Cafe Hayek

Law Ought Not be Centrally Planned

Here's a letter that I sent recently to the Baltimore Sun:

Diana Schaub rightly argues that no judge should allow empathy for parties in a courtroom to dilute his or her commitment to apply the law dispassionately ("Why empathy is the enemy of justice," June 14).  But the need for judicial impartiality does not imply that judges should avoid engaging with the real-world contexts and details that surround every legal dispute.

In a free society, law isn't simply, or even chiefly, a set of explicit commands handed down from a sovereign (be it a monarch or a democratically elected legislature).  A great deal of law - indeed, most law - emerges undesigned from the daily practices of ordinary people interacting with, and sometimes bumping into, each other.  People on their own often find ways to minimize these conflicts, and these ways become embedded in people's expectations.  These expectations, in turn, become unwritten law - law that good judges find and enforce impartially.

Sincerely,
Donald J. Boudreaux

Does Delaware Entrench Management?

Among my great pieces of good fortune during my time in law school at the University of Virginia was to meet and befriend - and to co-author several papers with - Adam Pritchard, now a professor at the University of Michigan School of Law, specializing in securities law.  (Adam and I haven't written anything together in many years, but I hope that that'll change soon.)  I look forward to reading this new working paper that he co-authored with Murali Jagannatha; it's entitled "Does Delaware Entrench Management?"  I'm not surprised by the finding about Delaware, but I am surprised by the finding on the apparent lack of correlation between the strength of state anti-takeover legislation and management entrenchment.  Here's the abstract:

Critics have charged that state competition in corporate law, which Delaware clearly dominates, leads to a “race to the bottom” promoting management entrenchment at shareholders’ expense. We present evidence here inconsistent with this hypothesis. Measures of director quality and governance mechanisms are higher in Delaware. Delaware’s directors hire higher quality CEOs and they are more likely to terminate CEOs. Tenures of Delaware directors and CEOs are both lower than their counterparts in other states. In addition, contrary to claims that anti-takeover laws promote management entrenchment, we find that states that provide the greatest anti-takeover protection – Ohio, Pennsylvania, Massachusetts, and Maryland – do not have significantly different turnover rates from California, the state that arguably offers the least anti-takeover protection.

The rule of men

A friend of mine expressed surprise the other day when I said I wasn't sure if the stock market would bounce back fairly quickly. He said that societies with human capital and the rule of law always thrive. Yes, I said, but I'm not sure the rule of law is our strong suit in the US these days. This story (HT: Andy Roth) is a tragicomic example of what is happening and illustrates my earlier concern:

Senate Finance Committee Chairman Max Baucus, D- Mont., suggested Tuesday he and other lawmakers will pressure the Internal Revenue Service to impose hefty excise taxes on bonuses paid to executives of American International Group Inc. (AIG) that have stirred outrage.

"We need to find out the answer to this question: What is the highest excise tax we can impose that is sustainable in court?" Baucus said to IRS Commissioner Doug Shulman during a hearing Tuesday.

Shulman declined to give a specific answer, saying he couldn't go beyond President Barack Obama's statement on Monday, in which Obama expressed "outrage" over the bonuses.

But Shulman said he recognized the finance committee wants to address the issue of the AIG bonuses, and "we stand ready for IRS to do what it can."

Sen. Bill Nelson, D-Fla., said it may be possible to impose excise taxes as high as 90% on the bonuses. At issue are $165 million in bonuses paid to employees of AIG's financial- products division, after the U.S. government has poured billions of dollars into AIG to shore up the foundering insurance giant.

House Majority Leader Steny Hoyer, D-Md., said he was unsure whether it would be possible for Congress to draft a law specifically targeted at the AIG executives.

Yes it's a shame that Congress is supposed to limit itself to legislation that is constitutional. In a real government (i.e, Zimbabwe, North Korea) the leaders aren't constrained from doing what they like.

He suggested one possibility might be to pass a measure taxing all executives who received taxpayer funds through the Treasury's financial rescue plan.

But, Hoyer said, there was no question in his mind the AIG executives should give the money back, saying if "they had any common sense at all," they would.

"If they were at all sensitive to what the American people had done to keep their company afloat ... they would simply give this money back."

Alas, we haven't done anything to keep their company afloat. It's Mr. Hoyer and his colleagues who have taken my money and yours and given it to AIG.

Hoyer said all options were on the table, and lawmakers were looking at what actions could be taken, and were in discussions with Obama administration officials over how to proceed to recoup some of the money paid out to the executives.

House Minority Leader John Boehner, R-Ohio, reserved his anger for the Obama administration's handling of the AIG situation.At a press conference Tuesday morning, he questioned why officials agreed to give the beleaguered company a further $30 billion only weeks ago, without ensuring there were sufficient controls in place to limit how the firm used the money.

"I think this is outrageous, and I think the American people are rightly outraged that their tax money is going to pay bonuses to the very people that got this company in trouble," Boehner said.

Well he's on to something there. Maybe he can speak up a little sooner and a little louder in the future.

Law Differs from Legislation

Here's a letter that I sent last week to the Washington Post:

Masterfully explaining the power of Charles Darwin's ideas, George will says that "As a practical matter, we cannot expel government from our understanding of society as Darwin expelled God from the understanding of nature. But Darwinism opens the mind to the fecundity of undirected, spontaneous, organic social arrangements - to Edmund Burke and Friedrich Hayek" ("How Congress Trumps Darwin," February 8).

Perhaps, practically, we indeed cannot expel government from our understanding of society.  But Hayek takes us surprisingly far in that direction.  He helps us to comprehend that law itself (as opposed to legislation) is largely spontaneous and undesigned.  Not all legislation is law - consider the fact that highway drivers routinely exceed posted speed limits by five or ten miles per hour.  And not all law is created by legislation (or even by court proceedings) - consider the "first come, first served" rule that nearly all drivers obey for determining which of the many drivers in search of parking places in a crowded parking lot gets a particular space that is about to be vacated.

Sincerely,
Donald J. Boudreaux

Jim Crow Was a Product of Government

Here's an important history -- and economics -- lesson from the Boston Globe's Jeff Jacoby.  His conclusion is this:

Many Americans know that it took strong government action in the 1950s and 1960s to end Southern segregation. Far too few realize that it was government action that established segregation in the first place. Today, when the power of the state is being aggrandized as never before, the history of Jim Crow offers a cautionary reminder: When the political class overrides the private sector, what ensues can be a national disgrace.

Contracts are Not for Judges to Re-write

My colleague at GMU Law and at the Mercatus Center, Todd Zywicki, explains in today's Wall Street Journal why the increasingly popular idea of letting judges re-write mortgage contracts is a terrible idea -- one likely to perform its own market destabilization.

Second Amendment Book Bomb

2008 was a very bad year.  But it was not without its bright spots.  One of these bright spots was the U.S. Supreme Court ruling in District of Columbia v. Heller, in which the Court held that the Second Amendment guarantees to the right to own guns to the individual.

In a book that my friend at the Orange County-Register, Alan Bock, calls "thoughtful and scholarly," Stephen Halbrook explores the individual-rights grounding of the Second Amendment.  Seeking to drive this book's sales up to #1 in sales at Amazon, the book's publisher -- The Independent Institute -- has launched a "Second Amendment Book Bomb."

Please consider participating in this worthy effort -- you'll get a great book out of the deal!

Easterly on Hayek

Today's Dean of development economists, William Easterly, won the inaugural Hayek Prize, offered by the Manhattan Institute, for his splendid book The White Man's Burden.  Congratulations Bill!

Here's the Hayek Lecture that Bill delivered this past October when he was awarded the prize formally.  Like all of Bill's work, it is written in a lively, engaging, fast-flowing style, filled with humor and important facts and insights.  I whet your appetite with the opening paragraph:

Tonight we find ourselves in a moment similar to that in which Hayek wrote The Road to Serfdom in 1943. Then, as now, a great financial crash was seen as a failure of freedom. Actually, things were even worse then for Hayek’s point of view. In the aftermath of the Depression, many pointed out the apparent success of centrally planned industrialization in the Soviet Union in outperforming markets. As Hayek wrote in 1943, democracy barely existed outside of a few English-speaking societies. Even in the U.S., people noted the apparent success of government top-down planning for wartime production of arms. Under these circumstances, Hayek knew he would be caricatured as a right-wing ideologue, even though his ideas did not fit into the stale partisan debate about markets versus government. He argued that the best system in the long run relied upon the creativity of individuals at the bottom who had both political and economic freedom. In a way I will describe below, Hayek saw both government and markets as functioning better the more they were the outcome of spontaneous development from the bottom up, with nobody in charge. It took courage to criticize top-down control after the scary calamities of the Depression, yet Hayek’s vision would be vindicated by subsequent events. How many of us will show similar intellectual courage in the midst of today’s financial crash?

Invisible Hook

My GMU colleague Pete Leeson's new book -- The Invisible Hook: The Hidden Economics of Pirates -- is now available at Amazon.com for pre-order.  (Sorry; no pirated page proofs are available.  So buy the book!)

Social Creationism

The recent discussion here at the Cafe about the necessity or sufficiency of the state prompted a long-time patron to ask me to re-run this post from December 2004.

December 07, 2004

More on Blue-State Creationism

Don Boudreaux

A few days ago I was inspired by Tom Palmer’s incisive review of Cass Sunstein’s latest book to point out that many “blue-staters” – Americans who think of themselves as “progressive,” rational, and “reality-based” – are also creationists.  Not biological creationists, but creationists nevertheless – “social constructivists,” as Hayek called them.

At the blog The Panda’s Thumb several commenters misunderstand my point.  Whenever an author is misunderstood, it’s the author’s fault.  I try below to clarify.
…………..

One view of the origin of order is the design view – the creationist view. For example, fundamentalist Christians believe that all life on Earth is the result of conscious creation by a deity.  Human beings’ opposing thumbs resulted from a (higher) mind’s plan and action, and the absence of hen’s teeth and horse’s toes likewise is the result of conscious design. Without such design, chaos and disorder would reign.

The non-creationist view – represented most compellingly by the theory of natural selection – explains how wonderfully intricate, useful, and orderly biological structures can and do emerge unplanned.

Creationist views (there are several variations) differ from non-creationist views by insisting that all order ultimately is the result of some design acting upon the whole.

Just as there is a compelling non-creationist view of biological beings, there is a compelling non-creationist view of social order.  And while obviously different in detail, at a general level these two non-creationist theories share much with each other, not least of which is the scientific insistence that order is best explained, not by positing a creator, but by understanding the logic of an order’s emergence from small, individual acts, no one of which is “intended to” (or “intends” itself) to become part of a larger order.  (And remember, Adam Smith offered his “invisible hand” theory a century before Darwin offered his.)

The “social” creationists are well and ably represented by Cass Sunstein who argues that peace and security and (hence) property rights and market exchange are impossible without an effective system of law. Because, in Sunstein’s view, the state is the producer of law, the state is ultimately responsible for our property and prosperity.

I’m prepared to argue that law can, and has been, ably produced and enforced without the state.  (See, for example, Bruce Benson's superb book The Enterprise of Law.) But let’s put that issue aside and grant Sunstein his claim that only the state can produce and enforce law.  Because no reasonable person doubts that law is indeed necessary for a prosperous society, Sunstein concludes that each of us owes our prosperity to the state. It’s a fair interpretation of Sunstein’s argument that the state creates society.

People such as Sunstein who believe that sovereign power is responsible for everything remind me of other people who thank God for their good fortune – for the roofs over their heads, for the food on their tables, for the good grades they got on the exam.... as if the roof over someone’s head had everything to do with the good graces of a deity and nothing whatsoever to do with the actions of the owner of the house or with the actions of thousands of other people, each of whom contributed in some little way to making that roof a reality.

So the state protects me from thieves and built the highway that I use to transport my goods to market.  I’m grateful.  But what about the farmer who grew the food to feed the trucker who drives the truck carrying my goods to market – and grew the food to feed the politicians who keep the state going?  What about the oil-rig worker who helped to extract oil from the ground to be turned into gasoline to power the truck – and to power the limos in DC and the police cars in Denver? What about the engineer who helped design the engine that powers the truck and the limos and the police cars?  What about the clerk at the convenience store who sells the trucker the coffee that helps to keep him awake on his drive?

In a market economy, even the most mundane good or service requires for its production and distribution the efforts of millions of people.  Many of these individual tasks are utterly necessary for that good’s existence, but none of these individual tasks – including that of the state – is sufficient.  There’s nothing special about the state.

Civility, high wages, economic growth, ingenious engineers, clean neighborhoods, excellent education, health care, baseball stadiums – you name it, it probably can be (and probably has been) produced by private efforts. Government can certainly affect the production and distribution of things – and reasonable people can argue about whether that effect is likely to be beneficial or not. But even if government’s services are necessary for our prosperity, it does not follow that government creates that prosperity.

….

Stated baldly, this proposition will attract few detractors – except the likes of Sunstein. But “blue-state creationism” is nevertheless rampant. Consider this letter to the editor in today’s NY Times:

Like Thomas L. Friedman, I was shocked to read that Congress cut financing for the National Science Foundation.

The United States is at a crucial turning point now in regard to scientific leadership in the world. We can either invest as much money as possible in supporting groundbreaking research benefiting nearly every aspect of our lives - training new scientists and engineers, improving science education and ensuring that the United States remains the best place in the world to pursue a career in science - or we can dedicate that money to frivolous pork, losing our place as the world leader in science and engineering.

As a graduate of Thomas Jefferson High School for Science and Technology, I was instilled with the belief that science is vitally important to our society.

It's unfortunate that Congress hasn't learned the same lesson; the security of our nation, as well as our economic health, depends on it.

In other words, without taxpayer-financed scientific research, we’ll enjoy neither national security nor economic well-being.

NSF funding might or might not be justified. (I personally don’t think it’s justified, but that’s not my point.) The claim that this reader (and columnist Thomas Friedman) make is that genuine scientific advance can be created only by government.  It's a creationist myth.

Your Dog Does Not Own Your House

It is both illogical and factually inaccurate to assume that social order owes its existence ultimately to the state.

If the state does nothing more than serve as a specialist in protecting citizens from violence, as well as, perhaps, in supplying some dispute-resolution services, then it could be credited with contributing positively to society.  But the state here would be due no more credit than any other producer (or group of producers).  Sure, protection against violence, as well as dispute-resolution procedures, are necessary for the creation of a great society, but they are far from sufficient.  (And as made clear by the Leeson article highlighted in the previous post, a solid argument can be made that the state is not necessary to supply these services.)

Even if we stipulate, for purposes of argument, that the state is the only possible, or the best possible, supplier of protection against violence and the best possible supplier of dispute-resolution services, society as we know it would nevertheless collapse were it not for farmers, tailors, home-builders, physicians, lawyers, stockbrokers, engineers,..... the list is long.

Get rid of any of these producer groups and people die by the millions.  And yet, no one proclaims that "Justice is whatever farmers claim it to be" or "Because society cannot exist if people aren't clothed, then weavers and tailors are the foundation of society."

One of the beautiful facts about a great society such as ours is that no group of persons, no particular group of specialisst, plays a role that alone creates society.  Each of many groups of specialists is necessary for society to exist; no single group of specialists -- not even that group specializing in protecting people from violence -- is sufficient.

This insightful article by Anthony de Jasay explains further.

Do Markets Need Government?

Do markets need government?  One of my brilliant young GMU Econ colleagues, Pete Leeson, asks this important question in his contribution to this new volume of essays just published by London's indispensable Institute of Economic Affairs.

Prohibition Fuels Violence

The Wall Street Journal's Mary Anastasia O'Grady explains why "Mexico Pays the Price of Prohibition."

None of the State's Business

I applaud this ruling.  It's obscene for the state to interfere so cavalierly into private family matters.  Here are the lead paragraphs from the New York Times report on the ruling:

A Texas state court of appeals ruled Thursday afternoon that the state of Texas had no right to seize more than 400 children from a polygamist ranch in Eldorado, in the western part of the state, because there was not sufficient proof that they were in immediate danger.

The ruling asserted that the state’s child protection agency acted hastily in removing the children from the Yearning for Zion ranch in April and did not make a reasonable effort “to ascertain if some measure short of removal and/or separation from parents would have eliminated the risk” of abuse toward the children of 48 mothers who filed the suit. The district court was ordered to remove its restraining order giving the state custody of those children, but it was not immediately clear how the hundreds of other children, now in foster care, would be affected.

Where Does Law Come From?

I've always liked this 1997 essay -- "Where Does Law Come From?" -- by Bruce Benson.  In it, Bruce explains why law is not synonymous with legislation.  Here's his concluding paragraph:

The lesson here is that law and governance are natural institutions that arise out of people’s interest in prospering through production, the division of labor, and trade. They do not depend on a central coercive authority for their genesis. States can arise when a powerful group, bent on institutionalized extortion, co-opt and alter existing customary law to serve its own particular interests.

A fuller treatment of this vitally important subject is in Bruce's 1990 book The Enterprise of Law: Justice Without the State.

Improving Forensic Evidence

My friend and former classmate at both NYU and Auburn, Roger Koppl, has this excellent essay in Forbes.  In it, Roger explodes some myths about the reliability of forensic evidence -- and proposes useful reforms to improve the reliability of such evidence.  Here are the final few paragraphs:

How can we preserve the usefulness of forensic evidence while protecting the public when it breaks down? The core problem with the forensic system is monopoly. Once evidence goes to one lab, it is rarely examined by any other. That needs to change. Each jurisdiction should include several competing labs. Occasionally the same DNA evidence, for instance, could be sent to three different labs for analysis.

This procedure may seem like a waste. But such checks would save taxpayer money. Extra tests are inexpensive compared to the cost of error, including the cost of incarcerating the wrongfully convicted. A forthcoming study I wrote for the Independent Institute (a government-reform think tank) shows that independent triplicate fingerprint examinations in felony cases would not only eliminate most false convictions that result from fingerprint errors but also would reduce the cost of criminal justice if the false-positive error rate is more than 0.115%, or about one in a thousand.

Other reforms should include making labs independent of law enforcement and a requirement for blind testing. When crime labs are part of the police department, some forensic experts make mistakes out of an unconscious desire to help their "clients," the police and prosecution. Independence and blind testing prevent that. Creating the right to a forensic expert for the defense would help restore the imbalance in scientific firepower that too often exists between prosecution and defense. Private labs are subject to civil liability claims and administrative fines, giving them financial incentives to get it right.

Sounds right to me.

On Smuggling and Law

My colleague Walter Williams offers great good sense here.

When legislation is harmful -- such as when it attempts to restrict the carrying out of peaceful exchange among consenting adults -- it is widely disrespected.  One of the many unfortunate consequences of harmful legislation is that the disrespect it engenders risks becoming disrespect for law.  Legislation is not at all synonymous with law.

Lotts to Ponder

Here's John Lott on the Second Amendment case, out of DC, now before the U.S. Supreme Court.

Milking

I am not among those people who advocate tort reform.  Sure courts hand down lots of silly, and even sometimes obnoxious, rulings.  But beyond mandating a "loser-pays" rule, I distrust legislatures to fix whatever problems exist.

I cannot help, though, share this recent example of an absolutely ridiculous lawsuit.  I quote from the WestLaw summary of the case, Mills v. Giant of Maryland, LLC (Here):

Lactose-intolerant individuals brought class-action lawsuit against nine sellers of milk alleging that they consumed milk before they were aware of their lactose intolerance and, as a result, suffered temporary gas and stomach discomfort.

Fortunately, both the trial court and the appeals court ruled in favor of the defendant milk sellers.

(HT Roger Meiners)

Harold Berman: A Great Scholar

Probably no more than a half-dozen books have singly influenced my thinking as much as has Harold Berman's 1983 classic, Law and Revolution: The Formation of the Western Legal Tradition.  I was very sad to learn that Professor Berman died a few days ago.

In the early 1990s I spent several days with Prof. Berman and his charming wife at an Institute for Humane Studies seminar in Belmont, CA.  Organized by Leonard Liggio, the general subject of the seminar was the nature and origin of law.  Law and Revolution was the centerpiece of the readings.  And what a treat it was to have Harold Berman actively participating in all of the discussions!  I remember him as being deeply scholarly -- a man possessing as complete a command of his subject as is humanly possible and yet, simultaneously, unfailingly curious about different perspectives and open always to the possibility of changing his mind should he encounter sufficiently compelling facts or arguments.

Harold Berman was also genuinely kind, without a hint of pretentiousness.

The main lesson of Law and Revolution is that law can -- and certainly did in western Europe -- emerge unplanned from competition among different wannabe sovereign powers.  During the middle-ages and early modern era the Roman Catholic church sought absolute sovereignty.  So too, did various princes.  And these seekers of unalloyed sovereignty each had to compete for authority not only with each other, but also with the law-making processes that emerged in cities, on feudal manors, and -- importantly -- among merchants.

Sovereignty in the west, fortunately, was fractured.  The competition for absolute power -- the quests of the princes and of the church, of "caesar" and of "christ," each to wield absolute power prevented either of them from becoming absolute.  Competition is a grand thing.  And law is not so much the product of a sovereign, or of a law-giving genius, as it is the emergent outcome of countless instances of human interactions and struggles of each of us and of those who would rule us to carve out elbow room for ourselves and domains of authority.

I've yet to read the follow-up volume to Law and Revolution.  I'll do so soon.

Bob Higgs's fine tribute to Harold Berman is here.

If A Disdains B's Freedoms, B Will Return the Favor

Ross Kaminsky, who blogs at Rossputin.com, very effectively defends the dating site eHarmony.com against those who want to use government to force it to cater also to gays.

Heterosexual me says, as Ross says, that I am neither Christian nor of the opinion that homosexuality is immoral.  But -- also like Ross -- I value freedom.  No private company should be compelled to cater to any group or groups that it chooses to avoid.  eHarmony has every moral right -- and should have every legal right -- to choose its clients and customers as it wishes.

Malum in se; malum prohibitum

Bruce Charlton sensibly asks (in a comment to this post):

Isn't  illegal immigration more equivalent to smuggling than to free trade?

I would favour easier, cheaper and quicker regulation of immigration, which would need to be coupled with general reforms to cut back on welfare and making it easy to work legally, repealing the minimum wage etc.

But I find it hard to see how mass scale law-breaking can be ignored without serious knock-on problems.

I respectfully disagree with Mr. Charlton -- or, rather, I submit that he (like so many other persons) is inappropriately distracted by immigrants' "legal" status.

A critical distinction in Anglo-American law is that between actions that are malum in se and actions that are malum prohibitum.  Some actions are malum in se -- wrong in themselves.  Examples are murder, rape, theft, and fraud.  These actions are now formally prohibited by legislation, but their wrongness -- indeed, their very illegality -- exists independently of legislative prohibition.  If, say, the Virginia legislature were to repeal its statutory prohibition on murder, murder would still be wrong and criminal in Virginia.  Murderers would still be wrongdoers and criminals.  If the State government refused to punish such criminals, people would do so privately.

Other actions are malum prohibitum -- "wrong" merely because the government proclaims these actions to be wrong.  One example is avoiding taxes.  If Uncle Sam tomorrow abolishes the federal income tax, failure of Americans to send money to Washington would be neither wrong nor criminal, and persons who send no money to Washington would not be regarded by their neighbors and co-workers as despicable louts whose company should be avoided.

To attach the label "criminal" both to persons who commit actions that are malum in se and to persons whose only wrongdoing is the commission of actions that are merely malum prohibitum is to use language confusingly.  It is to dilute the scorn and loathing that true criminals deserve.  After all, if someone whose only offense is to cross the U.S.-Mexico border in search of a job is a criminal, what is a shoplifter or a child-beater or a murderer?

Looked at differently, to call "criminal" those persons whose only offenses are merely malum prohibitum is unfairly and inappropriately to tar them with the scorn and wariness that is deserved only by persons who commit genuine offenses against others.

And such language clouds and confuses the political debate.  Because most persons understand the word "criminal" to indicate an individual who, to one degree or another, is harmfully anti-social, calling immigrants who are in the U.S. without official government permission "criminal" gives the impression that these people are all harmfully anti-social.  But that impression is emphatically false (unless you include in your definition of "anti-social" the desire for a better life and willingness to compete for jobs).

There is a legitimate debate over how open America's borders should be.  But that debate today is far too soiled by those persons who think that merely calling "illegal" immigrants "criminals" settles the matter.  It does not.  "Illegal" immigrants are "criminals" only because government policy declares them to be -- in the same way that persons openly practicing Christianity or Judaism in Soviet Russia were "criminals" only because government policy declared them to be.  The contours and specifics of this policy are precisely what is at issue in the debate over how widely open U.S. borders ought to be.  This debate should be on the economics and the national-security issues raised by immigration; it should not be confused by the confusing (and often self-serving) application of the term "criminal" to persons who come to America without Uncle Sam's permission -- permission that is very difficult to get.

Flagging Unconstitutional Protectionism

Constitutional Law was not my best subject in law school, but I am pretty darn confident that the Commerce Clause was meant to strip individual states from exercising their own international-trade policies.

Shame on the Minnesota House of Reps.

(HT to Dan Rothschild.)

All Power is Dangerous

Richard Epstein is one of my heroes.

Here's his letter published in today's Wall Street Journal.

David B. Rivkin Jr. and Lee A. Casey paint with too broad a brush in seeking to discredit the litigation brought against the United States during the current war against terror ("Lawfare," editorial page, Feb. 23) -- in particular, their claim that habeas corpus is an improper form of "lawfare" that wrongly whitewashes legal claims that deserve serious judicial and public attention. Messrs. Rivkin and Casey are right that habeas corpus has never been available to ordinary prisoners of war captured overseas. But they are wrong to give all detainees at Guantanamo Bay the same brush off. Many have insisted that they are not enemy combatants at all, but persons turned over to American authorities for bounties or in family grudges, or, in the case of Ali Saleh Kahlah al- Marri, a lawful alien and citizen of a friendly nation, seized in the U.S. They need to be able to challenge their detention before neutral judges.

Messrs. Rivkin and Casey are also wrong to insist that detainee claims receive a fair hearing under Combatant Status Review Tribunals set up by the 2006 Military Commissions Act. The CSRTs neither do the work of habeas corpus nor satisfy the due process clause, because the MCA prevents detainees from presenting evidence and from having representation by counsel. Opponents of these truncated procedures do not pretend to know of the guilt or innocence of the detainees. But we do insist that using traditional procedures is the only way to get at the truth.

Finally the authors incorrectly disparage the current protests against the administration as yet another left-wing "progressive" movement. Not so. The opponents to the administration's policy include small-government libertarians like myself who believe Madisonian checks and balances are always needed to guard against government excess. Those of us who take the modern regulatory state to task for its disregard of the principle of checks and balances in economic affairs should not give a free pass to excessive government power when incarcerating innocents is, regrettably, a real possibility.

Conservatives who are leery of the state when it delivers mail and meddles in education fall into an unfathomable inconsistency when they cheer on that same state's foreign military adventures and its exercise of war powers.

Would Hayek vote for Mark McGwire?

In this ESPN column, Jayson Stark explains why he voted for Mark McGwire for baseball's Hall of Fame:

But in reality, we hardly know anything about what anyone in the sport may or may not have done during those anarchic 1990s.

So just as baseball allowed Gaylord Perry to go out and cheat his way to 300 wins -- and eventually admire his plaque in the Hall of Fame -- it allowed McGwire and a host of other players to compile their stats, break their records, earn their money and listen to all those roaring crowds.

And now here it is, Hall of Fame election time -- and cleaning up this glop is supposed to be our problem? Sorry, the only way to be consistent about this generation is to apply the Gaylord Perry standard -- and evaluate what the sport allowed to go down on the field. Either the '90s happened or they didn't. And we all saw them happen.

We saw hitters on steroids face pitchers on steroids, as hundreds of players all around them used the same stuff, looking for the same edge. But we've never heard most of their names. So I feel more comfortable voting for players like McGwire than I do trying to pick and choose who did what, and when, and why.

A lot of the steroids controversy comes down to one very ugly word: cheater. Cheaters don't belong in the Hall of Fame. But when you chew on the word for a while, you realize that cheaters come in lots of different flavors. Gaylord Perry is one of those flavors. Here are a few more:

The batter glances down at the catcher when he flashes the sign to the pitcher so the batter can know which pitch is coming.

The runner on second steals the sign from the catcher and signals to the batter wht the next pitch is going to be.

The home team has a person with a telescope hidden beneath the stands. That person steals the sign and communicates with the dugout who relays the sign to the batter.

Are any of those cheating?

The first example, where the batter steals the sign directly, is considered, I am told, against the code of baseball. What does that mean? It's simply not done. There's no rule against it, no legislation. But there's a law against it, meaning that everyone in baseball understands that it's not to be done. If you do it, the pitcher will throw at your head.

As my co-host Don points out in this podcast, Hayek makes a profound distinction between law and legislation. Law is an emergent phenomenon. It's not decided or decreed. It emerges from our culture and the behavior and the interactions of individuals with each other. Legislation is what is decreed. Sometime legislation is consistent with law. Sometimes it is not. The legislation says the speed limit is 55 miles per hour. The law says you get a 5-7 mile per hour cushion on top of that.

A batter who steals signs from a catcher breaks the law of baseball but there are no rules against it. It's considered by the players to be a form of cheating. No commissioner of baseball ever sent around a memo about it but it's against the law.

A runner on second who steals signs and relays them to the batter does something that is "part of the game." When there is a runner on second, the catcher and pitcher usually go to an alternate set of signs to prevent their theft. Stealing signs from second is allowed by the law and legislation of baseball. Stealing signs from second isn't cheating.

But stealing signs from center field with a telescope is certainly against the law of baseball. I don't know if there's a formal rule against it. But everyone agrees it's against the law and a form of cheating.  The most famous home run in baseball history, Bobby Thomson's "Shot Heard Round the World" (go to the pull down menu in the middle of the page) that clinched the 1951 pennant for the New York Giants, has been tarnished by the revelation that that the Giants that season had a man in center field with a telescope who relayed the signs to the dugout via a bell and buzzer system.

So are steroids cheating? They are now. Everyone knows it. There is random testing across baseball and if you are found to be using steroids you get suspended from the game. Do it again and the suspension lengthens.

But were steroids cheating in the 1990s when McGwire and Sosa and Bonds and Palmeiro and others were hitting so many home runs that went so far? Palmeiro tested positive. Bonds says he accidentally used steroids. Sosa and McGwire have artfully avoided the question and virtually all listeners have inferred from their artful answers that they used steroids. If true, are they cheaters?

Sort of. There were rules against it in baseball, I think, but those rules weren't really enforced in any serious way. As Stark points out in his column, perhaps hundreds of players were using steroids. He talks about "what the sport allowed to go down on the field"—meaning it was tolerated in a way that suggests it wasn't against the law of baseball, just the legislation in the sense of the formal rules.

Then again, I don't think anyone who used steroids was particularly open about it or proud of it. It was borderline cheating. Sort of cheating. It was understood that both pitchers and batters were using the pharmacy. But it wasn't totally OK.

We make our own judgments. We all understand that some people hit more home runs than they might have otherwise. Most fans have deflated the nominal home run totals of the 1990s, converting them to real numbers. But if some or most pitchers of that era were using "artificial" enhancements (as opposed to nutritional supplements and weight-lifting), then maybe even that deflation is not in order. 

If I were voting, I'd vote for McGwire. I think Hayek would too.

Private Creation of Private Property Rights (Or, Curing the Boston Commons)

Editorialists at the Boston Globe are skeptical of the plan -- for rather vague reasons of "fairness" -- but here's a neat way that private, innovative entrepreneurship might cause scarce parking spaces in Boston to be used more efficiently.

Although the details differ enormously, this idea reminds me of Fred McChesney's article on parking spaces in snow-bound Chicago.  In both cases, as a valuable commodity (parking spaces) becomes more scarce, private efforts and coordination develop ways of creating private property rights in goods that otherwise would remain free-access goods.

More on Law as Spontaneous Order

In my column in today's Pittsburgh Tribune-Review, I discuss many of the aspects of law and legislation that I discussed with Russ on a recent EconTalk podcast.

Boudreaux on Posner on Hayek

I've long admired the work of Judge Richard Posner.  I've learned much from his writings.  But in this brief essay -- published in the latest issue of the NYU Journal of Law & Liberty -- I take issue with Posner's tepid assessment of the importance of Hayek's work.

In Defense of Judicial Activism

In this podcast with Clint Bolick, co-founder of the Institute for Justice, he and I discuss the purpose of the judiciary, the importance of the Constitution for securing economic freedom, the Kelo case, Marbury v. Madison and the weird political economy of school choice. Clint actually makes the claim that the teacher's union controls the Democratic Party. I expressed skepticism but his rebuttal was pretty convincing.

All Posner, all the time

Richard Posner did not win a Nobel Prize yesterday but he probably will soon. Here is a web site that lets you search all of his decisions as a judge. (HT: BoingBoing)

Don't Bury Life-Saving Organs

Inspired by Lloyd Cohen, my colleague at GMU Law, I wrote this fourth installment in my series on freeing the market for human kidneys.  The basic idea is to treat our transplantable organs as parts of our estates, being as alienable as are other parts of our estates such as our automobiles and houses.

Kelo Turns One

This past Friday, June 23, was the first anniversary of the U.S. Supreme Court's Kelo decision.  I commemorate that somber event in this op-ed that ran in Wednesday's issue of Investor's Business Daily.

Getting Catty About the Constitution

I realize that what I'm about to ask is the intellectual equivalent of taking your date to a monster-truck rally, but where oh where in the U.S. Constitution is the national government empowered to govern the treatment of pets?

Yesterday's New York Times has some details.

Do Senators Stevens and Lautenberg -- who introduced the Pets Evacuation and Transportation Standards Act into the U.S. Senate -- and the 349 U.S. House members who've already voted for this bill, understand what they did when they pledged to uphold the Constitution? Did they read the document? Are they illiterate? Dead-dog stupid? Or are they simply, well, politicians?

(Hat tip to pet-loving Karol.)

Decriminalizing Drugs in Mexico

Is the Mexican government really this sensible?  Will it really decriminalize possession of small amounts of marijuana and other now-prohibited drugs?  I certainly hope so!

If so, I predict that urban violence in Mexico will fall.

Hat tip to Dan Polsby.

The Beauty of Law and Economics

Here's my latest column in the Pittsburgh Tribune-Review -- explaining how increasing the severity of criminal penalties would raise the murder rate.

Question for readers: does this logic help explain why drug dealers are violent?

Having the Constitution for Lunch

I'm aware that what I'm about to ask is the intellectual equivalent of taking your date to a monster-truck rally -- that is, sure evidence of low-brow benightednes and crude sensibilities -- but on what Constitutional basis does the national government in the United States regulate the contents of school lunches?

That Uncle Sam does regulate school-lunch contents is beyond question.  See this report in today's New York Times informing us that "A bipartisan group in Congress plans to introduce legislation today that would prohibit the sale in school not only of French fries but also of other fatty or sugary foods, including soft drinks."

Put aside all questions of the desirability of such legislation and ask "Is this legislation Constitutional?"

I've read the U.S. Constitution several times, and nowhere -- not remotely, not even as a penumbra emanating from its text -- does it give to the national government the power to regulate the contents of school lunches.  And yet, such a fact inspires no apparent hesitation in the typical member of Congress to regulate in this way.

Keep in mind that each member of Congress is sworn to uphold the Constitution.  This oath, however, obviously matters less than does the fact that

Senator Lisa Murkowski, Republican of Alaska, has watched what goes on in the school her two teenage sons attend.

"We talk a lot about healthy nutrition, we teach the kids about the food pyramid, and then they go down the hallway and get the high fat, high sodium and high junk available in the vending machines," Ms. Murkowski said. "We need to be consistent. People are beginning to connect the dots between rising health care costs and obesity."

Applebaum on Irving

Anne Applebaum of the Washington Post has a nice piece today on the Irving case.  The ending is eloquent:

In a world in which a Jewish man can be found tortured and murdered outside Paris, as one was last week, in which imams issue fatwas against cartoonists, in which the golden domes of mosques explode and in which religious intolerance seems to be exploding too -- it's becoming far harder for everyone else to see the value of uninhibited, unrestrained and deeply offensive free speech.

It's Good to Have a Constitution

Sometimes I despair at how little the Constitution matters in the United States as a deterrent to legislative mischief.  But then events remind me that even a little Constitutional restraint is better than none at all.

Take freedom of speech.  Polls always suggest a willingness of Americans to ban stuff they don't agree with.  President Bush and others, talking about the Muslim cartoons, say silly things about the importance of using restraint in publishing offensive material when in fact, the whole idea of freedom of speech is to make sure that people can say offensive things.  And yet, the First Amendment makes me feel pretty good about the future of offensive speech in the United States.

Look at the David Irving affair.  I have no idea whether David Irving is a Holocaust denier.  I haven't followed the trial.  What I do know is that I don't want anyone in the United States to go to jail for three years for holding a particular view of history.  I want Holocaust denial to be destroyed in the court of public opinion rather than in the public courts.

Is there any way that Austria's Holocaust denial legislation could pass Constitutional scrutiny in the United States? OK, we probably do have some hate speech ordinances that are steps in the wrong direction.  But at least in America you can deny the Holocaust and stay out of jail.

Here's the irony of putting David Irving in jail for saying something offensive.  In the 1930s, a government came to power in Germany and eventually Austria that put people in jail for what they believed or said and eventually killed people, the Jews, for who their parents and grandparents were.  If you think that's a bad thing, you want to limit the ability of government to put people in jail, not expand it.

As a Jew, it never ceases to amaze me that people think the most important lesson of the Holocaust is that anyone, even civilized Germans who love Bach and Beethoven, can become murderers.  Or that the most important lesson is that hatred is wrong.  Hatred is immortal. People say, "never again" as if saying it is sufficient to prevent future holocausts.  But saying it is not sufficient without limiting the power of government to imprison and kill people.

To me, the most important lesson of the Holocaust is that only governments can kill millions of people. Murdering millions requires absolute power. So I want governments to be weaker rather than stronger.  That's why I like the First and the Second Amendments.  And why I'm glad I don't live in Austria.

Free the Price-Cutters!

In the current issue of Regulation, law professor Daniel Crane has a well-worth-reading article on the perverse consequences of prohibitions on so-called "predatory pricing."

Here's an especially interesting part of the article:

A study by Case Western law professor Arthur Austin is telling.  Austin interviewed jurors in four antitrust trials, including Brooke Group v. Brown & Williamson, the latest predatory pricing case decided by the Supreme Court.  Austin's interviews revealed that "the jurors were overwhelmed, frustrated, and confused by testimony well beyond their comprehension.... [A]t no time did any juror grasp -- even at the margins -- the law, the economics, or any other testimony related to the allegations or defense."  Austin reports,

At no time have I encountered a juror who had the foggiest notion of what oligopoly, market power, or average variable cost meant, much less how they applied to the case....  Typical is the response I received when I asked a juror whether he remembered average variable cost.  The juror replied, 'Yes, explain it to me.  I still don't know what it means.'

Mind you, the jury found that Brown & Williamson engaged in predatory pricing, which required a finding that it had priced below average variable cost.  If the jury did not understand the legal test, on what basis did it award a $148.8 judgment against Brown & Williamson?

Fortunately, in 1993 the U.S. Supreme Court found in favor of Brown & Williamson on appeal.

The Real World

Today I listened to some of the broadcast of the confirmation hearings of Supreme Court nominee Samuel Alito. The part I caught included questioning by Sen. Joe Biden. Biden expressed great admiration for retiring Justice Sandra Day O’Connor (whom Alilto is nominated to replace). Biden kept saying that Justice O’Connor understood “the real world” and cared about “the real world.” Clearly, Biden was suggesting that good judges pay attention to “the real world” – and that failure to pay attention to the real world (say, by instead paying attention only to abstractions) is a mark of a poor judge.

I agree with Biden that the real world is important. Law grows from experience. Good law cannot be deduced logically by a genius or a committee of geniuses.

But I suspect that Biden’s concept of the real world differs from my own. What is the real world?

The real-world examples used by Biden to flesh out his conviction that a good Supreme Court justice is one who pays attention to the real world were of employees who were fired or not promoted because of alleged workplace discrimination. My guess is that Biden regards any political or judicial theory that is skeptical of granting relief for such real-world discrimination as a theory that ignores the real world – a theory that callously elevates abstractions over reality.

If I were before Sen. Biden's committee, I’d respond to Biden’s remarks like this:

Senator, I, too, believe that law is a product exclusively of the real world and should not be divorced from it. I agree with Oliver Wendell Holmes’s observation that law is no “brooding omnipresence.”  But Senator, we must be careful about what we take to be the real world. The real world is not limited to the here and now; it’s not limited to the plaintiff and defendant in whatever case happens to be in front of the court. It’s not limited to the people we can see and hear standing before us or shouting behind us.

The real world exists through time and vast space. It includes millions of people whose names and faces we don’t know and will never encounter – but each of whom is as real as you and me. The fact that we – you and me – don’t see these persons and don’t know them doesn’t make them unreal or less-real than the people we do see and hear and touch and smell in our courtrooms and in the lobbies of our legislative halls.

So let’s say we have a statute aimed at preventing employment discrimination against disabled people. I ask: Which disabled people? And I answer: all disabled people. Surely being a man committed to the real world you understand that this country contains many more disabled people beyond the one who sues a company under the statute. If the court grants relief to the plaintiff – the disabled worker who filed the suit demanding (say) that his employer build a special elevator just for his use – that real-world disabled worker might well be helped. But what if the consequence of applying the statute in this way makes it less likely that disabled people will be hired in the future and by other companies?

I realize, Senator, that judges’ scope for making policy decisions is far narrower than that enjoyed by legislators.  And I agree that judges' role is not to rewrite legislation. But please, Senator, don’t insult me or the audience listening to this political spectacle by insinuating that only persons, such as yourself, who focus only on the anecdote, only on a handful of identifiable persons, have a monopoly on caring about the real world. Don’t suggest that those of us who care about rules – who understand that rules are to be judged by their performance over time and space rather than by how they work in any one instance – are less concerned about the real-world than you are.

Indeed, Senator, because I understand that statutes and legal rulings have effects far beyond those which are seen, I dare say that I am more aware of the real-world than are those – such as you, Senator? – who typically judge a rule to be good or bad based exclusively upon how it affects a single or a few identifiable persons.

Senator Biden, the issue isn't whether or not the real world matters. We all agree that it does. What separates you and me, Senator, is that I don’t ignore that part of the real-world that is less visible than that relatively small part that attracts the attention of politicians and the press.

A Sighting of David Ricardo in Palo Alto

I'm genuinely delighted to learn that students at Stanford's School of Law are learning the meaning and benefits of the principle of comparative advantage.  This fine op-ed in today's Washington Post by Josh Sheptow, a Stanford law student, explains why the widespread practice of high-priced corporate attorneys devoting some of their time to do pro bono work for poor people is "staggeringly inefficient."

Here's the core of Mr. Sheptow's argument:

My argument is straightforward. First, note that there are nonprofits such as the Legal Aid Society that do nothing but provide free legal services to low-income clients. Their offices are not fancy and their attorneys command much lower salaries than their counterparts at large, prestigious law firms. As a result, it costs these organizations (or, more accurately, their donors) less than $100 for each hour of legal services they provide to low-income clients.

Now consider a lawyer who charges paying clients $500 an hour (roughly the going rate for an upper-level associate at a large corporate law firm). If she donated 10 hours of fees to Legal Aid, she could fund roughly 50 hours of legal service to low-income clients. That's five times the amount of service she could provide if she spent those 10 hours doing pro bono work herself. Thus it is much more efficient for her, and for high-priced lawyers generally, to donate their fees rather than their time.

Well done, Mr. Sheptow!

What About the Bedroom-men?

Proponents of immigration restrictions, and especially of the so-called “Minutemen” who police against “illegal” immigrants, often make the following argument:

Whether current levels of immigration are good or not, the fact is that many immigrants are in the United States illegally – that is, without the permission of the government.  Breaking laws is wrong.  Therefore, anyone in the U.S. illegally is a wrongdoer and should return to his own country.  If he then applies for and receives permission to enter the U.S. legally, then he’ll be welcome.

Minutemen help government enforce laws on the books; therefore, they should be applauded.

(The wording above is mine, but if you survey much of the anti-immigration, pro-"Minuteman" literature -- including some of the comments on this blog-post -- you'll find it, I believe, to be a fair rendition of a much-used argument.)

This argument is weak.

First, it fails to appreciate the fact that unjust laws deserve to be broken, or at least don’t deserve to be obeyed.  Wasn’t it noble to violate the fugitive-slave laws and Jim Crow legislation?  (I understand, of course, that there’s some danger in a decentralized system for deciding which laws are worthy of respect and which laws aren’t.  But there’s also danger in a centralized system for declaring which laws should be obeyed.)  My moral sense is that politicians, bureaucrats, and “Minutemen” have no business telling me which peaceful persons I can befriend or make love to in my own home or hire in my own factory.  My moral sense tells me also that foreigners are not morally obliged to obey American politicians who would keep them from engaging in consensual capitalist acts on these shores.

Second, the “if-government-says-it,-we-must-obey-it” mindset does not support “Minutemen” interventions.  Government determines “law” not merely by what it says (usually in the form of statutory language), but also by what it does.  If government chooses to devote an amount of resources to “immigration control” that is inadequate to prevent substantial amounts of illegal immigration, shouldn’t we – by the “Minutemen’s” own logic – respect this government decision and not interpose our own opinions about what the level of immigration enforcement “should” be?  Who are we, mere private citizens, to dare to second-guess with our actions a decision on the level of immigration control made by our leaders?  Aren’t the “Minutemen” breaking the law just as illegitimately as are persons who come to America without formal approval of our leaders?

Just because words are written on paper and subjected to hocus-pocus beneath a soaring marble dome does not mean that these words are truly “law,” or even that the government officials who wrote and voted for them want them to be taken literally.

I believe that several states still have on the books “laws” declaring sex outside of wedlock to be a criminal offense.  How many of us would applaud a private group calling themselves “Bedroom-men” snooping around our residences trying to prevent unmarried adults from having consensual sex with each other?  Would we excuse the “Bedroom-men” by saying “Well, like it or not, because Dick and Jane aren’t married to each other, it’s unlawful for them to make love to each other.  The law’s the law, and the Bedroom-men are just assisting government in upholding the law.”

How many of us would respect the Bedroom-men?  How many of us would believe that the members of such a group have no selfish, unsavory reasons for doing what they do?  How many of us would wish that any unmarried adults consenting to have sex with each other be jailed or fined simply because some statute book declares their behavior to be “unlawful”?

A "legitimate state purpose"

Read the opening paragraph of Fields, et al. v. Palmdale School District, a case handed down on November 2^nd by the U.S. Court of Appeals for the Ninth Circuit. The majority opinion – including the words below – are from the pen of Judge Stephen Reinhardt.

When parents of schoolchildren in Palmdale, California learned from their sons and daughters that they had been questioned in their public elementary school about sexual topics such as the frequency of "thinking about having sex" and "thinking about touching other peoples’ private parts," some of them exercised their constitutional right to take their grievance to the courts. The questioning was part of a survey the Palmdale School District was conducting regarding psychological barriers to learning. The parents brought an action in district court against the School District and two of its officials for violating their right to privacy and their right "to control the upbringing of their children by introducing them to matters of and relating to sex." They brought both federal and state claims. The district court dismissed the federal causes of action for failure to state a claim upon which relief could be granted and dismissed the state claims without prejudice to their right to re-file in state court. We agree, and hold that there is no fundamental right of parents to be the exclusive provider of information regarding sexual matters to their children, either independent of their right to direct the upbringing and education of their children or encompassed by it. We also hold that parents have no due process or privacy right to override the determinations of public schools as to the information to which their children will be exposed while enrolled as students. Finally, we hold that the defendants’ actions were rationally related to a legitimate state purpose.

Read again the final three sentences of this quotation.

The state – government – politicians and their henchmen and toadies – strangers specializing in duping the masses into believing that these same duplicitous strangers are capable of superhuman feats of beneficence – are ruled by a U.S. court of appeals to have a "legitimate" reason to interfere with parents’ decisions about how to expose children to "sexual matters."

As my good friend Roger Meiners remarks about this ruling by super-lefty Judge Reinhardt, it’s rather anomalous that lefties so publicly bemoan the likelihood that non-lefty judges threaten personal freedoms.  Is this ruling not deeply offensive to all who love liberty?

The Full History of Racial Segregation in the United States

Thomas Sowell fills out the important history behind Jim Crow legislation – the history that made racial segregation in the U.S. a reality. Here’s the core of Sowell’s explanation:

Those who see government as the solution to social problems may be surprised to learn it was government that created this problem. Many, if not most, municipal transit systems were privately owned in the 19th century and the private owners of these systems had no incentive to segregate the races.

These owners may have been racists themselves but they were in business to make a profit -- and you don't make a profit by alienating a lot of your customers. There was not enough market demand for Jim Crow seating on municipal transit to bring it about.

It was politics that segregated the races because the incentives of the political process are different from the incentives of the economic process. Both blacks and whites spent money to ride the buses but, after the disenfranchisement of black voters in the late 19th and early 20th century, only whites counted in the political process.

Sowell also hits an important nail on the head with this line near the end of his column:

People who decry the fact that businesses are in business "just to make money" seldom understand the implications of what they are saying. You make money by doing what other people want, not what you want.

Although Sowell doesn’t mention them by name, the scholars who supplied the important research on the roots of racial segregation in the United States are Robert Higgs (see this outstanding book) and my former colleague at George Mason University Jennifer Roback-Morse.  (Her two most important papers along these lines – but for which I cannot find links – are Jennifer Roback, "Southern Labor Law in the Jim Crow Era: Exploitative or Competitive?," University of Chicago Law Review, Vol. 51 (1984); and Jennifer Roback, "The Political Economy of Segregation: The Case of Segregated Streetcars," 46 Journal of Economic History, Vol. 46 (1986).)

John Milton on the Moral Limits of Democracy

I love this line in John Milton's essay "The Readie and Easie Way to Establish a Free Commonwealth," which is in Milton's celebrated Areopagitica:

More just it is, doubtless, if it come to force, that a less number compel a greater to retain their liberty, than a greater number, for the pleasure of their own baseness, compel a less most injuriously to be their fellow slaves.  [John Milton, Areopagitica [Liberty Fund edition, 1999; page 438.  I modernized the spelling.]

Ambiguous Lesson on Law

I have defended the possibility of a stateless society – one emphatically not anarchic; one in which order and prosperity exist, and where law is discovered and enforced decentrally rather than centrally.

I admit, though, that this is an extreme position.  I am not at all sure that it’s correct.  Perhaps minimal-state libertarianism is indeed the best that humans can possibly achieve.

Arnold Kling argues that the brutal anarchy now plaguing New Orleans is evidence in support of the minimal-state, as opposed to the no-state, position.  Post-Katrina New Orleans can indeed be interpreted in this way, and this interpretation is quite plausible.

But it’s not as clear to me as it is to Arnold that post-Katrina New Orleans points so unambiguously toward his interpretation.  The fact is that government there has failed.  Formally, government there exists – local, state, and national government, all part of history's wealthiest society.  But government is not providing law.  Despite the existence of government that claims sovereignty over the city of New Orleans, it isn’t supplying law.

What law there is in the Big Uneasy now is sparse.

So while it’s also true that there’s little or no law supplied now by decentralized, spontaneous-ordering forces (Why would anyone suppose that such law would emerge instantaneously the moment government abandons the scene?), there’s no law supplied now by the very agency universally proclaimed as the only, or at least the best, source of law.

Update: Patri Friedman says more, in a post well worth reading.

Social Creationism, Social Deism, & Social Atheism

Browsing through the August 15^th issue of Time, I came across an insightful quotation from the brilliant Harvard University psychologist Steven Pinker. Pinker is quoted in Time’s cover story on the role of religion in schools. Pinker says, defending the theory of natural selection against the idea of "intelligent design," that

Overcoming naive impressions to figure out how things really work is one of humanity’s highest callings.

Indeed so.

I don’t here write to enter my two-cents in the debate between Darwinians and creationists (although, for the record, I am solidly in the Darwinian camp). I write to record that Pinker’s insight applies to society no less than to biological beings.

Naive minds believe that social order must be created, planned, the result of intention. These minds worry that without such conscious guidance, the result will be either chaos or an order that is inferior to one that is planned and consciously crafted. In contrast, sophisticated minds understand that social order is largely "the result of human action but not of human design" – and that highly complex, productive orders that offer maximum prospect for widespread human flourishing are those that are least infected with efforts to centrally craft social order.

Of course, the above is a summary of the chief insight of Adam Smith and F.A. Hayek.

Most people who understand and accept this Smith-Hayek insight become what we might call "social deists."

A social deist assumes that sovereign power is necessary to design and maintain the foundation, but not the superstructure, of society. That is, a social deist regards conscious design and maintenance of the ‘constitutional’ level as necessary. Upon this foundation, social order grows unplanned.

Social deists are contrasted, on one hand, with "social creationists." Social creationists are members of that species of juvenile thinkers who regard conscious, central direction by a wise and caring higher human authority as necessary for all social order – not only for the foundation, but for all, or much, of what the foundation supports.

Economic central planners are prime examples of social creationists. In their view, government must not only create and enforce law (society’s foundation), it also must plan the course of the economy (society’s superstructure) – for example, which good and services to produce, and how to produce these.

Social deists are contrasted, on the other hand, with "social atheists."  What is a social atheist?

A social atheist regards even the institutional foundation of a free and complex society as uncreated – as being just as much an unplanned, spontaneous development as is the superstructure of society that builds itself upon this foundation.

Social atheism is difficult to grasp – as difficult to grasp as atheism itself. How does it all start? How can it all hang together without some prime mover, some intent-laden authority or mind imparting logic to its processes?

Unlike questions involving the material universe – where the existence or non-existence of god is a fact that disputants can only hope to discover but not control – people can at least attempt to make society one in which social creationism, social deism, or social atheism is descriptive.

But human society seems to progress the further along the spectrum it moves from social creationism toward social deism toward social atheism. How far in this direction can we move profitably?

Sen. Kennedy on the Role of Courts

Karol and I just returned from nearly two weeks in Romania (Bucharest and Transylvania).  Within the next few days, I'll likely say a bit more about our generally happy impressions of Romania.

But for now I content myself to mention this interview with Ted Kennedy on the nomination of Judge John Roberts to become an associate justice on the U.S. Supreme Court.  (We heard this interview while driving to the airport on July 20th.)  Kennedy mentions four examples of how, if confirmed, Justice Roberts should protect Americans.  One of his examples is protection of women's right to abortions.  The other three examples are protection from corporations.

While any corporation (or mom'n'pop grocery store, or NGO, or any other person or institution) that violates others' rights should be held well and truly accountable under the law, it's telling that Senator Kennedy focuses on corporations, rather than government, as the principal threat to people's rights and liberties.

Disgust at the 'Drug War'

I challenge anyone to read this column by John Tierney and not feel disgust at the disgraceful consequences of the so-called ‘war on drugs.’ (If you don’t feel disgust, then you are emphatically someone with whom I want nothing to do. And I certainly don’t want you to have any role -- not even as a voter -- in determining how I live my life.)

Tierney visited a 46-year-old prison inmate – a wheel-chair-bound man serving a 25-year sentence in a high-security Florida prison because he had the effrontery to seek relief from excruciating pain caused by an automobile accident that damaged his spinal cord.

I’ll be more precise: this man had the gall to seek pain relief that isn’t government approved.

To all those people who support the ‘war on drugs’, I ask: are the ugliness, the cruelty, and the dangers that you imagine will result from ending the ‘war on drugs’ worse than the actual ugliness, cruelty, and dangers that attend the ‘war on drugs’? I doubt that you can answer an informed ‘yes.’

Kelo and Just Compensation

Here's the Boston Globe's outstanding columnist, Jeff Jacoby, on the odious Kelo ruling.

....

Speaking of Kelo, what compensation is "just" for the homeowners in New London, Connecticut, whose property is being stolen by the government? The market value of these properties before Pfizer and other private companies set their sights on them? Nope. That figure is far too low.

The government is very sure that its theft of private property will generate ample economic benefits to citizens at large, as well as increase the City’s own tax revenues. (As Justice Stevens put the matter in his opinion for the Court majority: "The City has carefully formulated an economic development plan that it believes will provide appreciable benefits to the community, including – but by no means limited to – new jobs and increased tax revenue.") So why not base the calculation of the just compensation (owed by the thief-politicians of New London to their victims) on the City’s own estimate of the dollar value of these "appreciable benefits" that its thievery is expected to yield?

That is, if the City expects that its thievery will yield $X million in economic benefits, just compensation (given that the theft now enjoys the Supreme Court’s approval) is approximately .95 ($XM). Let the City keep about five percent of the additional value it expects to be created. Given current low interest rates and the fact that the City (ostensibly) is a not-for-profit outfit, the City should be quite content to keep a full five percent of this booty.

I thank my neighbor, the insightful attorney Ed Grass, for this suggestion about the proper magnitude of "just compensation" in Kelo.