So where is your idolatry of the Supreme Court now, o ye Court Party?

Surely even the idolaters of the Supreme Court of Canada must be having some doubts this morning as to its  inerrancy. It was a classic case of “the way we make decisions is more important than the decisions we make.”

Not merely has the Supreme Court defended interprovincial trade barriers, with all their damaging effects on national wealth generation, and allowed them to be established on the flimsiest of grounds, but it has done so on the basis that the trial judge was a naughty boy for stepping out of judicial precedent to rule in favour of Comeau’s beer buying in the first place.

As the case summary reads:

Common law courts are bound by authoritative precedent. Subject to extraordinary exceptions, a lower court must apply the decisions of higher courts to the facts before it. A legal precedent may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate. Not only is the exception narrow, it is not a general invitation to reconsider binding authority on the basis of any type of evidence. For a binding precedent from a higher court to be cast aside, the new evidence must fundamentally shift how jurists understand the legal question at issue.

                    This high threshold was not met in this case. The trial judge relied on evidence presented by an historian whom he accepted as an expert. The trial judge accepted the expert’s description of the drafters’ motivations for including s. 121  in the Constitution Act, 1867 , and the expert’s opinion that those motivations drive how s. 121  is to be interpreted. Neither class of evidence constitutes evolving legislative and social facts or a comparable fundamental shift; the evidence is simply a description of historical information and one expert’s assessment of that information. The trial judge’s reliance on the expert’s opinion of the correct interpretation of s. 121  was erroneous. To depart from precedent on the basis of such opinion evidence is to cede the judge’s primary task to an expert. And to rely on such evidence to rebut stare decisis is to substitute one expert’s opinion on domestic law for that expressed by appellate courts in binding judgments. This would introduce the very instability in the law that the principle of stare decisis aims to avoid.


Thus for the Supremes the case turns on the use of a historian’s evidence of what the trade provisions of the constitution mean – though at the same time for the past decades the Court seems to bend over backward to listen to the tribal lore of groups of a few hundred Indians to block economic development. “To cede the judge’s primary task to an expert” is the fault which the Supreme Court declares the basis of validating the restrictive trade practices of the provinces that block economic development.

In short, the economic stultification of Canada is defended by a rule that arises internally from the legal profession’s forms of decision making.

So the issue does not turn on an appreciation of the role that provinces play in the blockage of economic development. The Comeau case does not turn on the issue at hand, which is intrerprovincial trade barriers, but on the Court’s concern that nothing be upset by lower court decisions, but hey!, when the Supreme Court invents law out of whole cloth, that is their right and duty.


Look at the test the Supreme Court sets out for interprovincial barriers.

….Restriction of cross‑border trade must be the primary purpose of the law, thereby excluding laws enacted for other purposes, such as laws that form rational parts of broader legislative schemes with purposes unrelated to impeding interprovincial trade.

The restriction must only form a rational part of “legislative schemes with purposes unrelated to impeding interprovicnial trade”.

  • This is a bad decision on its merits: it establishes that the flimsiest rationale will suffice to colour a protective scheme that interferes with trade within Canada;
  • It is economically illiterate: it fails to consider the multi-billion dollar question at the core of the issue: the economic  consequences for the Canadian economic union of the law and the courts interfering with economic development.

If ever there was a case of the Court seeing the mote in the other guy’s eye and ignoring the beam in its own, it was the Comeau decision. Let us inhibit economic development for stare decisis. Economic barriers 9- trade freedom 0. How’s that Supreme Court working for ya?


Facebook, free speech and control



Matt Taibbi

One of the most important take-aways from Tim Wu’s The Master Switch is that censorship is facilitated by control of the market. Speech control follows ownership concentration. He points out how the Catholic Legion of Decency gained control of movies in the 1930s because of the vertical integration between movie theatre chains and production studios. In Wu’s phrase, a Catholic priest was controlling movies produced by Jews for a majority Protestant nation. The Legion of Decency could attach itself successfully to the movie business because the control of it was already secured by the owners of the studios.

“It is industrial structure that determines the limits of free speech.”

“The trick is that a concentrated industry need not be censorial by nature in order for its structure to produce a chilling effect on the freedom of expression….The problem is that a “speech industry” – as we might term any information industry — once centralized, becomes an easy target for external independent actors with strong reasons of their own for limiting speech. And these reasons may have nothing to do with the industry per se.” (The Master Switch at pp 121-123)

This brings us to Matt Taibbi’s article in Rolling Stone on Facebook: Can we be saved from the Social Media Giant?

The article needs to be seen as a useful changing of the subject, from Russia and Trump, to Trump and Facebook, to Facebook itself. It also signals a change in the description of the Internet, from an information cornucopia to an “informational landscape… controlled more or less entirely by a pair of advanced spying operations, Google and Facebook – and Facebook especially”.

Taibbi says that, “in many ways the [current] Facebook controversy is a canard”, meaning that the issue is media control, pure and simple, not Trump, and not Russian meddling in the 2016 presidential election.

Facbook has 2.1 billion customers today and grows by 50 to 100 million users per quarter, with revenues of $40.7 billion in 2017.

After a great deal of sanctimonious drivel from Taibbi about how everyone is becoming imprisoned in their own information ghettos – when were we not?- he gets to the real point. The “fake news” issue  is only the outer manifestation of the targetting of viewers with information, which is  a wholly legal advertizing technique. Moreover, it is “what the product was designed for.”

“Simply by growing so large that his firm ended up standing between media publishers and media consumers, constantly creating rules about who saw what, Zuckerberg and Facebook have created a thing America has never had before: an entrenched de facto media regulator”.

Obviously this is not fully accurate: see the discussion above about movie censorship, which lasted from the 1930s  until the 1960s. But Taibbi is accurate when he says that Facebook and Google can sell eyeballs to advertizers with exquisite accuracy, with the result that the two of them garner 63.1% of digital advertizing revenues

The complaint of publishers is that 1) they can never learn how the Facebook algorithm works, which determines who sees what, and 2) they receive frequently changing information on how to optimize content to reach maximum attention.

Taibbi indulges in a lot of ‘de haut en bas‘ – condescending –  talk about how the press used to work better in the days of printing presses, and how the soiled masses insist on getting their own reality manifested in their choices of media. He writes from the point of view of a Democrat contemplating the frightfulness of the lower orders insisting on their right to receive the information they want, which is part of the reason why Trump now sits in the White House.

Nevertheless, there is justice in his conclusion that “a functioning free press just can’t co-exist with an unaccountable private regulator”.

His argument ends up resembling the argument about net neutrality, which applies to underlying physical carriers of signals – or not. In net neutrality regimes, such as Canada’s, there exists a regulator that determines whether a behaviour by a carrier amounts to unjust discrimination against a particular use or a group of users. “Neutrality” is not an absolute but a sliding scale of offences and permitted actions. Most important, there is a referee.

In the case of Facebook and Google, we are not dealing with a carrier, but with a software platform, and no law governs their behaviour towards publishers seeking to reach audiences through them. No one has assimilated software platforms to common carriers, yet. No one has to my knowledge proposed common carrier obligations for Facebook and Google. Moreover the US Federal Communications Commission has just removed net neutrality obligations from the carriers. Verizon and Comcast and the like can now squeeze content and viewers as they think best.

It is evident that the forces assembling against Google and Facebook will be coming from the political Left, and not only from conservatives concerned that these companies are running political cults.

My concern remains that, if the technical structure permits it, if there are points of control, these will be used to limit free discussion.





You can blame its decline on the decline of the automobile industry: once the fifth largest city in America, now the 11th largest, $18 billion in debt, or you can blame it on the Big Three automakers, Democratic government, buying off the UAW, black misrule and white flight, all or any of them. Here are three dots which I invite you to connect.

Cronyism and corruption? Or the third world status of the people who still inhabit it and who voted in the governments that pillaged the cities and the taxpayers? All of the above? Who voted the crooks in? Who were the crooks? The UAW? the black city government?

I invite you watch The Wire. It is an artistic masterpiece, and it details what happens when a city – Baltimore in this case – becomes 64% black. The bodies of black male drug dealers pile up, and no one cares except a few cops, many of them black, some of them white.

The Wire shows that not one city institution: city hall, the cops, or the school system is working effectively. Without saying a word, the Wire addresses what decadence and decline look like. The irony lies  in watching all the Baltimore politicians and cops in magnificent government buildings, belle époque  creations of the 19th century, when whites dominated, and now their successors wander through halls like barbarians of 400 AD wandering through the Roman forum. There will never be enough wealth in Baltimore to rebuild them.





Everything was hellish before 1800

The biggest fact in the world that needs to be explained is how and why we have become so rich, compared to how the human race had lived for ever  before the last few centuries.


This graph portrays the economic progress in the last two hundred years as measured by life expectancy, GDP per capita, percentage not living in extreme poverty, energy consumption, war-making capacity, and percentage of people living in democracy.

These are the facts. Why, then, when things are getting better so fast, are we beset by concerns for global warming, climate catastrophes, income disparities, and every form of oppression, including completely imaginary ones? Why the atmosphere of general cultural pessimism?

The question that Deirdre McCloskey asked herself in her book Bourgeois Dignity was why the economics profession was unable to answer this question satisfactorily: why have things gotten better? her answer was that there occurred in western Europe and change in the deal: innovation came to be allowed, indeed encouraged, and you got to keep the economic value of your innovation. Hence the change int he human condition proceeded from a change in ideas. Not from trade, especially not from slavery, not from exploration, not from ripping off the ecology, but from allowing innovation.

You do not have to accept this explanation, but if you read McCloskey you will have difficulty in accepting another.


The sins of the economics profession

Deirdre McCloskey is the author of several important books, she is an economist of renown, and she is a proud defender of the bourgeois deal: you get to keep what you make and you are allowed, indeed encouraged, to innovate. She locates several inadequacies in the mindset of economists, in a little pamphlet available off the Intertubes. I recommend it, especially if you are economist. She describes her fellow practitioners in the following terms.

  • Economists, for example, are Institutionally Ignorant,which is to say that they don’t have much curiosity
    about the world they are trying to explain. For example—this will surprise you—academic economists, especially since Samuelsonianism took over, have come to think it is simply irrelevant, a waste of time, to do actual field work in the businesses they talk about.
  • Outsiders would likewise be amazed at the Historical Ignorance of the economist. They think that the scientific evidence about economies before the past few years would surely figure in an economist’s data. It doesn’t…. People call themselves economists who have never read a page of Adam Smith or Karl Marx or John Maynard Keynes. It would be like being an anthropologist who had never heard of Malinowski or an evolutionary biologist who had never heard of Darwin.


  • The more general Cultural Barbarism of economists is well illustrated by their Philosophical Naïveté. Few economists read outside economics. It is unnerving to gaze about the library of a distinguished professor of economics and find no books at all except on applied math and statistics: these are the worldly philosophers who run our nation? Uh-oh. So naturally the professors of economics have childish ideas about, say, epistemology….

    The economists know nothing of the main finding of linguistics, philosophy, and literary criticism in the twentieth century, namely, that we have ways of world making, language games, senses of an ending that cannot be reduced to formal grammars, even in principle (economists have themselves stumbled on analogous findings in their own highly non-humanistic work,such as the finding of “rational expectations” or “the cheap talk paradox”).
  • And economists are tempted to arrogance in social engineering….
  •  And I have to mention finally the very widespread opinion that economists are prone to the sin of pride: personal arrogance. Some names that come up in this connection are: Paul Krugman (gold medal in this category), Robert Lucas (Nobel 1995), and Deirdre McCloskey (bronze). Lots of intellectual professions are arrogant. Physicists, for example, are
    contemptuous of chemists, whom they regard as imperfect versions of themselves. In fact physicists are  contemptuous of most people. But when a physicist at North Carolina named Robert Palmer went in 1989 to a conference in which physicists and economists were to educate each other he remarked, “I used to think that physicists were the most arrogant people in the world. The economists were, if anything, more arrogant.” I’m afraid he’s right on this score. Though of course in general he’s a dope: a mere physicist.

McCloskey’s deepest argument with her profession is that it neither theorizes nor observes, though it believes it is doing both. The arguments are longer than are suitable for this space, and I commend you to read The Secret Sins of Economics in its brief entirety. In essence she says it is not enough to demonstrate whether some thing has some effect, you have to ask how much is the effect. How much? is the critical question, not whether? Most economists avoid interrogating the real world in all its messiness to find out. Her conclusions are:


  • Until economics stops believing, contrary to its own principles, that an intellectual free lunch is to be gotten from
    qualitative theorems [whether questions] and statistical significance it will be stuck on the ground waiting at the cargo-cult airport, at any rate in its high-end activities uninterested in (Really) How Much. High-end theoretical and econometric papers will be published. Careers will be made, thank you very much. Many outstanding fellows (and no women) will get chairs at Princeton and Chicago. But our understanding of the economic world will continue to be crippled by the spreading, ramifying, hideous sins.
    Woe, woe is me.
    Oy vey ist mir.
    Pity the poor economists. The sins of economics come from pride in formalization, the making of great machines and


A sample of McCloskey is found at Youtube:


Monopoly power is always the same

Some people are starting to notice the power of Google and other web giants to suppress points of view. The firing of their own engineer James Damore for pointing out the biological basis for women and men differing in their desires to be engineers was, it seems, only the beginning.

Now the repression appears to have widened. The Open Markets section of the New America Foundation concerns itself with  monopolies and abuses of dominant position: all very econometric geeky stuff. The head of Open Markets, Barry Lynn, issued a notice congratulating the European Commission for fining Google for economic crimes related to dominant market position. He was removed from the New America Foundation. It seems to have been the result of Google’s Eric Schmidt quietly expressing displeasure, as corporate titans are wont to do when underlings make trouble.

Matt Stoller, who belongs to the Open Markets group, wrote the following in the Huffington Post, US edition.

In response, Google had our group kicked out of our parent think tank, New America. Ken Vogel at the New York Times did the story on the specifics of how this happened. The combination, of the misbehavior in the search market and the attempt to suppress research into how Google operates, shows that the actual issue at hand is one of political power.

This moment matters. It matters because it shows that monopoly power, and Google itself, is a threat to the free flow of ideas upon which our democracy depends. It matters because it proves that if we do not stand up to monopolists, they will keep our public institutions quiet about their growing power. And it matters most of all because it shows that we can reclaim our democracy if we try.

At Open Markets, we obviously do not like the attempt at undermining our work, but on another level, we see this as a backhanded compliment by Google on how effective our work has actually been. After all, if we are worth silencing, then our words and research carries power.

Monopoly is a political problem. It is time to stand up for our rights. It is time to say, enough. And as we’ve seen, when we do tell the truth, the monopolists cannot abide.

Google’s tactics will not work. Our organization, Open Markets, is going independent. And we are launching a campaign called Citizens Against Monopoly, where we will ask Google’s CEO to stop this manipulation of our public commons. Join us.

I urge readers to stay on top of this story. Freedom is threatened as much by private economic power as by state action, frequently because private market power is exercized without recourse to standards of fairness that states are bound to. The portrait of Google  that emerged from the Damore story revealed a place dominated by leftist groupthink. The biological was an excluded category of truth; reference to it as an explanatory cause for why women did not participate in the ranks of elite engineers was the sin of “stereotyping” and a firing offence.

This kind of mental phase-locking would have no importance if Google made physical objects. It matters supremely when the company aspires to record, catalog and make findable all human knowledge. Because the same power to make findable can make things unfindable. The power to control the past is the power to control the future.


Speaking of which, here is an example:

With monopoly or market power, you can now be made to disappear.

Here s the stated policy which the site offended. How much would Barrelstrength offend, if it came to our Internet overlord’s attention?

“As stated in our program policies, Google ads may not be placed on pages that contain content that: Threatens or advocates harm on oneself or others; Harasses, intimidates or bullies an individual or group of individuals; Incites hatred against, promotes discrimination of, or disparages an individual or group on the basis of their race or ethnic origin, religion, disability, age, nationality, veteran status, sexual orientation, gender, gender identity, or other characteristic that is associated with systemic discrimination or marginalization,” the email stated.

You can drive an armoured division through that one.


Back in the real world … the truth about income inequality

In the current leftist parallel universe, the media elites try to figure out if a guy, whose favourite daughter is an Orthodox Jew,  is a closet Nazi, and Blacks, who were never slaves, are fighting Whites who were never Nazis, over Confederate statues erected by Democrats whilst blaming Trump. Meanwhile in the real world, this was the state of income equality in 2014, when Obama held the reins. It is doubtful much has changed since then.

With serious issues like income inequality on the front burner, it is strange to see that the Left is instead focused on trivialities like this, Man stabbed after haircut gets him mistaken for a neo-Nazi, but as CNN stated, before hastily deleting the headline, “Activists seek peace through violence