Everyone is bombastic. The brands of public figures are extreme and do stuff that would once have seemed shocking. We’ve learned the rules of the internet and social platforms like Twitter and taken them near their logical ends.
When the three point line was introduced to the NBA, it took several decades for old talent and coaching to master the full implications of the rule change and take the game to its current state, the logical conclusion of spots on the court worth 50% more than others.
People master the incentive structures they’re in. But it takes time and sometimes generation shift.
Now that we’re fully exploiting the incentive structure of social media, we get what we’ve got.
Hot takes. Trolling. Subterfuge. Memes. Weird causes. Signaling. Outrage. Counter-outrage.
Every crazy sounding thing can be played as a subtle form of strategy, or a secret code for followers at the expense of noobs.
I don’t find this good or bad. But I do find it a bit boring.
What was novel and wild is now kind of tiring. Everyone sounds the same to me now. And they sound the same while not really saying anything. Or at least not anything interesting. They are shouting and flashing big neon lights but my senses are adapted to a noisy, bright environment.
It feels like a lot of pretend ideas, pretend concern, and scripted formats for communicating them for maximum punch. Which ends up having the reverse effect.
Maybe this is one of those “medium is the message” things, but I don’t think it likely. I think the message feels lost in the medium. I’m hungry for interesting messages, not just mastered mediums.
I’m not sure exactly what a less boring stream of discourse and idea would look like. I only know that I’m getting more bored by what’s considered controversial or provocative. Supposedly polarized people all sound the same to me.
While I’ve spoken about this many times, it keeps coming up so I figured I would do a formal analysis. I’m well-aware this will have no impact on those who use this tactic to avoid discussion, such as lawyers and bureaucrats; this is for those who may be victims of this pernicious method of shouting down a valid argument. Ironically, as will be shown, it’s those screeching “frivolous” that are usually raising a truly frivolous argument. Yelling frivolous is a distraction technique, don’t be fooled by it.
Anyone who has ever challenged the legitimacy of government and the application of their sacred writ, called “laws,” will be familiar with this tactic. When the accuser admittedly has no evidence, they just start shouting “frivolous argument” as if that magically creates facts to support their claim.
What is a frivolous argument? There are usually two constants, it’s not just an argument lacking in merit or arbitrarily denied by a traffic court judge: “An appeal [argument] is not frivolous just because it has no merit” Applied Business Software, Inc. v. Pacific Mortgage Exchange, Inc., 164 Cal. App. 4th 1108, it must also be brought in bad faith:
“frivolous. So clearly and palpably bad and insufficient as to require no argument or illustration to show the character as indicative of bad faith upon a bare inspection…Strong v Sproul, 53 NY 497, 499.” Ballentine’s Law Dictionary, 3rd Ed., page 503.
Black’s Law Dictionary adds to this (also quoting Strong v Sproul):
“…where it does not controvert the material points of the opposite pleading, and is presumably interposed for mere purposes of delay or to embarrass the opponent…” 4th Ed, page 796.
A frivolous argument has three elements:
doesn’t controvert the material points; and
is brought in bad faith.
Now let’s look at an argument I wrote that’s been labeled “frivolous” by an administrative law judge in California and see if it meets this criteria.
“…the legal claims made against me have no factual support, the FTB knows this, and is proceeding against me anyway.” The legal claim referenced is the claim the laws apply because the target of the assessment is physically in California or has a California source of money. The FTB argues their laws created an obligation, it’s a foundational claim.
We know this because several agents told us, this includes counsel for the FTB. When asked for the facts they relied on, they admittedly had nothing, counsel admitted this was an assumption (video below). Those are the facts my argument is based on, the argument follows directly from the facts.
1. Does the claim have merit? Yes; the FTB and IRS operate under the same presumption, they admit it; they claim their laws apply, gives them jurisdiction and creates obligations.
My argument is based on their admissions they don’t have evidence and don’t need evidence to support their claim. So with the FTB claim, where they admit they have no evidence and the foundation of their assessment is an assumption, there is solid factual support. Therefore, the argument is valid, it has merit because the facts support it.
The FTB and IRS are required to have evidence to support their assessments; lacking a foundational basis is referred to as a “naked assessment” to wit:
“The determination of tax due then may be one “without rational foundation and excessive,” and not properly subject to the usual rule with respect to the burden of proof in tax cases. Helvering v. Taylor, 293 US 507.” United States v. Janis, 428 U.S. 433.
The challenge is based on this principle, while my challenge is not spelled out in this or other cases I’m aware of, the legal principle is what’s relevant. The FTB’s assessment is “without rational foundation” by their own admissions.
The argument has merit because it is based on a sound legal principle, supported by the agents’ own admissions.
2. Does it “controvert the material points” made by the FTB or IRS? Yes; by their own admission they operate under the presumption the laws apply because you’re physically in California or have a California source of money; and by their own admission they have no evidence, it’s an assumption. It’s logical and consistent with the facts.
3. Is it brought in bad faith? No; it’s based on facts, and a sound legal principle that “controverts the material points” raised by the FTB or IRS. It’s a logically, legally, and factually consistent argument.
None of the three elements of a “frivolous argument” are present proving the argument is not frivolous; it may be wrong, but it’s not frivolous. It’s possible the facts as alleged are not true, but that is what a hearing is for, to determine if the alleged facts are true. In the above video you can hear the agent admit the assessment’s foundation, the applicability of the laws, is an assumption. An assumption is not a “rational foundation.”
If it’s obvious it’s not a frivolous argument, then why do tax agents and their lawyers (with and without black robes) insist it is and threaten thousands in sanctions? Because they have a vested interest in the system taking property by force (taxation). They are the ones raising an argument that has no rational foundation and is brought in bad faith. I’ve had tax agents claim they don’t need evidence. That’s frivolous, not pointing out their claim lacks factual support.
What they are really saying is just challenging their foundational claim is somehow a frivolous argument or calling out their frivolous argument is itself frivolous. That is proof of bad faith.
What they do is strawman the actual position claiming:
“Appellant’s inquiry is entirely nonsensical, and while we are unsure of the exact import of this statement, it appears to be based on the meritless contention that California does not have jurisdiction to impose a personal income tax on appellant.”
No, the contention is: the FTB admitted their foundational claim is the constitution applies because there was California source of money. When asked for evidence, they admittedly had none and agreed it was an assumption. We have never made the above claim, this is done to justify ignoring the actual issue. They know what the actual issue is because the “entirely nonsensical” argument is cited just before the above quote:
“Moreover, in her briefs, appellant states that she had previously contacted FTB staff and [FTB counsel] regarding the proposed assessments at issue, and that these individuals failed to provide evidence that the “constitution” applied to her.”
First, the claim is not “entirely nonsensical” it’s based on the FTB’s own admissions and used as an insult, they also use “legalistic gibberish.” What this administrative law judge really thinks is frivolous, is challenging the FTB’s claim the laws apply to appellant. Questioning the FTB’s legal claim is the frivolous argument to him. This cow is so sacred to this bureaucrat he’s threatening a five-thousand dollar sanction for just questioning it and pointing out it’s admittedly an assumption. Like the pope admitting he just assumes the gods are real and anyone quoting him is raising a frivolous argument. By the way, this is the same bureaucrat allowing the FTB to lie with impunity in their pleadings. No bias there I guess.
Some claim the courts have already ruled the argument frivolous for decades as if that changes anything, it doesn’t. Because just as this ALJ is wrong, so are the courts for the reasons above.
It must also be noted they are not addressing this actual argument in those cases, just like the ALJ does here. If you look at the cases, the frivolous arguments are all arguments of legal interpretation, not issues of fact. This ALJ cites Appeals of Dauberger (82- SBE-082) 1982, as support; the type of arguments included are: wages not income without meaning of statute, not a taxpayer within meaning of statute, federal reserve notes are not legal tender, and the Fifth Amendment prohibits the requirement to file a tax return. Not a single issue of fact cited as a frivolous argument.
If it’s truly frivolous to challenge this legal claim, then that’s proof the system is rigged. Irrefutable presumptions are unfair and violate due process because they cannot be challenged, there is no defense, even against an assumption, Vlandis v. Kline, 412 US 441. Yes, this is about legislative presumptions, but the principle of fairness is what is relevant because due process requires notice and opportunity to defend at a meaningful hearing, Goldberg v Kelly, 397 US 254 (1970).
It’s not a so-called “frivolous argument” to point out someone’s foundational claim is admittedly an assumption, it’s a statement of fact.
So when they start chanting frivolous, call them on it, ask them what makes an argument frivolous and not just wrong. Ask them to point out what part of the argument is false; because the underlying facts are not and since the conclusion is drawn directly from the facts, the conclusion is accurate.
The argument the FTB or IRS has failed to support their claim the constitution applies, has merit because 1) it is based on their own admissions, 2) it controverts material points because they admit to not having evidence, and 3) because it’s based on a sound legal principle and the FTB’s own admissions, there is no bad faith.
Regardless of the chants from lawyers and bureaucrats, the argument is not frivolous.
Science is fine, but logic is better. Ayn Rand often challenged, “check your premises!” (And if one automatically tunes out whenever the name, Ayn Rand, is mentioned, one needs to check one’s premises.) A bad premise should, logically, go into the round file, because you cannot do science on the absurd. Garbage in, garbage out.
The above is in response to Stephen Jay Gould‘s book, The Mismeasure of Man. Although we can impute Gould’s main objective to be the debunking of Eugenics, my big takeaway is that you cannot make mud into ice cream simply by processing it enough — you cannot make the Earth flat through distorted observation of relevant facts. Nor can you make the absurd come true by incorrectly observing a poorly chosen set of facts or assumptions. And finally, you cannot make science elegant or eloquent or “settled” by surveying the wrong variables with inappropriate calipers.
For Americans, the crux of gun control laws has been how to disarm dangerous individuals without disarming the public at large. Ever-present in this quest is the question of how the perception of danger should impact guaranteed freedoms protected within the Bill of Rights.
Not only is such a balancing act difficult as-is, but there are also two additional factors that make it even more challenging: America’s federal government is constitutionally bound by the Second Amendment, and politicians notoriously take advantage of tragedies to pass irrational laws when emotions are at their highest. As President Obama’s former Chief of Staff, Rahm Emanuel, once famously remarked:
You never want a serious crisis to go to waste. And what I mean by that is an opportunity to do things you think you could not do before.
This line of thought is not new to American politics. From the emancipation of enslaved Americans and the organized crime wave of the 1930s to the assassinations of prominent leaders in the 1960s and the attempted assassination of President Reagan in the 1980s, fear has proved a powerful catalyst for appeals about gun control.
Below is an overview of the history behind major gun control laws in the federal government, capturing how we’ve gone from the Founding Fathers’ America of the New World to the United States of the 21st century.
Second Amendment in America’s Bill of Rights: Ratified December 15, 1791
Congress added the Bill of Rights to the Constitution of the United States specifically “to prevent misconstruction or abuse of its powers.” The Second Amendment is the foundational cornerstone of every American’s right to bear arms, stating:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
The right to bear arms was second only to the first – the most vital freedoms of religion, speech, the press, the right to assemble and the right to petition government for redress of grievances. Meanwhile, conflicting views have left government and personal interest groups struggling to reconcile technological advances, isolated but significant violent anomalies and the constitutional mandate protecting the natural right to self defense and this most basic aspect of the Bill of Rights.
Our nominal income rises every year. But what about our real income – our “standard of living”? In order to answer that question, we have to accurately measure inflation. If we understate inflation, we’re getting richer at a slower pace than we think. If we overstate inflation, we’re getting richer at a faster pace than we think.
Most economists, sadly, just forget about the issue and pretend that standard measures of inflation are solid. Most specialists, however, have long believed that the standard CPI does indeed overstate inflation- and this consensus keeps getting stronger. CPI Bias is alive and well, so we’re materially much better off than we think. “There is no Great Stagnation” – say it non-ironically, as you should.
On reflection, however, there is a shocking implication. Happiness researchers – yes, even Justin Wolfers! – have almost uniformly found little effect of income on happiness. If official statistics understate real income growth, what should we conclude?
Simple: Income’s effect on happiness is even smaller than it looks!According to Winship, for example, U.S. real income from 1969-2012 plausibly rose not by 16% (the standard estimate) but 45%. Yet our happiness still barely budged.
How is this possible? The leading possibilities:
1. Hedonic adaptation.As Epicurus would predict, human beings quickly psychologically adapt to greater riches. The more you have, the more you take for granted.
2. Relative income. Another possibility is that human beings mostly care about how much they have compared to others. So it doesn’t really matter if the price index says we’re 45% richer or 16% richer; either way, what we really want is to be in the top 1%.
3. False consciousness. If you keep falsely telling people their income is stagnant, they’ll believe you and feel disappointed.
Where, though, does the truth lie?
The overwhelming factor, in my view, is hedonic adaptation. Materially, Americans are far better off than they were during my childhood in the 1980s. Yet hardly anyone appreciates the wonderful new and improved products they’ve received.*
The relative income story, in contrast, is frail indeed. Why? Because income has little effect on happiness even at a single point in time. As I explained in my discussionwith Wolfers, his results imply that raising happiness by one standard deviation requires an increase in annual income of over $800,000. So stop conflating indifference with envy.
What about false consciousness? I doubt it’s a huge factor, because most of us lack the patience to heed so-called “opinion-makers.” The people too pragmatic, and the pundits are too boring. Still, I can easily believe that doomsayers make us feel 10% poorer than we really are. And in a well-functioning culture, I can easily believe that honest recognition of our good fortune could multiply this effect by negative one. In other words, a shift from our pessimistic narrative to an optimistic one would make us feel about 20% richer than we currently do. (Remember, though, how small a change in happiness that implies!)
At this point, I can picture Tyler Cowen remarking, “You’re a bigger pessimist than I am. According to you, we’re richer than we think, but riches don’t matter much for happiness, so who cares?” The whole point of optimism, though, is to say, “You may not be happy, but you should be.” If you want to meme that as, “Optimism is pessimism about the dangers of pessimism,” so be it.
* Aside: Thank you, oh great producers, for the wonderful new and improved products I have received at your hands. For verily you have redeemed my adulthood from the gray bleakness of my youth, and blessed me with vibrant abundance.