Friday, June 14, 2019

Dear Big Ag: We Don't Trust Your Motives

by Sherry Colb & Jareb Gleckel

On Justia’s Verdict today, Jareb Gleckel has a column about Big Ag. The informal conglomerate of slaughterhouse boosters has of late proffered (a new set of) logically inconsistent arguments, on the one hand, for vesting regulatory jurisdiction over cell-based food in the USDA (because such food is meat) and, on the other hand, for preventing this food from being labeled with meat-connected words like “burger” (because such food isn’t meat). In this post, we will consider the question why Big Ag complains when Beyond Meat names one of its most popular products “Beyond Burgers” or when Tofurky sells “veggie bacon.”

Advice From Alexander Hamilton: The Next Democratic President Might Need to Pardon Trump

by Michael C. Dorf

There is no real equivalence between Donald Trump's gleeful and repeated encouragement of his supporters chanting "lock her up" in reference to Hillary Clinton's use of a private email server and recent statements about Trump by House Speaker Nancy Pelosi (“I don’t want to see him impeached. I want to see him in prison") and by Senator Kamala Harris (in a Harris administration, DOJ "would have no choice" but to prosecute Trump for obstruction). Pelosi made her remark in private and as a way to tamp down impeachment, while Harris made her statement in response to a question. Moreover, as the Mueller report documents, there is substantial evidence that Trump committed crimes that would subject him to indictment and conviction were it not for the DOJ policy against indicting a sitting president. By contrast, Clinton's email server use was reckless but not the sort of act that typically warrants prosecution.

Nonetheless, in a Lawfare column on Wednesday, Ben Wittes argued that Democrats should stop talking about prosecuting Trump, because (quoting Paul Rosenzweig) "you don’t protect norms by violating norms." Although I disagree with Wittes's implication (which may not have been intended) of equivalence, I agree with his advice to Democrats to stop talking about prosecuting Trump, because doing so very easily lends itself to the appearance that they share Trump's willingness to convert the US into the sort of country in which new governments routinely prosecute their predecessors for real and imagined crimes--thus undercutting the incentive of leaders who are defeated at the polls to relinquish power. It's true that the Trump-supporting critics of the Pelosi and Harris statements are shameless hypocrites, but any advice for US politicians operating in the real world must take account of the fact that shameless hypocrites litter the media landscape.

I also agree with Wittes on another point: that the NPR reporter's question that prompted Senator Harris to say that the DOJ would need to prosecute Trump contained embedded within it an implicit question about whether the next president ought to pardon Trump. Here I want to channel Alexander Hamilton, whose analysis in Federalist 74 may provide some useful context.

Thursday, June 13, 2019

Home Ownership, Capitalism, and That Elusive Efficiency Thing

[Note to readers: My new Verdict column, "Elected Dictators? The Limits of What Government Officials Can Do With Their Power," was published this morning.  Although my column below focuses on a very different topic, I encourage everyone to read the Verdict piece as well.]

by Neil H. Buchanan

During and immediately after the Great Recession, politicians and policy analysts understandably spent a great deal of time thinking about mortgages and home ownership.  This obviously made sense, because so much of the financial crisis that nearly pushed the global economy into a second Great Depression -- averted only because the Bush and Obama administrations (and just enough Republicans and Democrats in Congress) actually did the right things and saved the economy with necessary but unpopular bailouts -- was driven by the mortgage market.

My take on the situation was that the crisis had exposed the folly of our obsession with home ownership as part of the American Dream.  My students, like all people in their mid-twenties and later, are bombarded with the idea that a person is not truly a grownup unless and until he or she is married, has a professional job, has children, and owns a house.  This is nonsense, but it is also powerful, and I see young people over and over again making bad financial (and other) decisions in the name of proving that they are adults.

In 2012, I collected twenty-one of my Dorf on Law columns (and one column from the now-defunct Writ) on this topic and put them online in a single document, Owning Versus Renting: Thoughts on Housing Policy, Tax Incentives, and Middle Class Dreams.  In the seven years since then, I have mostly left the topic alone.

At the annual Law & Society meetings earlier this month, however, Professor Danshera Wetherington Cords's presentation included some interesting facts about homeowners' insurance that sparked some thoughts about policies to improve the functioning of the housing market in the U.S.  Those thoughts tie in nicely to the recent political brouhaha about Socialism vs. Capitalism and to the concept of economic efficiency that I have critiqued in my three most recent Dorf on Law columns (here, here, and here).

The bottom line is that our policies related to home ownership demonstrate yet again that there is no "natural" non-government baseline for our laws, and we can have a robust capitalist system under any number of different legal regimes.  The best housing policies are those that would at least reduce the harms inflicted on middle- and lower-income Americans.

Wednesday, June 12, 2019

Litigation Versus Disclosure Versus Regulation as Means of Inducing Cost-Internalization: A Comment on the Insys Bankruptcy

by Michael C. Dorf

As then-Professor Guido Calabresi's pathbreaking work explained, the tort system can be a kind of substitute for or complement to regulation. As applied to manufacturers, tort damages serve not only to compensate victims but also to induce cost internalization. In this blog post, I shall use the news of the bankruptcy filing by Insys Therapeutics--maker of fentanyl--as an occasion to discuss some of the advantages and disadvantages of the tort system relative to other mechanisms for promoting cost internalization. I'll discuss taxes, regulation, markets, and disclosure.

Tuesday, June 11, 2019

Is Economics the Problem, Or Is It the Economists?

by Neil H. Buchanan

My career move from economics into law began twenty years ago, and it was not a happy divorce.  Over the years since then, I have often been asked to explain why I was willing to leave economics behind (as a professional matter, not as an intellectual one, given that my writing continues to be dominated by economic policy topics such as budget deficits), and my answers have reliably elicited hostile feedback from people who think that economics is a beautiful and important thing.

Those negative responses, however, have always had a confused air about them, vacillating between a defense of the field of economics and a defense of economists themselves.  Is it the thing or the people who do that thing that matters?

Am I saying, in blunt terms, that economics sucks or that economists suck?

It could be both, actually, and too often economists truly are guilty of intellectual dishonesty.  Ultimately, however, it is the disembodied field itself that is the problem.

What is most interesting, in fact, is that it is possible for many, many good and talented people to be engaged in a field of study without having a positive impact on the core of that field.  Indeed, there might well be a clear majority of economists doing work that I find interesting and useful, yet the field itself continues to be deeply problematic.  How is that even possible?

Monday, June 10, 2019

Free Speech and Boycotts Revisited

by Michael C. Dorf (cross-posted at The Volokh Conspiracy)

In Arkansas Times v. Waldrip, the US Court of Appeals for the Fourth Circuit will decide whether an Arkansas law requiring public entities (including contractors with the state) to certify that they do not boycott Israel or companies that do business with Israel violates the First Amendment. The district court held that it does not. Various champions of free speech have filed briefs arguing that political boycotts are protected free speech. Three scholars who also fashion ourselves champions of free speech -- Professors Andrew Koppelman, Eugene Volokh, and I -- take the opposite view. You can read our brief here. You can read a summary of our argument in a blog post by Prof Volokh here. His blog post also contains links to the briefs on the other side. Here I'll add a few words that go beyond what I wrote on this topic back in February and what we say in the brief.

Friday, June 07, 2019

Abortion and Eugenics Part 2: Attributing Motives

by Michael C. Dorf (Updated with Audio)

This morning during the 10 am hour, Prof Colb and I will be on air in Philadelphia on WWDB-AM Talk 860 and everywhere else via TuneIn, iHeartRadio, and streaming from the webpage. We'll be joining Laurent Levy, host of The Other Animals. (Update: Here's the audio. We come in at the 11:30 mark.) We'll be talking about some of the topics in our book Beating Hearts: Abortion and Animal Rights. Certainly the abortion piece is much in the news. Meanwhile, as Prof Colb's post on Wednesday on the insanity defense and so-called humane animal products shows, human treatment of animals remains relevant to just about everything.

Depending on how the radio segment goes, I may write a follow-up post. Meanwhile, I want to use this space today to talk a little bit about attributions of motives in the abortion debate.

Thursday, June 06, 2019

Everything Is Both Efficient and Inefficient as a Matter of Economics

by Neil H. Buchanan

In policy debates, and especially in tax policy debates, the ultimate ace in the hole (note that I avoided saying "trump card") is an efficiency argument.  My side favors an efficient policy, but your side foolishly stands for inefficiency!  Everyone wants to be on the right side of that divide -- because no one could affirmatively defend being inefficient!! -- which means that the outcome of the efficiency debate matters greatly to everyone.

That is not to say that everyone is willing to favor efficiency over everything else.  One of the classic questions in policy analysis, after all, is the supposed "equity/efficiency tradeoff," wherein the people who favor a policy because it helps the poor specifically or mitigates inequality more generally say that any inefficiency caused by their policy is more than made up for by the moral value of reducing inequity.

But why does that debate always find its combatants in the same positions, with conservatives sure that their policies are efficient and liberals conceding the point?  The answer is that what the world knows simply as "economic theory" -- as if there could only be one such theory -- is actually a very particular economic theory that is (consciously or otherwise) built to lead to the conclusion that redistributive policies are bad.

I use the normative term "bad" rather than "inefficient" because, even though economics students are taught to say that the theory presented in their textbooks is objective and morally neutral, it takes studied ignorance to believe that being guilty of inefficiency is not presumptively a bad thing.  "It's inefficient" generally means "We shouldn't do it," or at least that we ought to have a very good reason to deviate from the ideal.

But what if the very concept of efficiency is inescapably empty?  What if any policy proposal, or any situation at all, can honestly be described both as efficient and inefficient, depending on the way we frame the analysis?  We need not ask "what if," because it is actually true that efficiency ultimately means nothing.  Understanding why that is true is an interesting journey.

Wednesday, June 05, 2019

Humanely Raised Animals and the Insanity Defense

by Sherry F. Colb

The U.S. Supreme Court recently granted certiorari in Kahler v. Kansas. The case asks whether abolishing the insanity defense violates the Constitution. In my Verdict column this week, I discuss the case and make some arguments in defense of allowing abolition. In this post, I want to discuss a feature of the insanity defense that it arguably shares with animal welfare regulations and customs that purport to protect animals from cruelty.

Tuesday, June 04, 2019

The Undead Nature of Orthodox Economics

by Neil H. Buchanan

Orthodox economics, as taught in thousands of Econ 101 classrooms around the world and as written down in millions of textbooks for the past few generations, carries the unmistakable message that "markets are good" and thus that "government (intervention) is bad."  Especially for a field that hides behind the positive/normative distinction -- "We are scientists who offer positive (i.e., neutral) analysis, leaving the normative choices to the philosophers and politicians" -- it is quite striking how blatantly obvious those normative conclusions are.

As one might imagine (and as most readers are well aware), there has long been quite a bit of resistance to those normative prescriptions.  Outside of economics, it is a running joke to note the cult-like worship of "the free market" and the resistance by economists to any objections to their beliefs.  Even within economics, many scholars seem to defy their own orthodoxy by arguing in favor of various types of government interventions in the economy.

Nearly everyone outside of economics and many within the profession thus seem to agree that one or more of the critiques of orthodox economic theory are powerful and important, if not dispositive.  Yet somehow that orthodoxy has never been jettisoned, and there is precious little evidence that it is in danger even today.  Indeed, it seems to have been killed countless times, yet it keeps coming back to life.  How can that be?

Monday, June 03, 2019

Dicta and the Original Meaning of Article III

by Michael C. Dorf

A recent order in a pending Sixth Circuit case asks the parties for supplemental briefing on the original meaning of the cases or controversies language in Article III and its relevance to the distinction between holding and dicta. The order is especially notable because it directs the attorneys to explain how the Corpus of Founding Era American English bears on the question. To my mind, the order raises numerous issues. Here, I'll address the following:

1) How useful is the corpus for discerning original meaning as a general matter?

2) Even assuming the answer to question 1) is "at least somewhat," should lawyers who haven't chosen to cite it be directed by courts to do so?

3) Even assuming the answer to question 2) is "yes, at least sometimes," is this such an occasion?

4) Does the original meaning of Article III determine the line between holding and dicta, even on originalist premises?

5) How should one translate that original meaning, given substantial changes in how federal courts function since the Founding?