Monday, October 31, 2005

Subject Entirely to Market Forces

Of late, there have been many times that I have wondered about the way "the market" in used in conversation. I think our conversations about "the market" may not always be very useful, and perhaps this is because we aren't very careful about what is meant by "the market." I just read what I think is another illustration of this posted by Jason Scorse over at Environmental Economics Now, I don't really mean to pick on this specific essay. I simply want to use the way reference is made to "the market" to try to illustrate my concerns. Consider the following paragraph:
"We are living at a time when there is a strong backlash against environmentalism and pieces like, “The Common Good” do little more than add fuel to the fire. The majority of Americans are generally supportive of environmental causes, but become wary when environmentalists spend an exorbitant amount of time criticizing the capitalist economic system that has propelled America to such prominence and virtually unparalleled material well-being. While everyone understands that some spheres of life should not be subject entirely to market forces, using overly broad and ill-defined notions of what constitutes the “commons” is more likely to convince people that environmentalists are leftover communists than to draw rightful attention to the many serious problems plaguing open-access resources (it’s also simply sloppy thinking). In addition, with conservatives in charge of all the branches of the Federal Government rallying against the “encroachment of the market system” is clearly not a winning strategy."

Note the suggestion that everyone understands that not all areas of life should be "subject entirely to market forces." I'm not quite sure what this means, and I suspect I might not agree with the suggestion.

It seems human nature to "truck, barter, and trade" as Adam Smith may have put it. It seems to me that even in oppresive systems of political economy, market forces are at work. Individual behavior and response to personally experienced conditions and objectives can be influenced by government policy and thereby government coercion, but the tendency to exchange with others is ever present in human behavior. When government is too coercive, the exchanges tend to move away from the watchful eyes of government and its coercion [see DeSoto for some illustrations]. I see market forces as the realm of life in which people voluntary exchange with one another. Since market forces are characterized by voluntary exchange, it is hard to understand why we would agree to oppose such forces in any area of life, unless of course, there is reason to believe the person or property of others is harmed as a direct result.

I think the real issue regarding government concerns, first, seeing that government and economy are not separate spheres in our lives, but rather co-evolving spheres that make a system of political economy, and second, seeing that government is by nature inherently coercive. The question then is not government or markets, but rather, in what ways do we think it is acceptable to use coercion.

I think most agree that it is wrong to coerce others, e.g., it is wrong to harm others or to take what belongs to others. I think most would also agree that it is acceptable to use coercion (or to use force) in self defense; to protect yourself and your property from harm by the coercive and forceful actions of others. In this regard, I think all would agree that the at least one role for government coercion is to mirror the individual use of coercion for self-defense. Government which uses its coercion as "police power" to enforce laws against harm to person or property by others is widely regarded as legitimate.

The question really seems to me to be: Are there other circumstances for which we think the use of coercion is acceptable in our lives?

The market is the realm of voluntary, uncoerced interactions between people. Beyond the use of government coercion to enforce property rights and voluntary contracts, are there really other government actions that we think acceptable for the use of coercion in our lives? Why should we want to have coercion used to inhibit and constrain what would otherwise be the voluntary and uncoerced interactions between ourselves and others (i.e. the market)?

Saturday, October 29, 2005

Butterfly Economics

I was browsing a book this morning, Butterfly Economics, and discovered the following in the opening paragraph:
"Scientific research can often seem obscure and even pointless to outsiders. This is not so much due to the intellectural difficulty involved in understanding such activity, for it is widely accepted that this will inevitably be the case. It is rather that many of the topics which are examined seem to be almost designed to incur the scorn and wrath of the lay person. Before sitting down this morning to write these very words, for example, my eye fell on a report in a serious British newspaper. An American psychologist had been visiting the country to carry out a study of rams in the English Lake District. His research was complete. 'Ten per cent of all rams', he proclaimed solemnly, 'are homosexual.' Readers no doubt took consolation from the fact that this finding was obtained at the expense of the American taxpayer and not themselves."
Alas, what consolation for the American taxpayer?

The 2nd paragraph was equally interesting:
"Nor are such examples confined exclusively to the sciences. I have long admired Emily Bronte's novel Wuthering Heights. The opening chapters, in which Lockwood first encounters the ill-tempered Heathcliff and his assorted household, seem to me to be one of the finest pieces of comedy in the whole corpus of English literature. Realizing that not everyone shares this opinion, and in order to improve my understanding, I recently opened a modern work of literary criticism on Bronte's masterpiece. It was completely impenetrable. Many of the individual words were quite new to me, and whole sentences, indeed whole pages, appeared to lack any coherent meaning. I sought solace in the preface, where I learned that the density of the text was deliberate. 'The analysis of literature and culture', declared the author, 'is a task no less difficult, and not less demanding of a specialized language, than the study of sub-atomic particles.' I hastened immediately to a textbook on orthodox economic theory in an effort to restore my sanity."

Thursday, October 27, 2005

Katrina & K-12 Vouchers

It is reported in the Wall Street Journal that there is a proposal to pay for school districts to take displaced students in the aftermath of Katrina.
"There's no shortage of bills in Congress to provide school aid for victims of the Gulf Coast hurricanes. But by far the best proposal out there is the Family Education Reimbursement Act, if for no other reason than its express goal is to circumvent the bureaucracies that make it so difficult to speed federal relief to displaced students and the schools that take them in.

The measure was introduced last week by House Education Committee Chairman John Boehner of Ohio and Bobby Jindal of Louisiana, both Republicans, and its implementation couldn't be simpler. To create an account, parents could register on the Web, through a toll-free number or by signing up in person at a school. The accounts would provide up to $6,700 for each child, which is the average expenditure in states that have been enrolling the bulk of Katrina's 372,000 displaced students.

Next, parents would provide the account number to the school enrolling their child, and the school would use that information to get reimbursed. That's it. No endless paperwork for the families. No lengthy reimbursement procedure for the schools. Instead of forcing a school that has graciously opened its doors to refugees to make an extra funding request to the district, which in turn must go to the state, which in turn must go to the feds, the legislation provides a user-friendly alternative.

All schools would be eligible -- public, private, parochial or charters. And the accounts would be portable. The money would follow the child in case a displaced family decides to move back home or relocate somewhere else. And in a welcome nod to fiscal conscientiousness that has been all too rare in Congress, at the end of the school year any unused funds would go back to the Treasury. The program would be administered by an agency -- preferably a private one -- that could be up and running in as little as a month's time."
Hey, this sounds like a voucher, we can't be doing things that way. It might work and things could then get out of hand. Vouchers in Colorado for higher education. Now vouchers proposed for helping children after Katrina. People may be starting to see there is wisdom in education vouchers, eh?

I note these vouchers would be for $6700, or the average cost per student at the schools displaced students are enrolling in. I wonder if we should be concerned about what is going on here, even if vouchers are being used? After all, these students are displaced because of Katrina, and that means local government in the damaged areas are not having to educate these students. Isn't there tax revenue that has been collected for the affected school districts? And, even if not, why isn't the responsibility for educating these students falling on local government? It seems that the hurricane hasn't changed the nature of education funding in our federalist system. Perhaps the $6700 should be a loan to local government?

Tuesday, October 25, 2005

What's A Blog Worth?

The Volokh Conspiracy reports:
"Paul Caron reports that The Volokh Conspiracy is worth $1.3 million (OK, probably not enough to justify a corporate jet, even if it was a sensible estimate). From his lips to God's ears.
I checked . . . Economics and Liberty is worth only $1700.

Friday, October 21, 2005

Barred Owls v. Spotted Owls

In the WSJ [subscription required]:
"But at least we have the owls, right? Wrong. Scientists are struggling to explain why, more than 10 years after a halt of logging on the 'old growth' trees in which spotted owls are supposed to thrive, the bird's population has continued to plummet -- declining by 7% a year in Washington. The answer, biologists are beginning to admit, is … another owl. Barred owls migrated into spotted owl territory decades ago, and have a nasty habit of killing the smaller birds, driving them out of their homes, or mating with them -- producing impure offspring. 'We're seeing two species duke it out. It's too early to tell if [spotted owls] will survive,' federal wildlife biologist Eric Forsman was quoted as saying last year." [Kimberley A. Strassel, "Owls of Protest," Wall Street Journal, October 19, 2005, page A12]
It is also reported that after the spotted owl was listed as endangered the result was an 80% decrease in logging on 24 million acres. A Congressional committee apparently found that more than 900 mills, with at least 130,000 employed, closed. It is also reported that there were some who thought the barred owls might be a problem as a rival species back in 1992.

There seems to have been a significant economic loss associated with a government policy that now appears may have been misguided. I wonder if government has a response to the barred owl threat to the spotted owl?

Vaccine Shortages

There is an interesting commentary in today's WSJ [subscription required]. John Berlau explains that SEC rules offer disincentives for corporations who might otherwise be interested in making flu vaccines:
"Under the policy, even if the total cash due is paid up-front for a product, 'revenue should not be recognized until final delivery has occurred.' And 'delivery generally is not considered to have occurred unless the product has been delivered to the customer's place of business.' The SEC bulletin makes clear this is generally the case even when 'customers may not yet be ready to take delivery of the products for various reasons.'

The upshot of this policy is that no matter how much cash the government puts in vaccine-makers' hands for making drugs for the stockpile, they cannot include this money in their official sales until it is actually delivered to doctors when and if there is a disease outbreak. This period can last more than a year. While one part of government is urging manufacturers to have a reserve on hand for a flu outbreak, another is telling them that they won't show any gain on their books for doing so. In fact, companies that contribute to the stockpile will take a paper loss for this part of their business, because the SEC is not about to let them postpone 'recognition' of their costs of making the vaccines. And because of other regulations and trial lawyers always eager to pounce on 'deceptive' accounting, it is difficult for companies to communicate with investors about this distorted earnings picture.

As a result, vaccine maker Aventis (now Sanofi-Aventis) specifically cited the SEC policy as the reason it dropped out of the stockpile for children's vaccines in 2004. 'We are unable because of the financial issues … to proceed until this is resolved,' Christine Grant, the firm's vice president for public policy, told UPI. Merck did not drop out, but a vice president commented to USA Today, 'Imagine, for all the products sold, if we couldn't record them as revenue. Our shareholders would not be pleased.'

Since the flu vaccine shortage of last year, government health officials have talked to the SEC about the changing policy for vaccines. But in the era of Sarbanes-Oxley, the commission hasn't budged. It is possible that a firm might have to return money if a batch of vaccines spoiled in the stockpile. But this usually wouldn't make a dent in revenues reported to shareholders. Rather, it's the current accounting policy that paints the distorted picture to investors by making vaccine makers look less attractive than other firms even when they have a solid cash flow."

Corruption & Prosperity

Jennifer Roback Morse:
"Why do some countries develop economically, while others stagnate? Both the World Bank Institute and economist Alvaro Vargas Llosa point to the problem of corruption as one of the major culprits. They say that the most important “natural resources” for economic development are not raw materials like oil or coal, but moral qualities like the even-handed enforcement of law, and the transparency of government."

Avian Flu

Silviu Dochia:
"I can't help but feel like the authorities are in denial and are focused on the wrong 'measures'. The avian flu virus cannot be contained at this stage: it will be with us for a long time. Import bans and border checks are symbolic, more than anything. And despite the statements of some politicians, we can do very little 'to ensure the virus does not mutate'. These are the facts. What is important is that we accept this reality and deal with it in a responsible way, by being as ready as we can for the likely emergency."
Any thoughts on whether this is crying "the sky is falling?" Do you think the "authorities" can handle the threat?

Thursday, October 20, 2005

Cheeseburgers and the power of responsibility

As seen on CNN this morning, 'Cheeseburger Bill' puts bite on lawsuits. Apparently the threat to the fast food industry from class action lawsuits is strong enough to warrant a bill in the House. The article quotes Rep. Bob Filner (D-California) as stating " Congress has allowed the need of big corporations before the need of our children".

OK, I could understand maybe if by some stretch of the imagination these companys were slanging their wares on street corners to our innocent children on the way to school. You know "C'mon kid, all the cool kids are eating Big Macs" style.

However, I refuse to believe that Congress has put the needs of corporations before our children. If anyone has a hand in 13 year olds getting obese in record numbers, I think the statement should be edited to say parents have put the need of big corporations before the need of their own children.

How exactly does a 13 year old get their plump little fingers on a Big Mac anyway? Is there some blackmarket or playground trade in these items. No. They get scooped up from school by one parent or another, shuttled to the nearest drive-thru and given their mid-afternoon Happy Meal for the day before going home to play 9 hours of video games.

With the power of convenience comes the power of responsibility. Parents, how about we take a little more responsibility for the health of our children? The length of time it took for you to write a letter to Rep. Filner you could have written out a whole family health plan to work a couple of pounds off yourself and little Johnny.

And Congress, I know that this is a great opportunity to show that you care about our youth. But how about some more meaningful legislation? How about a comprehensive education reform bill giving power back to the states? Some of them might even make sure that athletics are not the first thing cut from school programs. Or even better, some states might get a voucher program together that will give parents the choice, and not just between McD's and Burger King.



Wednesday, October 19, 2005

Cities: Economy-Ecology

Jason Potts writes about the economy of cities by borrowing from ecology:
"Economic theory has always had a blind-spot when it comes to geographical spatial analysis. Price signals go a long way in abstract, yet the connective or associative distribution of economic activities remains a not much studied and, indeed, barely recognized economic phenomena.

Yet it is the heart of economics. The spatial (or generic) distribution of activities is the current state of the order (or division of labor) of an economic system. Any economic order means an organizational distribution of who is doing what and in what order. While we may attribute localized clustering to spatial features of a place (e.g. a great port or beach) there is yet a stronger force of social gravitation.
I think this is good stuff for us to think about. Standard economic analysis is static, and yet, real economic activity is probably better described as a dynamic complex process that evolves.

He suggests borrowing the idea of ecological hotspots in which diversity is concentrated, and he speculates that we might see cities as hotspots where economic diversity is concentrated. I also like his suggestion that:

"So, evolutionary economists need to understand how cities form as economic attractors."

Miers Nomination

I was going to wait till the confirmation hearing to decide whether or not to support the latest Supreme Court nomination. Over the past week I've been leading toward the conclusion that I could not support Harriet Miers. Today's commentary by Robert Bork has led me to conclude that I don't support her nomination. Consider this from Robert Bork:
"But that is only part of the damage Mr. Bush has done. For the past 20 years conservatives have been articulating the philosophy of originalism, the only approach that can make judicial review democratically legitimate. Originalism simply means that the judge must discern from the relevant materials--debates at the Constitutional Convention, the Federalist Papers and Anti-Federalist Papers, newspaper accounts of the time, debates in the state ratifying conventions, and the like--the principles the ratifiers understood themselves to be enacting. The remainder of the task is to apply those principles to unforeseen circumstances, a task that law performs all the time. Any philosophy that does not confine judges to the original understanding inevitably makes the Constitution the plaything of willful judges."
Should the confirmation hearing actually take place, I suppose I might change my mind. But I cannot support the nomination of anyone to the Court that does not understand, and is not clearly committed to, the principles people thought they were putting into our Constitution when the text or its amendments were ratified.

Tuesday, October 18, 2005

Iraq's Economic Prosperity

Michael Rubin
". . .Other indicators suggest Iraqis have confidence in their future. The Iraqi dinar, freely traded in international currency markets, is stable.

When people fear for their future, they invest in gold; jewelry and coins can be sewn into clothes and smuggled out of the country. When people feel confident about the future, they buy real estate. Property prices have skyrocketed across Iraq. Decrepit houses in Sadr City, a Shiite slum on the outskirts of Baghdad, can easily cost $45,000. Houses in upper-middle-class districts of Mansour and Karrada can cost more than 20 times that. Restaurant owners spend $50,000 on top-of-the-line generators to keep open despite the frequent blackouts. In September 2005, there were 40 buildings nine stories or higher under construction in the Kurdish city of Sulaymani. Five years ago, there were none. Iraqis would not spend hundreds of thousands of dollars on real estate if they weren't confident that the law would protect their investment.

Iraqis now see the fruit of foreign investment. A year ago in Baghdad, Iraqis drank water and soft drinks imported from neighboring countries. Now they drink water bottled in plants scattered across Iraq. When I visited a Baghdad computer shop last spring, my hosts handed me a can of Pepsi. An Arabic banner across the can announced, "The only soft drink manufactured in Iraq." In August, a Coca-Cola executive in Istanbul told me their Baghdad operation is not far behind. Turkish investors in partnership with local Iraqis have built modern hotels in Basra."
Do we have some "leading economic indicators" described here? For economic prosperity people need to expect that government will enforce property rights and contracts over time. Without such assurance, people see few incentives to invest because the returns to investment occur after a period of time. Rubin's commentary suggests that with people purchasing land and with foreign investors creating new investments, Iraq's future may well include an increasingly prosperous economy over time.

Saturday, October 15, 2005

Nothing Short of Idiocy

We may admit that the director or the board of directors are people with superior ability, wise, and full of good intentions. But it would be nothing short of idiocy to assume that they are omniscient and infallible.

Ludwig von Mises

Wednesday, October 12, 2005

The Court, Commerce, & Water Pollution

The Supreme Court has decided to review whether pollution of intra-state waterways is within the Congressional power to regulation interstate commerce. In the Wall Street Journal [subscription required]:
"Wading into a long-running environmental dispute, the Supreme Court agreed to decide how deeply within state lines the federal Clean Water Act extends.

In a pair of cases from Michigan, developers contend Congress never intended to regulate 'intrastate' waterways with scant connection to interstate commerce. And even if it did, they say, Washington lacks the constitutional power to reach that far.

The implications are broad. 'We're talking about thousands of property owners nationwide,' covering as much as 100 million acres of intrastate wetlands in the contiguous U.S., said Reed Hopper, an attorney with the conservative Pacific Legal Foundation in Sacramento, Calif., which represents one of the developers." ["High Court to Examine the Scope Of Federal Clean-Water Laws , by Jess Bravin, WSJ, October 12, 2005, page A4]
Perhaps the reference to wetlands is more to the point, than is "intrastate waterways." The article in the Washington Post explains:
"At the center of the debate is the Clean Water Act, which gave the federal government authority to block pollution in 'the waters of the United States.' At the time, this jurisdiction was premised on Congress's power to regulate interstate commerce on the country's 'navigable' waters.
Since then, federal regulators have defined the waters of the United States to include wetlands that are 'adjacent' to larger rivers or lakes, but there is dispute about the precise meaning of 'adjacent.'
The government views wetlands as part of complex ecosystems that must be kept clean to preserve the quality of the larger bodies of water they ultimately feed. Property owners, supported by such organizations as the National Association of Home Builders, say this is a sweeping definition that rubs out state and local land-use authority -- and adds to the cost of housing.

The court tried to avoid the constitutional issue in 2001, when it ruled that the federal government could not use the Clean Water Act to protect small, shallow ponds in Illinois just because they are used by migratory birds.

In that case, the court implied that the Clean Water Act required a 'significant nexus' between a wetland and an 'adjacent' larger body of water. [Charles Lane, "Court to Rule on Federal Regulation of Wetlands, Washington Post, October 12, 2005, page A04]
It seems to me that wetlands within a state should not be considered within interstate commerce, and therefore Congress should not, constitutionally, have the power to regulate such land. I hope Roberts remembers his hapless toad.

Tuesday, October 11, 2005

Thomas Schelling

Here is a description of the work of one of yesterday's Nobel prize winners, which is offered in commentary in the WSJ [subscription required] by David Henderson:
"Mr. Schelling did it as a true social scientist, with spectacular results. His thinking led to important insights in areas ranging from nuclear war to figuring out meeting places to traffic jams to racial segregation. His specialty was understanding the behavior of real humans, and game theory was one of his tools. But it was just that -- a tool. Instead of using formal proofs, Mr. Schelling first told illustrative stories and then, using words, showed why things happened the way they did. As Harvard economist Richard Zeckhauser wrote in a 1989 tribute, Mr. Schelling 'stayed away from the Journal of Advanced Economic Gobbledygook' and played 'his games in a world that is richer than most game theory analyses.'"

Saturday, October 08, 2005

Nomination

In the words of Alexander Hamilton, by way of commentary by Randy Barnett:
"To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. . . . He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure."

Congressional Spending

WSJ.com:
"Congress's approval ratings have plummeted this year in almost direct inverse proportion to the amount of money it is spending. "
Could this possibly be true?

Nomination

Tom Sowell:
"When it comes to taking on a tough fight with the Senate Democrats over judicial nominations, Senate Majority Leader Bill Frist doesn't really have a majority to lead. Before the President nominated anybody, before he even took the oath of office for his second term, Senator Arlen Specter was already warning him not to nominate anyone who would rile up the Senate. Later, Senator John Warner issued a similar warning. It sounded like a familiar Republican strategy of pre-emptive surrender.

Before we can judge how the President played his hand, we have to consider what kind of hand he had to play. It was a weak hand -- and the weakness was in the Republican Senators.

Does this mean that Harriet Miers will not be a good Supreme Court justice if she is confirmed? It is hard to imagine her being worse than Sandra Day O'Connor -- or even as bad."
I haven't decided yet what I think of the President's latest Court nomination. I do tend to agree with Sowell that the President has taken on many tough issues, and that the Senate Republicans have, as a group, shown less than stellar leadership.

On the other hand, being told that this nominee shares the President's judicial philosophy, that she is an evangelical Christian supported by people who seem only interested in 1 issue (Roe v. Wade), and that she is a strict constructionist, doesn't really lead me to support the nomination. I want to know what she says about: the commerce clause, the meaning of necessary and proper, whether the 9th and 10 amendments have been redacted from her copy of the Constitution, if she thinks Congress's power to tax is unconstrained, and if she thinks "public use" = "public purpose." If she doesn't have my understanding of the words in the Constitution, then the reasons I hear in the public debate in support of her nomination mean nothing to me.

Nomination

Captain's Quarters:
"If Miers' evangelicalism remains the top selling point of her nomination, then I submit that the White House has already lost this battle. They need to stop promoting religion as a legitimate point of consideration on Miers' curriculum vitae, or else conservative nominations will face nothing less than an Inquisition on every confirmation -- an Inquisition endorsed by the foolishness of short-sighted conservatives."
I don't really care if Meirs is an evangelical, a catholic, or an aethist. It seems to me that if her support for this nomination is based upon her commitment to a faith, and thereby upon a particular view of abortion, then her support is essentially no different from supporting a "living constitution" view of constitutional interpretation. The reason for my conclusion is that her support seems to be based upon her personal ethics that she will bring to the Court that abortion is wrong. This seems consistent with the "living constitution" approach that says judges are supposed to re-interpret the Constitution over time according to changes in cultural views. In contrast, I want someone on the Court who brings a commitment to the original meaning of the words that have been ratified as our Constitution. With that commitment, a justice might find that abortion is or is not constitutional based upon the meaning of the words, and not because the justice personally thinks abortion is right or wrong, or because the justice discovers that the culture thinks abortion is right or wrong.

Friday, October 07, 2005

Nomination

Peggy Noonan:
"No one can know how the experience of the court will affect someone--the detachment from life as lived by the proles, the respect you become used to, the Harvard Law Review clerks from famous families who are only too happy to pick up your dry cleaning and listen to the third recounting of your boring anecdote. Everyone wants you at dinner. You notice that you actually look quite good in black.

And you become used to the idea that unlike everyone else in the country, you have job security. A lifetime appointment. When people have complete professional security they are more likely in time to show a new conceit. I don't know why this is, but I think it's connected to the fact that they're lucky, and it seems somehow hardwired in human nature that when people are lucky they come to think they deserve it: It's not luck, it's virtue. And since it's virtue my decisions are by their nature virtuous. I think I'll decree that local government, if it judges it necessary, can throw grandma out of the house and turn her tired little neighborhood into a box store that will yield higher tax revenues. Thus Kelo v. New London is born. I decree it.

But I'm thinking of something different. I've noticed that we live in an age in which judges and legal minds seem to hide their own judicial philosophy from themselves. And that might explain why a Harriet Miers has reached the age of 60 and no one seems to know what she thinks.

Having a philosophy is all too big and too dangerous--paper trails, insights inadequately phrased that come back to haunt. Lawyers with ambition seem to have become adept at hiding their essential intellectual nature from themselves. They break the law down into tiny chewable pieces and endlessly masticate them. They break it down into small manageable bits, avoiding the larger abstractions. It's one of the reasons they're so boring.

In a highly politicized climate it's not really convenient for lawyers to know their deepest beliefs and convictions. Robert Bork, serious thinker and mature concluder, became bork, living verb. Or rather living past-tense verb.

Only reluctantly and only with time do lawyers now develop a philosophy. They get on the court, and reveal it to us day by day. And reveal it, one senses, to themselves."
So, why not have a public debate about a Court nominee's approach to understanding what the Constitution means? Get it all out in the open. Stop worrying about what a nominee might decide about a specific case. Let the Senators and the nominee tell the public what they think the commerce clause means, what public use means, what necessary and proper means. Let the chips fall where they may in the Senate. Perhaps the "We the People" attitude of the Constitution would be better served.

Wednesday, October 05, 2005

A Useful Definition of Rent Seeking

Richard Epstein offers an insightful definition of rent seeking:
". . .rent-seeking in politics is simply a statement that the sovereign, i.e., those fallible people with sovereign power, will allow the citizen a little something so long as he continues to make the sovereign better off."
He also has a helpful way of looking at our constitution:
". . .the issue of constitutionalism is just this: how to constrain the misconduct of the sovereign while allowing him the ncessary power to keep peace and good order."
I believe there was a period of time in the history of the Supreme Court's constitutional jurisprudence (a.k.a. "the economic due process era") that the Court's opinions often reflected an understanding of these insights. I believe "founders" like James Madison understood these insights as well. Perhaps the Senators in the confirmation hearings for Justices of the Supreme Court could ask whether or not nominees understand these insights still today?

Well, perhaps not. After all, the fallible people with sovereign power, are some of the same people who are asking the questions. Silly me.

Tuesday, October 04, 2005

Pigs Can't Fly

Russell Roberts:
"Maybe there is good reason for the feds to step in here or there or everywhere. But how does that reason look in reality? How does it work in practice? If implementation requires flying pigs, maybe there isn't a good reason after all.

Here is what I tell my children. In downtown Wahsington, DC, we keep a document under glass called the Constitution. You should know that we had a Constitution to keep government from being too powerful and from doing things that are better left to us to do for ourselves. Maybe someday we will take it out from under the glass and it will be alive again. Not alive the way that most people mean it. By alive, they mean dead. They mean to have a Constitution so flexible that it can stand for nothing. But someday, maybe, it can be alive in the way that it once was, written for a world where pigs are not presumed to fly."