Despite the enormous risks and costs, it was once profitable for European companies to sail to the Far East for spices and other rare merchandise. If wealth could similarly be generated today, despite the enormous risks and costs, corporations would be building ships to sail to Mars. Companies are not today building such vessels because they have no incentive to do so. If the worlds industrialized governments agreed internally and in a United Nations Convention to suspend certain tort liabilities, antitrust-competition laws, and provide tax and insurance incentives, then and only then, in concert with industrialized governments, would there be an incentive to form transnational limited-liability companies to build and operate Mars transit and exploration vessels.
This paper provides a brief survey of the types of politically palatable laws which could be adopted by the U.S.A. and the U.N. to encourage the formation of these Mars Mission companies, including brief discussion of wealth versus money in our global economy; necessary tort liability reform; necessary antitrust-competition law reform; and transnational government tax and insurance protection necessary to create a climate favorable for the proposed company.
Wealth versus Money
Mars voyagers will be concerned with real wealth--oxygen; nutrient rich
food; a pathogen and catastrophic-hazard free environment; thermal and
radiation control; reliable communication with those outside their group;
reliable, accessible, sustainable, and understandable vessel technology;
recycling of resources; and the sustaining of an individually and
interpersonally hopeful and mutually advantageous psychology. All thoughtful
adult humans are similarly concerned with these same items of "real wealth,"
but most are not often prompted to give them constant thought. In late
twentieth century human industrialized civilization, we have adopted a
psychological artifact in our self-government wherein we substitute "money"
for "wealth." Although the point may immediately be apprehended, three
illustrations are offered.
If a very rich man takes with him on an ocean voyage a large supply of gold, and a large supply of currency, and a large supply of stock and bond certificates, he is taking with him industrialized society's accredited conceptions of real wealth. Let us suppose he has sixteen billion dollars of this "wealth" on this ship. When the ship burns and sinks, and all his other shipmates dies, and all the paper currency and irreplaceable stock and bond certificates are destroyed, and his "wealth" is suddenly gone. If our billionaire holds onto his gold, he's going to sink a little faster, so the gold provides no real "wealth" insofar as the gold does not provide for the billionaire's needs. What he needs is a lifeboat of some sort, and a floating piano top will be real wealth in this circumstance. The industrialized government's system of "money" is a substitute for wealth. It was created as a useful psychological artifact partly in response to the division of labor, and partly in response to its convenience in systems of exchange. It is much easier to hand someone a small coin bearing a likeness of Caesar in exchange for a bushel of grain, than it is to carry a calf to the market to exchange for the grain.
In the Great Depression of the 1930s, one day there was a flourishing consumer economy, with most everyone who was willing and able employed, and material circumstances improving, and the next day there was widespread unemployment, sudden poverty, and soon long queues of people standing in charity bread lines. What happened? The physical resources of the United States--the real wealth in terms of raw materials, skilled workers, and intention to sustain metabolic and mechanical energy--were in no way depleted. But the mass psychology in our system of government said that there was a sudden absence of "money." The philosopher Alan Watts wrote that
"it was just as if someone had come to work on building a house and, on the morning of the Depression, the boss had said, 'Sorry, baby, but we can't build today. No inches.' 'Wha-d'ya mean, no inches? We got wood. We got metal. We even got tape measures.' 'Yeah, but you don't understand business. We been using too many inches and there's just no more to go around.' A few years later, people were saying that Germany couldn't possibly equip a vast army and wage a war because it didn't have enough gold."
Money is a way--a poor way--of measuring a sort of wealth, but money is not wealth itself, and the industrialized nation's money measuring system is invented just as the SI systems of measurement, Fahrenheit scale of temperature measurement, and avoirdupois measure of weight measurement systems are invented. They have only the reality we agree they have.
If one burns a nation's flag, does one burn the nation? Answering "yes" indicates a confusion of map with territory and flag with country. The map is not the territory, the flag is not the country, and money is not wealth. They are general semantic representations. Our money is a useful representation of wealth only insofar as it adequately serves our needs. Our money does not "come from" anywhere in same the sense that real wealth in the form of energy from Sol comes from our local sun. Our money comes from us in the same sense that our language comes from us, but others speaking different languages may interpret our words to mean different things than we intend.
For example, "From February 1985 to February 1987 the dollar fell some 50 percent, measured against the world's leading currencies. In international terms, the net buying power of every individual in the United States was reduced by half." This explains why a dollar in 1992 was worth only about half as many yen as it was a decade before, enabling Japanese companies to buy American companies and real estate at bargain prices. There is no governing body over the more than a trillion dollar a week foreign exchange market. This market is run wholly by individuals bound by computer mediated communications and telephone links. Individual citizens in the U.S.A. would be quite appalled if their landlords and grocers unilaterally said that their dollar is only worth half what is was worth two years ago, but this same thing happens to them on the foreign exchange market with little understanding and no objection by the typical citizen. We do not control our destiny in the current world money system. A bushel of grain may be half a bushel of grain next year, depending on how it is measured in the international foreign exchange market. This does not alter the real wealth value of the bushel of grain in terms of ergs of metabolic energy, but it does make it difficult to talk about.
Legal Precedents
The call for papers for The Case for Mars VI states: "This program is
dedicated to the definition of innovative national and international programs
for the exploration of Mars. The main objective of this conference will be
to demonstrate the feasibility of inaugurating a program of human exploration
of Mars at a reasonable cost, and to allow its continuation at a sustainable
level of funding. Workshops at the Conference will focus on ways to mount an
initial mission to be assembled over an 8-year period for a total cost of
$32B (U.S.)." Although a devoted member of the Mars Underground for fifteen
years, this author is not sanguine about even this reasonable proposal in the
context of conventional funding.
A 1991-1992 survey by The Legal Brief--the student newspaper of the Washburn University of Topeka, Kansas School of Law--revealed that the approximately 450 law students strongly opposed any funding of manned spaceflight. The students were asked a series of questions and asked to mark "strongly oppose, oppose, neutral, favor, strongly favor." Ninety two percent of the law school student body strongly opposed funding for manned spaceflight. This was the greatest unanimity of opinion of any question on the survey. These same students strongly favored increased funding for unmanned space satellite programs which monitored weather and environmental conditions, and which served telecommunications. From this and other surveys it is reasonable to conclude that government funding for the colonization of Mars is not likely to receive enthusiastic huzzahs by J.Q. Taxpayer and the inhabitants of capitol hill.
However, there already exist precedents for proceeding with similarly expensive undertakings with the sufferance of, and thereby tacit approval of, our government. For example, several industries and activities--including some professional sports and labor unions--are exempt from state and federal antitrust laws. It is only because of government sufferance can these activities "afford" to exist. If as a political body we value Mars missions as much as we value professional baseball, congress then could pass an antitrust exemption for companies engaged in work supporting Mars missions. This cuts costs enormously.
There are many tax exempt organizations. The author is in no way suggesting that a Mars church be started, but to illustrate the point, churches--some of questionable beliefs and authenticity--are exempt from taxation. There exists a deep underlying legal and public policy support for this even though some churches control billions of dollars of real and personal property and have vast influence over business and government. These organizations exist without government taxation. If we as a self-governing people value a Mars mission as much as we value the smallest tax exempt church, then we should support a public policy exemption for companies working exclusively on Mars missions.
Tort liabilities are capped in almost every state due to extraordinary lobbying by insurance companies and special interest groups, such as the state medical societies. Tort liabilities could similarly be limited by federal government fiat.
Finally, the government could adopt an insurance package roughly analogous to the Price-Anderson Act which provides insurance protection for the U.S. nuclear power industry. This and other similar legislation could make insurance costs negligible.
In other words, if we can take steps to make Mars mission companies as similar in the eyes of congress as professional baseball, then we can obtain an antitrust exemption; as similar in the eyes of congress as any of several worthy tax exempt organizations, then we can eliminate Mars mission company taxes; as similar in the eyes of congress as medical malpractice, then we can obtain tort liability limits for Mars mission companies; and as similar in the eyes of congress as nuclear power, then we can obtain favorable insurance policies for Mars mission companies. And, if we can take similar steps in the United Nations, then these acts could apply to the global community. These steps may not be as difficult as they might first appear.
Antitrust
Essentially similar laws are called "antitrust" laws in the United States
and "competition" laws in Europe. Spawned by the populist movement of the
last quarter of the 19th century, the nation's first antitrust law was passed
by the state of Kansas and was the model for the federal law, the Sherman
Antitrust Act of 1895.
The Sherman Act is very brief, and its salient legally operative portions consists of two sentences:
Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. Sherman Act, 15 United States Code Annotated § 1.
Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony.... Sherman Act, 15 United States Code Annotated § 2.
Just as congress passed this act into law, congress grants exemptions. Companies such as AT&T are fragmented under the antitrust law in the perceived effort to foster economic competition. In none of the antitrust literature, legislation, or judicial rulings is there any claim that the antitrust laws help create real wealth of the sort earlier discussed in this paper. The antitrust laws address paper wealth, money, and the companies using this money. The proposal advanced in this paper is that the U.S. congress, the Japanese diet, the European Economic Community, and the United Nations adopt laws exempting Mars Mission companies from the antitrust laws. This would enable companies to cross borders, create legal monopolies, and combine in such forms as would best utilize the worlds resources in the accomplishment of the Mars mission, and do so without fear of civil or criminal penalty.
Tax
Supreme Court Justice Oliver Wendell Holmes Jr. often said, in essentially
similar phrasing, that "Taxes are the price we pay for civilization." By
this Holmes meant that we buy common bridges, roads, public sanitation,
police protection, etc., through the exercise of our taxes. Considered by
most of the constitutional framers as the most important clause of the
constitution was the acceptance of all the debt incurred under the Articles
of Confederation. The first act of congress was to borrow money to build a
road. The U.S. government has therefore always been in debt and has always
raised taxes to pay for the incurred debt. Nevertheless, some institutions
are not taxed. This is because congress has decided that it serves the
public interest that certain non-profit institutions be exempt from taxation,
just as congress is persuaded that it serves the public interest to make
certain institutions and activities exempt from the antitrust laws.
Although it is arguable that anyone could today start a non-profit tax exempt heavy industry company for the sole purpose of Mars transit and exploration, a safe course would be to lobby congress for a specific exemption which would not be subject to non-accountable regulatory agency and Internal Revenue Service bureaucrats. As an attorney who has first hand experience in legal practice and appeals before regulatory agencies and then in the federal courts of appeals, the author fears any bureaucracy with the authority to decide what is and is not taxable. If congress makes the Mars mission companies explicitly exempt, then the companies only have to worry if they engage in activities which are arguably non-mission related. These activities will surely arise, but such disputes will not occupy all the company's time if the company has an express congressional tax exemption.
Torts
In law, the word "tort" is a synonym for the word "wrong." The word in
American legal usage derives from the law of france, meaning literally,
"wrong, injustice," and ultimately from Latin, tortus (= twisted, crooked).
In law, as with taxes and antitrust law, tort law is related to economics.
Even more so than with the law of contracts (see endnote # 2), the law of
torts presumes to compensate the injured with money.
The common law rules of damages for physical harm reflect three fundamental ideas: (1) Justice requires that plaintiff be restored to his pre-injury condition, so far as it is possible to do with money. (2) Most noneconomic losses are capable of being translated into dollars. (3) When plaintiff sues in tort for an injury which he has sustained, he must recover all of his damages arising from that injury, past and future, in a lump sum and in a single lawsuit. Restatement of Torts, Second, § 910, quoted in Kionka, Torts, p. 303 (1992).
At its extremes the law of torts permits certain harms to be knowingly inflicted, irrespective of evil intent of the inflictor of the harms, and at the other extreme places absolute risk of certain transactions on the person engaging in them, irrespective of blameworthiness in any sense. The underlying notion is to financially compensate someone who has been wronged in the eyes of the law.
A tort exemption would encourage companies to work on a Mars mission. This does not mean that the companies would be exempt from no-fault insurance claims, such as workers compensation claims. Nor would this mean that the company is exempt from independent environmental laws. A tort exemption would mean that the company would not be financially liable to the victims if a rocket went off course and landed on a school, killing everyone inside. This raises the question of insurance.
Insurance
In March 1957, based entirely on a theoretical model, the Brookhaven
National Laboratory issued a report on "the theoretical possibilities and
consequences of major accidents in large nuclear power plant." It
established the chance of a major accident as being between one in 100,000
and one in one billion per year per reactor. A major accident would result
in an estimated 3,400 fatalities, 43,000 injuries, and $7 billion worth of
property damage in 1957 dollars, for a 1957 era design nuclear power plant.
With the Price-Anderson Act, congress provided for a limit of $560 million
in a federal fund, to be paid out in compensation following such an atomic
accident. The nuclear industry was to have no residual liability; the public
would have no common-law right to bring any claim against the builders or
operators of any accident-damaged plant.
If a Mars mission is at least as important as a nuclear power plant, then Mars mission companies should lobby for similar legislation. This exempts them from tort liability and provides them with a sort of no-fault liability insurance. This would foster a favorable business climate for the creation of Mars mission companies.
United Nations Convention
A United Nations convention would provide broad protection for transnational
companies engaged in Mars mission activities. Such a convention would be
necessary to overcome some previous short-sighted enactments, such as the
Outer Space Treaty of 1967.
Summary
Legal precedents already exist for all of the proposals advanced in this
paper. Isn't the human exploration of Mars worth the same antitrust
exemption afforded the Colorado Rockies professional baseball team? The same
tax exemption afforded the non-profit organization? The same tort and
insurance package the nuclear power industry receives? Mars Undergrounders
advancing these ideas with their congressional representatives may find that
the politicians are more interested in discussing this legislation than they
are in hearing about science and technology. The legislation discussed in
this paper will lead to job growth. As far as most elected officials--and
corporate officials, for that matter--are concerned, companies can build
pyramids for all they care, so long as our international money system is
served by the creation of jobs, taxes, and happily employed voters. They may
stifle their smirks when they vote in favor of this package, believing that a
few loony Mars heads are being appeased, but one day they will be amazed at
the sound of rockets carrying explorers to Mars.