Practicing Law in Light of Rothbard

0:00It's also a great honor to be on this panel with Professor Hoppe. In line with the topic for this panel, I'll just briefly discuss how I ended up becoming a lawyer, because I guess it all goes back to Rothbard as well. We all had the privilege of studying under Rothbard, and I'd actually left Brooklyn Polytech to follow Rothbard out to Las Vegas. And I took his history of economic thought, I think, maybe about a half a dozen times. and I can tell you that each and every time it was different each semester anyway he he was very accessible and he always encouraged you to find your niche and to exploit that niche as best you could and he always encouraged people to think outside the box if you had the talent and inclination by all means go into a graduate program in economics and Rothbard was the first one to tell you that you know you better get used to you know ramen soup and you know canned tuna because that's

0:56That's what you've eaten for a long time, even after you get your PhD. But if you had other interests, he encouraged that as well. And so I was sitting in his office one day, and he was always very tolerant of my incredibly stupid questions. And I was asking him, what should I do for my senior thesis? I wanted to do a senior thesis. And we go back and forth and back and forth, and then finally he's like, you know, you have a second major, don't you? I said, yeah, I'm accounting, you know, economics, accounting. And he said, well, do something on accounting. So I ended up doing a senior thesis on activity-based costing and Austrian economics, but what remained with me from that is that you don't have to do the Ph.D. And trust me when I say that all of us in Las Vegas, when Professor Rothbard passed away, we were all confronted with, okay, we have to stop being groupies now, we have to go out and do something, right?

1:46And some of us went into Ph.D. programs like my good friend James Yoey, and others of us did not have that kind of courage, so we had to do something else. Now, so of course, one day I'm sitting at Arthur Anderson, grinding away on taxes, and it occurred to me like, what the heck am I doing here? What would Murray say about this? I mean, am I ever going to achieve glory filling in blanks? And so I decided, no, no, no, with the encouragement of Jeff Barr and other people, including Professor Hoppe, I decided to go to law school. All right, so this is how I ended up going to law school. Now, flash forward, first year of law school, by the way, if anybody does law school, I assure you that the first year is probably the best, because there they challenge you the most, they introduce you to a new way of thinking, and as Hans would say, it's essentially applied philosophy and logic, so that was probably one of the best years of my life,

2:35because I was what they call a gunner in law school, so basically I would be constantly engaging the professor, much to the relief of fellow students who then didn't have to to get called on for the cases. If I ever missed a class, people would go running in the hallways looking for me, like, where's Lee? Where's Lee? Anyway, so I graduate law school and I was fortunate enough to get a position as a law clerk to a newly created department in Clark County, which is the largest county in Las Vegas in its business court. And you can imagine as an Austrian, being a law clerk to the first business court judge in Las Vegas, it was absolutely the best possible job you could have. Because I got to see the law in action every single day, and we were also at the time probably one of the busiest courts in the country.

3:21So the sheer volume of stuff that came across my desk was absolutely amazing. And it was gratifying because, I mean, my small way, you know, by doing research and doing the bench memos and whatnot, you know, I was able to contribute to liberty in one way or the other. And my judge, thankfully, was a really smart guy, but more importantly, he had that, like Ronak would say, he had that quality where you could kind of look past everything and and say, all right, this is the good guy, this is the bad guy, let's figure out something that's gonna work. Let's flash forward a little bit more. So this judge decides to retire about two years later, and I asked him, and I don't think he would object to me saying this publicly, I supposed to say, you know, why would you leave the bench? You were doing such a great job, and you were very, you were extremely popular. And the answer was, well, yeah, you know, when I'm wearing the robe, I'm just making

4:09people do, you know, what I'm telling them to do. But when I'm wearing my suit as a private mediator or arbitrator, which is what he does now, you know, they're coming to me voluntarily. They are submitting in effect to me on a voluntary basis, based on my reputation and whatnot. And the significance difference between the robe and the suit kind of plugs into what Jeff Barr was talking about, and here I'll pick up on the intent stream that he'd started. You know, when you read, whether it be Rynock or Hoppe or Gödelhusman or even Kinsella or Block or anyone, there's a lot of talk about what would be the appropriate libertarian jurisprudence and system and whatnot. And, you know, the one question that doesn't get asked very often, and Jeff and I, we've been going back for a century too.

5:00Anyway, we've been going back and forth for probably about as long as we've known each other about all these topics, but this intense stuff has just been driving us nuts for years now and you know we've confronted Hoppe with that too on numerous occasions you know the central question is okay there's no doubt that as a libertarian you believe in negative rights right the right to exclude the right to preserve right this is me this is my body this is my property leave it alone no touchy that's fine and we all know that on the other side they tend to be more positive rights oh I want you know I want that stuff and you know I want your body or whatever the story is in slavery So, what do you draw from that in terms of libertarian jurisprudence? Well, the assertion of a negative right can never be wrong, okay? In other words, if you take my stuff and I take it back, I cannot possibly do wrong, per se,

5:51as long as I'm trying to get back what was taken from me. So, conceptually, that's not a problem. Where it gets difficult, like Jeff was saying, is, you know, what about punishment? And I can assure you, sitting on the bench, not sitting on the bench, I mean, I sat next to the guy, I didn't sit on the bench, but, you know, You know, I've sat through tons of trials, I've done a lot of trials myself, I've done a boatload of jury trials and whatnot, and you get to brief the juror, you know, debrief the jurors afterwards, and in the case of being a law clerk, talk to the judge afterwards, and you know, they'll tell you, you know, here I am, I'm sitting in this jury box, and I'm supposed to decide, you know, how do I punish this guy? And what's the basis for the punishment? And in the end, you know what it boils down to? You know, they pull it out of thin air.

6:29Well, you know, that's hardly the basis for, you know, proper jurisprudence. Going back to the theoretical question, so here you have no question that a negative right, the assertion of a negative right, is always okay. Or to put it back to Plato and Socrates and the question of can you do right by doing wrong, and the answer to that of course always has to be no, you cannot do right by doing wrong. So where from did you derive the right for the guy, the hypothetical guy who stole my wallet, to impose what's called punishment, something above and beyond restitution? And the answer to that has to be, you can't. There is no justification. I do not think anybody can come up with a justification. But everybody says, well, what do we do with the bad guys, the criminals? And, by the way, I'll digress briefly. The first day in court, I mean, the first day as a law clerk, I'm like, you know, it kind of smells bad here.

7:19And the secretary starts laughing. She's like, yeah, yeah, we're doing the criminal arraignments this morning. And, you know, all these guys, I mean, literally just chain gangs. Everybody's chained together in the hallways. And then they put them into groups of chains and they shower once a week at the detention center. but anyway but it was relatively peaceful and the reason was relatively peaceful is most of these guys once they get caught and they get dropped into the chains they know they belong there more or less and they voluntarily ascent to it that you very every once in a while you get a guy who's like I shouldn't be here I didn't do it you know a little bit of tasering later he's more relaxed right but so the question is can you mete out punishment and the answer is Yeah, you can even out-punish me, and I'm a parent, you know, I punish my kids routinely, it's rather fun, but it's the voluntary submission that is key.

8:08And if you do not have voluntary submission, you can't do it. And then I'm just going to close out by saying, you know, people say, well, if you don't have voluntary submission and the guy's a bad guy, what do you do? Well, the negative rights implies the answer. The answer is exclusion. You don't deal with the guy, and you persuade your neighbors and your friends and everybody else in the community also not to deal with the guy. And in most parts of the world, outside of our sophisticated first world standard, if you leave, if you exclude a guy, chances are he's going to die eventually. One way or the other, it's exposure or the wolves or, you know, rhinos or whatever. And I go back to the ecclesiastical courts, you know, what was the ultimate punishment the church could mete out to you? Exclusion. You were excommunicated, right? Jeff and I, hopefully, by next year, will have finally worked out a paper on this topic.

8:53on this topic. And let me just close out to say that I did not go to law school with great enthusiasm at first. I was kind of worried about it. I thought I might betraying my philosophy, my libertarianism and whatnot. And I have to say, advocating on behalf of clients, having had a chance, the great privilege to work with a great judge, to meet out what's quote unquote justice, I can really say that if you have the mind for it and the spirit for it and the patience for it, a career in law is truly an outstanding choice.