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Charles Murray Wants You To Hire Some Samurai
Sharp-eyed readers will note that Gorobei is out of frame in this shot.
Akira Kurosawa’s classic Seven Samurai takes place in medieval Japan, during a period of prolonged civil war that has left the countryside plagued by bandits. Sick and tired of having their rice harvest stolen yet again, a group of enterprising farmers do the unthinkable: they pool what little resources they have and hire a band of seven masterless samurai warriors to defend the village and — eventually — take the fight to the bandits themselves.The film builds slowly, but the pay-off is absolutely first-rate and has spawned a million imitators, most famously, the American remake The Magnificent Seven (which is, itself, being remade… and not for the first time, either). I don’t want to oversell it, but even Troy Senik might enjoy it.
In his upcoming book, By The People, Charles Murray proposes that American business owners take a similar approach regarding the federal regulatory state. As he describes his plan in a recent speech at the Cato Institute:
To put it bluntly, what I want to do is to make large chunks of the federal code of regulations unenforceable. I want to make government into an insurable hazard not unlike the insurance against flood, and fire, or swarms of locusts. The way I want to do it is through massive civil disobedience underwritten by privately-funded defense funds.
The genesis of the idea was Murray’s realization that regulatory law — almost by its very nature — comes down hardest on those playing by the rules while leaving the worst actors alone. For example, a friend of his who hires a lot of legal foreign workers finds himself the target of immeasurable scrutiny because he documents his employees’ immigration statuses so scrupulously; the paper trail he creates in doing so invites regulatory scrutiny, while his shady competitors get away with hiring illegals largely because they’re less fastidious.
The problem is that regulators have — relatively speaking — a bottomless hole of resources to draw on, should a citizen try to fight an issue in court. Even if the facts and law are against the government, they can spin the thing out long enough to make a lawsuit prohibitively expensive for the person they’re investigating, all but forcing him to pay the fine or otherwise surrender.
Under Murray’s proposal, however, this is precisely the moment when “a man in a pin-striped suit” would appear on behalf of the business owner and inform the government that it is his client who possesses the greater legal resources and patience, courtesy of a private fund set-up in advance, either by a public advocacy group or his trade or professional association. Indeed, it is now the regulatory agency who finds itself asking whether the case is really worth its while. Essentially the idea is to spawn a thousand Institutes for Justice, and Murray claims to have some big donors lined-up to help fund such projects.
It would be one thing — and a pretty bold one at that — if Murray proposed that these funds protect citizens who are innocent of any crime, but Murray wants to go further: we’ll have to wait for his book to come out next month for the full details, but he advocates that these funds also vigorously clients whom they know to be guilty of particularly odious and/or unnecessary regulations. This, Murray suggests, will have the effect of making these regulations unenforceable by making them prohibitively expensive and difficult to prosecute.
I’m very curious to see the details, but I’m very jazzed by the idea. It may be unpleasant to analogize freeborn Americans citizens with medieval Japanese peasants, but — if, indeed, it’s an accurate comparison — I rather like the idea of our hiring some ronin.
Published in General
Having worked at the original Institute for Justice (no, Seattle branch, so that’s not the original), I can say that Murray’s plan sounds like a good one. Of course, he could always just give all the funding to IJ and ask them to expand their offices and services offered…
I can’t express enough how excited I am about this idea. It actually came up at the Nashville Meetup and several people professed wonder in how no one had noticeably pushed this idea before. Perhaps it just took someone of Murray’s stature to have the willingness to write a book.
This is an excellent idea. Its Cloward-Piven turned on its head. I thinkit could be expanded even further. Sort of what Popehat.com does in regard to first amendment and libel matters.
I want to clarify (re: Samurai) that in feudal Japan, it was illegal for citizens, unless they were samurai, to carry weapons or learn the martial arts.
Hence Ronins, etc.
The US was created with the right to bear arms. Very different origin story.
Of course, the situation in modern day US is not about “fighting” by the sword (even though, we should), but it is of regulatory nature. And some corporations already have their Samurais : Lobbyists.
Don’t take this the wrong way, but it seems to me that romanticizing the regulatory power has made one set of lawyers feel like they’re “champions” for the rest of us. I’m not sure the best response is to empower different lawyers to become different champions.
Instead, I’d rather remove the romantic, crusading, public champion mentality that created the problem in the first place.
I’m less surprised that no one had pushed this idea before. First, institutions like IJ had to actually exist, then put together a fairly extensive winning track record, before others could plausibly put forward the idea that letting a million IJs bloom would actually accomplish anything.
Interesting wrinkle: as I understand it, litigating for economic freedom often involves invoking substantive due process. Many conservatives profess to hate substantive due process, declaring it an oxymoron at best, and a nefarious Leftist plot at worst. I wonder whether their feelings will change once they see it being used to defend economic freedom.
If it’s mostly to go against the extra-constitutional regulatory courts it might work. Those are funded by a budget and have bean counters they are accountable to. The problem is that these things easily turn criminal, and who’s against criminal prosecution? The Koch bros. had to go through this circus:
If the system is costly to the big guys, it’s downright ruinous to the little ones.
I don’t disagree with this. However, IJ does not necessarily operate as champion of the people. When I was there, they would only take cases where there was a serious chance of changing the law. It sounds kind of bad to say that their clients were generally just there for the name, but that is kind of true. Those attorneys don’t try to make money by fighting bad guys (it’s a non-profit, actually); they’ll tell their clients straight up that the goal is not to seek damages or rewards, but to invalidate the law. In that sense, they are definitely thinking bigger-picture.
What’s the alternative? How do you negotiate matters of law without… lawyers?
I don’t think the romantic, crusading passions can ever entirely be removed from human nature – nor would we necessarily want to remove them even if we could, if only because they help us get out of bed in the morning. The trick is not so much eliminating human passions, but channeling them to constructive ends. IJ understands this, and quite frankly, part of IJ’s appeal is that it (unlike many conservative organizations) knows how to market its message to ordinary human passions and sympathies. In fact, it goes out of its way to do this – appealing to ordinary human sympathies is part of its mission. About time, I say!
I was hoping someone actually was cutting heads off of some government agency goons.
Nice idea here but I like decapitation better.
Government already thinks we are peasants. It treats us that way. So what is there to lose?
I don’t argue that we don’t need lawyers. Far from it.
But the nanny-state is built on the technique of exploiting law to dictate to people how to conduct their business and their lives. That’s an abuse of power; I don’t agree that the way to counter an abuse of law is to empower other people to abuse it also.
I have no firsthand knowledge of IJ, but if it works as an honest advocate, as you and Ryan suggest, that’s honorable enough for me.
“We deal in lead, friend.”
-Vin Tanner
Tom,
I absolutely love this. Charles Murray is absolutely right! However, I think he could use an old movie analogy all his own.
True Grit.
Regards,
Jim
I say if the Seven Samurai plan fails we go all 47 Ronin on them. Wait two years and then we all gather up for a daring raid against our enemies.
I think Murray’s got a good idea.
Fight fire with fire.
IJ does honest advocacy. The way I see it, they’re working to restore the rights of Englishmen – in particular, those economic rights that were so integral to the Founders’ understanding of the world that they saw no need to explicitly enumerate them. Hence their appeal to substantive due process.
Several have echoed DocJay’s sentiment. I agree but with a twist.
Instead of physical violence, use the legal system to harass the personnel of the agency responsible for the abuse. Remember, it’s people who made the decisions not an “agency”. If they have to defend themselves personally, if they have to pay a cost, they might re-think their efforts.
I love this idea! As a small business owner I am subject to thousands of ridiculous regulations that force me to spend time and money complying. The people who write these regs have absolutely no idea how their machinations burden business owners and raise prices for consumers – they simply write more and more to perpetuate their reason for being.
Big corporations have armies of lawyers and lobbyists to get the govt to do their bidding – the little guy needs someone on his side.
One of my favorite movie quotes, EVER.
This is a kin to the reason there are schools of fish.Individuals may be eaten but the school will survive.To a lesser degree the Chamber of Commerce once acted in this role, no longer. Last week in a comment to a post I recommended civil disobedience as a means of dealing with out of control PC laws. we as a people need to stand up before it is to late.
How many ronin did Cliven Bundy need?
I think John Adams had the best response to this:
“Fat George has declared us in open rebellion. Why in bloody hell can’t they?”
And I reiterate my earlier comment that this rebellion is going to be short lived.
A little like the principle behind the Home School Legal Defense Association.
Given the abuses wrought by the IRS; and in places like Travis County Texas and Milwaukee, WI; and incidents like Memories Pizza. I would consider joining something like a “First Amendment Defense Association.”
Free speech and political association has definitely been chilled during the last 6 years.
I like and dislike this idea. I like it for the reasons expressed already and the practicality of it. However, I dislike it because it is a further nail in the coffin of rule of law. I know we don’t live under rule of law anymore, and I certainly believe in punching back twice as hard. I worry about putting the genie back in the bottle.
My alternatives would be to aggressively target Lefties for Lawfare, and be unabashed about it. Especially bureaucrats, make it expensive to work for the government. Additionally, I would like to see people appointed to senior cabinet posts who were prepared to tie up certain agencies in knots and decimate them.
For example, if I were appointed Secretary of Education I would use the civil service rules to tie up the activities of every single bureaucrat. They would be spending all their time dealing with ugly internal matters. I would then provide a blanket executive waiver to any DOE reg while these “internal matters” were being addressed. I would then proceed to hollow out the organization via (among other things) demoralization, lots of investigations (fraud, automation/process improvement, union complaints, etc), and liberal early retirement offers (with unfilled positions left behind and budget money unspent). Lastly, I would “right size” the organization by undertaking a massive rewriting of all the administrative rules & regs for that entity (essentially deleting them all). This would leave the department unneeded and an easy target for budget cutters.
If you are willing to take the heat, a strong-willed Secretary could force a lot of change to the DC dynamic. But you have to have the plan in place beforehand and do it at the beginning of the terms. I know I would be vilified, but I would be happy to be the lightning rod and take all the heat. The President could just shrug and genially say, “yeah, I’ll have a chat with NoCaesar” then move on.
Going after the individual federales with state and county based legal action is the best and most effective way to shut down the leviathan.
This is awesome. Is someone already working on setting up the Madison Fund? I don’t have the one guy’s 10 million to contribute, but maybe I can be one of a million to contribute 10 dollars.