We are developing the social individualist meta-context for the future. From the very serious to the extremely frivolous... lets see what is on the mind of the Samizdata people.

Samizdata, derived from Samizdat /n. - a system of clandestine publication of banned literature in the USSR [Russ.,= self-publishing house]

Bad Court Judgements

With the exception of the judgement by the Supreme Court to overturn the Texas anti-sodomy law, the last few days have seen some bad judgements in both the United States and Britain.

Indeed even the sodomy case was dodgy – in that a good result was achieved by, I suspect, bad methods.

True I have not been able to bring myself to read the judgements (reading the words of modern judges tends to make very depressed), but unless they used the elastic Ninth Amendment (which, perhaps, could be used to stop the Federal, State of local governments doing just about anything – which might be no bad thing) it is hard to see how the six judges found anything in the Constitution to prevent the State of Texas banning sodomy. I suspect that the judges tended to waffle on about freedom – i.e. expressed their political opinions (which I happen to agree with this time) rather than actually based the judgement on the text of the Constitution (as they should have done).

As for the other cases that have caught my eye.

Well the University of Michigan has been told that it is okay to practice racial discrimination – as long as it is not open and honest about doing so (diversity waffle rather than an overt quota). This would seem to be the worst of both worlds. Of course there is an easy way to solve the problem of who goes to State Universities – close them down and have no one go to them. However, whilst they exist, it would seem reasonable that such places do not make skin colour a factor in admissions (but five of the Supremes think differently). Oh well, who reads the 14th Amendment anyway – ‘equal protection of the laws’? No, let us have ‘diversity’ instead (although the Constitution does not mention the word diversity anywhere).

Then there was the Nike case. The Supreme Court decided that if a company decided to argue back against attacks made on it, the company may be taken to Court under California’s wonderfully biased statutes. In short the First Amendment applies to ‘activists’ (individuals or groups) attacking a company, but not to the business itself.

Back in Britain we have just had the long predicted outcome to the mobile phone (cell phone) farce. Some time ago the government manipulated some mobile phone companies into paying vast sums (billions of pounds) for mobile phone licences – this put these companies into financial difficulty. Fast forwards a few years later and the government declared that companies must cut their call rates.

In short the companies had paid through the nose and then got hit on the nose. They sued – and have just lost.

The old saying is proved right yet again – never trust the government.

And remember, the courts are part of the state.

19 comments to Bad Court Judgements

  • Dave

    Phone operators? Manipulated?

    Oh come on. They are commercial companies who reckoned that 3G was going to be big and were prepared to bid in an open auction for it.

    They conned themselves in that process, they didn’t need any government help.

  • Dave,

    HMG manufactured some revenue (a hefty £22 billion) by auctioning off the licence rights. In order to stay in the game the major players had no choice but to compete.

    The money raised by the government was, in effect, a future tax on mobile phone users as the cost would have to be passed onto consumers by the companies in order for them to remain solvent.

    Now they have been ordered to reduce charges which were artificially inflated by state activism in the first place.

    And wher, exactly, did that £22 billion go? The government is never ‘greedy’ is it, Dave?

  • David Mercer

    They DID use the 9th, here’s the heart of the majority opinion in Laurence:

    To say that
    the issue in Bowers was simply the right to engage in
    certain sexual conduct demeans the claim the individual
    put forward, just as it would demean a married couple
    were it to be said marriage is simply about the right to
    have sexual intercourse. The laws involved in Bowers and
    here are, to be sure, statutes that purport to do no more
    than prohibit a particular sexual act. Their penalties and
    purposes, though, have more far-reaching consequences,
    touching upon the most private human conduct, sexual
    behavior, and in the most private of places, the home. The
    statutes do seek to control a personal relationship that,
    whether or not entitled to formal recognition in the law, is
    within the liberty of persons to choose without being pun-
    ished as criminals.
    This, as a general rule, should counsel against attempts
    by the State, or a court, to define the meaning of the rela-
    tionship or to set its boundaries absent injury to a person
    or abuse of an institution the law protects. It suffices for
    us to acknowledge that adults may choose to enter upon
    this relationship in the confines of their homes and their
    own private lives and still retain their dignity as free
    persons. When sexuality finds overt expression in inti-
    mate conduct with another person, the conduct can be but
    one element in a personal bond that is more enduring.
    The liberty protected by the Constitution allows homosex-
    ual persons the right to make this choice.

    I think that that just about says it!

  • Guy Herbert

    What a bizarre posting. More or less: “I don’t know what was in the judgments, but here’s what I think about them anyway…” Both are to be found at this page, the cases you want being Lawrence and Bollinger. (Warning: biggish pdf files.)

    The good news for liberty is the Texas sodomy law case was decided on the basis of privacy in a pretty clear way. Whether the Constitution supports a right of privacy is controversial, but I suspect most of us here would prefer to have one than not.

    The bad news is that the university admissions policy case is very nearly incomprehensible. It seems to me to say the university can exercise racial preferences as long as it gives them relatively small weight, or possibly as long as it provides a sufficiently elaborate scheme for doing so. (Since the idea of “race” itself is so difficult to comprehend, maybe we shouldn’t be surprised this is confusing. They are trying to make a judgement about a system for making a judgment that itself relies on meaningless data.)

  • Dave


    I work in the mobile industry and cannot shed a tear for the poor network operators, they knew exactly what they were getting themselves in for and they were greedy too.

    Some players who could have won saw the writing on the wall, got real and stepped out.

    As for where the money went. As I recall, the British National Debt got paid down saving £500 million or so in interest payments.

  • Phil Bradley

    I’m with dave on this. The essence of capitalism is risk. Companies always take risks. Sometimes (often) they don’t payoff. Thats business! Thinking that owning something automatically results in profit is the worse kind of 19th century socialist nonsense.

    The auctioning off of the 3G rights was exactly the right thing to do. The rights are public property and the right to use them should go to the highest bidder. What the government then does with this money is irrelevant to whether the rights should have been auctioned.

    The money raised by the government was, in effect, a future tax on mobile phone users as the cost would have to be passed onto consumers by the companies in order for them to remain solvent.

    The money was no more a tax than any other money a company pays in order to do business (other actual taxes of course). The companies involved freely chose to bid the amounts they did. Otherwise more neo-socialist thinking. Namely that costs determine pricing. They don’t! The relationship is considerably more complex that.

    And as 3G providers constitute an oligopoly, the government quite rightly intervened to set prices. I am not a fan of government intervention in markets, but the 3G spectrum is a finite physical resource and an oligopoly is unaviodable (at least thats my understanding with current technology), and companies un-restrained will extract monopoly profits.

    What happened was that companies paid far to much for the 3G rights, not least because the auction occured at the top of a bubble and the telcos were flush with cash mostly derived from monopoly and oligopoly profits. It was a bad decision and quite rightly their shareholders lost a lot of money because of it.

  • Your comments on Nike v Kasky are a little off base. The Supreme Court merely decided not to hear the case at this time. This will allow Kasky’s original case to proceed (barring other obstacles), but the whole thing will undoubtedly end up in from of the USSC eventually anyway. By that time, the specific First Amendment issues to be decided will be clarified. The California courts hadn’t even got started. If the USSC ruled on the First Amendment issues in the appeal, the case would still go back to California, and may throw up other issues which would eventually have to be decided later. The USSC recognized the importance of the case, and didn’t want to do a half-assed piecemeal job, that’s all.

    In fact it’s clear from some comments in the decision that there is support for the idea that the First Amendment should apply to corporations.

  • Kevin L. Connors

    I recall an extended debate a friend and I had over the assessment of Robert Bork in this law review article by Glenn Reynolds.

    While neither of us could particularly defend Bork, he, being a rather bookish “first principles” libertarian, took the attitude that the courts should strictly follow the law as laid down by the legislature. My attitude was that the courts are a check against excesses of the legislature. And, as such, a certain degree of penumbral reasoning is in order, so long as it is weighted on the side of liberty.

    As with Roe, Lawrence should have been a matter for the individual States. But, when one or more States refuses to remove a shackle on liberty, the Federal government must step in.

  • Kit Taylor

    Vox Day has had a bit of a rant about this:


    It has been argued that Row vs Wade and the decision to ban prayer in public schools was the biggest shot in the arm the religious right. I wonder if this bottom banditry ruling will have a similar effect.

    Not to suggest that the religious right is inherently a bad thing. Its current form is prone to irrelevant hysteria and central authoritarianism, but “clean” Christianity is just the sort of social glue one needs to maintain a peaceful and healthy liberty-conscious society.

  • I stated on my blog that the sodomy law was bad law even among those who accept consensual crimes, having less deterrent value than Hans Blix.

    That being said, Lawrence is a travesty of due process. I argued that to apply the Fourteenth Amendment would require the Court to make a scientific ruling that is not within its vested powers:

    If the Court can establish that Texas criminalizes gay sex but not some other sex act that is no less dysfunctional or has no less negative impact on society, then the “equal protection” clause of the Fourteenth Amendment kicks in. But the Court is not authorized to make rulings on [hotly-contested claims regarding] sociology and sexology, which would be necessary to draw such parallels.

    I once had an idea for a joint venture for the more libertarian-minded gays and social conservatives. It would involve a fight against mandated sex ed and “tolerance” curricula that teaches only one side of the “hotly-contested claims regarding sociology and sexology,” and it would seek to abolish the remaining sodomy laws (a fair number of social conservatives think those laws are stupid) and to figure out how to extend benefits normally associated with marriage (such as hospital visitation and survivor benefits) to gays – and to nonmarried people in general – without changing the definition of marriage. Marriage itself, and gay adoption and gays in the military, would be ignored; the object would be to achieve progress for both sides on at least a handful of issues without compromise of core principles. Now that sodomy laws are off the table, the chances of such a coalition, not the likeliest of ventures to begin with, have diminished by several orders of magnitude.

  • Eamon Brennan


    How were the 3G rights “Public Property”?


  • Phil Bradley

    How were the 3G rights “Public Property”?

    The electromagnetic spectrum is an example of what economists often call ‘commons’ or ‘common property’. Things of economic value that nobody owns.

    There two ways to handle commons. One is to allow unrestricted access, which generally leads to what is called the ‘tradegy of the commons’ – over exploitation and diminishing returns because no individual has any interest in maximizing the return from the resource.

    Alternatively, the government appropriates the resource (makes it public property) and allows use under some arrangement.

    Most economists would agree that the second approach is a better way of maximizing returns to all parties, and an auction is the best way of selecting who will have use.

  • Eamon Brennan

    Thanks for the explanation


  • Andy Wood

    There two ways to handle commons.

    Another way is by homesteading – there is initially unrestricted access, but anyone who makes productive use of part of the commons aquires private property rights.

    From what little I’ve read about the subject, there doesn’t appear to be any satisfactory solution that avoids the problem of rent-seeking.

  • Phil,

    The electromagnetic spectrum is an example of what economists often call ‘commons’ or ‘common property’. Things of economic value that nobody owns.

    The EM spectrum does not have to be a commons. The tragedy of the commons was solved with private property rights. The same strategy can be applied to the EM spectrum.

  • Dave, Phil Bradley

    Risk certainly plays a part in capitalism but there’s risk and then there are beartraps. Seems to me that the companies who bought the airwaves licences from the government have been, in effect, punished for doing so.

  • Julian Morrison

    The 3G licensees were bidding for government-granted monopolies. Not merely did they get EM spectrum space, they got a ban on anyone using the other parts of the EM spectrum to compete. So now these corporate-welfare recipients find they’ve bought a pig in a poke, and they find their good buddy the state has screwed them over (think: the parable of the fox, the scorpion, and the river).

    I weep for their plight. Not. May their unpleasant demise serve as a warning to others.

  • Phil Bradley


    The EM spectrum does not have to be a commons. The tragedy of the commons was solved with private property rights. The same strategy can be applied to the EM spectrum.

    I agree, the tragedy of the commons was solved with private property rights where this occured. There are lots of situations where it hasn’t and we have an unholy mess, such as in fisheries.

    I see no difference in principle between outright selling of property rights in the EM spectrum and leasing them.


    I find it difficult to envisage how the EM spectrum could be homesteaded and were it possible, I envisage lifetime employment for an army of lawyers.

    And absent exclusive rights to a piece of the EM spectrum by someone, I guarantee nobodies 3G would work.

    David C

    Seems to me that the companies who bought the airwaves licences from the government have been, in effect, punished for doing so.

    I would consider they have been ‘punished’, if and only if, some clearly defined rules have been changed subsequent to their bids, i.e. the basis on which they made their risk assesment has been changed. I don’t know, but assume the regulatory framework was defined prior to the bid and therefore if they failed to take this factor into account that is wholely their fault, and the fact they lost a lot of money is an irrelevant objection to the actions of the regulator. The alternative is in effect corporate welfare.

  • Dave O'Neill

    Seems to me that the companies who bought the airwaves licences from the government have been, in effect, punished for doing so.

    Punished? How?

    That makes as much sense as the idea The Economist had months ago that it was wrong to force European operators to use WCDMA over CMDA 2K.

    They were big grown up multinationals who wanted to maintain their market position. In order to do so they took a business decision and ended up paying too much for the resources.

    Where’s the punishment. They have a decade or more to rollout services and make money off them. I am sure that it will prove to be a reasonable long term investment.