26 April 2016

Research Papers, Spring 2016


In 2015, the United States took three significant steps to developing a cyber deterrence policy. In April, the Department of Defense released the DoD Cyber Strategy. At the same time, President Obama issued an Executive Order authorizing sanctions against cyber actors. And in December, the White House released its long-anticipated cyber deterrence policy. Specifically, the White House policy is built on a two-element strategy of deterrence by denial; and deterrence through cost imposition. Unfortunately, the White House policy does little to address or answer the thorny questions raised by the reality of today's cybersecurity environment. First, the policy relies on traditional notions of deterrence that may have been effective in prior nuclear and non-nuclear contexts, but it ill-suited to cybersecurity. Second, the policy focuses primarily on defensive strategies and does not confront the reality and likelihood of offensive counter-operations. Third, insomuch as deterrence is a public relations communications strategy and psychological game backed by capability and credibility, the United States has a poor track record of deterring cyber-attacks.

To understand this problem, my research begins with a brief historical review of the development of deterrence theory, in particular as it relates to conventional war and the Cold War. Next, I turn to the development of cyber deterrence as a strategy of the American government, and in particular, recent efforts by the United States to define a cyber deterrence policy. In that light, I examine the White House cyber deterrence policy from a historical and critical perspective, and especially given the distinct characteristics that distinguish cyber deterrence from traditional deterrence. Finally, this paper will discuss whether deterrence is even a reasonable strategy in the cyber environment.

Ultimately, this paper concludes that the current synthesis of cyber deterrence is unworkable and ought to be scrapped. As a result, cyber deterrence as an overall public relations strategy should be de-emphasized as part of an aggressive cyberspace strategy that acknowledges both defensive and offensive capabilities. To be sure, sub-components of the current policy, like strengthening networks to reducing the incentive to conduct cyber-attacks, are laudable goals that the United States should continue to pursue. However, relying on deterrence by denial as a publicly communicated strategy to discourage attacks has failed, and continues to fail with each new attack. Instead, American efforts should focus on improving attribution, not as a deterrent measure, but to allow policy makers the ability to respond to attacks with offensive cyber capabilities.


Former Chief Justice William Rehnquist’s book "All the Laws But One" is an account of the history of civil liberties during times of war and examines cases where presidents have suspended the law in the name of national security. Since the Constitution’s Suspension Clause only applies “when in cases of rebellion or invasion,” Rehnquist’s work discusses wartime powers, focusing on cases involving the Civil War, World War I, and World War II. On the other hand, events of the last century, including threats of severe economic collapse, natural disasters such as earthquakes, destructive hurricanes, and tsunamis, outbreaks of infectious diseases or other public health emergencies, suggest that governments may need to exert wartime-style powers to manage these potential disasters. Thus, state and federal governments may be confronted with the need to curtail civil liberties through confiscation of property, arbitrary detentions, mandatory evacuations, mandatory vaccinations, or other forced measures. This paper seeks to examine the constitutionality of such measures in the absence of direct rebellion or invasion. Through a review of relevant history, including Supreme Court and other judicial opinions, executive actions, and policy decisions, this paper ultimately concludes that weighty precedents already exist for abuse of civil liberties outside of wartime. Furthermore, the state and federal governments would not likely hesitate to use—and abuse—these precedents in an attempt to exert control in the midst of such emergency situations. Ultimately, these abuses have made a mockery of the rule of law. We should not be surprised when it happens again.


The constitutional basis for federal land ownership has not been seriously questioned in modern times. As early as 1840, the Supreme Court declared that Congress’ constitutional power over public lands was without limitation. The Court affirmed the federal government’s police power over public lands repeatedly, and as recently as 1976.

This paper does not dispute that classic property clause doctrine is at odds with the contemporary jurisprudence regarding federal land ownership and management as adjudicated by the courts. Rather, this research focuses on exploring the original understanding of federal land ownership as seen through three parallel tracks: first, political doctrines, including dual federalism, compact theory, and nullification; second, federal land principles and policies, including acquisition and disposition; and third, early Supreme Court decisions. Moreover, this paper seeks to examine whether classic property clause doctrine and other constitutional origins of power regarding federal lands were consistent with historical events and developments that occurred along these tracks from the founding through the Civil War. 

This paper concludes that political doctrines that supported the classic property doctrine were live at least until the early 20th century. These doctrines were seriously undermined by the Civil War, Reconstruction amendments, and finally by the New Deal. While federalism saw a minor revival in the 1990s by the Supreme Court, these political doctrines are now largely regarded as antebellum relics. Furthermore, federal land acquisition and disposition policies generally supported the classic property theory, at least until Withdrawal and Reservation at the beginning of the 20th century. Finally, Supreme Court decisions provided support for both the classic and police power theories. However, the full-fledged police power theory embraced in Kleppe was not fully articulated until the 20th century.

07 April 2016

Is money the root of all evil?

This is one of those Facebook memes that you read, smile or laugh at, click Like, and move on. It's meant to demonstrate, by referencing something in the Bible, that churches are hypocritical by for asking for money. It may reinforce what you already believe. There's a problem with it, though. The actual verse says: "For the love of money is a root of all kinds of evil. Some people, eager for money, have wandered from the faith and pierced themselves with many griefs." 1 Timothy 6:10. This is part of a larger letter from the Apostle Paul to Timothy, and here he's talking about obsession for money, not money itself. Paul is not demonizing money. This is an important distinction, and leaving these words out of the meme makes a big difference. But maybe that's the point. Whether you believe in the Bible or not is not important here. Instead, it's about the lack of nuance; the loss of understanding that comes with 140-character limits or trying to make a statement with a picture. I'd like to think that if we want to make a point, we should find a more accurate way to do it. I know, too much to ask. I can hope, right?

30 March 2016

"This goal of social justice is so important that if it takes a KGB to make it work, so be it"

At the CATO Institute's Daily Podcast for March 28, 2016, Political Philosophy for Voters Who Don’t Want It, this remarkable quote from guest Jason Brennan, recounting a story from a graduate class he attended.

At 4:52 of the podcast:
One of the law students said, "This goal of social justice is so important that if it takes a KGB to make it work, so be it--we just need to make sure the right people run the KGB."

29 March 2016

An open letter to Hillary Clinton supporters

The Internet is filled with "advice" via open letters, like this, primarily to Trump voters, explaining why they are basically batshit crazy for supporting Trump. People love to link to these letters on Facebook and other social media, so that, instead of directly telling your friends that they're batshit crazy, you can use the advice letter as a proxy. You're sure to get lots of "likes" in your echo chamber as you pat each other on the back explaining how you "just don't understand how someone could vote for Trump."

I have similar thoughts about Hillary Clinton. In my opinion, she's a terrible candidate. She served in the Senate for eight years without as much as a single notable accomplishment. Can you name one? I can't. Her subsequent tenure as Secretary of State was marred by the Benghazi fiasco and, yes, those emails. Maybe you don't care about the emails, because "everyone did it" or some other lame excuse. The reality is that anyone who has held a security clearance and has a conscience knows what she did was wrong. They know anyone else would have, at a minimum, lost their job for what she did--and potentially much more. She has a serious problem with telling the truth and rails against hedge fund managers while accepting huge speaking fees from Goldman Sachs. I could go on, but there really is no need for overkill.

These reasons are more than enough for me to categorically state that I could not fathom a scenario in which I could ever consider voting for Hillary Clinton. It's off the table. It's a non-starter. I bet you have a similar laundry list of reasons why you won't vote for Donald Trump, or Ted Cruz, or maybe anyone with an R behind their name. I'm not particularly thrilled with Trump, and haven't committed my vote one way or another should he win the nomination.

The difference between me and many of the writers of these "advice" letters is that I don't think you're batshit crazy for voting for Hillary Clinton. I respect that you and I have differences of opinion, sometimes major differences in opinion, based on our values, circumstances, and what we consider important (or not).

This post isn't about the policy differences between Donald Trump and Hillary Clinton. It's not about 35% tariffs, or what someone did or said, or Benghazi, or those emails. It's about you and me realizing that we can have honest disagreements about the way forward for our country while maintaining civility and avoiding demonizing our opponents. It's about opening up our echo chambers and re-establishing dialogue so that we can actually accomplish something of value, no matter who wins the election. I know many of you agree with me. I know we're not all as polarizing as we sometimes come across.

If we can meet each other on an even playing field, respecting one another's views without disparaging them, maybe we can get something done. I think that's a good idea. Don't you?

18 March 2016

"Books You're Not Supposed to Read" Bibliography

A complete list of the "Books You're Not Supposed to Read" from Robert P. Murphy's The Politically Incorrect Guide to Capitalism. You can also find this list on Goodreads.

Cross-posted on Liberty Leanings.

Planned Chaos by Ludwig von Mises; Irvington-on-Hudson, NY: Foundation for Economic Education, 1947.

How the West Grew Rich by Nathan Rosenberg; New York: Basic Books, 1986.

Capitalism and the Historians by Friedrich Hayek; Chicago: University of Chicago Press, 1954.
by Walter Block, Milton Friedman, Friedrich A. Von Hayek, Basil Kalymon, Edgar O. Olsen, eds.; Vancouver: Fraser Institute, 1981.

The Age of Oil: The Mythology, History, and Future of the World’s Most Controversial Resource by Leonardo Maugeri; Westport, CT: Praeger, 2006.

Cornerstone of Liberty: Property Rights in 21st-Century America by Timothy Sandefur; Washington, DC: Cato Institute, 2006.

Economics in One Lesson by Henry Hazlitt; New York: Harper & Brothers, 1946.

The Strike Threat System by William Hutt; New York: Arlington House, 1973.

Out of Work: Unemployment and Government in Twentieth-Century America by Richard Vedder and Lowell Gallaway; New York: New York University Press, 1997.

Freedom in the Workplace: The Untold Story of Merit Shop Construction’s Crusade against 
Compulsory Trade Unionism by Samuel Cook; Washington, DC: Regnery, 2005.

The State against Blacks by Walter Williams; New York: McGraw-Hill, 1984.

Capitalism: The Cure for Racism by George Reisman; The Jefferson School of Philosophy, Economics & Psychology, 1992.

Reflections of an Affirmative Action Baby by Stephen L. Carter; New York: Basic Books, 1991.

Race and Culture: A World View by Thomas Sowell; New York: Basic Books, 1994.

The Real Lincoln: A New Look at Abraham Lincoln, His Agenda, and an Unnecessary War by Thomas DiLorenzo; Roseville, CA: Prima, 2002.

Emancipating Slaves, Enslaving Free Men by Jeffrey Rogers Hummel; Peru, IL: Open Court, 1996.

The Ultimate Resource by Julian Simon; Princeton, NJ: Princeton University Press, 1983.

Energy: The Master Resource by Robert L. Bradley, Jr. and Richard W. Fulmer; Dubuque, IA: Kendall/Hunt Publishing Company, 2004.

Environmental Overkill: Whatever Happened to Common Sense? by Dixy Lee Ray; Washington, DC: Regnery, 1993.

Economics and the Environment: A Reconciliation, ed. Walter Block; Vancouver: Fraser Institute, 1990.

Trashing the Planet: How Science Can Help Us Deal with Acid Rain, Depletion of the Ozone, and 

Nuclear Waste (Among Other Things) by Dixy Lee Ray; New York: Perennial, 1992.

Free to Choose: A Personal Statement by Milton and Rose Friedman; New York: Harcourt Brace Jovanovich, 1980.

The Death and Life of Great American Cities by Jane Jacobs; New York: Random House, 1961.

Money Mischief: Episodes in Monetary History by Milton Friedman; New York: Harcourt Brace Jovanovich, 1992.

What Has Government Done to Our Money? by Murray Rothbard; Auburn, AL: Ludwig von Mises Institute, 2005.

The Rationale of Central Banking and the Free Banking Alternative by Vera Smith; New York: Liberty Press, 1990.

America’s Great Depression by Murray Rothbard; Auburn, AL: Ludwig von Mises Institute, 2000.
FDR’s Folly: How Roosevelt and His New Deal Prolonged the Great Depression by Jim Powell; New York: Crown Forum, 2003.

The Roosevelt Myth by John T. Flynn; San Francisco: Fox & Wilkes, 1998.

Economics on Trial: Lies, Myths, and Realites by Mark Skousen; Scarborough, Ontario: Irwin, 1990.

What Do You Care What Other People Think? by Richard Feynman; New York: W. W. Norton, 1988.

Bureaucracy by Ludwig von Mises; Grove City, PA: Libertarian Press, 1994.

Street Smart: Competition, Entrepreneur-ship, and the Future of Roads, ed. Gabriel Roth; New Brunswick, NJ: Transaction, 2006.

The Myth of the Robber Barons by Burton Folsom; Washington, DC: Young America’s Foundation, 2003.

Antitrust Policy: The Case for Repeal by Dominick Armentano; Washington, DC: Cato Institute, 1986.

Economic Sophisms by Frédéric Bastiat.

The Wealth of Nations by Adam Smith.

Free Trade Under Fire by Douglas A. Irwin; Princeton, NJ: Princeton University Press, 2002.

Equality, the Third World, and Economic Delusion by P.T. Bauer; Cambridge, MA: Harvard University Press, 1983.

In Defense of Global Capitalism by Johan Norberg; Washington, DC: Cato Institute, 2003.

Creative Destruction: How Globalization Is Changing the World’s Cultures by Tyler Cowen; Princeton, NJ: Princeton University Press, 2002.

In Defense of Globalization by Jagdish Bhagwati; New York: Oxford, 2005.

Why Globalization Works by Martin Wolf; New Haven: Yale University Press, 2005.


The Power of Economic Thinking by Mark Skousen; Washington, DC: BNA Books, 2002.

17 March 2016

Research in progress, Spring 2016

Originalism and the Constitutionality of Federal Land Management

The federal government derives its power over federal lands from three clauses in the Constitution: the Article I Enclave Clause; the Article IV New States Clause; and the Article IV Property Clause. Additionally, the Article II Treaty Clause has been used to justify the acquisition of new lands. This research focuses on exploring the original understanding of federal land ownership as seen through colonial land policies, debates during the drafting and ratification of the Constitution, 19th-century American land acquisition, and early Supreme Court decisions. Moreover, this paper seeks to examine whether the constitutional origins of power regarding federal lands are consistent with these historical events and developments. This paper concludes that the political doctrines in support of classic and protective property theories were live at least until the mid-1800s. However, these doctrines were undermined by the Civil War, the Reconstruction amendments, and the New Deal. In addition, federal land policies regarding the acquisition and disposition of land supported the protective property theory, until the withdrawal and reservation of lands began at the onset of the 20th century. A parallel development in the courts, beginning in 1840, provided support for both the protective and police power theories. And by the early 20th century, the police power theory was fully embraced. Ultimately, the historical evidence is mixed. Nevertheless, this evidence does demonstrate that the prescribed role for the federal government in regards to its constitutional authority over federal lands was not clear for a considerable time after the nation's founding. 

All the Laws but One: Civil Liberties in National Emergencies

Former Chief Justice William Rehnquist’s book All the Laws but One is an account of the history of civil liberties during wartime and examines cases where presidents have suspended the law in the name of national security.  Since the Constitution’s Suspension Clause only applies “when in cases of rebellion or invasion,”  Rehnquist’s work discusses wartime powers, primarily focusing on cases involving the Civil War and World War II. On the other hand, events of the last few decades, including destructive hurricanes and tsunamis, outbreaks of infectious diseases, or threats of severe economic collapse, suggest that governments may need to exert wartime-style powers to manage these potential disasters. Thus, state and federal governments may be confronted with the need to curtail civil liberties through mandatory evacuations, mandatory vaccinations, arbitrary detentions, or other forced measures. This paper seeks to examine the constitutionality of such measures in the absence of direct rebellion or invasion. Through a review of relevant history, including Supreme Court and other judicial opinions, executive actions, and policy decisions, this paper ultimately concludes that weighty precedents already exist for abuse of civil liberties outside of wartime. Furthermore, the state and federal governments would not likely hesitate to use—and abuse—these precedents in an attempt to exert control in the midst of such emergency situations. Ultimately, these potential abuses threaten to make a mockery of the rule of law.

Is Cyber Deterrence an Effective Strategy?

In December 2015, the White House released its own long-anticipated cyber deterrence policy. Specifically, the White House policy is built on a two-element strategy of deterrence by denial; and deterrence through cost imposition. Unfortunately, the White House policy does little to address or answer the thorny legal questions raised by the reality of today's cybersecurity environment. First, the policy relies on traditional notions of deterrence that may have been effective in prior nuclear and non-nuclear contexts. Second, the policy focuses primarily on defensive strategies and does not confront the reality and likelihood of offensive counter-operations. This paper will examine the White House cyber deterrence policy from a historical and critical perspective, as well as address the impacts on international law. Finally, this paper will discuss whether deterrence is even a reasonable strategy in the cyber environment.