’s a single family home. I don’t think that matters for this discussion.

        2. Nowhere do you describe how I’m making this mistake. As I stated before, it’s very easy for me to envision a situation where the “creep” goes in the situation James described above. So Parliament wants to require a ground lessor to compensate a lessee in the event that it builds improvements on the lessor’s land? Ok. If I’m a landowner, I decide to build the improvements myself and the tenant pays rent based on the land and improvements. Problem solved, at least until someone dislikes the arrangement to try to resolve it through yet more regulation.

        3. I’m not taking any side in that specific instance if only because I don’t know enough about the structure of the leases. I know buildings get built on ground leased land (c’mon, non-hospital owned buildings on hospital campuses are mostly owned under these kinds of arrangements). Nor would it surprise me that the landlord received a cut of the tenant’s production of revenue/profits/crop whatever. It wouldn’t surprise if that was a major component of the land rent. That may work best for both parties.

        4. I don’t care too much for the liberal this-libertarian that because everything I read feels like it’s talking past me. However, I’m only going to say one thing about this:

        Yes I think it is a perfectly valid thing for government to act as an equalizer/leveler and I don’t see as taking privileges from one group and giving it another…

        By definition, if you are attempting to equalize the relative bargaining positions of two sides, one side’s position increases and the other side’s decreases. If a law is passed requiring a company to recognize a union as a collective bargaining agent after a secret vote passes, a firm no longer has the privilege to ignore the union no matter what the employees say. How does this not constitute a taking? It is. You may not see it that way, but I do.

        5. They may represent changes, but it appears there were unintended consequences and the potential for more (whether or not it happened I don’t know since my knowledge of that history is next to non-existent). However, I think I can see similarities to James’ post in the the residential market in NYC, especially in the area of rent regulated apartments..

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      • Saul,
        Re: 5. I would argue you’re conflating process (broader representation and democratization) with substance (the specifics of the law). In doing so it’s then easy to slide toward an implication that anyone who opposes the substance of the law opposes broader representation. I do hope that you see the difference, and that no such implication should be suggested?

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  7. Is there a principle at work in the argument that’s implied here that isn’t just the one that defends freedom of contract all the way to the point where the most radical libertarians start to deal with what are real dilemmas even for them?

    What is the argument here?

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  8. Isn’t all this why in America, we really really really pushed the concept of fee-simple ownership to as wide of a population base as possible? So the relationship of multi-generational tenants and latifundia land barons would be a moot issue?

    (disregarding, of course, the two elephants in the room of chattel slavery and the large scale abrogation of rights of the pre-16th century inhabitants and their descendants)

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    • Kolohe, pretty much yes. The decision to end fee tail and premogeniture and replace it with universal fee simple absolute was one of the resuts of the American Revolution that never really gets discussed. There were certainly fee tail like property arrangemetns in the the United States. The plantation system in the South is the obvious example but there were also genty-tenant type relations in New York Hudson’s Valley that would be not be dissimilar to what existed in the UK in the early United States.

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      • I’d also like to point out that sharecropping produced gentry-tenant type relationships in the American south after the Civil War and many farmers on the Great Plains were tenants and banks and corporations owned the land.

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  9. It seems to me that there’s a pretty straightforward middle-ground position here that addresses all concerns pretty well. Specifically, the solution would be to require that any contracts with a provision waiving compensation for improvements specifically disclose the value of that waiver to the landlord, with the tenant receiving a discount from the rent in that amount should she agree to the waiver.

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