Perhaps the Obama administration will take these conclusions to heart and advocate privatization of various state-owned enterprises, such as schools and the automobile industry!
Saturday, May 29, 2010
Perhaps the Obama administration will take these conclusions to heart and advocate privatization of various state-owned enterprises, such as schools and the automobile industry!
Thursday, May 13, 2010
On the Appropriate Scope of Judicial Review: Some Comments on Robert Lowry Clinton's "The Marbury Myth"
4) Of course, in 1937, the Supreme Court reversed course and repudiated the Lochner era's protection for economic liberty. Still, Clinton argues that the Court, under the leadership of Earl Warren from 1954 until mid-1969, continued to embrace judicial supremacy, but simply reoriented its efforts toward the protection of a different set of substantive values. (Students of this era will of course recall the Warren Court's revolution in Constitutional Criminal procedure, which foisted upon the states various new rules governing the sort of evidence admissible at criminal trials, for instance.) Moreover, in 1958, Clinton says, the Court invoked Marbury for the proposition that judicial interpretations of the Constitution are themselves, like the Constitution, the Supreme Law of the Land and thus by their own force binding on other actors who must treat the Supreme Court's interpretation of the Constitution as equivalent to the Constitution itself. [Here Clinton is referring to the Court's decision in Cooper v. Aaron, which reiterated that Brown v. Board of Education required that admission decisions at state-run high schools be made irrespective of race and ordered the Governor of the State of Arkansas to refrain from interfering with a local school board's efforts to comply with the Brown decision, to which the school board had been a party.] Moreover, in the 1992 Casey decision, Clinton points out, the Court, when reaffirming Roe v. Wade, asserted that Americans' belief in themselves as a people committed to the Rule of Law "is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals.” Clinton might have added the same opinion's statement that the Court should adhere to Roe in part to reward those citizens who thought Roe was wrong, "when viewed outside of constitutional terms" but "who nevertheless struggled to accept it, because they respect the rule of law." Like the statement from Casey that Clinton quotes, this statement seems to rest on the assumption that the Court's resolution of a constitutional question thereby binds individual citizens whose disagreement with that decision must thereby be "outside constitutional terms" and whose failure to adhere to the principle announced in such a decision in their public lives would thereby contravene the rule of law.
"As the Legislative, Executive, and Judicial departments of the United States are co-ordinate, and each equally bound to support the Constitution, it follows that each must, in the exercise of its functions, be guided by the text of the Constitution according to its own interpretation of it; and, consequently, that in the event of irreconcilable interpretations, the prevalence of the one or the other department must depend on the nature of the case, as receiving its final decision from one or the other."
Saturday, May 8, 2010
Tuesday, May 4, 2010
Give me (ever-increasing?) liberty or . . . . .
Here is a link to the Boaz post:
Among other things, Boaz points that many accounts of a purported "Golden Age" of 19th Century Liberty ignore the institution of slavery. In the same way, many accounts of a less intrusive state early in the 20th century ignore so-called Jim Crow laws, which were of course very intrusive on human liberty, to say the least. To the extent that legal and constitutional developments (and of course the Civil War) eliminated slavery and Jim Crow laws, human liberty has increased, Boaz rightly asserts.
Boaz also makes a broader claim, namely that, overall, Americans are more free now than we were, say, two generations ago. He quotes the following argument by Brink Lindsey, from his book The Age of Abundance (2007). According to Lindsey:
"Nevertheless, the fact is that American society today is considerably more libertarian than it was a generation or two ago. Compare conditions now to how they were at the outset of the 1960s. Official governmental discrimination against blacks no longer exists. Censorship has beaten a wholesale retreat. The rights of the accused enjoy much better protection. Abortion, birth control, interracial marriage, and gay sex are legal. Divorce laws have been liberalized and rape laws strengthened. Pervasive price and entry controls in the transportation, energy, communications, and financial sectors are gone. Top income tax rates have been slashed. The pretensions of macroeconomic fine-tuning have been abandoned. Barriers to international trade are much lower. Unionization of the private sector work force has collapsed. Of course there are obvious counterexamples, but on the whole it seems clear that cultural expression, personal lifestyle choices, entrepreneurship, and the play of market forces all now enjoy much wider freedom of maneuver."
On the whole, Boaz and Lindsey make some powerful points. Indeed, they have overlooked two additional expansions of private liberty over the last two generations: 1) the substantial contraction of antitrust regulation and 2) the recognition that so-called "commercial speech" enjoys some First Amendment protection, thereby mandating the substantial deregulation of advertising. In the remainder of this post I elaborate on these two omissions but then also suggest that some of the developments invoked by Boaz and Lindsey do not necessarily reflect expansions of liberty. Indeed, those who, like Lindsey and Boaz, claim that liberty has expanded compared to prior eras must develop a defensible definition of liberty; focusing on the mere absence of coercive governmental restraint will not suffice.
1) Antitrust: During the 1960s courts and antitrust enforcement agencies were hostile to most non-standard contracts, that is, agreements that did more than simply mediate the passage of title from a seller to a buyer. Tying contracts, exclusive dealing contracts, restraints on prices dealers could charge and restraints on to whom and where dealers could sell a manufacturer's product --- all were unlawful per se or nearly so. In FTC v. Brown Shoe, for instance, 384 U.S. 316 (1966), the Supreme Court affirmed the Federal Trade Commission's ban on an agreement between Brown Shoe and 1 percent of the nation's shoe stores requiring such stores to do business primarily (but not exclusively) with Brown. Courts also banned all tying contracts obtained by sellers with "economic power" over a tying product, holding that the mere possession of a trademark established the requisite economic power sufficient to condemn such an arrangement. Thus, a franchisor could not, for instance, require its franchisees to purchase spices, batter mixes or paper products from the franchisor. See Siegel v. Chicken Delight, 448 F.2d 43 (9th Cir. 1971). Courts and the enforcement agencies were equally hostile to mergers. In Brown Shoe Co. v. United States, for instance, the Department of Justice challenged, and the Supreme Court condemned, a merger that resulted in a firm with an eight percent share in a market with more than 3,000 other market participants and low barriers to entry. (About 150 new firms had entered the market in recent years.)
All of this started to change in the late 1970s, by which time transaction cost economics (TCE) had undermined price theory's workable competition model and offered beneficial explanations for non-standard contracts. In Continental T.V. v. GTE Sylvania, 433 U.S. 36 (1978), the Supreme Court abandoned its hostility to non-price vertical restraints, holding that courts should analyze such agreements under a forgiving rule of reason test that validates nearly all such agreements. As the Sylvania Court recognized, such restraints, while reducing competition between dealers, can in fact overcome the market failure and resulting underproduction of promotional information that would result from unbridled competition between dealers. Subsequent decisions applied the Sylvania rationale beyond the vertical context, holding that, for instance, horizontal restraints ancillary to an otherwise legitimate joint venture can also overcome market failure, enhance the allocation of resources and improve the welfare of consumers. Justice Stevens, who recently retired, presaged this expansion of Sylvania's rationale in NCAA v. Board of Regents of the University of Oklahoma, 468 U.S. 85 (1984), when he invoked Sylvania's logic in support of his statement that a horizontal restraint over one form of competition can in fact enhance overall competition in the marketplace and thus enhance consumer welfare. I tell the story about the origin of the inhospitality tradition and TCE's overthrow of that tradition in the following paper:
Price Theory, Competition and the Rule of Reason, 2003 Il. L. Rev. 77.
During the same period, the courts and enforcement agencies also radically revised merger doctrine, holding that proof that a merger will lead to high levels of concentration in a properly-defined relevant market is necessary (but not sufficient) to justify banning such a transaction. Moreover, even if a merger did, in fact, lead to high concentration in a relevant market, the transaction would still survive scrutiny if the threat of entry would counter-act any resulting anticompetitive output reduction produced by actual or tacit collusion. In 1982 the Department of Justice essentially codified this sea change in merger policy, issuing enforcement guidelines that, had they applied in the 1950s, 1960s and 1970s, would have validated countless transactions that enforcement agencies challenged, and courts voided, during these decades.
In short, the massive shift in antitrust policy, from a regime of extreme intervention to one of comparative laisseze faire, left countless transactions, contracts and other commercial practices there were once unlawful, even though they harmed no one, unmolested by the law, thereby expanding liberty significantly.
2) Commercial Speech. During the 1970s the Supreme Court found that commercial advertising is "speech" within the meaning of the First Amendment, thereby voiding much regulation of advertising. The seminal case was Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976), where the Supreme Court struck down a Virginia statute that banned price advertising of pharmaceutical products. Since then the Supreme Court has repeatedly held that states may not ban truthful advertisements for lawful products. The result, of course, has been more advertising, i.e., more liberty for firms that wish to provide information to consumers. Moreover, the ability to advertise makes new entry more likely, thus enhancing the liberty of firms previously excluded from the market by advertising bans. Consumers, of course, end up paying lower prices and making better-informed decisions about which products to buy or not to buy.
Take the rights of criminal defendants. Certainly various developments in the law over the last several decades have made it more difficult to convict a criminal defendant. These developments, then, have enhanced the liberty of those accused of crime. Still, Lindsey (and Boaz, apparently) do not consider the possibility that some individuals who escape punishment because of these developments are guilty, more precisely, guilty of interferring with someone else's liberty or property. Rules that increase the risk of letting guilty criminals off the hook can actually REDUCE liberty in a couple of ways. First, such mistakes can undermine the deterrent effect of the criminal law. Less deterrence, of course, means more crime, and thus less liberty for those who become victims of crime. In these circumstances, the state can only restore deterrence by increasing the penalties on those who are properly convicted (further reducing their liberty). Second, wrongly exonerated individuals who thereby avoid prison or capital punishment may then commit new crimes, thus interferring with the liberty of completely innocent fellow citizens. Indeed, Lindsey himself singles out the strengthening of laws against rape as a development enhancing liberty, and I quite agree. However, one cannot "strengthen" laws if prcedural developments make it too difficult to convict and punish invidiuals who break the newly-strengthened laws. Thus, any argument that enhancing the rights of the accused actually increases liberty requires a showing that the accused whose rights are enhanced are actually innocent, something Lindsey and Boaz does not assert.
Abortion provides another possible example. Lindsey (and Boaz, apparently) are certainly correct that bans on abortion reduce the liberty of the women they impact and, one might add, the liberty of the doctors who wish to perform such procedures, often for money. At the same time, proponents of abortion would argue that there is a third party involved, namely, the fetus. If, as many argue, a fetus is an actual human being, then a ban on abortion may, despite its significant impact on the liberty of the child's mother and her physician, enhance overall liberty, except of course in those cases in which abortion is necessary to protect the life of the mother, by protecting the life of the fetus until its birth. Put another way, such laws could be deemed analogous to bans on child abuse, though of course an abortion ban places a greater burden on the the regulated party than a ban on child abuse.
The rights of the accused and abortion examples, then, serve as reminders that a society that wants to maximize liberty might have to do more than simply minimize state-enforced coercive restraint on individual freedom of action. While such an approach might maximize "liberty" in some sense, it's not the sort of "liberty" that anyone, in the end, wants to maximize. (No one, I assume, would anyone think that the state should stand idly by while one individual used private force to enslave or kill another.) Maximizing actual human liberty requires some coercive restraint, imposed by the state; this is why humans leave the state of nature and enter political society, delegating to the state the authority to impose coercive restraints when necessary to enhance liberty. Any effort to measure the quantum of liberty enjoyed today compared to that enjoyed 20, 50 or 100 years ago must acknowledge this fact and include some methodology for defining and measuring the sort of actual human liberty --- one might say actual human welfare --- that is the object of government to enhance.
On May 1, President Obama, speaking at the University of Michigan’s Commencement, denounced those who, on the left and right, use extreme rhetoric to demonize their opponents. For instance, he criticized those who characterize his own policies as socialistic or “soviet style.” At the same time, he also criticized those who refer to those on the right as “fascists” or “right wing nut jobs.”
The very next day, in a column that did not mention the President’s address, George Will noted that “hysteria about domestic fascism . . . is a liberal tradition[,]” a hysteria fanned by none other than FDR himself. According to Will:
In his 1944 State of the Union address, FDR identified opponents of his domestic agenda as fascists. Declaring that his "one supreme objective" was "security," including "economic security, social security, moral security," he issued a dire warning: Woodrow Wilson's progressive policies had been frustrated by "rightist reaction" and "if history were to repeat itself and we were to return to the so-called 'normalcy' of the 1920s -- then it is certain that even though we shall have conquered our enemies on the battlefields abroad, we shall have yielded to the spirit of Fascism here at home.
FDR’s resort to the sort of tactics that President Obama decried contains two possible lessons, lessons that may not be mutually exclusive.
First, the sort of incivility that President Obama identifies is deeply-rooted and will be difficult to eliminate.
Sunday, May 2, 2010
Recently, however, the Supreme Court issued a decision that overturned decades of law and precedent – dealing a huge blow to our efforts to rein in this undue influence. In short, this decision gives corporations and other special interests the power to spend unlimited amounts of money – literally millions of dollars – to affect elections throughout our country. This, in turn, will multiply their influence over decision-making in our government.
In the starkest terms, members will know – when pressured by lobbyists – that if they dare to oppose that lobbyist’s client, they could face an onslaught of negative advertisements in the run up to their next election. And corporations will be allowed to run these ads without ever having to tell voters exactly who is paying for them. At a time when the American people are already being overpowered in Washington by these forces, this will be a new and even more powerful weapon that the special interests will wield.
In fact, it’s exactly this kind of vast power that led a great Republican President – Teddy Roosevelt – to tackle this issue a century ago. He warned of the dangers of limitless corporate spending in our political system. He actually called it 'one of the principal sources of corruption in our political affairs.' And he proposed strict limits on corporate influence in elections. “Every special interest is entitled to justice,” he said. 'but not one is entitled to a vote in Congress, to a voice on the bench, or to representation in any public office.'"