From: Black Unicorn <unicorn@polaris.mindport.net>
Date: Thu, 14 Sep 95 03:21:13 PDT
To: Dar Scott <dsc@swcp.com>
Subject: Re: cryptography eliminates lawyers?
In-Reply-To: <v01510104ac7d40ec670b@[198.59.115.127]>
Message-ID: <Pine.SUN.3.91.950914053029.16104A-100000@polaris.mindport.net>
MIME-Version: 1.0
Content-Type: text/plain




On Wed, 13 Sep 1995, Dar Scott wrote:

> Black Unicorn wrote,
> >On Wed, 13 Sep 1995, Dar Scott wrote:
> >
> >> Black Unicorn wrote,
> [snip}
> 
> We seem to be having problems with the meanings of words.  For example, I
> make a distinction between certification and licensing.

Which, as I have indicated, I see as a "distinction without a difference."

> Also, I see
> violence and coercion as being ultimately related to something physical.
>

So you wouldn't consider the Hollywood blacklist coercive?

What about revocation of tax free status?

I could go on for hours of examples how one can be hurt without a 
physical element.

> I'm not sure what "proper", "competent to practice"... mean.

In the context I was using them, they mean whatever the licenser 
(certifying authority if you prefer) says they mean- this is part of the 
point.

> And I see a
> big difference in a market based monopoly and a government based monopoly.
> 

Which, I think, is your key error- particularly in the context of this 
licensing issue, where the difference is nearly invisible.

> [snip]
> >Didn't I just say this above?
> >
> >A centralized, or several centralized authorities.
> 
> I had assumed you meant by authority an agent of the state that is able to
> envoke or otherwise wield the physical force of the state.

I think your hangup is one of overdemonizing the state to the point where 
no other evils seem to exist.

  By a certifying
> entities I was refering to private organizations that had no similar power
> or to government organizations that had only the power to provide
> information.

Like TRW.  Would you argue there is no coercive power in this entity?  
Yet they are not affiliated with government.

> By a licensing entity I was refering to an organization that can coerce to
> prevent the unlicensed from doing the licensed behavior.  By coercion I
> meant the threat of physical force or the force itself.

And as I indicated before, one need not threaten violence to coerce.

I will point to the TRW example again.

  Though one might
> think of physical force as applying to murder, kidnapping, slavery,
> assault, robbery, physical theft, I would also apply it to theft or damage
> of abstract property that has properties like physical property.  I intend
> for these to apply to many actions of the state.

I think you have failed to apply them to other organizations.  Again, I 
think you are over amoured with hating "the state."  Many organizations 
not affiliated with government do violence to abstract properties.

> Perhaps I erred in applying "certification" and "license" to these
> contrasting concepts, but I do think the distinction is important and the
> observation that there are fuzzy areas in between does not remove that.
>
> If I have a license from the local gang to sell drugs and the guy across
> the street does not, I could encourage the gang to do something and the guy
> might get shot.  Similarly, if I was a PE and my competitor across the
> street was not, I could encourage the state to do something that--with
> several stages of his lack of cooperation--results in his finding a gun in
> his face or worse.

If I am a producer in a horizontal territory limitation agreement for 
sales of wigets, and bob is not, bob's attempt to move into my area and 
sell widgets will be met with a boycott by all the members of my 
agreement.  Is this any less coercion?  I understand the violence is 
fairly dramatic coercion, but it is hardly the only coercion.  Do you not 
consider the Clipper program coercion?

I suggest you take a look at Nozick, Coercion, in Philisophy, Science and 
Method  (S. Morgenbessed ed. 1969) or Zimmerman, Coervice Wage Offers, 10 
Phil & Pub. Aff. 121 (1981)  Also, see Kreimer, Allocational Sanctions: 
The Problem of Negative Rights in a Positive State, 132 U. Pa. L. Rev. 
1293 (1984).

Personally I think Justice Stone had it correct with "Threat of loss, not 
hope of gain, is the essence of economic coercion."

You might also take a look at the Yale Law Review article by Reich:
(73 Yale 7 I think)
 

> >I guess the center of my question is, how can you apply Web of Trust to
> >e.g. a university degree.  Who cares what Bob and Alice think my degree
> >is in, the client only wants to know from the institution.
> 
> It does not matter why people would trust a certifying entity.  It might
> have a great earned reputation, it might "borrow" some reputation from
> bonding or audits, or it might have ties to the Real World.

Exactly, it must be tied to some kind of authority.  In this case, the 
issuing institution is about the only acceptable one.

I stand by the contention that a University degree cannot be certified 
acceptably by an authority not in some way connected to the University.
 
> >  Licensing can only be done by an
> >>      entity that can use physical force to prevent
> >>      buying and selling legal services.
> >
> >I believe you are incorrect, but I guess my main concern is your
> >characterization of "Physical force."  I am assuming you mean coercion,
> >and not that you will be jailed or such (though this may be the case).
> >
> >I would argue that as long as coercion exists (violence of any type,
> >physical or not) you have a licensing authority.  Take the hollywood
> >blacklist.  No one actually pushed around suspected pinko screenwriters
> >(well, at least, if anyone did, it was incendential) but they certainly
> >faced a great deal of persuasive motivation.  Look at the committee as
> >the licensing authority here.  (Licensing you as a non-communist as it were).
> 
> It seems I am using coercion in a different sense.  Unless blacklisting has
> physical force at its root enforcement mechanism it is not coercion and is
> very fragile.

You are using coercion in a different sense.  One of the definitions I 
get in Webster's (while force is incorporated in some others) is "to 
compel to do something by the use of power, intimidation or threats."

If you perfer that I use "serious persuasion" instead, fine, but I think 
you are just splitting hairs.

> >If several governmental and private authorities were in the practice of
> >certifing that Bob has a law degree from Tremont University, and that he
> >is competent to practice in D.C., and given that the citizens of D.C.
> >will look for these credentials, isn't this a license?  Afterall, Bob has
> >to pass some test or requirement to get the signatures.  Isn't this
> >coercion in your definition?
> 
> No.  I apologize for any confusion.

You needn't apologize, but I must admit, this looks a lot like coercion 
to me, as well as to Reich, and several justices of the Supreme Court.  

Do you believe it impossible/insignificant to manipulate behavior by 
persuasive means other than violence or the threat of actual physical 
violence?

> >Can't the multiple authorities set common
> >or near common guidelines?  Rather, don't they HAVE to in order to have
> >their signatures worth the electrons they are transmitted with?
> 
> In general, No.  Under many conditions market forces make services alike,
> but more often competing businesses find particular market niches.

An example please?  With specific regard to certifing authorities and 
university degrees?

  I would
> expect that different certs would cover different levels of expertise,
> different specializations and different breadths of specializations.  Any
> lawyer might have a dozen certs.  I would not expect there to be a single
> level of certification for all applications.  I know of several companies
> in which the primary product designer has no engineering degree.

But certainly all lawyers must have some base level of certification, 
even if this is only market enforced?  i.e. no one would accept a lawyer 
with NO certification (or few enough people to make it impossible to be 
one with some certification) this being so, the withholding of the 
required certification is still co- er... persuasion, no?

> >If you take the exteme position you seem to, there's an antitrust case here.
> I don't insist there has to be a variety.  I only desire that coercion does
> not come into play in preventing it.  As I said, if a natural monopoly
> forms at times, I am not worried.

I still am having trouble understanding your definition of coercion.

> 
> >Am I not "licensing" my key signature to people provided they pass my key
> >signature criteria?  Am I not doing violence by withholding my signature
> >and the benefits it might convey for certain "terms?"
> [snip]
> >This is the trap of the licensing argument.
> 
> I see a big difference in withholding a signature and sending gunmen.
> There is no violence in withholding a signature.

There is no PHYSICAL violence, this I have admitted, but the economic 
violence of such an act can be significant.  It seems that for you the 
distinction is in the emotional effect of the application of persuasive 
force, rather than the effect.

I've given this example before.

We take two convicted carjackers.

The first we sentence to 5 years, but after 4 years and 50 weeks, tell 
him that we are going to extend the sentence another 10 years unless he 
takes an experimental vaccine.

The second we sentence to 15 years, and after 4 years and 50 weeks, we 
tell this one that we will cut off 10 years from the sentence if he takes 
the experimental vaccine.

What's the difference?  Both have been given two choices

1>  Spend 15 years, no vaccine.
2>  Spend 5 years, take vaccine.

The point is that the first is emotionally more stacked, you feel sorry 
for the carjacker (well, maybe I should have picked crypto exporter) 
because he has been tricked.  When asked, 90% respond that the first is 
more "unfair."

Allowing emotion to cloud one's judgement of what is and is no coercive 
is a mistake.

> >The evil is not licensing, which I think serves a real purpose, but
> >created convenience fees, taxation through the withholding of licensing
> >and the use of other government largess.   I wrote a massive piece on this
> >and sent it to the list about a year and a half ago.  With interest I will
> >repost it.
> 
> Even if no one else is interested, I'd like to see it.

Let me dig it up.

Absent another public request I will send it in E-Mail only.

> >The real question is how you decide what an authority to license is.  Is
> >it to be dictated by government?  Or by market forces (i.e. the
> >reputation of the licenser).
> 
> Yes, the government vs. market question is key, but I believe the answer is
> in that distinction I used in contrasting terms "certification" and
> "license".  The "who" is tied up in what the instrument is.

I believe that your defining the words merely to distinguish who the 
certifing authority is confusing- and deceptive.

> >> >I don't see how the net will eliminate the basic need for highly
> >> >qualified professionals and the proof that they have credentials.
> >>
> >>      It won't.  The needs might shift a little but they
> >>      will be there.
> >
> >Then why will lawyers, or a 'professional monopoly' be broken?
> The meaning of "qualified professional" and "credentials" will be
> market-based and multidimensional, not defined by the state or a group
> already "qualified" using the state for enforcement.

I still think you are mistaken in that I feel you are ignoring the fact 
that no market exists below a certain certification level, regardless of 
how diverse the certifiers are.  You also still miss that credentials for 
attorneies are already multidimensional.

[market monopolies are "softer" than government ones.]

> >these authorities, and if (as you seem to be saying a few paragraphs up) it
> >is hard to break into the trusted certification business, there is a
> >monopoly again.
> I don't really think this is a problem.  It is the force-based monopoly and
> specifically the government-based monopoly I have a problem with.

I will point to the oil companies in the industrial age, as well as the 
railroads.  Certainly the potential for violence is not limited to 
government.  I hate this example, but in this particular case I think you 
are missing its context.

> [snip]
> >Like the several state Bars?
> The market advantage is slight.

I'm not sure I follow you here.

> [snip]
> >So you have estentially admitted that a central authority is required?
> >Or will be more often used?
> Not required.

Then how do you explain the points I have brought up.

The base requirement of a certification from an education institution 
(for which you have provided no substitute).

The existance of a floor, below which it is impractical to practice a 
profession and the existance of a set of entities (of whatever number) 
who's signatures are required to transcend this floor.

> [snip]
> >If your defintion of license is simply who does the coercing, I think you
> >should reconsider.
> 
> What ever the word used, I see the distinction between 1) the assertion of
> certain information and 2) the threat of force as being key.
> 
> Perhaps, I could have use the phrases "non-coercion-based" licensing and
> "coercion-based" licensing, but I am not comfortable with these--trade
> licensing invokes too violent of an image.

I think this construction is still flawed.  I will remain by my position 
that licensing is useful when not used to collect taxes or 
otherwise overregulate.  I also hold that the distinctions you make 
between licensing and certification are without functional difference in 
effect and are deceptive in that they suggest a significant difference in 
effect or purpose where there is none.

> A note to all in government licensed trades:  I recognize that licensing is
> part of the real world we live in.  Often one has to be licensed to
> practice a favorite trade.  I do not mean to describe the licensed
> themselves as violent.

Thanks.

> Dar
> 
> 
> ===========================================================
> Dar Scott               Home phone: +1 505 299 9497
> 
> Dar Scott Consulting         Voice: +1 505 299 5790
> 8637 Horacio Place NE        Email: darscott@aol.com
> Albuquerque, NM  87111              dsc@swcp.com
>                                Fax: +1 505 898 6525
> http://www.swcp.com/~correspo/DSC/DarScott.html
> ===========================================================
> 
> 
>