The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

The Volokh Conspiracy

Libertarianism

Reconciling Hayek and Mill's Divergent Defenses of Liberty

As Cass Sunstein points out, Hayek and Mill had widely divergent rationales for liberty. But the two can be reconciled.

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F.A. Hayek (NA)
John Stuart Mill. (NA)

 

Nobel Prize-winning economist F.A. Hayek and the great political philosopher John Stuart Mill both reached generally libertarian conclusions. But, as prominent Harvard law Porf. and political theorist Cass Sunstein points out in an excellent recent post, they did so for quite different reasons:

Mill was a romantic about choosers (about you and me, and what we know, and what we are capable of), while Hayek was not a romantic about choosers at all (not close). He was a romantic, or something like that, about undesigned orders and traditions, and a skeptic about planners.

Mill put a bright spotlight on individuals, their knowledge, their potential, and their agency. Hayek put a bright spotlight on markets and traditions, and on government planners and what they cannot know.

In sum, Mill emphasized the merits of individual freedom of choice, which he famously argued would enable each person to to exercise control over his or her affairs, and result in valuable "experiments in living." By contrast, Hayek emphasized the defects of government planners, and their lack of knowledge.

As Sunstein notes, these two ideas are not inherently opposed. They can even be mutually reinforcing, in so far as they provide alternative justifications for the same conclusion. But there is a tension, in so far as Hayek also emphasized the value of "spontaneous order" and the traditions it generates, which he viewed as better guides to decision-making than the unaided reason of individuals. This contrasts with Mill's emphasis on individual autonomy and reasoning skills.

Moreover, if tradition is so valuable, as Hayek suggests, why not use government power to enforce it against people who go against it? And if individual reason and experimentation are so beneficial, as Mill argued, why not trust voters' judgements at the ballot box, and let them use those choices to constrain individual choice?

I cannot resolve all tensions between these two perspectives. But the gap can be greatly reduced by recognizing that individuals make better decisions in some circumstances than in others. In particular, they do better when the "vote with their feet" than when the vote at the ballot box. And that divergence bolsters both Mill's confidence in individual autonomy, and Hayek's condemnation of planning and support for spontaneous order.

As I have explained previously (and more fully in my book book Free to Move: Foot Voting, Migration, and Political Freedom), people can vote with their feet by making choices in the private sector, by deciding with jurisdiction to live in within a federal system, and through international migration. What unites these three types of choices is that, in each case, the individual makes a decision that is highly likely to have a decisive impact. By contrast, when you vote at the ballot box, the odds that your vote will have a decisive effect on the outcome are infinitesimally small: usually one chance in a million or even less (perhaps 1 in 60 million in a US presidential election, though the exact figure varies by state).

As a result, foot voters have strong incentives to seek out relevant information and evaluate it objectively. As discussed in my book and elsewhere, historical and experimental evidence shows they often make good decisions even under bad conditions, as in the cases of people fleeing totalitarian regimes that censor information from the outside world, and poorly educated Blacks fleeing slavery and segregation. By contrast, a combination of "rational ignorance" (lack of incentive to seek out political information) and "rational irrationality" (lack of incentive to engage in unbiased evaluation). In combination, these ensure they are often ignorant of very basic political information (such as what the three branches of government are or which officials are responsible for which issues) and often act as biased "political fans" in evaluating the information they do learn.

Once we recognize that individuals generally make much better decisions as foot voters than as ballot box voters, Hayek and Mill's perspectives are much easier to reconcile.

In the case of Hayek, this distinction can explain why he had respect for traditions developed through "spontaneous order," but was also highly critical of conservatives' support for the enforcement of tradition through state power, as in his famous essay "Why I am Not a Conservative." The answer is that traditions generated by individuals' foot voting choices are likely to have greater epistemic value than those imposed by force, whether by democratic governments or authoritarian ones.

Hayek was not actually an across-the-board fan of tradition. He was more than willing to reject traditions imposed and perpetuated by government coercion. For example, he rejected anti-sodomy laws and other restrictions on consensual sexual activity, even though they were longstanding traditions. The distinction between foot voting and ballot box voting decisions can help justify this stance.

The same goes for Mill's emphasis on individual autonomy. Foot voters are likely to make better choices than ballot box voters, and thus also create better "experiments in living." Mill, in fact, worried greatly about the problem of voter ignorance. In Considerations on Representative Government, he emphasized that voters have a duty to become well-informed, and advocated giving extra votes to more educated voters in order to improve the quality of decision-making.

But he failed to consider that even relatively more educated voters are still susceptible to rational ignorance (though they do, on average, know more than the less-educated) and still likely to act as biased "political fans."  Any given set of people are likely to make better decisions when voting with their feet than at the ballot box. The superior incentives of foot voters justify granting them greater scope and autonomy, while tightly limiting the power of government to override their choices.

As I argue in Free to Move and other writings, these circumstances also justify decentralizing government power so as to give people more opportunities to vote with their feet in federal systems. This last is a point consonant with Hayek's advocacy of decentralized federalism in some of his early writings, including a 1939 article where he emphasized the importance of "do[ing] away with the impediments as to the movement of men, goods, and capital between the states."

In sum, incorporating the problem of voter ignorance and the informational advantages of foot voting bolster both Hayek's argument for liberty and Mill's. Liberty enables people to make better-informed decisions in the private sector, thus reinforcing Mill's emphasis on autonomy. Voter ignorance further reduces the quality of government planning, thereby bolstering Hayek's argument against the latter, while helping to explain why he supported some traditions, but not others.

The points covered here don't do away with all differences between Mill and Hayek. And, by themselves, they don't make a comprehensive case for a libertarian/classical liberal political system. But they do show how the superior decision-making of foot voters relative to ballot box voters bolster both Hayek and Mill's arguments, and make them mutually reinforcing.

Politics

Today in Supreme Court History: August 23, 2007

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8/23/2007: John Yates, aboard the Miss Katie boat, threw fish overboard to avoid an inspection. He was prosecuted for destroying property to prevent a federal seizure. In Yates v. United States (2015), the Supreme Court held that the fish was not a "record."

The Roberts Court (2010-2016)

Libertarianism

Video of My Keynote Speech at the Annual Libertarian Futurist Society Prometheus Award Ceremony

The talk deals with the relationship between libertarianism and the science fiction and fantasy genres.

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LFS

A few days ago, I had the honor of giving the keynote speech at the Libertarian Futurist Society's annual Prometheus Awards ceremony. My talk was on the topic of "Libertarianism and Science Fiction." It explains why libertarian ideas are much more prevalent in science fiction and fantasy than in other fiction genres, why it matters, and a few lessons libertarians may be able to draw from this. I also presented the Prometheus Hall of Fame Award to Aldous Huxley's classic work, Brave New World. The award was accepted by a representative of the Huxley estate and two of the author's grandchildren.

See here for a more detailed description of the awards and the various winners.

I addressed the issues covered in the talk in greater detail in a 2011 article on "Libertarianism and Science Fiction." The talk in some ways updates the analysis; but much more can be said. When and if time allows, I would like to revisit this theme. I have previously written various other articles and book chapters about political themes in science fiction and fantasy, most recently here.

Below is the video of the awards ceremony. My talk goes from about 1:30 to 14:40.

Free Speech

Intern (Actually a Project Veritas Undercover Plant) in Political Organization Didn't Have "Fiduciary Duty" to Organization

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An excerpt from today's long decision in Democracy Partners, LLC v. O'Keefe by D.C. Circuit Judge Karen LeCraft Henderson, joined by Judge Harry Edwards (read this post for more on the facts and on a separate fraud claim):

Creamer [the target of a Project Veritas undercover investigation] brought those claims under the provisions of the federal and D.C. wiretapping laws that make it unlawful to secretly record a conversation with another "for the purpose of committing any crim[e] or tor[t]." The jury agreed with Creamer that Maass [a Project Veritas employee who, under false pretenses, applied for and got an internship at Cramer's Democracy Partners organization -EV] violated these provisions because she was a fiduciary of Democracy Partners and surreptitiously recorded her conversations with Democracy Partners staff in order to breach her fiduciary duty—which is a tort in D.C….

A fiduciary is an agent who exercises delegated power on a principal's behalf. "[P]ower" means the actual or apparent authority to take actions that "affect the legal rights and duties" of the principal. This requirement separates the fiduciary relationship from the ordinary contractual arrangement. "[L]awyers, trust companies, realtors, or the like," are common examples of fiduciaries because the decisions they make often carry legal consequences for the other party…. Courts thus recognize that the fiduciary relationship is a "special confidential relationship" that "transcends" an arms-length business transaction.

In our view, no reasonable jury could find that Maass was a fiduciary of Democracy Partners because the evidence failed to show Maass was an agent with any degree of delegated power to act on Democracy Partners' behalf. To explain why, we ignore Maass's title as an unpaid intern and focus solely on "the facts of [her] relationship" with Democracy Partners—most relevantly, the "promises made, the type of services or advice given and the legitimate expectations of the parties."

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Free Speech

Damages Award Stemming from Project Veritas Project Set Aside by D.C. Circuit

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From today's long decision in Democracy Partners, LLC v. O'Keefe by D.C. Circuit Judge Karen LeCraft Henderson, joined by Judge Harry Edwards:

James O'Keefe is the Founder and former CEO of Project Veritas, a non-profit media organization that gathers news "almost exclusively [through] undercover journalism" … [including] "open and secret audiovisual recording" ….

In spring 2016, Project Veritas assigned one of its investigative reporters, Christian Hartsock, to find leads on a potential story about voter fraud schemes in the Wisconsin elections. Acting undercover, Hartsock infiltrated an election-watch party at a Milwaukee bar, where he met Scott Foval, a Democratic political consultant.

Using a fake name and backstory, Hartsock convinced Foval that he worked for a fictitious political consultant group and that one of his clients was a "progressive philanthropist [with] a deep disdain for voter ID laws." Hartsock told Foval that he was working on a "surrogate voter scheme[]," in which his client planned to open a shell company in Wisconsin, hire out-of-state voters and illegal immigrants and issue them employer-IDs that would allow them to vote fraudulently in Wisconsin's elections.

Foval thought Hartsock's scheme was "brilliant" and volunteered "all this advice" on "how to pull it off." He advised Hartsock to transport fraudulent voters to polling places with rentals or auctioned-off cars and he recommended expanding operations to Michigan and Illinois. Foval also suspected that Hartsock's unnamed client (who did not, in fact, exist) was receiving advice on the voter fraud scheme from Bob Creamer, a Democratic consultant in D.C.

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Politics

Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

Rough rides, U.S. attorney vacancies, and the 26th Amendment.

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Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New on the Short Circuit podcast: Shooting the wrong man (tragedy) and free speech dying in the library (comedy).

  1. Under the Federal Vacancies Reform Act of 1998, a first assistant U.S. Attorney automatically becomes interim U.S. Attorney if there's a vacancy. So can the AG name someone the first assistant to a vacant U.S. Attorney position and have them automatically elevated? Second Circuit (over a dissent): Joining every other court that has considered the question, no.
  2. Man videorecords Waterbury, Conn. police station from public sidewalk, declines to show ID to officers. He's arrested. (Prosecution is dropped over two years later.) Second Circuit: It was dusk and he didn't answer officers' questions, so there's no 4A violation. And while it's now clearly established that recording the police is 1A protected, qualified immunity. Concurrence: He wasn't recording the police! Read More

Civil Procedure

How to Alienate a Judge, Part 374

"Defense counsel ... seemingly cannot read the room when the Court's response was to summarily deny Defendant's previously filed request ...."

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From Judge Terry Moorer (S.D. Ala.) today in Doe v. Goff:

Pending before the Court is the Motion for Ruling on Plaintiff's Motion for Leave to Amend Complaint and Motion to Dismiss Defendant's Counterclaims in which Defendant Kelly Goff … motions the Court to expedite a ruling for Plaintiff Jane Doe's Motion to Dismiss Counterclaim and Motion for Leave to Amend Complaint. Defendant states Plaintiff's motions have been under submission with the Court for more than four and one-half months, along with his motion for summary judgment, discovery closes on August 31, 2026, dispositive motions are due by September 25, 2026, and a settlement conference is scheduled before the Magistrate Judge on September 1, 2026.

Defense counsel previously contacted chambers by telephone to push for a resolution of his motion for summary judgment and seemingly cannot read the room when the Court's response was to summarily deny Defendant's previously filed request for the Court to expedite a ruling on his motion for summary judgment. Plainly stated, this is not the only case on this Court's docket and Defendant does not get to line jump in front of other pending motions simply because he demands it. It is for the Court to determine the priorities of its docket not the Defendant. Put simply, criminal cases come first followed by civil cases that are older or have a statewide impact. Additionally, the reasoning provided by the Defendant—incurring attorney's fees—is true for all parties involved in litigation.

The Court has inherent power to control the disposition of pending matters in the manner and timing as it deems appropriate.

The motion for ruling is GRANTED. The adage of "be careful what you wish for" may apply in that Defendant may find the reality does not live up to his desire. The Court issues this short summary order to provide the answer to the request and the motions but will issue a more detailed opinion with its full reasoning at a later stage. It is ORDERED that both Plaintiff's motions are GRANTED.

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Free Speech

Exorcist Files vs. Jesus 911 Libel Suit Can Go Forward

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From Martins v. Romero, decided today by Judge Kay Behm (E.D. Mich.) (for more on the Complaint, see this post):

According to the Complaint, Fr. Martins is a well-known priest of the Catholic Church and has built a large social media following due to his work as an exorcist. The Exorcist Files is a podcast co-created and co-hosted by Ryan Bethea and Fr. Martins. As co-host of The Exorcist Files, Fr. Martins recounts many years' worth of real-life stories where Fr. Martins has helped "set people free all over the world." Due to the popularity of the podcast, Fr. Martins published a book, also titled The Exorcist Files, on November 19, 2024.

The Complaint explains that certain priests are authorized to perform the exorcism ritual either by "mandate," where their ministry is limited to a single diocese, or "ad actum," where the priest is permitted to officiate this ritual in any diocese, under the authority of the local diocesan bishop. Fr. Martins is authorized by his Order, the Companions of the Cross, to perform as an exorcist ad actum.

Defendant Jesus Romero hosts a rival podcast called "Jesus 911" which is broadcast nationwide. Co-Defendant Kyle Clement is a frequent guest on Romero's podcast. The Catholic Resource Center owns and operates the podcast network that broadcasts Jesus 911.

According to the Complaint, during several episodes of his podcast during the fall of 2024, Romero and Clement defamed Fr. Martins and cast his ministry in a false light. On the November 20 podcast, Clement claimed that Fr. Martins "is not who he says he is." In the subsequent episode of the podcast, dated November 27, Romero revealed that he had made a request to Fr. Martins' religious Order to verify Fr. Martins' qualifications. In an email reply, the Order indicated that Fr. Martins was not appointed as an exorcist by mandate ("by a particular diocese"), but that he had "appropriate permission" to perform the ritual in any diocese "by request of the corresponding bishop." The full body of the email reads:

In answer to your inquiry Fr. Carlos has not been appointed as an exorcist by a particular diocese. His full-time ministry is Treasures of the Church, however, due to his travels, he has been involved in exorcisms with the appropriate permission and or by request of the corresponding bishop.

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Free Speech

Prof. Musa Al-Gharbi's "Jason Arday and Me"

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A very interesting piece in the Chronicle of Higher Education. Here are two brief excerpts, but they can't do justice to the whole piece, which covers much more ground:

{[W]hen a mainstream journalist [investigated Arday], he was threatened with lawsuitsvisited by the police, and subsequently instructed by his editors to bury the story—and he sheepishly complied. Arday was exposed by a "race realist" Substack writer because reporters wouldn't cover the story until after it had already become common knowledge. It seems to defeat the purpose of the journalistic profession to tell people what they've already learned by other means, but that was the position U.K. media outlets and journalists took: radio silence until "others" started the conversation. And, somehow, the main lesson many seem to be taking from the way things played out is that we need even more media censorship downstream.}

It is appropriate to give Arday's misconduct widespread attention because he, himself, relentlessly pursued the spotlight. The accuracy of his story matters because he sought fame and riches directly on the basis of his "biography," and Cambridge quite overtly recruitedpromotedcelebrated, and defended him on the same grounds.

His posthumous allies seem to be striking the position that public attention to Arday's "journey" and research was fine, but only when it suited his interests; he should be a subject of conversation, but only on his own terms; he deserves media coverage, but only when it flatters him. That's just not the way the game works. If you're in the spotlight, you're in the spotlight. Arday wanted to be the center of attention. He got his wish.

Free Speech

$9.25M Verdict Against N.Y. Times, in Libel Case Brought by Alabama Basketball Player

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The N.Y. Times (Katie Robertson) so reports, and adds that "The Times had not lost a defamation lawsuit brought in the United States over one of its articles in more than 50 years."

Here's an excerpt of the decision from Judge Annemarie Carney Axon (N.D. Ala.) in May (Spears v. N.Y. Times Co.) that allowed the case to go forward:

Plaintiff Kai Spears was a walk-on basketball player for The University of Alabama men's basketball team and developed close friendships with other teammates, including Brandon Miller. In the early hours of the morning on January 15, 2023, Mr. Spears and Mr. Miller visited Moe's Original BBQ in Tuscaloosa, Alabama.

Unbeknownst to Mr. Spears, another teammate—Darius Miles—asked Mr. Miller to bring Mr. Miles a gun that he had left in Mr. Miller's car. So Mr. Miller headed to Mr. Miles, and Mr. Spears started back to his dorm. A few minutes later, gunfire erupted on the Strip, and Michael Davis, Mr. Miles's childhood friend, shot and killed Jamea Harris using the gun that Mr. Miller had brought to Mr. Miles.

{Two months later, the Times published an article, titled "A Fourth Alabama Player Was at a Deadly Shooting, in a Car Hit by Bullets." The opening line said that the "fatal January shooting that involved players from the University of Alabama basketball team could have been even more deadly, as surveillance video showed that two players were in a car struck by bullets in the crossfire."

It added that Mr. Spears was in the car with Mr. Miller at the time of the shooting and that Mr. Miles had asked Mr. Miller to bring Mr. Miles's gun to the scene. The story said that the University had tried to "distance itself from the shooting" and keep "quiet" other players' involvement. The article then discussed widespread criticism that Mr. Miller and the University received when Mr. Miller continued to play after the shooting.}

The statements about Mr. Spears were false, and this lawsuit followed….

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Immigration

"You Chose the Wrong Parents" - My "Speak Freely" Interview on the Case for Migration Rights

We covered many issues related to migration restrictions, arguments for and against them, and more.

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Speak Freely recently posted, "You Chose the Wrong Parents," an interview I did with them on migration rights. We covered many issues relating to immigration, including the case for migration rights, how immigration restrictions are similar to medieval serfdom, causes of anti-immigrant sentiment, what I think are the strongest arguments for restrictionism, and how migration relates to broader dangers of nationalism, zero-sum thinking, and widespread political ignorance.

Thanks in large part to the great questions posed by Speak Freely website editor-in-chief Ogechukwu Egwuatu (herself an African immigrant to France), I think this was one of my best media interviews of the last few years. Speak Freely is a publication of European Students for Liberty, and we conducted the interview in April, during LibertyCon Europe (ESFL's annual convention). I wrote about my experience at LibertyCon here, outlining some similarities and differences between European and American libertarians/classical liberals. The transcript of the interview is here (but note there are a lot of transcription errors). I embedded the video below:

"Denaturalization's Missing Limit" out in Northwestern University Law Review Online

Building boundaries around civil denaturalization

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The final version of "Denaturalization's Missing Limit," my latest article with Cassandra Burke Robertson, is out in the Northwestern University Law Review Online. Here is the abstract:

Civil denaturalization has become a bipartisan tool of punishment and deterrence. The government has used the civil justice system to strip citizenship from naturalized citizens convicted of serious crimes— including sex offenders—to "send a loud message" and "hold accountable" those it considers undesirable, circumventing the ten-year statute of limitations Congress imposed on criminal naturalization fraud. The Trump Administration has gone further, elevating denaturalization to one of the Department of Justice's top five enforcement priorities and directing attorneys to "maximally pursue" every viable case. One of the features that makes denaturalization such a potent tool is the widely accepted proposition that no statute of limitations applies. This Essay argues that proposition is wrong. Drawing on the Supreme Court's decision in Kokesh v. SEC, the text and structure of 28 U.S.C. § 2462, and the policy rationales underlying statutes of limitations, we argue that Congress's existing default five-year limitations period should be understood to apply to civil denaturalization. A five-year time bar would preserve the government's ability to pursue clear fraud while preventing the indefinite vulnerability that chills the political participation of over twenty-three million naturalized Americans.

Free Speech

"Pussy Valley" Autobiography Appropriation Lawsuit over Starz' "P-Valley" Thrown Out

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Thanks to the Library of Congress; L. Prang & Co., 1872.

Wednesday, District Judge Mark Norris (W.D. Tenn.) accepted the July 30 recommendations from Magistrate Judge Annie Christoff in Johnson v. Hall:

Johnson [sued] …, alleging various claims arising from Defendants' television series "P-Valley," which Johnson claims "directly appropriated" her autobiography entitled "Pussy Valley." According to Johnson, her autobiography recounts "her life as an exotic dancer, including her upbringing in the Graves Manor Projects in Memphis, Tennessee, colloquially know as 'Pussy Valley.'" She allegedly "shared and discussed" her autobiography with Defendant Katori Hall, who, "in collaboration with Defendants Starz Entertainment and Lions Gate Entertainment, developed and produced the television series 'P-Valley.'" …

The magistrate judge recommended that Johnson's right of publicity and unjust enrichment claims be dismissed as preempted by the Copyright Act:

The autobiography … qualifies as a literary work that "falls within the range of materials protected by the Copyright Act." … The Sixth Circuit applies a "functional test" to determine equivalency, which "asks whether the state claim seeks to protect rights similarly protected by the Copyright Act." …

As Starz correctly asserts, [the right of publicity and unjust enrichment] claims are based on allegations that Starz "misappropriated [Johnson's] identity, life story, and creative expression for commercial gain without consent" and "profit[ed] from [her] life story without compensation." Based on these allegations, each cause of action depends on Starz's alleged use of Johnson's original autobiography without her permission or without compensation. "As unauthorized publication is a core and exclusive right safeguarded by the Copyright Act," the Court agrees that Johnson's statutory right-of-publicity and unjust-enrichment claims are preempted by the Copyright Act.

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