Public/Private “No”s and Permissionless Innovation.

Hi all, my apologies for not posting lately (bar review is a pain in my butt). I was wondering if I could implore you all (dear readers and dear co-bloggers) to assault—or otherwise weigh in on—my co-worker’s post about permissionless innovation and contract law. This goes back to our public v private “no” posts. I think Geoff is right on target with regard to public “no”s:

The point is, when we talk about permissionless innovation for Tesla, Uber, Airbnb, commercial drones, online data and the like, we’re talking (or should be) about ex ante government restrictions on these things — the “permission” at issue is permission from the government, it’s the “permission” required to get around regulatory roadblocks imposed via rent-seeking and baseless paternalism.

I think Geoff is right about contract:

Just about all human (commercial) activity requires interaction with others, and that means contracts and licenses. You don’t see anyone complaining about the “permission” required to rent space from a landlord.

And Net Neutrality:

Which is why net neutrality is so misguided. Instead of identifying actual, problematic impediments to innovation, it simply assumes that networks threaten edge innovation, without any corresponding benefit and with such certainty (although no actual evidence) that ex ante common carrier regulations are required.

But I think he glosses over certain issues regarding non-tangible property. I submit that expansive intellectual property is akin to a public “no.”  The weirdness about IP is that, unlike a broadband network or a landlord’s building, overbroad IP claims cannot be notoriously possessed except with costly and non-intuitive state delineation. If I have a patent on “doing escrow through a computer” — as in the recent CLS Bank case — I have no independent , private means of defining and enforcing the boundaries of my claim, none. Any attempt to go out in the world and persuade people to not use my big idea would be met with giggles, disregard, or aggression.

At least in the apartment or the fiber network there is rivalrous physical stuff to point to and say “stay off!” In the case of a patent to a vague idea, however, the only way to exert my claim against the world and put people on notice of my private “no” is to utilize a complex, legalistic regime that seeks to create, from whole cloth, the contours of a private right. The fact that this process is so divorced from the intuitive realities of day to day interaction makes expansive IP more like a public “no.”

It’s something you might accidentally tread over, something you might find standing in your way unexpectedly even if you’d no idea that the idea you are pursuing bears any relationship to some existing patent. Playing catch-up with the PTO and a multitude of private patent holders becomes just as bureaucratic and chaotic as persuading the FDA to license your new meds.  At this point the private right does seem to endanger permissionless innovation.

To be clear, I don’t mean to suggest that this is at stake in ALL intellectual property. If the right is clearly delineated and reasonably defined then licensing shouldn’t be an impediment that draws the ire of the permissionless innovation crowd. The trouble only starts when the metes and bounds of the virtual property are so amorphous as to trap would be innovators in a near endless cycle of negotiations with both the private right holder and the public right definer.  If the intellectual landscape becomes replete with these mine-like private nos, then the would-be innovator is locked into a world where inaction is preferable to the unpredictable consequences of innovating.

Those are my half baked, bar review-addled thoughts. What are yours?  I’m sure Geoff will give me an earful. Feel free to comment on his post as well.


The Diminishing Marginal Utility of Navel-Polishing

Double D forwards an Aristotelian lament: ‘I would like to be able to improve my ability to apply what I’m learning from the Sweet Talk folks.”

In other words, what good is theory without practice, what good is #phronesis without #eudaimonia, what good is armchair philosophy? How long shall I pick the fluff of justice out of my bellybutton before I cowboy up and act with honor, courage, temperance, wisdom, and professionalism in the world of hockey fights, subway frotteurism, and militarized police?

Boy oh boy, what I wouldn’t give for a nice little nostrum, an inspiring bit of practical advice for the ordinary citizen looking to scale the summit of Maslow’s pyramid. 

I have no such advice. Moreover, it would be presumptuous of me to offer any. Virtue is personal and subjective. This isn’t to say that anything goes, but rather that on the margin, it cannot be up to me to tell you whether you’re acting harmoniously, in accordance with the highest virtues, or if you will be remembered for your good deeds. The voyage towards #arete is mere tourism if you let someone else grip your tiller (lol).

You’re right, David. There are diminishing returns to introspection. But there is some heavy mind lifting to be done in translating the virtue ethics into the applications of economics and the topsy-turvy world of abundance that would have flabbered the gast of Plato and Aristotle. Thank you for helping with that, my friends.

Feeling the Anger Flow

Last night at my older son’s hockey game (yes, June 25. We play hockey year round in the Niagara Frontier), anyway, last night at my son’s hockey game stood a man of about sixty, maybe seventy, watching intently his son or grandson play goalie. Well, to his great displeasure, my son’s team scored about twenty goals against him; by any goalie measure, that’s a bad night. After the first goal, I cheered, and this man glared at me. That’s not a good sign. And then he breathed in my general direction. From ten yards away, in a well-ventilated building with the ventilation pointing the other way, he literally gave me the vapors. The mom standing next to me looked at me as if I were the one coming to a kids hockey game completely fractured. I made eye gesticulations to indicate that it was not me. After a few goals, gramps left the building, then came back, and he breathed on us his spirits. Holy Moses! And then he himself began to make gesticulations indicating his deep dissatisfaction with his goalie grandson. It is safe to say that this man is an angry man.

It has become my lot in life that, two or three days a week, I deal with people whose best condition is hung-over. It’s not a terribly pleasant vocation, but it gives me the opportunity to put my morality where my mouth is–or, to be less flippant, to actually engage the human condition at some level, being a moral person amidst people who, at best, struggle with morality. Now that’s a tendentious statement; nevertheless, in that particular community, I am to all persons involved functioning as Morality. Police officers function as Justice. And so we make a triangle. The problem is that Justice is often angry, desirous to punish, Morality is indignant, desirous to condemn, and the guilty parties, the filthy corner of the triangle, are belligerent, pitiful, pathetic. They are, it might be said, functioning as Anger; they bring the anger of the whole world into our context. That’s a whole lot of anger. It spreads. I am not immune to the flow of anger.

Hence my deep interest in Adam Gurri’s little post on Justice, and my even broader interest in the Sweet Talk blog. Here is where, I hope, the disparate theoretical fields we bring to the social gathering, drink in hand, smiles in greeting, we can help each other in application.

One of my favorite teachers, espousing to us the wonders of Deconstruction, was put on the defensive by a recalcitrant fundamentalist, a.k.a. post-Enlightenment Modernist, who said, “All this is great in theory, but it won’t work in practice.” My teacher retorted, “Good theory makes good practice.” Man, did I love that. He’s absolutely right. Nevertheless, I also love the critique against contemporary philosophical inquiry, which, as I see it, is interested in the inquiry for inquiry’s sake. It is, as it were, good theories to make even better theories. I think Adam Gurri explained it to me as “Blackboard Economics,” or some such, as it trickles down.

As it trickles down, I’ve got to figure out what question to approach someone like Grandpa Gesticulations: “Are you a neo-Kantian fusionist with Foucault’s Post-modernity (Star Trek), or are you more in the Existentialist Woven Horizons camp (Star Wars)?” Or whatever. You get the point. I’m being silly.

I suppose I want to know the why of why we ask why. That is not to say I want to be the fellow who finally finds the shut-off valve for the flow of anger in the universe, but I would like to be able to improve my ability to apply what I’m learning from the Sweet Talk folks. There’s an angry human being on the other end of the telescope who knows nothing about Hume or Hegel or Kierkegaard. The application context, in other words, is the one that can get folks hurt.


As it happens, while I was composing this, Spivonomist posted this helpful insight over at Euvoluntary Exchange. I didn’t know economists were allowed to read Shakespeare. Seems unjust.

Talk About The Passions

The Stoics give it a shot–at least Seneca the Younger does: talking about the passions. In defining anger, he plays the good Stoic, removing anger from man’s nature altogether; it is an alien characteristic.

Perhaps that isn’t fair: “Man’s nature,” he says, “is not desirous of inflicting punishment.” Inflicting punishment, you see, is the Aristotelian definition of anger with which he cites almost complete accord. Anger, therefore, is not in accordance with man’s nature. Is that fair to the Stoics? I think so.

Are the Stoics being fair to the human experience? I don’t know. I do know, however, that we at Sweet Talk talk an awful lot about virtue, about justice, about honor, and other abstractions. I mean, I’ve been pecking away at AG’s perfectly innocent little post on Justice for two days, now, and I realize that I’m just digging around for nothing, as I told him offline, maybe, finally, for some worthless crystal-nugget of enlightenment. Who knows? Indeed, mine is a pure intellectual pursuit. If I gain intellectually, what gain?

Philosophers seem readily able, armed with massive libraries, to speak with all due palaver on empty prayers and empty mouths, but I don’t know that we have much in the way of philosophical repositories to do the work of speaking about the entire human experience. It’s a tyranny, of sorts, to put the desires of the gut into the hegemony of the intellect. We have made an easy move relegating passions as primal responses to environmental stimuli, but the Stoics recognized that such a passion as anger is not found in the wild kingdom; it is unique to the human experience.

Likewise love. Come to think about it, so is justice, honor, virtue, etc.

“Easy,” as I write above, is a pejorative term, and I mean for it to be. I suppose the long and short of this post is somewhere in this question: Is it ideal that the intellect should rule passions? We certainly like it that way, but Plato’s Divine Maxim requires it not to be so.

Might I suggest, as my tantrum subsides, that newfangled category all the kids are dancing to these days: human dignity. Can we talk more about that?

The Three Perspectives of Justice

The view from nowhere does not exist; it is accessible to no one.

I think that justice—the character trait—is arrived at through a lifelong dialogue among three points of view.

The first is your own, honed through proper notions of prudence, courage, temperance, charity, inheritance and hope.

The second is the person or people you are trying to figure out what you owe, or what they owe you. Hume’s faculty of sympathy, or what we call sympathy today plus what we call empathy, is your primary tool here, as well as a lifetime of experience attempting to understand yourself and others.

The final one is Smith’s impartial spectator; impartial not in the sense of objective but in the sense of not being partial, not having a stake in the outcome.

All three are in a way mental constructs, as we must have mental models of ourselves, the people we are dealing with, and an imagined impartial judge observing the matter. And all three require nourishment through use and persistent critical evaluation over time.

You arrive at just decisions through the effective weighing of the claims made by these inner agents; you become truly wise when these inner constructs closely approximate real people who exist outside of your mental world.

Nussbaum Reaches out to Psychology, Finds Only Philosophy

I highly enjoy Martha Nussbaum’s “Who is the Happy Warrior? Philosophy Poses Questions to Psychology” but Pamela believes that Nussbaum is not fair to the psychologists she mentions. It’s been a month or two since I first read the paper, so I decided to reread it with Pamela’s critique in mind.

Nussbaum certainly presents a good, nuanced picture of the various theories of happiness and satisfaction in philosophy. What she does not do is really engage with psychology, even with the two psychologists—Seligman and Kahneman—on whom she focuses her criticism.

I am convinced by the paper that Nussbaum knows what she’s talking about when it comes to the philosophy of this area. Indeed, I would be concerned if she did not. What I did not come away with is the sense that she had really familiarized herself with the positions of any psychologists. It’s quite possible that she has—but I don’t think she quotes more than three words of Kahneman in the whole paper, and even Seligman, who she treats in greater length, she does not deal with in more than paraphrase.

The contrast with the philosophers, with whom she is obviously quite familiar, is stark. Even Rousseau’s Emile, which she only mentions in passing, she manages to communicate the sense that she is quite familiar with the work and could explain it in depth if called to.

The greatest sin that Deirdre McCloskey calls out in Knowledge and Persuasion in Economics is the failure to even credibly attempt to understand what someone is criticizing. Unfortunately, “Who is the Happy Warrior” seems more like an opportunity Nussbaum took to restate what she had already said elsewhere, rather than an opportunity to engage seriously with points of view within another discipline.

Staking out a position is an important part of starting a conversation, but so is listening.

“Against Method” is Rhetorically Destructive

All modern philosophy starts by acknowledging a basic anti-Cartesian premise: that the universe lacks an ‘all seeing eye of god’, that ultimate arbiter of Truth, method, or the thing-in-itself, for humans to access. Only this was not a new realization in 1975, when Feyerabend’s Against Method was first published. So what did Feyerabend add?

Feyerabend’s main contribution was to couch a political program within the anti-Cartesian premise. By undermining the one scientific method to rule them all, he deflated the authority of science in order to raise the relative status of other types of truth seeking, including mysticism, religion and the occult. This effort must be seen within the anti-imperialist zeitgeist of the 70s, with so many minds awakening to the failures of neo-colonialism through the tyranny of experts. But it was also a cause that appealed to Feyeraband as a practitioner of alternative medicine.


In other words, Feyeraband’s contribution was rhetorical: He leveraged a technical philosophical position (epistemological anti-foundationalism) into a political posture against the hierarchical institutions of science, like the state or ivory tower, in order for them to be replaced by an “epistemological anarchism” which demanded our scientific “authorities” be devolved to a democratic system of popular vote.

By harnessing rhetoric Feyerabend was simply living out his own view of how science progressed: Scientific paradigms rise in part on their empirical merits but mostly on how persuasively they’re marketed. This extends the scientific enterprise far beyond the conjecture-refutation dyad of Karl Popper into the realms of rhetoric and aesthetics. For instance, Feyerabend famously argued that Galileo’s heliocentric model of the solar system succeeded not due to some empirical eureka moment or triumph of reason, but due to Galileo being “one of the greatest propagandists of ideas in the history of science“.

So while it is impossible to dispute the anti-Cartesian premise or the role of rhetoric in science, whether you are a fan or enemy of Feyerabend’s work will depend on your mood affiliations. Think of it as an “if-by-whiskey” contra Descartes. If Against Method is but one way to rhetorically frame our anti-Cartesian condition, the question you should ask is whether it is the best way — That is, if denigrating science and scientists, as such, was a very useful end.

I believe we increasingly live in Feyerabend’s preferred world, where suspicion of experts and the conflation of science with power reins supreme on both ends of the political spectrum. My sense is that this represents a major step backwards in our ability to reach honest agreement. Ironically, without the authority of science we will lose one of the strongest rhetorical wedges we have to hold the powerful accountable.

To see the alternative, contrast the rhetoric of Against Method with the writing of C.S. Peirce. Peirce started with the same anti-Cartesian premise, and yet developed a philosophy of science that re-conceptualized method pragmatically, without demoting science’s status in society. Peirce viewed scientists like blind monks feeling an elephant, who then build theory through a “community of inquiry“. While no method is “ultimately” better than another, our conceptions of reality have practical consequences, so different methods ought to lead to similar conclusion in the long run.

So here we have two attacks on epistemological foundationalism. Using one type of rhetoric, Feyerabend pushed an anti-colonial relativism, giving “equal rights” to creationists and trained biologists alike to claim the scientific credo. Using different rhetoric, C.S. Peirce raised the status of science while at the same time pointing out its fallibility. In Peirce’s own words:

To an earlier age knowledge was power — merely that and nothing more; to us it is life and the summum bonum — the highest good.

Feyerabend’s ideas belong to that earlier age; indeed, the core ideas in Feyerabend were not original. Rather, his legacy is the disrepute of scientific authority. But at what cost?