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Archive for the ‘Economics’ Category

The American Bar Association: An Economic Perspective

In Academia, America, American History, Economics, History, Humane Economy, Law, Law School, Legal Education & Pedagogy, Libertarianism on October 18, 2017 at 6:45 am
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Bob Higgs, the Man with a Smart Card

In Creativity, Economics, Law, Politics, Science on October 11, 2017 at 6:45 am

A different version of this article appeared here in the Library of Law and Liberty.

The U.S. healthcare industry is notoriously inefficient and troublesomely massive. It’s also wealthy and getting wealthier and more powerful as medical costs have exceeded, by some estimates, $10,000 per person.

What’s to be done?

Back in 2005, a group of healthcare experts asked, in a RAND Corporation study, whether electronic medical-record systems could transform healthcare by reducing costs and increasing efficiency. The answer, in short, was: it depends.

Although systematizing electronic medical records could save over $81 billion per year, these potential savings would be realized, the study concluded, only if healthcare in the United States integrated new technologies to allow for the flow of medical data between the patient and relevant parties such as doctors, hospitals, or insurers. Non-standardized record systems would result, by contrast, in inconsistent, inefficient, and incomplete data exchanges that could increase rather than decrease costs.

RAND Corporation revisited the issue in 2013, finding that healthcare expenditures had grown by $800 million since 2005 in part because systems of electronic medical records remained non-standardized. “We believe that the original promise of health IT can be met,” wrote Arthur L. Kellermann and Spencer S. Jones, the authors of the study, “if the systems are redesigned to address these flaws by creating more-standardized systems that are easier to use, are truly interoperable, and afford patients more access to and control over their health data.”

Healthcare in the United States is constitutionally fragmented: Not only does the industry consist of various entities, from doctors and hospitals and insurance providers to commercial suppliers of devices, goods, and services, but also the pricing of medical services is unreliable and unpredictable in part because the country is so large and the industry subject to different regulations from state to state.

Information integration could go a long way towards cutting medical costs and increasing medical savings. For example, it could reduce waste resulting from misdiagnoses, repetitive procedures, erroneous prescriptions, and duplicate testing and imaging.

What if there were a simple solution for this waste?

One entrepreneur believes he’s found the technology to revolutionize the way healthcare records are shared and maintained through Health Information Exchange (HIE).

Robert E. Higgs is the founder of ICUcare, a company that aims to improve technologies in the fields of telemedicine and electronic health records. He has invented a “smart” health card that can contain a patient’s complete medical history, which is stored in a cloud. His vision is that patients own their personalized smart cards, which they can voluntarily submit to healthcare providers and institutions for cheaper and more efficient services. Data on the card are easily stored and updated and exchanged only with the patient’s consent; thus, in the case of emergency, the patient’s medical records can be readily accessed and quickly reviewed.

There remains, sadly, a felt need to transition the healthcare industry from paper to electronic records. The smart card meets this need, but it does much more. It tracks your billing history, reconciles erroneous payment information, protects against fraud and identity-theft, and serves as a conveniently portable device.

One would expect such a card to have been in circulation by now, given the extensive government investment in HIEs. President George W. Bush, for example, issued an executive order in 2004 to create the Office of the National Coordinator for Health Information Technology (ONC), a division of the Department of Health and Human Services (DHS) designed to advance technology and innovation pertaining to the exchange of healthcare information. This office created eHealth Exchange, a coalition of states, federal agencies, hospitals, medical groups, pharmacies, and other such entities that’s now run by the Sequoia Project.

But the federal government and the public-private partnerships it has fostered have been unable to produce a smart card that matches Higgs’s in capability and functionality. And even if they had, government retention of sensitive medical data would, among other things, raise privacy concerns that voluntary private transactions and coordination would alleviate.

Moreover, the many spinoff organizations emanating from the ONC and DHS have only crowded the field with swollen, inefficient government and quasi-government structures and programs. Rather than helping the situation, these putative “solutions” have slowed down innovators like Higgs, forcing them to deal with politicians and bureaucrats rather than patients and hospitals.

Having heard about Higgs’s curious smart card through a friend, I decided to reach out to him to find out more. I asked him, first, about privacy implications, namely whether the smart card could increase incidents of non-consensual data transfers and disclosures.

The smart card, he said, “never sends data to the care provider—it brings the care provider to the data.” He explained that data on the smart card are encrypted using the same standards as those used by the Department of Defense for common-access cards.

“We used Advanced Encryption Standard 265, or AES-256,” he said, “the highest standardized encryption specification that’s used worldwide by entities as diverse as corporations and the U.S. government. The key size of 256 bits means that the key, which turns encrypted data into unencrypted data, is a string of 256 ones or zeros.”

I admitted that I didn’t fully understand.

“Put it this way,” he said. “The research I’ve read indicates that each character has two possibilities—one or zero—for which there are 2,256 possible combinations. If 50% of the possibilities must be exhausted to determine the correct key, then you need to guess 2,255 of them [to hack the encryption].”

Pressed about how long it would take to test all possible keys to break the encryption, Higgs, parroting a claim I’ve heard used to describe bitcoin, said, “The universe itself has existed for 14 billion years. It would take something like 1.5770813e18 longer than our universe’s full age to exhaust just half of the key-space of our encryption.”

An attempt to verify Higgs’s figures turned up a plethora of studies and blog posts about encryption and decryption, bitcoin, hacking, and computer engineering (the calculation appearing on many blogs and tech sites is ~6.7e40, which equals 235,385,265,247,008,100, which is multiplied by 6.7 to yield the 1.5770813e18 number that Higgs supplied).

These calculations can be confusing, but the point Higgs wanted to drive home is that the smart card reverses the current power imbalance: today corporations and governments store medical records that patients often can’t access or don’t know about; the smart card, however, empowers patients to store their own records that they may voluntarily release to corporations and governments. The smart card, in other words, returns agency to the consumer whose data is at stake.

It would also, Higgs alleges, reduce rates of healthcare fraud. According to estimates by the National Health Care Anti-Fraud Association, the United States loses tens of billions of dollars every year due to healthcare fraud. Canada, Germany, and France have each instituted some form of a smart card to successfully cut back on fraud.

A company called Cerner has just landed a deal with the Department of Veterans Affairs (the VA) to implement an electronic health records system. The move away from the VA’s Vista system to Cerner’s electronic system suggests that at least some government officials are aware of the need to adopt interoperable and integrated measures of retaining and sharing medical records. The VA will implement the same electronic health record system used by the DOD.

So far as I can tell, however, Cerner has not created a smart card like Higgs’s. I reached out to Adam Lee, a senior communications partner at Cerner, to ask about smart cards and Cerner’s hopes and plans with the VA. Lee referred me to this press release about Cerner’s work with the VA but did not discuss smart cards.

Talking to Higgs is like talking to a computer: more engineer than salesman, he’s strikingly intelligent but has difficulty getting through to politicians. He’s monotone and meticulous, frank and unexcitable. He’s fast with facts and figures and savvy with technology, but the average politician wants to know primarily whether the smart card appeals to constituents and only secondarily whether it’s operable and efficient.

Higgs grew emotional during our phone call, however, as he told me the story of his wife, who underwent a routine procedure that went wrong. He claimed that, during this standard operation, errors were made that could have been avoided had her doctors possessed his wife’s proper medical records. She’s been subjected to numerous tests throughout her illness, he said, only to have them redone when visiting a new facility or specialist because of an inability to simply retrieve her medical history. She remains in bad shape, living at home with hired assistance.

This unfortunate situation has motivated Higgs to seek answers to save others from similar mistakes in similar circumstances.

If Higgs’s smart card is so great, you might ask, why hasn’t it been adopted? Why haven’t I heard of it? Why doesn’t it circulate widely? Why aren’t hospitals jumping at the opportunity to use it?

The answer, according to Higgs, is simple: the healthcare industry doesn’t want you to know about his smart card because it doesn’t want to reduce costs. It’s full of people getting rich off inefficiency and artificially high prices. Lobbyists for the healthcare industry have taken advantage of the fear and apathy of politicians to ensure that technological progress is delayed or stymied.

Thus, Higgs describes his job in terms of David versus Goliath.

There are numerous ideas about how to trim healthcare spending; Higgs’s smart card is not the exclusive remedy or sole fix. But it’s an encouraging development. Healthcare spending makes up about 17.8% of the nation’s economy, according to an actuary report by the Centers for Medicare and Medicaid Services. And it shows no signs of decreasing. This trend is unsustainable; something must be done—and undone.

We could use more men like Higgs and less government to push us in the right direction before it’s too late.

 

 

 

How to Fight the ABA’s Anticompetitive and Discriminatory Practices

In American History, Economics, History, Law, Legal Education & Pedagogy, Scholarship on September 13, 2017 at 6:45 am

This piece was originally published here by the James G. Martin Center for Higher Education.

Recently I urged top law schools to stand up to the excesses and abuses occasioned by the ministrations of the American Bar Association (ABA). These schools could band together and follow the lead of the journalism schools at Northwestern and Berkeley, which dropped their accreditor, the Accrediting Council on Education in Journalism and Mass Communication, earlier this year because accreditation standards were outmoded and not worth the cost of compliance.

But states can also fight the ABA and are arguably in a better position to do so.

The ABA is a nonprofit organization incorporated in Illinois that operates like a trade union for lawyers. Founded in 1878 by a small group of prominent East Coast lawyers, it has accredited law schools under the authority of the U.S. Department of Education (DOE) since 1952.

Why, exactly, would states want to push back against the ABA? There are two reasons, the first involving economics and the second involving racial diversity in the legal profession. In other words, both the Right and the Left have a standing interest in diminishing the ABA’s power.

The Economic Reason

The ABA remains the sole accreditor for legal education in the United States. Its onerous and in many cases outmoded regulations drive up the price of law school, forcing schools to reallocate resources away from students and education and towards regulatory compliance.

The high costs of legal education resulting from ABA regulations are passed off to ordinary consumers over time.

As one example, ABA Standard 701 states, “A law school shall have facilities, equipment, technology, and technology support that enable it to operate in compliance with [ABA] Standards and carry out its program of legal education.” To address this standard, law schools have furnished computer labs with fancy equipment to give the appearance of technological sophistication. But the labs and equipment often go unused.

The legal profession is notoriously behind the times on the technology front, and it takes advantage of anticompetitive restrictions regarding the unauthorized practice of law to push out innovative companies like LegalZoom that offer creative and inexpensive services. If the ABA were serious about technological innovation in law schools, it wouldn’t burden online and distance education the way it does in Standard 306. It bears noting, as well, that the ABA’s official interpretation of Standard 306 includes the “Internet,” “video cassettes,” “DVDs,” and “CD-ROMs” as examples of “technology.” Not exactly inspiring or pioneering. No wonder some analysts predict that computers and artificial intelligence will replace lawyers.

The high costs of legal education resulting from ABA regulations are passed off to ordinary consumers over time. They also prevent people with low to modest incomes from attending law school. According to Law School Transparency, the cost of legal education at private schools has risen from an average annual tuition of $7,526 in 1985 to $41,985 in 2013. The average cost of legal education for in-state students at public schools rose from $2,006 in 1985 to $23,879 in 2013 (for non-residents, tuition increased from $4,724 in 1985 to $36,859 in 2013).

These figures suggest that disadvantaged students do not have the financial means to delay or suspend a career to pay for legal education, or to take out student loans with an interest rate that exceeds that of the housing market. Thus, the ABA not only inadvertently drives up legal costs for all consumers, but also prevents many consumers of certain income levels from entering the legal industry to reform it from the inside.

The Diversity Reason

The ABA has an ugly history of targeting ethnic minorities who aspired to become attorneys. For most of the 20th century, it openly discriminated against African Americans, officially excluding them from membership for 66 years.

In 1912, the ABA ousted three African Americans from membership and issued a resolution proclaiming, “it has never been contemplated that members of the colored race should become members of this association.” Recent decades have seen the ABA attempt to make up for its racist past by instituting committees and programs aimed at racial diversity and championing what are widely considered to be leftist social causes.

These efforts, however, seem insincere—just another PR tactic—because the very purpose of the ABA’s accrediting arm (the Council of the Section of Legal Education and Admissions to the Bar) is to exclude people from legal education. To this day, the exclusionary policies and practices of the ABA disproportionately impact African Americans and other racial minorities. In other words, the ABA still does precisely what it was designed to do: keep African Americans, other minorities, and poor people out of the practice of law.

Law schools that are not ABA-accredited often offer inexpensive, part-time evening or night programs that enable students to work during their studies. Students who cannot afford to take off years of work to pursue legal education can complete these programs in four to five years. This affordable option provides needed access to legal education for low-income students who wish to become lawyers.

The ABA was formed, in part, to segregate the legal profession from ethnic minorities. It can’t be used now to the fix problems it caused and exacerbated.

Under present conditions, however, a graduate from one of these unaccredited schools can sit for a bar exam only in the state in which the school is located—and only if the state allows that. Unaccredited law schools also carry a stigma.

For these reasons, among others, ethnic minorities and disadvantaged students who are able learners with competitive test scores and academic records typically forego affordability and choose to attend ABA-accredited schools with a higher sticker price. These students thus take out massive loans and dig themselves deeper into a financial hole from which it’s difficult to emerge, even with good jobs coming out of law school.

Critics of unaccredited law schools point to high attrition rates and low success on bar exams to rationalize increased restrictions and stricter standards. But if the ABA no longer accredited law schools, capable students would begin to populate what are now unaccredited law schools, if for no other reason than affordability. Expensive law schools that are currently ABA-accredited would be forced to find cost-cutting measures to remain competitive in the market and attract new students.

The prevailing justification for ABA accrediting authority is that such superintendence is necessary to protect consumers. But protect consumers from what? From a more diverse legal community? From black people? From poor people? That is the message the ABA is sending.

The ABA would never defend itself in these terms, nor purposefully discriminate with the goal of ensuring that the profession remain predominately white. Yet it can’t deny the realities that flow from its very purpose for existing. The ABA was formed, in part, to segregate the legal profession from ethnic minorities. It can’t be used now to the fix problems it caused and exacerbated. It simply lacks the institutional incentives and infrastructure to realize the objectives of diversity or inclusion.

Revising Standard 316

To make matters worse, the ABA is considering revising its Standard 316 to require law schools to maintain a 75 percent bar passage rate among its graduates in at least three of the last five years. Law schools failing to meet this standard face potential consequences for non-compliance, including loss of accreditation. The ABA House of Delegates rejected this measure in February, but the ABA has issued a questionnaire to law schools pending the possible reconsideration of this revised standard in 2018.

The ABA Council for Racial and Ethnic Diversity opposes the revised standard, which was proposed to address concerns that greedy law schools, faced with declining enrollments, were admitting unqualified students to generate tuition revenue. Although this criticism has merit, the revised standard is the wrong remedy. It will disproportionately impact schools in states like California, where bar passage rates historically have been low. Moreover, it could limit educational options for minorities who aspire to practice law by punishing schools with high minority enrollment.

You might be asking, “Why is the author advocating reform that would lower standards? Don’t we want better attorneys? And don’t we have enough attorneys already?” If the bar exam measured the ability to practice law, it might be a reliable indicator of a person’s legal skills. But it has little to do with actual practice; therefore, passing or failing it doesn’t measure one’s legal skills. It also delays what has already been delayed during three years of law school: the practical experience necessary to make a good lawyer.

If there were no law schools, no bar exams, and no barriers to entry, we could still figure out how to weed out the good lawyers from the bad. In fact, we might even see exciting new advances in the field of online reputation markets that could rank and assess lawyers, giving a feedback mechanism to consumers.

If there were no law schools, no bar exams, and no barriers to entry, we could still figure out how to weed out the good lawyers from the bad.

And sure, there are a lot of attorneys. But having a lot of attorneys is not necessarily a bad thing. If we were to roll back all the anticompetitive practices perpetuated by the ABA, state bar associations, and their lobbyists, which work together to solidify lawyers’ monopoly on the practice of law, the costs of legal services could be drastically reduced. An overabundance of lawyers would simply mean that hiring lawyers would be cheap. It’s unlikely, at any rate, that we’d ever see an overabundance of lawyers in such a competitive market because intelligent people would choose to enter a different profession where salaries are higher.

The ABA discusses the bar exam in several standards: Standard 315 (the official interpretation), Standard 316, Standard 504, and Standard 505. The unintended consequence of this emphasis is to unreasonably encumber students and schools with red-tape administrative measures that have no proven effect on the quality of legal services.

Conclusion

The economic function of the ABA is, as I’ve said, to serve as a barrier to entry. Milton Friedman once declared that “[t]he overthrow of the medieval guild system was an indispensable early step in the rise of freedom in the Western World,” adding that it was also “a sign of the triumph of liberal ideals.” Recently, though, there’s been what he called a “regression,” and the ABA is a case in point.

Combating the ABA isn’t easy. This organization is equipped with powerful lobbyists and enjoys longstanding relationships with influential politicians. Still the states, through their supreme courts and bar associations, remain in control over the admission of candidates into the legal profession in their jurisdiction.

State bar associations are typically corporations to which state legislatures have granted monopoly powers over the legal profession, subject to the oversight of state supreme courts. They are not affiliates or adjuncts of the ABA. If several state supreme courts and state bar associations allowed all graduates of non-ABA accredited law schools to sit for the state bar exam in their state, they could curtail the ABA’s authority and diminish the ABA’s credibility. To this end, they could also enter into reciprocity agreements with other states to allow graduates of non-ABA accredited schools in those states to sit for the bar exam.

State supreme court justices—or justices sitting on the highest court in their state—are elected in a majority of states. And of course judicial appointments are always political to some degree. Thus, these justices are likely attentive to the demands of an informed public. Citizens should press their state supreme courts about the ABA, especially during campaign season when seats are up for grabs. Moreover, citizens should urge their legislators to interrogate state bar associations about the ABA. After all, state legislators can undo legislation empowering state bar associations.

Citizens should press their state supreme courts about the ABA, especially during campaign season when seats are up for grabs.

Of course, the Obama administration contemplated another alternative that would likely appeal to both President Trump and Secretary of Education Betsy DeVos: the DOE could strip the ABA of its accreditation authority altogether, in effect getting the federal government out of legal education. (Obama was motivated by animus against for-profit colleges, as reflected in his Education Department’s gainful employment rule, whereas Trump’s interest would be in scaling back federal meddling.) This solution would leave matters of accreditation and bar eligibility to the respective states. Stripping the ABA of accrediting powers, however, raises other concerns, given that, at present, a law school’s eligibility to receive federal funds is tied to accreditation.

In this period of political rancor, reining in the ABA should appeal to both the Left and the Right, the former on grounds of racial diversity and fundamental fairness and the latter on grounds of decentralization and economic freedom. Despite the vitriolic and malicious rhetoric emanating from our politicians and media pundits, I believe most Americans want to get along and facilitate constructive dialogue about pressing issues. Why not refocus our attention on matters about which there is critical consensus? Why not work together, as a start, to curtail or revoke the ABA’s ability to accredit law schools?

This move could reduce the costs of legal education and, hence, of legal services. It could go a long way towards restoring confidence in the legal profession and freeing up law schools to work more closely with state supreme courts and state bar associations to meet the needs of local markets, adapt to new industry technologies, and satisfy the changing demands of consumers.

Session Nine: Richard Bulliet on the History of the World

In Academia, Arts & Letters, Eastern Civilizaton, Economics, Historicism, History, Humanities, liberal arts, Pedagogy, Scholarship, Teaching, Western Civilization, Western Philosophy on July 19, 2017 at 6:45 am

Here, in the ninth lecture of his course, The History of the World, Richard Bulliet discusses Greece and Iran (1000-30 B.C.E./ India, 1500 B.C.E.-550 C.E. Part II).

Part Two: Review of Nathaniel Branden Issue of the Journal of Ayn Rand Studies

In America, American History, Arts & Letters, Book Reviews, Books, Economics, Historicism, History, Humanities, liberal arts, Liberalism, Libertarianism, Philosophy, Scholarship, Western Civilization, Western Philosophy on July 5, 2017 at 6:45 am

This post is the reproduction of portions of a series of pieces originally published at Atlas Society’s website.  The original series of posts is available here, here, here, and here.

The inclusion of Branden’s lecture and question-answer session in this collection gives him a voice in his own commemoration.  Published here for the first time, and transcribed by Roger Bissell, the lecture was given to the California Institute for Applied Objectivism in 1996. Its tenor can be gleaned from the opening paragraph in which Branden compliments his audience for being “dedicated to the broad philosophical ideas of Objectivism, but not in a religiously constricted and independent-thinking-discouraging way.”

Here Branden echoes his implicit criticism of the ARI camp. Debates between the Branden-ARI factions go beyond the personal disagreements between Branden and Rand to a broader philosophical question: is it better, at the outset of an intellectual movement, to insist upon the purity of a set of ideas at the expense of its slower adoption or to engage in an open dialogue that allows for give-and-take?

This is not a subject that can be answered by labeling either side as “religionists” or “compromisers.” It’s a unique problem elevated to historical significance by the profundity and uniqueness of Objectivism. If Objectivism is the most exceptional philosophy to emerge in over two thousand years and one believes, as Objectivists do, that philosophy is the motive force of history, then the answer could reasonably impact the course of civilization itself. The stakes, in other words, are high for those involved.

The question-answer session thus raises an issue of great magnitude in the Rand-Branden divide: How should Objectivists relate to libertarians? The underlying debate is that, on one side, Rand and ARI reject the label “libertarian” or affiliations with libertarian groups (exceptions such as the Foundation for Economic Education and the Cato Institute exist) because they claim that self-identifying libertarians often embrace a sort of “libertarianism by any means,” foregoing philosophical foundations.

Rand and ARI have argued that because philosophy guides human thinking in all areas of life and constitutes a fundamental, salient force, it is unacceptable to categorize their beliefs under a name that permits just any possible philosophical argument for a political conclusion. Objectivism is not primarily an economic or political calculus but a philosophical system whereby the means by which one arrives at conclusions matters. Branden and others critical of Rand have argued that accepting the libertarian label is unobjectionable and better promotes the popularizing and engagement that Branden values. Disciples of Rand disagree to varying degrees.

Branden speaks about himself in the third person (“you had to know Nathaniel Branden or Barbara Branden, and you had to impress them sufficiently to get an introduction to Ayn Rand”) and with superlatives of the sort employed by the sitting President of the United States (“the wonderfully exciting opportunity to read,” “a very special world, which is very close to being incommunicable,” “it was a very intoxicatingly pleasant and enjoyable way to process experience,” “we are somehow participating in this marvelous, exciting and inspiring reality,” etc.).  

His accounts are fascinating; whether they’re entirely true is another matter. His portrayal of a dinner with Rand and O’Connor during which he articulated anxiety about the publication of Atlas Shrugged is telling, as is Leonard Peikoff’s announcement, on a separate occasion, that, as Branden puts it, “in six months of the publication of Atlas Shrugged, we’ll be living in an Objectivist society.” “Now,” says Branden of Peikoff’s comment, “we knew that this was excessive, and this couldn’t be true. . . . But what it also reflects is something of the highly excited, intoxicating mental state of the period.”

Stories like this help those of us who were not alive at the time develop a fuller sense of what these individuals were like. Branden and Rand and their followers set out to form an exclusive community and were often impatient with outsiders who didn’t understand their positions, or so Branden claims. He regrets that their tactic was first to insist on conformity before initiating dialogue with outsiders, rather than initiating dialogue with outsiders to recruit new adherents. “[I]t was very, very tempting to retreat into self-righteousness,” he reflects about his encounters with those who were not yet initiated into his manner of thinking. He also depicts the group—The Collective—as elevating Rand the person over her principles: “In those days, it was made abundantly clear to us that fighting for Objectivism meant fighting for Ayn Rand. Loyalty to Ayn Rand was an issue of the highest possible value in the hierarchy.”

Therein lies much of the controversy surrounding Branden and his legacy. These “fighting words” give the strong sense that battling for Objectivism meant battling for Rand. Those of us who were not present for the conversations, meetings, debates, and interactions of that time cannot speak to the extent to which this is true. However, the accusation seems at odds with Rand’s explicit statements enjoining those who studied her philosophy that thinking for themselves and making their own evaluations of every idea were the only rational means of ascertaining truth. She rejected arguments from authority, even or especially when she was the authority in question. Whether that was conveyed in her personal relationships, though, we cannot know. It is imaginable that someone with such a forceful personality, so certain in her beliefs and ideas, would be difficult to oppose and that the environment of The Collective may have made any but the most resilient participant demure in her presence.

Branden’s stories about Rand are almost invariably unflattering, which is understandable in the context of their personal conflict, but perhaps unproductive in maintaining his broader position of extolling her philosophy and even, in large part, her character. He argues for understanding her as “conflicted” and complex rather than saintly, but he hardly counterbalances his negative portrayals with anything positive. She is, in his renderings, almost universally cranky, rude, aggressive, and bitter—a figure who seems to have gained a following for her ideas despite her horrid persona.  

Moreover, he sometimes assumes a condescending tone towards those associated with her. He represents Peikoff and George Reisman, for instance, as being inextricably caught up in her world, coloring Peikoff as an emotional dependent and Reisman as a social hostage. In all cases, however, Branden remains the sound-minded individual who, if a bit naïve in his youth, learned the error of the Randian ways and parted with her. This attitude dismisses some independent and analytical minds as fragile or conformist. One could argue that Branden’s characterizations of events weren’t wrong—again, we weren’t there and so don’t know for sure—but they also gloss over the fact that now, as older men of prominence, Peikoff and Reisman stand by her legacy and take her side in the split.

It’s clear that Branden detested what he portrays as a culture of loyalty that did not admit of dissent or disagreement and that, in his depiction at least, was unwilling to improve upon or revise Rand’s ideas, which some of her associates, again in his view, assumed to be without flaws. Branden locates the origin of this allegedly rigid groupthink in Rand’s early years. Defenders of Rand will disapprove of Branden’s characterization of this period as “the very dark side of the early years,” just as they may wince to hear Branden describe how her closest associates refused or hesitated to acknowledge their errors or ignorance about certain matters, as though they needed always to pretend to possess perfect knowledge. Although Branden criticized what he dubbed “Orthodox Objectivism,” of which he remained critical until the end, he was equally clear that he wished Objectivism to continue spreading, and he offered pointed suggestions about how to accomplish that, namely by gaining credibility and acceptance within the academy and finding publishers within mainstream peer-reviewed journals.

As much as I have hoped to avoid engaging the Rand-Branden split, it is a major part of Branden’s speech and the question-answer session deals with it. Given that Branden delivered the talk in 1996 and that, as he notes, he rarely spoke on Objectivism by then, one could take his comments as at least somewhat representative of his hierarchy of concerns on the subject. The talk and question-answer session reveal that his fallout with Rand remained a considerable part of his legacy and that he felt the need to defend himself by attacking Rand. That would explain why his answers can, at times, seem unfair to Rand. For example, asked why Rand supported Richard Nixon over George McGovern—rather than the Libertarian Party candidate John Hospers—Branden stated that she should’ve supported Hospers, that she was “uninformed” about libertarianism and political issues, and that she associated libertarianism with anarchism, which she despised. In truth, Rand had contempt for Nixon and a well-reasoned argument against Hospers, even citing his campaign views and the Libertarian Party’s platform. If I know this, then Branden certainly should, so his comment reads as if he’s giving her as little credit as possible and characterizing her as an angry zealot.

Whatever one thinks of Branden, there’s merit and perhaps a degree of honor in his hope that “there is a tremendous area of work that needs to be done, that will be done, … that is nowhere to be found in the Objectivist literature.” His disagreements with other Objectivists did not lead him to give up on Objectivism or abandon its central tenets. He remained ever devoted to this philosophy even if his commitments to knowledge and learning lost him friendships and widened the gulf between his ideas and those of other followers of Rand. It is worth asking whether Branden, despite his implicit discounting of the early years as too preoccupied with “fighting for Ayn Rand,” did not spend much of his remaining years fighting against Rand. Did his autobiographical writings and the writings of Barbara Branden on their relationships with Rand take up too much of his post-Rand career as a psychologist and philosophical thinker?

 

 

The American Bar Association Stifles Legal Education

In Academia, American History, Arts & Letters, Economics, History, Law, Law School on June 28, 2017 at 6:45 am

This piece originally appeared here at the Library of Law and Liberty.

The Accrediting Council on Education in Journalism and Mass Communications is a nonprofit accrediting agency for journalism programs. Bradley Hamm, the dean at Northwestern’s Medill School of Journalism, has called the council’s accreditation-review process “flawed,” “superficial,” “extremely time-consuming,” and “sort of a low bar.”

So he’s gotten out. Northwestern University has effectively terminated its relationship with the council, calmly embracing its new status as unaccredited.

The online journal Inside Higher Ed, which points out that the Graduate School of Journalism at the University of California, Berkeley, has done the same, quotes Dean Hamm as saying that, “as we near the 2020s, we expect far better than a 1990s-era accreditation organization that resists change—especially as education and careers in our field evolve rapidly.”

This is a tremendous blow—when two of the most prominent and celebrated journalism programs in the country refuse to acknowledge the authority and legitimacy of an accreditor, it’s tough for the accreditor to argue that the resistant institutions are merely upset about their ability to maintain accreditation. If other journalism schools are frustrated with the council’s obsolete standards, and its tendency to micromanage curricula, more of them will likely follow the example of Northwestern and Berkeley.

The social and financial costs of burdensome accreditation standards and procedures are even more pronounced in the field of law. Small businesses and Americans of modest income struggle to afford the high costs of hiring an attorney or litigating a case. Access to justice or quality representation is a constant concern within the legal profession.

Meanwhile, the American Bar Association, which remains the only accrediting body for law schools in the United States, regulates legal education in a way that drives up costs for law students, and for the consumers onto whom those costs are eventually projected.

The ABA restricts innovation by fixing the number of credit hours necessary for law students to graduate, effectively eliminating the possibility of a shorter program than the standard three years. It discourages law professors from honing their practical skills by narrowing the designation of “full-time” faculty to exclude those who maintain an ongoing remunerative relationship with a law firm or business. Its requirements regarding equipment and technology mean, in practice, that many schools are buying expensive computers and furnishing computer labs that students may never use.

ABA scrutiny of attrition rates has also contributed to a change in law-school culture and practices. There was a time when law schools could accept a high percentage of applicants who, as students, had to prove their competence in the classroom and stand or fall on their academic merit. Those who couldn’t cut it flunked out. They didn’t incur three years of debt only to take and retake a bar exam they weren’t equipped to pass.

The ABA position penalizing schools for high attrition—the result of a new interpretation of Standard 501(b) that prohibits law schools from admitting applicants who aren’t “capable” of completing a Juris Doctor or passing a bar exam—now arguably causes law schools to seek to retain students who can’t cut it. To that end, it encourages grade inflation and heavier use of student loans.

Law schools recently came under criticism for hiring their own graduates as a way to boost their post-graduation employment statistics. In response, the ABA instituted procedures to prevent the spread of misleading data. What seemed like a good-faith effort to enhance transparency and accountability has led, instead, to flawed incentives. Law schools have taken to promoting “JD-required” and “bar-passage-required” jobs to their graduates more strongly than corporate or financial positions that pay higher salaries but don’t require either a law license or bar membership.

If you graduated from law school today and became the CEO of a large, multinational company tomorrow, you would skew your school’s data in an unfavorable direction.

This changed emphasis neglects the realities of a marketplace in which the availability of traditional law jobs remains stagnant. To best serve their students, law schools should feel free to guide them toward alternative careers based in new technologies and businesses that would benefit from the knowledge and leadership that legal education supplies.

The ABA’s ministrations also help drive up the price of legal education, forcing law schools to direct time and resources toward ABA compliance that could be put toward student scholarships or improving the curriculum. And a higher price tag means that members of the legal profession, and young lawyers in particular, in order to pay debts or compensate for opportunity costs incurred during law school, pass these costs on to consumers in the form of higher legal fees.

The bottom line is that, when a substantial portion of the population cannot afford to hire an attorney, or at least feels that way, the legal system has failed in its chief purpose: to ensure that wrongs are righted and justice is served.

Unintended harm, however, is nothing new for the ABA.

Founded in 1878 by “leading” or “representative” lawyers who were selected by an elite group of men from states along the East Coast, the ABA sought to nationalize professional and ethical standards with these goals: “to advance the science of jurisprudence, promote the administration of justice and uniformity of legislation throughout the Union, uphold the honor of the profession of the law, and encourage cordial intercourse among the members.”[1]

Noble ambitions indeed. But the organization soon became a fraternal guild that sought to enforce rigid barriers to entry into the legal profession with the assistance of independent bar associations in the 50 states. “For many years,” explained legal scholar Philip J. Wickser in the 1920s, “the Association fought hard to retain its selective quality, and not to forget that a relatively small homogenous group could get the most done.”[2]

The ABA officially excluded African Americans for 66 years, according to Susan D. Carle in her 2013 book Defining the Struggle. Its ouster of three African Americans in 1912 on the basis of their skin color drew protests from the newly founded National Association for the Advancement of Colored People. That same year, the ABA issued a resolution stating that “it has never been contemplated that members of the colored race should become members of this Association.”[3]

Although the ABA has since sought to make up for its racist past by increasing the ethnic diversity of its membership, creating a commission on sexual orientation and gender identity, and strengthening its rules prohibiting racial harassment or discrimination, part of its purpose historically has been to regulate entry into the profession and decrease the number of low-income, immigrant, and minority lawyers[4] (though in recent decades such decreases have been a consequence, not the purpose, of ABA regulation).

No matter how hard the ABA attempts to distance itself from its origins, it cannot escape the fact that its function is to exclude certain groups from membership to enable a monopoly on legal services by its members. Such exclusion has tended to fall along racial lines. One law professor has thus complained that “all of the ABA’s diversity efforts ring hollow” because the ABA “caused blacks to be excluded from the profession in the first place.”[5]

Given its racially charged beginnings and racially dividing regulations and standards, it’s surprising that the ABA is still considering revising Standard 316, which addresses the bar-passage rates of law-school graduates. Compliance with the revised standard would require bar passage by 75 percent of the graduates of a currently approved (as opposed to provisionally approved) law school in at least three of the last five years.[6]

A few months ago, Lawrence P. Nolan, the president of the State Bar of Michigan, penned a letter to ABA delegates to point out, among other things, that minority organizations—and even the ABA Council for Racial and Ethnic Diversity in the Educational Pipeline—were against the proposed revision to Standard 316. “The collective judgment of those committed to [reducing] the . . . racial disparity in the legal profession,” he said, “is reflected in their unanimous opposition to this amendment.”

Nolan also stated that the ABA’s own data “confirms the large gap for African-American bar passage rates, which are lower than overall rates, particularly on the multiple-choice test.” Statistics cited by Nolan show that African Americans pass the bar exam at a lower rate than whites and that the percentage of white repeat takers of the bar exam is 3.2 percent whereas the figure for black repeat takers is 14.1 percent. If those statistics are accurate and predictive, then the effects of the revised standard would fall disproportionately on those schools with higher numbers of African American students.

Supporters of the proposed revision portray law schools as exploiters of racial minorities that have been admitting underqualified applicants to make up for diminishing admissions applications. There’s truth to this characterization. Law-school admissions standards have dropped precipitously as enrollment has declined.

But why trust the organization that caused or at least exacerbated many of these problems to fix them? We need imagination and rational risk to move forward constructively and creatively. Proposals as wide-ranging as abolishing the bar exam or developing non-JD curricula in law schools ought to be seriously considered. Another idea would be to strip the ABA of its accrediting powers altogether, something the U.S. Department of Education might consider.

During this moment of social unrest, when rancorous partisanship seems to permeate all fields of discourse, faculty and administration all along the political spectrum can agree on one thing: The ABA is systematically harming ethnic minorities and becoming as obsolete as its counterpart in journalism education.

It may well be time for top-ranked law schools to follow in the footsteps of the J-schools at Northwestern and Berkeley. Only if several leading law schools joined to seek an end to the ABA’s accrediting function would this reform stand a chance. Law schools with lower rankings may lack the credibility to resist, given their stake in the accreditation process. Their administrators already, in my view, avoid speaking out against the ABA due to their reasonable fear of retaliation. (My own trepidation almost prevented this piece from reaching print.)

Granted, it might give the law schools pause that in most states, admission to the bar (by authority of the state bar or the state supreme court) is conditioned on holding a degree from an ABA-accredited law school. Still, the journalism-school revolt demonstrates that a mass rebuff of the ABA’s accrediting legitimacy is neither extreme nor absurd. Prominent law schools are already experimenting in other areas, such as considering GRE scores (rather than just LSAT scores) for admissions purposes. Such experimentation is all to the good.

The legal profession is, in the words of Benjamin Barton, “facing a major retrenchment” and remains mired in outmoded tasks that artificial intelligence may replace. It’s stuck in a bygone period when lawyers felt threatened by entrepreneurial upstarts who breached longstanding protocols such as prohibitions on advertising or contingency fees. It’s time for an energetic rethinking of the goals and purpose of legal education and the legal profession.

Ending ABA accreditation authority would be an exciting first step. It would enable administrators to reallocate resources to lower the costs of legal education and, consequently, of legal services. And it would allow them to focus on their true mission: not lining the pockets of accreditation agencies and bureaucratic guilds but educating prospective lawyers and bringing justice and order to rich and poor alike.

The views expressed herein are solely the author’s, and do not reflect those of Faulkner University’s Thomas Goode Jones School of Law or its Blackstone and Burke Center.

 

[1] Simeon E. Baldwin, “The Founding of the American Bar Association,” The American Bar Association Journal 3 (1917), 659-62, 695.

[2] Philip J. Wickser, “Bar Associations,” Cornell Law Quarterly 15 (1929-30), 398.

[3] Susan D. Carle, Defining the Struggle: National Organizing for Racial Justice, 1880-1915 (Oxford University Press, 2013), pp. 281-82, and 541-43.

[4] Jerold S. Auerbach, Unequal Justice: Lawyers and Social Change in Modern America (Oxford University Press, 1976), p. 65: “During the second decade of the twentieth century the American Bar Association began to assert itself aggressively as a professional protective organization. Its purpose was twofold: to preserve its own exclusiveness (and the status that accompanied its preservation) and to exert professional leverage upon the political process.” For admission of minorities, see Auerbach, pp. 65-66, 71, 107, 131, 159-60, 200, 216, and 295.

[5] George B. Shepherd, “No African-American Lawyers Allowed: The Inefficient Racism of the ABA’s Accreditation of Law Schools,” Journal of Legal Education 53 (2003), 104.

[6] The ABA Council and the Accreditation Committee of the Section of Legal Education and Admissions to the Bar operate independently of the ABA pursuant to regulations of the U.S. Department of Education, which recognizes these bodies as authorized accreditors. For ease of reference and understanding, and because of the connection between these accrediting bodies and the ABA, the taxonomy I have adopted simply lumps these bodies together under the heading of “ABA.”

What Is the Rule of Law, Anyway?

In America, Civics, Economics, History, Humanities, Jurisprudence, Law, Libertarianism, Philosophy, Western Civilization, Western Philosophy on June 7, 2017 at 6:45 am

This piece originally appeared here in The Intercollegiate Review.

“Donald Trump Could Threaten U.S. Rule of Law, Scholars Say.” So declared an ominous headline in the New York Times roughly one year ago. MSNBC likewise ran a suggestive interview in January entitled, “Will the ‘rule of law’ survive under Trump?”

Such alarming commentary presupposes the existence of the rule of law in the United States and appears designed to portray Donald Trump as a threat to that rule. In March, however, Reason republished and retitled a curious piece that first appeared in The Week: “The Immoral ‘Rule of Law’ Behind Trump’s Deportation Regime.” The implication of this revised title (the original read, “How today’s pro-immigrant activists are adopting the tactics of abolitionists”) is that Trump is staunchly committed, rather than antagonistic, to the rule of law.

So which is it? Does Trump jeopardize or safeguard the rule of law?

The answer, if we assume the rule of law is in full force and effect in the United States, is probably situational: In some cases, Trump undermines the rule of law, while in others he reinforces it. But to know for sure, and to appreciate the difference, one must first understand what the rule of law is.

The rule of law encompasses multiple legal principles, chief among them is that the rules that govern society apply equally to all individuals within the prescribed jurisdiction. No person, not even the king or the president, is above the law. Law, not the arbitrary commands or categorical dictates of human rulers, is supreme.

Thus, the opposite of the “rule of law” is the “rule of man,” or the idea that the formal, discretionary imperatives of a powerful sovereign necessarily bind his subjects and subordinates.

The rule of law is a philosophical concept and a liberal ideal that gained ascendency during the Enlightenment (think Locke and Montesquieu) but that can be traced to antiquity (think Aristotle). The British jurist Albert Venn Dicey listed as its prime characteristics:

  1. “the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power”;
  2. “equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary Law Courts”; and
  3. “a formula for expressing the fact that with us the law of the constitution, the rules which in foreign countries naturally form part of a constitutional code, are not the source but the consequence of the rights of individuals, as defined and enforced by the Courts.”

These suggest that the rule of law is a bottom-up rather than a top-down system of governmental ordering based on already enunciated and widely accepted precepts. The operative rules that regulate the normative order of human activity in a free society under the law are rooted in custom and tradition. A ruler or judge is, in such a happy jurisdiction, responsive to the controlling principles that are antecedent to his or her political election, appointment, or empowerment.

F. A. Hayek identified the rule of law as a defining attribute of the common-law system, which, in his view, stood in contradistinction to the civil-law system that instituted vast codes and complex administrative agencies to superintend the unvigilant populace. Legislatures, of course, are accountable to the people through elections; thus, their enactments must reflect extant social practices and beliefs to satisfy voters. Administrative agencies, with their extensive rulemaking powers, are not so accountable. They are by design removed from legislative procedures and thus isolated from voters.

Hayek saw the common law as a decentralized form of social organization, and civil law as centralized planning and design. The rule of law, he thought, inhered in the former system but not in the latter. “The possession of even the most perfectly drawn-up legal code does not, of course, insure that certainty which the rule of law demands,” he warned, “and it therefore provides no substitute for a deeply rooted tradition,” which the common law embodied.

The rule of law encapsulates other seminal concepts as well: the predictability, consistency, reliability, neutrality, and clarity of working rules, for instance. These, however, are in some way derived from the principal teaching that, in Hayek’s words, “all rules apply equally to all, including those who govern.” By any appreciable standard, the United States has not lived up to this high ideal in light of the growth of sovereign immunity and qualified immunity for government officials, the disparate treatment of individuals based on their political power and connections, and, among others, the rapid rise of the administrative state.

Lately the rule of law has become associated with a law-and-order mentality that emphasizes punishment, severity, and rigidity as touchstones of the legal system. The rule of law, on this view, is the instantiation of brute force or the execution of raw power, or perhaps an ideological construct meant to condition the populace into servile submission to government authority.

This understanding of the rule of law has some merit: John Hasnas’s article “The Myth of the Rule of Law” explains how rule-of-law rhetoric indoctrinates people into casual acceptance of the harmful government monopoly on the institutions of law. He decries the gradual acquiescence of ordinary people to, in his words, “the steady erosion of their fundamental freedoms” in the name of the rule of law.

But the rule of law as an ideal, rather than a felt reality, aims to preserve rather than imperil fundamental freedoms. Perhaps there are those with ulterior motives who champion the rule of law to achieve concealed goals; perhaps government in its current form cannot actualize rule-of-law ideals. When rule-of-law discourse does serve the repressive function that Hasnas describes, it is unduly coercive and abusive. In its proper form, and as it was originally understood, however, the rule of law aspired to restrain government power.

In the minds of yesteryear patriots like Thomas Paine, the United States epitomized the rule of law. He averred that “in America the law is king,” whereas “in absolute governments the king is law.” He said, as well, that “in free countries the law ought to be king; and there ought to be no other.”

If the law is no longer king in America, it’s not because of Trump. That he enjoys immense and immeasurable power is evidence of the extent of the decline of the rule of law in this country.

Having flouted and subverted the rule of law for decades, the radical elements of the progressive left in the United States now face the inevitable consequence of their concerted activity—namely, that their coercive methods and institutions may be turned against them, and the authoritarian structures they created may service policies at odds with their own.

We can all learn a lesson from this revealing irony.

Free Exchange with Dr. Donald Livingston of Emory University

In America, American History, Arts & Letters, Books, Conservatism, Economics, History, Humane Economy, Humanities, Law, liberal arts, Liberalism, Libertarianism, Philosophy, Politics, Scholarship, Southern History, The South, Western Civilization, Western Philosophy on January 18, 2017 at 6:45 am

In 2014, Dr. Donald Livingston sat for an interview for “Free Exchange,” a program of the John W. Hammond Institute for Free Enterprise at Lindenwood University.  The interview appears below. Dr. Livingston is Professor Emeritus in the Philosophy Department at Emory University, President of the Abbeville Institute, and Fellow of the Institute for Advanced Studies at the University of Edinburgh.

Deidre McCloskey and the Enrichment of the World

In Arts & Letters, Austrian Economics, Book Reviews, Books, Creativity, Economics, Fiction, Historicism, History, Humane Economy, Humanities, liberal arts, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, Philosophy, Politics, Property, Scholarship, Western Civilization, Western Philosophy on October 26, 2016 at 6:45 am

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The following excerpt is adapted from my review of Deirdre McCloskey’s book Bourgeois Equality; the original review, which appeared in the Quarterly Journal of Austrian Economics, is available here.

If it’s true that Wayne Booth inspired Deirdre McCloskey’s interest in the study of rhetoric, then it’s also true—happily, in my view—that McCloskey has refused to mimic Booth’s programmatic, formulaic methods and boorish insistence on prosaic succinctness. Bourgeois Equality is McCloskey’s third volume in a monumental trilogy that began with The Bourgeois Virtues (2006) and Bourgeois Dignity (2010), each published by the University of Chicago Press. This latest volume is a Big Book, alike in kind but not in theme to Jacques Barzun’s From Dawn to Decadence (2000), Camille Paglia’s Sexual Personae (1990), or Herald Berman’s Law and Revolution (1983) and Law and Revolution II (2006). It’s meandering and personal, blending scholarship with an essayistic style that recalls Montaigne or Emerson.

McCloskey’s elastic arguments are shaped by informal narrative and enlivened by her plain and playful voice. At times humorous, rambling, and deliberately erratic, she gives the distinct impression that she’s simply telling a story, one that happens to validate a thesis. She’s having fun. Imagine Phillip Lopate articulating economic history. McCloskey is, in this regard, a latter-day Edward Gibbon, adopting a mode and persona that’s currently unfashionable among mainstream historians, except that she’s more lighthearted than Gibbon, and unashamedly optimistic.

Writing with an air of confidence, McCloskey submits, contra Thomas Piketty, that ideas and ideology—not capital accumulation or material resources—have caused widespread economic development. Since 1800, worldwide material wealth has increased and proliferated; the quality of life in poor countries has risen—even if it remains unequal to that of more prosperous countries—and the typical human being now enjoys access to the food, goods, services, medicine, and healthcare that, in earlier centuries, were available to only a select few in the richest parts of the globe. The transition from poverty to wealth was occasioned by shifting rhetoric that reflected an emerging ethical consensus. The rhetorical-ethical change involved people’s “attitudes toward other humans” (p. xxiii), namely, the recognition of shared experience and “sympathy,” as Adam Smith stated in The Theory of Moral Sentiments. Attributing human progress to ideas enables McCloskey to advocate the norms and principles that facilitated economic growth and social improvement (e.g., class mobility and fluidity) while generating extensive prosperity. Thus, her project is at once scholarly and tendentious: a study of the conditions and principles that, in turn, she promotes.

She argues that commercialism flourished in the eighteenth century under the influence of ideas—such as “human equality of liberty in law and of dignity and esteem” (p. xxix)—that were packaged in memorable rhetoric and aesthetics. “Not matter, mainly, but ideas” caused the Great Enrichment (p. 643). In other words, “[t]he original and sustaining causes of the modern world […] were ethical, not material,” and they included “the new and liberal economic idea of liberty for ordinary people and the new and democratic social idea of dignity for them” (p. xxxi). This thesis about liberty and dignity is clear and unmistakable if only because it is repetitive. McCloskey has a habit of reminding readers—in case you missed her point the first, second, or fifty-seventh time around—that the causes of the Industrial Revolution and the Great Enrichment were ideas, not “narrowly economic or political or legal changes” (p. 470). She maintains, to this end, that the Scottish Enlightenment succeeded in combining the concepts of liberty and dignity into a desirable form of equality—not equality of outcomes, of course, but of opportunity and treatment under the law. And the Scottish model, to her mind, stands in contradistinction to the French example of centralized, top-down codification, command, planning, and design.

A perennial villain lurks in the pages of her history: the “clerisy,” which is an “appendage of the bourgeoisie” (p. 597) and often dubbed “the elite” in regular parlance. McCloskey calls the clerisy “the sons of bourgeois fathers” (p. xvii) and “neo-aristocratic” (p. 440). The clerisy includes those “artists, intellectuals, journalists, professionals, and bureaucrats” who resent “the commercial and bettering bourgeoisie” (p. xvi). The clerisy seeks, in different ways at different times, to extinguish unfettered competition with exclusive, illiberal, irrevocable grants and privileges that are odious to free society and offensive to the rights of average consumers. “Early on,” says McCloskey, referring to the period in Europe after the revolutionary year 1848, “the clerisy began to declare that ordinary people are misled in trading, and so require expert protection and supervision” (p. 609). The clerisy since then has been characterized by paternalism and a sense of superiority.

Because the clerisy is shape-shifting, assuming various forms from time to time and place to place, it’s a tough concept to pin down. The word “clerisy” does not appear in the book’s index to permit further scrutiny. By contrast, McCloskey’s general arguments are easy to follow because the book is separated into parts with questions as their titles; subparts consisting of onesentence headings answer those questions.

In a massive tour de force such as this, readers are bound to take issue with certain interpretive claims. Historians will find McCloskey’s summaries to be too breezy. Even libertarians will accuse her of overlooking manifest wrongs that occurred during the periods she surveys. My complaints are few but severe. For instance, McCloskey is, I believe, either careless or mistaken to announce that, during the nineteenth and early twentieth century, “under the influence of a version of science,” in a territory that’s never specifically identified, “the right seized upon social Darwinism and eugenics to devalue the liberty and dignity of ordinary people, and to elevate the nation’s mission above the mere individual person, recommending, for example, colonialism and compulsory sterilization and the cleansing power of war” (p. xviii).

Let’s hope that it’s innocent negligence rather than willful distortion that underlies this odd, unqualified, categorical assertion. Adam Cohen’s Imbeciles (2016) and Thomas C. Leonard’s Illiberal Reformers (2016) describe how, in the United States, social Darwinism and eugenics were adopted primarily, though not exclusively, by the Left, not the Right. These recent books come on the heels of several scholarly treatments of this subject: Thomas M. Shapiro’s Population Control Politics (1985), Philip R. Reilly’s The Surgical Solution (1991), Joel Braslow’s Mental Ills and Bodily Cures (1997), Wendy Kline’s Building a Better Race (2001), Stefan Kuhl’s The Nazi Connection (2002), Nancy Ordover’s American Eugenics (2003), Christine Rosen’s Preaching Eugenics (2004), Christina Cogdell’s Eugenic Design (2004), Gregory Michael Dorr’s Segregation’s Science (2008), Paul A. Lombardo’s edition A Century of Eugenics in America (2011), and Alexander Minna Stern’s Eugenic Nation (2016). These represent only a small sampling.

Is McCloskey unware of these texts? Probably not: she reviewed Leonard’s book for Reason, although she did so after her own book reached press. At any rate, would she have us believe that Emma Goldman, George Bernard Shaw, Eugene Debs, Marie Stopes, Margaret Sanger, John Maynard Keynes, Lester Ward, and W. E. B. Du Bois were eugenicist agitators for the political Right? If so, she should supply her definition of “Right,” since it would go against commonly accepted meanings. On the matter of colonialism and war, self-identified members of the Old Right such as Albert Jay Nock, John Flynn, and Senator Robert Taft advocated precisely the opposite of what McCloskey characterizes as “Right.” These men opposed, among other things, military interventionism and adventurism. The trouble is that McCloskey’s muddying of the signifiers “Left” and “Right” comes so early in the book—in the “Exordium”— that readers may lose trust in her, question her credibility, and begin to suspect the labels and arguments in her later chapters.

Other undefined terms only make matters worse, ensuring that McCloskey will alienate many academics, who, as a class, are already inclined to reject her libertarian premises. She throws around the term “Romanticism” as if its referent were eminently clear and uncontested: “a conservative and Romantic vision” (p. xviii); “science fiction and horror fiction [are] … offshoots of Romanticism” (p. 30); “[Jane Austen] is not a Romantic novelist … [because] [s]he does not take Art as a model for life, and does not elevate the Artist to a lonely pinnacle of heroism, or worship of the Middle Ages, or adopt any of the other, antibourgeois themes of Novalis, [Franz] Brentano, Sir Walter Scott, and later Romantics” (p. 170); “Romanticism around 1800 revived talk of hope and faith and a love for Art or Nature or the Revolution as a necessary transcendent in people’s lives” (p. 171); “Romantic candor” (p. 242); “the late eighteenth-century Romantic literary critics in England had no idea what John Milton was on about [sic], because they had set aside the rigorously Calvinist theology that structured his poetry” (p. 334); “the nationalist tradition of Romantic writing of history” (p. 353); “Romantic … hostilities to … democratic rhetoric” (p. 510); “[i]n the eighteenth century … the idea of autonomy triumphed, at any rate among the progressive clerisy, and then became a leading Romantic idea, á la Victor Hugo” (p. 636); and “the Romantic conservative Thomas Carlyle” (p. 643).

To allege that the clerisy was “thrilled by the Romantic radicalism of books like Mein Kampf or What Is to Be Done” (p. xviii) is also recklessly to associate the philosophies of, say, Keats or Coleridge or Wordsworth with the exterminatory fantasies of Hitler and Lenin. McCloskey might have guarded against this misleading conflation by distinguishing German idealism or contextualizing Hegel or by being more vigilant with diction and definition. Her loose language will leave some experts (I do not profess to be one) scratching or shaking their heads and, more problematic, some non-experts with misconceptions and misplaced targets of enmity. One imagines the overeager and well-meaning undergraduate, having read Bourgeois Equality, setting out to demonize William Blake or destroy the reputation of Percy Shelly, about whom Paul Cantor has written judiciously.2 Wouldn’t originality, imagination, creativity, and individualism—widely accepted markers of Romanticism—appeal to McCloskey? Yet her unconditionally derogatory treatment of Romanticism—which she portrays as a fixed, monolithic, self-evident thing—undermines aspects of that fluctuating movement, period, style, culture, and attitude that are, or seem to be, consistent with her Weltanschauung.

But I protest too much. These complaints should not diminish what McCloskey has accomplished. Would that we had more grand studies that mapped ideas and traced influences across cultures, communities, and eras. McCloskey takes the long view, as we all should. Her focus on rhetoric is crucial to the future of liberty if, given the technological advances we have made, the “work we do will be more and more about decisions and persuading others to agree, changing minds, and less and less about implementation by hand” (p. 498). Equally significant is her embrace of humanomics—defined as “the story [of] a complete human being, with her ethics and language and upbringing” (p. xx)—which materializes in casual references to Henrik Ibsen’s plays, challenges to the depiction of John Milton “as a lonely poet in a garret writing merely to the starry heavens” (p. 393), analyses of Jane Austen’s novels, and portrayals of Elizabethan England. Her historical and narrative arc enables us to contextualize our own moment, with all of its troubles and possibilities.

Best of all, her book is inspiring and exhilarating and brimming with rousing imperatives and moving calls to action. “Let us, then,” she says at one point, “not reject the blessings of economic growth on account of planning or pessimism, the busybody if wellintentioned rationalism of some voices of the French Enlightenment or the adolescent if charming doubts of some voices of the German Romantic movement, fashionable though both attitudes have long been among the clerisy. As rational optimists, let us celebrate the Great Enrichment, and the rhetorical changes in freer societies that caused it” (p. 146). At another point she encourages her audience to guard against “both cynicism and utopianism” (p. 540), and elsewhere to heed “trade-tested cooperation, competition, and conservation in the right mix” (p. 523). These little nudges lend her credibility insofar as they reveal her true colors, as it were, and demonstrate that she is not attempting—as is the academic wont—to hide her prejudices and conceal her beliefs behind pretended objectivities.

Poverty is relative and, hence, permanent and ineradicable, despite McCloskey’s claim that we can “end poverty” (p. 8). If, tomorrow, we woke up and the wealth of each living person were magically to multiply twentyfold—even fiftyfold—there would still be people at the bottom. The quality of life at the bottom, however, would be vastly improved. The current manifestation of global poverty shows how far we as a species have advanced in the last few centuries. McCloskey is right: We should pursue the ideas that accelerated and achieved human flourishing, that demonstrably brought people out of distress and destitution. Hard sciences and mathematical models are insufficient in themselves to convey the magnitude and splendor of these ideas and their accomplishments. Hence we should welcome and produce more books like McCloskey’s that undertake a “rhetorical-ethical Revaluation” to both examine and celebrate “a society of open inquiry,” one which not only “depends on rhetoric in its politics and in its science and in its economy,” but which also yields intellectual creativity and political freedom (p. 650). In McCloskey’s approach, economics and the humanities are not mutually exclusive; rather, they are mutually illuminating and, in fact, indispensably and inextricably tied. An economics that forsakes the dignity of the human person and his capacity for creativity and aesthetics does so at its own peril and to its own disgrace. All economics is, at its core, humanomics. We could do without the latter term if we understood the former.

REFERENCES

Barzun, Jacques. 2000. From Dawn to Decadence: 500 Years of Western Cultural Life, 1500 to the Present. New York: HarperCollins.

Berman, Harold J. 1983. Law and Revolution: The Formation of the Western Legal Tradition. Cambridge, Mass.: Harvard University Press, 2003.

——. 2006. Law and Revolution II: The Impact of the Protestant Reformations on the Western Legal Tradition. Cambridge, Mass.: Harvard University Press.

Braslow, Joel. 1997. Mental Ills and Bodily Cures: Psychiatric Treatment in the First Half of the Twentieth Century. Berkeley and Los Angeles: University of California Press.

Cantor, Paul. 1997. “The Poet as Economist: Shelley’s Critique of Paper Money and the British National Debt,” Journal of Libertarian Studies 13, no. 1: 21–44.

Cantor, Paul, and Stephen Cox, eds. 2009. Literature and the Economics of Liberty. Auburn, Ala.: Ludwig von Mises Institute.

Cogdell, Christina. 2004. Eugenic Design. Philadelphia: University of Pennsylvania Press.

Cohen, Adam. 2016. Imbeciles. London: Penguin Press.

Dorr, Gregory M. 2008. Segregation’s Science. Charlottesville, Va.: University of Virginia Press.

Kline, Wendy. 2001. Building a Better Race. Berkeley and Los Angeles: University of California Press.

Kuhl, Stefan. 2002. The Nazi Connection. Oxford: Oxford University Press.

Leonard, Thomas C. 2016. Illiberal Reformers. Princeton: Princeton University Press.

Lombardo, Paul A. 2011. A Century of Eugenics in America. Bloomington, Ind.: Indiana University Press.

McCloskey, Deirdre. 2006. The Bourgeois Virtues. Chicago: University of Chicago Press.

——. 2010. Bourgeois Dignity. Chicago: University of Chicago Press.

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The Problem With Socialism

In Arts & Letters, Austrian Economics, Book Reviews, Books, Economics, History, Humane Economy, Humanities, Libertarianism, Politics, Western Philosophy on September 28, 2016 at 6:45 am

Allen 2

This review originally appeared here in The Daily Caller.

If you’re looking for a short introduction to socialism that rewards rereading, Thomas DiLorenzo’s The Problem With Socialism is it.

Perhaps your son or daughter has returned from college talking about collective control of the means of production and sporting Bernie Sanders t-shirts. Perhaps you’re a political novice looking for informed guidance.

Perhaps you’re frustrated with America’s economic decline and deplorable unemployment rates. Perhaps you listened with bewilderment as some pundit this election season distinguished democratic socialism from pure socialism in an attempt to justify the former.

Whoever you are, and whatever your occasion for curiosity, you’re likely to find insight and answers from DiLorenzo.

A professor of economics at Loyola University Maryland, DiLorenzo opens his book with troubling statistics: 43% of millennials, or at least those between ages 18 and 29, view socialism more favorably than capitalism, and 69% of voters under 30 would vote for a socialist presidential candidate. Socialism—depending on how it’s defined in relation to communism—may have killed over 100 million people and impoverished countless others over the course of the 20th Century.

So why have the youth (full disclaimer: by certain measures, at 33, I’m considered a millennial myself) welcomed this ideology that’s responsible for mass killings, organized theft, war crimes, forced labor, concentration camps, executions, show trials, ethnic cleansing, disease, totalitarianism, censorship, starvation, hyperinflation, poverty, and terror?

Why have death, destruction, and abject destitution become so hip and cool? Because of effective propaganda and utopian promises of “free” everything.

The problem is, as anyone who’s ever studied economics knows, there’s no such thing as free stuff. Somebodypays at some point.

“What socialists like Senator Sanders should say if they want to be truthful and straightforward,” DiLorenzo thus avers, “is not that government can offer citizens anything for free, but that they want healthcare (and much else) to become a government-run monopoly financed entirely with taxes. Taxes hide, but do not eliminate, the cost of individual government programs.”

And these programs are far more expensive to society than they would be on the free market.

The predicable rejoinder to such a claim — repeated ad nauseam by television personalities—is that socialism works, nay thrives, in, say, Sweden. DiLorenzo corrects the record: “Socialism nearly wrecked Sweden, and free market reforms are finally bringing its economy back from the brink of disaster.”

Strong language, but DiLorenzo maps the history and supplies the data to back it up. “The real source of Sweden’s relatively high standard of living,” he explains, has “everything to do with Sweden avoiding both world wars and jumping into the industrial revolution when its economy was one of the freest, least regulated, and least taxed in Europe.”

Other common binary assumptions are reversed in these pages: socialism causes pollution whereas capitalism protects the environment; socialism leads to war whereas capitalism is peaceful; socialism consolidates power among an elite few whereas capitalism decentralizes and disperses power, which ultimately resides with individual consumers making small economic adjustments based on their particular needs.

Even socialized medicine proves more inequitable than market-based alternatives. Proponents of Canadian-style healthcare ignore the fact that “Canadian health care is actually far more expensive, and the quality far lessthan it would be if doctors and hospitals had to compete for patients on the basis of quality and price.”

Coloring his analysis with references to the Austrian economists Ludwig von Mises, Friedrich Hayek, and Murray Rothbard, DiLorenzo undertakes a variety of other issues implicated by socialism: egalitarianism, fascism, income taxation, wage and price controls, monopolies, public schooling, and more.

Had I been his publisher, I would have insisted that he also include disturbing, graphic, and gruesome images of real, dead human bodies stacked on real, dead human bodies, of ransacked churches, and of confiscated property—alarmingly tangible consequences and horrifying illustrations of pure, realized socialism.

Senator Sanders and most of his followers mean well, of course, and genuinely and in good faith advocate policies they believe to be in the best interests of the United States. Yet the history of the cause they champion is fundamentally at odds with their desired goals.

DiLorenzo has the courage to call socialism what it is: “the biggest generator of poverty the world has ever known.” For young students especially, his concise primer could make the difference between feeling the Bern, and getting burned.

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