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Archive for the ‘Humane Economy’ 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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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.

Ordover, Nancy. 2003. American Eugenics. Minneapolis: University of Minnesota Press.

Paglia, Camille. 1990. Sexual Personae: Art and Decadence from Nefertiti to Emily Dickinson. New Haven, Conn.: Yale University Press.

Reilly, Philip R. 1991. The Surgical Solution. Baltimore: Johns Hopkins University Press.

Rosen, Christine. 2004. Preaching Eugenics. Oxford: Oxford University Press.

Shapiro, Thomas M. 1985. Population Control Politics. Philadelphia: Temple University Press.

Stern, Alexander Minna. 2016. Eugenic Nation. Berkeley and Los Angeles: University of California Press.

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

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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.

Make America Mobile Again

In America, American History, Arts & Letters, Book Reviews, Books, Humane Economy, Humanities, Law, Politics on August 10, 2016 at 6:45 am

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This review originally appeared here in The American Spectator.  Note that some of the references to the presidential election are now dated but were timely when this review was originally published.

This election season has proven that, regardless of who becomes the Democratic or Republic nominee for president, the American political landscape has been reshaped. Candidates expected to have a smooth path to their party’s nomination have met, instead, a bumpy road. The rise of Donald Trump and Bernie Sanders as viable candidates reflects the growing feeling among ordinary Americans that the system is rigged, that they’re stuck in conditions enabled and controlled by an amorphous cadre of elites from Washington and Wall Street.

Income inequality is higher today than it’s been in nearly a century. Middle and lower class citizens of other First World countries enjoy more economic mobility than do middle and lower class Americans. The United States has fallen behind managerial and quasi-socialist governments in Europe in empirical rankings of economic freedom. The gap between the so-called 1% and the rest of America is growing, and recent college graduates, saddled with student loan debt and poor job prospects, are financially behind where their parents were at the same age.

Things don’t look promising. But one law professor, F. H. Buckley of the freshly named Antonin Scalia Law School at George Mason University, outlines ways to repair structural, systemic burdens on the American economy. His new book, The Way Back, published today by Encounter Books, provocatively advocates for socialist ends by capitalist means.

Although the word socialism recalls revolution, stifled competition, attacks on private ownership, abolition of the price-system and sound economic calculation, hunger, mass-murder, off-brand goods and low-quality services, among other demonstrable horribles, Buckley has something less vicious in mind. By socialism, he does not mean a centralized government that replaces the market system with economic planning and state control of the means of production. His “socialism” is not socialism at all.

Leaving socialism undefined, he suggests that free-market economics (a term he avoids but implies) and the dismantling of the regulatory state will do more than actual socialism and its variants to lift people out of poverty and maximize their quality of life. The Left, in short, has asked the right questions about income inequality and economic mobility but supplied the wrong answers or solutions. “Sadly,” Buckley complains, “those who loudly decry income disparities often support policies which make things worse.”

It’s the aristocratic elites, in Buckley’s view, who benefit from mass bureaucracy, the welfare state, a broken immigration and public-school system, trade barriers, a flawed tax code, and a general decline in the rule of law. These unjust institutions, policies, and conditions, with their built-in advantages for a select few, cause and sustain economic immobility. They solidify the place of aristocrats — what Buckley also calls the New Class — at the top of the social stratum. Those with high levels of wealth game the system through special favors, government grants, shell companies, complicated tax schemes, offshore banking, and other loopholes designed to ensure that the 1% are excluded from the regulatory barriers imposed and administered by government at the expense of the 99%.

The aristocracy that Buckley targets is not the natural aristocracy celebrated by certain American Founders for its virtue and political disinterestedness. It’s an artificial aristocracy that has little to do with merit or talent. The Founders — probably all of them — would have been appalled by the likes of Bill and Hillary Clinton: figures who became multi-millionaires through partisan politics. The Clintons embody the new artificial aristocracy. They amassed their wealth by championing programs that have slowed economic mobility while purporting to do the opposite. The Founders, by contrast, believed that benevolent aristocrats would be free from economic pressure and thus would not succumb to the temptations to use government positions or privileges for personal gain.

The Founders would have cringed to learn that public service has become a vehicle to riches. For all his many faults, Donald Trump appeals to disenfranchised Americans because he declares he’s financed his own campaign and admits that a rigged system — exemplified by our federal bankruptcy laws — has worked in his favor. He knows the government system is unfair and claims he wants to change it.

“America was a mobile society for most of the twentieth century,” Buckley says, citing statistics and substantiating his claim with charts and graphs. Trump’s supporters no doubt long for those days of economic mobility that Buckley locates in the exuberant 1950s.

When Trump announces that he wants to make America great again, people stuck at the bottom of the rigid class divide respond with enthusiasm. On a subterranean level, they seem to be hoping that America can once again become a mobile society, a place where a lowly pioneering frontiersman like Abraham Lincoln (Buckley’s favored symbol of social and economic mobility) can rise from humble beginnings to become the President of the United States. Buckley believes that “the central idea of America, as expressed in the Declaration [of Independence], became through Lincoln the promise of income mobility and a faith in the ability of people to rise to a higher station in life.”

Class structure is more settled in America than in much of Europe. Yet America has always defined itself against the European traditions of monarchy, aristocracy, dynasty, and inherited privilege. Buckley states that “America and Europe have traded places.” The trope of the American Dream is about rising out of your received station in life to accomplish great things for yourself and your posterity. What would it mean if U.S. citizens were to envy, instead, the European Dream? What if America is now the country of privilege, not promise? If the American financial and economic situation remains static, we’ll learn the answers to these questions the hard way.

Perhaps the most interesting and unique feature of Buckley’s book is his embrace of Darwinian theory — including the genetic study of phenotypes and kin selection — to explain why American aristocrats combine to preserve their power and restrain the middle and lower classes. In short, people are hard-wired to ensure the survival of their kind, so they pass on competitive advantages to their children. “American aristocrats,” Buckley submits, “are able to identify each other through settled patterns of cooperation called reciprocal altruism.” People organize themselves into social groups that maximize the genetic fitness of their biological descendants. If certain advantages are biologically heritable, then “a country would have to adopt punitive measures to handicap the gifted and talented in order to erase all genetic earnings advantages.”

Eugenics measures were popular during the Progressive Era, before we learned about the horrors of Nazi genocide and eugenics, but surely the Left does not want to return to such inhumane and homicidal practices to realize their beloved ideal of equality. Yet Buckley reveals — more subtly than my summary suggests — that biological tampering is the only way for egalitarians to transform their utopian fantasies into a concrete reality.

To those who might point out that Buckley, a tenured law professor living in the handsome outskirts of D.C., is himself a member of this self-serving aristocracy, Buckley declares that he’s a traitor to his class. Without bravado or boast, he presents himself as the rare altruist who recognizes the net gains realized through reasonable cooperation among disparate groups.

Trump and Ted Cruz ought to have Buckley’s book on hand as they make their final case to the electorate before this summer’s convention. Buckley explains why conservatives, libertarians, and Republicans alike should care about economic mobility and inequality. By ignoring the problem of economic disparity, he warns, “the Republican establishment has handed the Democrats a hammer with which to pound it.” Buckley identifies the types of cronyism and economic barriers to entry that have caused social immobility and inequality. To resolve our troubles, he advocates “easy pieces of useful and efficient legislation” that he dubs his “wish list.”

The final section of his book describes this “wish list” and sketches what Americans can do to reinvigorate their economy and make their country mobile again. By facilitating educational choice and charter schools, streamlining the immigration system, curtailing prosecutorial overreach and the criminalization of entrepreneurship, and cutting back on the financial regulations, tax loopholes, and corporate laws that are calculated to benefit rather than police those at the top, Americans can bring back the conditions necessary for the proliferation of individual liberty and prosperity — or, in Buckley’s words, restore the promise of America.

Bond and Bonding in Shakespeare’s Merchant of Venice

In Arts & Letters, Austrian Economics, Books, British Literature, Economics, Essays, Fiction, History, Humane Economy, Humanities, Law, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, Philosophy, Politics, Scholarship, Shakespeare, Western Civilization, Western Philosophy on April 6, 2016 at 6:45 am

Allen 2

A bond is an agreement, the unification of individuals or groups under mutual terms. Parents may bond affectionately with their children just as friends may bond affectionately with one another. Marital bonds join spouses in a sacred contract that confers conjugal rights and duties.

A bond is also a security for a debt. Banks may issue and underwrite bonds with fixed interest rates or correlative maturity dates in exchange for the promise of repayment. Bonds may be defeasible, high-yield, low-yield, covered, subordinated, or perpetual. They may be backed by liens or mortgages. There are government bonds, municipal bonds, fiduciary bonds, war bonds. A bond may be an instrument or the name for a type of covenant between persons. Love is not just a bond but something within a bond, if we believe the Countess in Shakespeare’s All’s Well That Ends Well.

In light of this rich multiplicity of meaning, the referent for the isolated term bond is not immediately clear but, instead, contextual. Serviceable explanations for bond depend upon the situation in which it is employed and the circumstances with which it is surrounded. The diverse meanings for bond have in common a reciprocal obligation or indebtedness that is voluntarily undertaken: a bond, whatever else it does, secures a promise or duty.

Sometimes that promise or duty is implicit, as with romantic bonds between monogamous lovers. The term bond is thus pregnant with possibility, yielding manifold associations. “The word itself,” submits Frederick Turner, “contains a fascinating amalgam of positive and negative connotations.”

My essay “A Time for Bonding: Commerce, Love, and Law in The Merchant of Venice,” which may be downloaded at this link, considers the role of bonds and bonding in William Shakespeare’s The Merchant of Venice to undermine the notion that Shakespeare was, to employ a term by Ian Ward, “anti-market” in the play. The Merchant of Venice is instead as multifaceted and polysemous as the term bond and open to an array of interpretations favorable to commerce and business. This essay is part of this collection of essays edited by Edward W. Younkins titled Capitalism and Commerce in Imaginative Literature (2016).

The Moral Case for Property Rights

In Arts & Letters, Books, Conservatism, Economics, Ethics, History, Humane Economy, Humanities, Jurisprudence, Law, Liberalism, Philosophy, Property, Scholarship, Western Civilization, Western Philosophy on March 9, 2016 at 8:45 am

Allen 2

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

The James Madison Program in American Ideals and Institutions at Princeton University has become a hub of conservative constitutionalism and natural law theory, a forum where mostly likeminded scholars and public intellectuals can come together for constructive dialogue and critique. Directed by Robert P. George, the McCormick Professor of Jurisprudence at Princeton, the program has hosted established and emerging scholars alike. Adam MacLeod is one of the latter—a figure to watch, a fresh and tempered voice in the increasingly ideological field of jurisprudence and legal theory. During his James Madison fellowship, with the support and advice of his colleagues, MacLeod wrote Property and Practical Reason, his first book.

MacLeod frames his normative claims and pleas within the common law context. And he gives us his thesis in his crisp opening sentence: “This book makes a moral case for private property.” He adds that “institutions of private ownership are justified.”

That institutions of private ownership are now jeopardized is upsetting. Before the 18th century, it was simply taken for granted in most Western societies that private property rights incentivized both work and custodianship and served moral ends. Leaders of advanced nations understood that the opportunity to own land or goods motivated people to work; that work, in turn, contributed to the aggregate health of the community; and that once ownership was attained, owners preserved the fruits of their labor and likewise respected the fruits of others’ labor as having been dutifully earned. There were, of course, violations of these principles in Western societies, which is why the law protected and promoted private ownership.

Even absolute monarchs across Europe centuries ago understood the instinctual drive for personal ownership and, consequently, allowed their subjects to obtain at least qualified possession of land and real property. During the Enlightenment, however, philosophers such as John Locke awakened the Western intellect to the stark reality that private property rights were routinely violated or compromised by monarchs and sovereigns at the expense of morality and at odds with the natural law. Because humans own their bodies, Locke maintained, any object or land they removed or procured from nature, which God had provided humanity in common, was joined to those people, who, so long as no one else had a legitimate claim to such object or land, could freely enjoy a right of possession exclusive of the common rights of others.

It’s surprising that Locke isn’t mentioned in MacLeod’s defense of reason and private property, since Locke more than any other figure in the Western tradition—let alone the British tradition in which the common law emerged—made the reason-based case for the morality of private property ownership. “God,” Locke said, “who hath given the world to men in common, hath also given them reason to make use of it to the best advantage of life and convenience.” On this score MacLeod echoes Locke without giving him attention.

MacLeod advocates the type of mediated dominion of private ownership that, he says, existed at common law. Under the common law, he argues, dominion was mediated because it was restrained by the normative guides of “practical reasonableness.” He does not fully delineate what unmediated dominion looks like. But presumably it has something to do with “many contemporary accounts” that, he claims, “view property as an individual right” and facilitate an “atomization of private property” that’s “unnecessary and unhelpful.” An example might have polished off this point, since in the opening chapters it’s not always obvious to which property arrangement mediated dominion is allegedly superior.

He does, however, supply helpful examples of mediating private institutions under the common law: families and family businesses, religious associations such as churches or synagogues, civic associations, and other such cooperative forms that exercise modest control or otherwise influence a person’s claim to outright ownership. For instance, one’s community may reasonably insist that my absolute ownership of a weapon does not permit one’s use of that weapon to threaten or injure another except in self-defense. It may likewise restrict the profligate use of scarce resources, or the reckless use of intrinsically dangerous resources to the manifest detriment of one’s immediate neighbors.

The author submits that, under the common law, which illustrates constructive administration of property rights, private ownership is never total or unqualified but always subject to reasonable restraint as prescribed by custom and community. He intimates that one thing that makes private ownership reasonable is its promotion of reasonable behavior; the very reasonableness of private property is self-perpetuating. The owner of property who’s confident his ownership is legally honored and enforced will pursue future gain; as the number of such owners multiplies, the corporate prosperity of society increases.

MacLeod rejects consequentialist arguments for private property and seeks to justify private ownership on the basis of morality. He shows that private ownership is not just optimal by utilitarian standards but is practically reasonable and morally good.

In so arguing, he navigates around two anticipated criticisms: first that his defense of private property and promotion of common law standards and conditions are remedies in search of an illness, and second that beneath his proposed remedy is the sickness he wants to cure.

By discussing the work of Pierre-Joseph Proudhon, Jeremy Waldron, J. E. Penner, and Larissa Katz, among others, MacLeod proves he’s not remonstrating against straw men but engaging actual thinkers with real influence on our working perceptions of property rights. The problems he confronts are palpable: regulatory takings, trespass, taxation, riparian-right disputes, adverse possession, and waste, among others.

In depicting mediated dominion as a form of voluntary “plural ownership” that excludes state coercion, moreover, he reassures readers that a common law property regime does not contravene private ordering, despite the fact that the common law dates back to periods when English monarchs retained total and ultimate control of the land within their jurisdiction under the Doctrine of the Crown; forced owners to hold property rights in socage; confiscated property from rivals and dissidents; redistributed property in exchange for loyalty and political favors; and permitted and at times approved of slavery and villainy.

These unreasonable elements of the common law tradition do not square with the case that MacLeod makes for practical reasonableness; yet the common law tradition he invokes is sufficiently flexible and adaptive to modify or eradicate rules that perpetuate unreasonable practices and behaviors. He reminds us, too, that “slavery was for a long time unknown at common law, and its rise in positive law derogated common law rights and duties.” In other words, the rise of the English slave trade “is a story of lawmakers first departing from, then returning to, common law norms.”

Following if not synthesizing John Finnis and Joseph Raz, MacLeod recommends in the property-law context something akin to perfectionist liberalism and value pluralism. The pluralism championed by MacLeod involves multiplying the options for deliberating agents: the more room there is for rational choice, the more diverse and numerous are the opportunities to exercise human reason. These opportunities may be circumscribed by the morality of the community that is inherent in the rules that reflect basic values. The law is by nature coercive, but it is good to the extent it enables practical reason and restricts bad behavior, as determined by the net, collaborative efforts of non-state actors. MacLeod calls these combined actors members of “intermediary communities.”

The trope of individualism and community is for MacLeod a framing device for advocating mediated dominion as an incentivizing force for moral action. He skillfully and meticulously affirms that private ownership, which is conditional on the reasonable limitations established by collective norms, is reasonable not only for instrumental purposes (because it works well and facilitates constructive social relations) but also because it is good in itself. Summoning the commentary of Thomas Aquinas, William Blackstone, James Madison, Alexis de Tocqueville, Joseph Story, Georg Friedrich Hegel, F.A. Hayek, Neil MacCormick, Ronald Dworkin, Richard Epstein, and Robert P. George, MacLeod also manages to work in unexpected references to writers who do not immediately spring to mind as jurisprudents: Richard Weaver, Wendell Berry, Charles Murray, John Tomasi, and Milton Friedman. This range demonstrates the importance of property law across disciplines and in broad contexts.

To profit from this book you must, I think, hold in abeyance any assumptions or readymade generalizations you have about the nature and function of private property. You’d benefit as well from a prior familiarity with the field and discourse of property jurisprudence, not to mention the new natural law theories. I make this observation as an outsider myself. If you can’t immediately define terms like “usufruct,” either because you’ve never heard of them or because it’s been too long since you studied for a bar examination, you’ll likely need Black’s Law Dictionary and other resources close at hand as you piece through MacLeod’s rationale. Readers in other disciplines might find that the chapters presuppose an awareness of, say, the essentialist debate over whether exclusion or use defines property norms, or might question the meaning and import of “personalist” approaches to private property that emphasize the doctrines of positive liberty and personal autonomy.

Such disciplinary specificity isn’t a bad thing. One hopes, in fact, that it would motivate curious readers to undertake further study and inquiry. Yet specialization limits what a book can accomplish.

MacLeod exhibits a disposition to be philosophical rather than sociological, adopting as he does a neutral, academic tone free of animus and personal pique, arguing from logical deduction rather than concrete data or statistics. Whether this approach redounds to his advantage depends on what he wants to achieve. If he’s writing only for an academic audience of philosophers and political theorists, he’s succeeded admirably, but if his goal is to reach beyond the narrow confines of the academy, spreading his influence as widely as possible, he has fallen short. The prose is accessible to scholars and advanced graduate students, but the average lawyer will find no practical instruction in the book and might even question the at times challenging syntax and vocabulary that can obscure basic points. If economists ignore the book for its rejection of consequentialist arguments, however, it’s to their disadvantage.

No common reader, I’m afraid, will read this book from cover to cover, and that’s a pity because the subject is important, especially given the spread of eminent-domain abuse and the general embrace of egalitarianism, redistributivism, and Rawlsian notions of social justice by Americans today. The desire for private ownership is a primordial fact. We need more books and treatises that examine at a fundamental level how and why we alienate, possess, and exchange property. At around $100, Property and Practical Reason is prohibitively expensive for curious undergraduates, and also for courses in graduate studies. Moreover, the law schools may well ignore it due to its focus on abstract jurisprudence.

All that said, this book should be read—and will be, by the people who know about and are sympathetic to the work of the James Madison Program. Unfortunately, that’s not many people. Not enough, anyway. There’s no cottage industry for the philosophy of practical reasonableness. Yet there ought to be, and the reception of MacLeod’s work might tell us whether there can be. Those of a philosophical bent will delight not just in the conclusions MacLeod reaches, but in the way he reaches them: framing and reframing his sinuous arguments until his central theses become refrains. This reviewer found it a delightfully industrious, hard-won defense of private property, and well worth the high sticker price.

Adiós, Richard Posner

In Arts & Letters, Austrian Economics, Book Reviews, Books, Economics, Humane Economy, Humanities, Law, Libertarianism on December 23, 2015 at 8:45 am

Allen 2

Translated by and available here at Mises Hispano. Publicado el 21 de diciembre de 2009,  Traducido del inglés por Mariano Bas Uribe. El artículo original se encuentra aquí.

Con su último libro, A Failure of Capitalism, Richard Posner ha estado a la altura de su habitual mala fama como provocador. Viniendo de un hombre que es el fundador del movimiento del análisis económico del derecho y miembro electo de la Sociedad Mont-Pelerin, la sensacional declaración de que el capitalismo ha fracasado sin duda generará arqueos de cejas. Pero las reflexiones de Posner, además de prematuras, a menudo apestan a salidas falsas y grandes mentiras.

Los libertarios deberíamos elogiar a Posner, uno de los pensadores más originales de nuestro tiempo, por su permanente rechazo al pensamiento en grupo y a adecuarse a las ideologías trilladas. Sin embargo también deberíamos despedirle. Este último libro, una media vuelta en su carrera, hará poco para ayudar a los afectados por la crisis. Incluso puede que les haga más daño.

Posner sugiere que, en lugar de andarnos con eufemismos, llamemos espada a una espada: la crisis financiera es una depresión. Insiste en el desagradable término “depresión” porque los problemas actuales exceden con mucho cualquier caída modesta de las recientes décadas y ha producido una intervención gubernamental sin parangón desde la Gran Depresión. Posner probablemente tenga razón en este punto.

También tiene en general tazón en su crítica a la burbuja inmobiliaria, incluso sin llegar a atribuir la culpa real al papel del gobierno en las hipotecas subprime: promocionando exageradamente la propiedad de la vivienda, rebajando drásticamente los tipos de interés, canalizando una demanda artificial hacia el sector de la vivienda, etc. La tesis de Posner (de que la depresión representa un fallo del mercado producido por la desregulación) pivota sobre el mito de que los reguladores realmente regulan en lugar de servir a los intereses de los beneficiarios del Leviatán (es decir, ellos y sus compinches).

En cuanto a este último punto, Posner sí reconoce, entre otras cosas, que la SEC estaba vinculada a agentes del sector de los valores privados a pesar de su obligación de hacer cumplir las leyes federales de valores. De todos modos, no se ocupa correctamente de este problema o siquiera de los problemas relacionados que afectan a empresas patrocinadas por el gobierno (como Fannie, Feddie y similares) que privilegian los intereses de una élite pequeña a costa de la mayoría. En plata, Posner ignora el corporativismo. No tengo tiempo ni especio para ocuparme de este asunto ahora. Para saber más, recomiendo leer Meltdown, de Thomas E. Woods, un libro corto y bien razonado que es accesible para cualquiera (como yo).

La propuesta de Posner de que “necesitamos un gobierno más activo e inteligente para evitar que nuestro modelo de economía capitalista no descarrile” parece como mínimo quijotesca. Porque un gobierno inteligente (si existe algo así) minimizaría en lugar de aumentar las imposiciones estatales en la economía y permitiría a los recursos fluir de los sectores en declive a los que estén en expansión de acuerdo con las fuerzas naturales del mercado.

Cargado de referencias y apoyos implícitos a la economía keynesiana (cuyo poder reside, afirma Posner, en su “lógica sencilla y de sentido común”), este libro es un tour de force estatista. Mario J. Rizzo ha escrito extensamente acerca de la conversión keynesiana de Posner. Basta con decir que Posner argumenta por un lado que el gobierno puede prevenir las depresiones y por el otro que el gobierno ha fracasado en frenar la reciente crisis económica. Esta desconexión genera la pregunta ¿Más burocracia y regulación del gobierno habría ocasionado una respuesta más oportuna y coherente? ¿No es arriesgado poner tanto poder en algo con un historial tan imprevisible?

Posner sostiene que los “conservadores”, un término asombrosamente vago que deja sin definir, argumentan que el gobierno trajo la crisis con “presiones legislativas a los bancos para facilitar la propiedad de la vivienda facilitando los requisitos y condiciones para las hipotecas”. Este verdad que muchos autodenominados conservadores adoptaron esta postura. Pero Posner, aparentemente para calificar a estos “conservadores” como hipócritas, acusa al ex Presidente Bush de promocionar la propiedad de viviendas como parte de la agenda del conservadurismo compasivo.

Que Posner designe al Presidente Bush como el rostro de la “economía conservadora” (una categoría curiosamente equívoca en sí misma) no es sólo revelador, sino también francamente ridículo. Pues Bush (que defendió rescates masivos por parte del gobierno mucho antes que Obama) difícilmente pudo ser conservador en cualquier sentido del pequeño gobierno. Aumento los déficits presupuestarios mucho más que sus predecesores, nos llevó a dos costosas guerras y dobló la deuda nacional. A la luz de estos fracasos del gran gobierno, parece escandaloso que Posner afirme que “el camino estaba abierto para una ideología doctrinaria del libre mercado, pro-empresas y antiregulatoria que dominara el pensamiento económico de la Administración Bush”.

Posner consigue su objetivo de un “examen analítico conciso, constructivo, libre de jerga y acrónimos, no técnico, no sensacionalista y enfocado a la anécdota”, pero su apresurado análisis es totalmente defectuoso. Sorprende poco que este libro haya recibido poca atención. Muy probablemente escrito aprisa y corriendo por tener plazos estrictos, se lee como varios artículos de blog ajustados chapuceramente (Posner admite en el prólogo que ha incorporado varios artículos de blog).

Aunque no podemos reprocharle por las restricciones temporales de su proyecto, podemos y deberíamos apuntar que el prisa se ha cobrado su peaje. Por ejemplo, en un momento Posner afirma que los demócratas se apuntaron un tanto ante el público estadounidense al rescatar la industria del automóvil; poco después afirma que el público estadounidense se opuso al rescate de la industria del automóvil. En momentos como estos, Posner, al guisárselo y comérselo, defrauda una y otra vez.

Flirteando aparentemente con partidarios de ambos partidos políticos mayoritarios, se equivoca ad nauseam explicando un argumento falsamente conservador, un argumento falsamente liberal y luego su propio argumento, una cómoda posición entre ambos. Como otro gesto ante las audiencias masivas, evita las notas a pie de página y critica a la profesión económica (que considera un grupo de élite de académicos y teóricos financieros) por su aparente laxitud e ineptitud. Sin embargo, el populismo recién descubierto de Posner no es convincente.

Incluso los lectores simpatizantes se aburrirán pronto del estilo gallito de Posner. Posner es (por lo que yo sé) una persona magnánima, con una verdadera preocupación por la vidas de millones de estadounidenses, pero su libro, si se le hace caso, sólo empeoraría las condiciones actuales.

La Sociedad Mont Pelerin declara que sus miembros “ven peligrosa la expansión del gobierno”. Si Posner sigue compartiendo esta opinión, tiene una forma divertida de demostrarlo.

 

The Dirty Business of Government Trash Collection

In Austrian Economics, Economics, Essays, Humane Economy on November 25, 2015 at 8:45 am

Allen 2

This article originally appeared here at Mises Daily.

I moved to Auburn, Alabama, in January 2013. I love Auburn.

It’s been nearly ten years since The Wall Street Journal profiled the Mises Institute and claimed that Auburn was an ideal spot for studying libertarian ideas and the Austrian tradition. I don’t know how much has changed since then, but I arrived in Auburn expecting a free-market sanctuary, a veritable haven where the ideas of Menger and Mises and Hayek were in the air and imbibed by the majority of people who weren’t members of the Auburn faculty, and even by some who were.

Once settled in Auburn, I realized I’d been quixotic and naïve. Even before national media picked up the story about the officer who spoke out against his department’s ticket and arrest quotas, even before the city of Auburn squeezed out Uber with severe licensing regulations, even before Mark Thornton highlighted the Skyscraper Curse in town, there was the matter of my trash bin.

I bought my house from a relocation company, the previous owner having been assigned a new position in another city. He was, this owner, in a hurry to move. Before he left town, he and his family rolled their trash bin to the side of the home, away from the street, where the garbage collector refused to retrieve it. They had stuffed the bin with garbage: food, paper, cardboard boxes, dirty diapers, and other junk. There was so much trash in the bin that the lid wouldn’t fully close. It looked like a yawning mouth. The house was on the market for approximately eight months before I purchased it, and I assume the bin had been sitting there, at the side of the house, the entire time. Naturally it had rained during the last eight months, so, with its half-open lid, the bin was flooded with soupy garbage and untold parasites. And it reeked.

The City enjoys a virtual monopoly on garbage collection; it tacks its fees onto the City’s water and sewage bill. The few private garbage-collection companies in town service mostly restaurants and businesses: entities that simply cannot wait a week for garbage pickup and need a service provider capable of emptying whole dumpsters full of trash. The City does allow residents to opt out of their collection services, but this only masks soft coercion with an illusion of consumer choice.

Government opt-out clauses are malicious precisely because of the impression that they’re harmless if not generous. Contract law is premised on the principles of mutual assent and voluntary agreement. Government opt-out clauses, however, deprive consumers of volition and bargaining power. They distort the natural contracting relationship by investing one party, the government, with power that the other party cannot enjoy. Not contracting for services is not an option, and government is the default service provider that sets the bargaining rules; the deck is stacked against the consumer before negotiating can begin.

The onus, moreover, is on the consumer to undo a contract that he’s been forced into, rather than on the government to provide high-quality services at competitive rates in order to keep the consumer’s business. Opt-out clauses make it difficult for the consumer to end his relationship with the government provider, and they force potential competitors to operate at a position of manifest disadvantage.

My wife and I took turns calling the City to ask about getting a new trash bin. No amount of cleaning and sterilization could rid the current bin of its stench. We couldn’t keep the bin inside our garage because of the oppressive odor. We left voicemails with different people in different departments at the City, begging for a new bin and explaining our situation, but our calls weren’t returned. There was no customer service of the kind a private company would have. After all, there was little danger of losing our business: the City was the service provider for nearly every neighborhood in town because of the difficulty private companies had breaking into a market controlled by government. We were, for now, stuck with the City’s inefficiencies and unresponsiveness. With much persistence my wife was eventually able to speak to an employee of the City. She was informed, however, that we could not get a new trash bin unless ours was broken or stolen. That stunk.

I learned in time about other drawbacks to our government-provided garbage service. During the holidays, collection schedules changed. When my wife and I lived in Atlanta and used a privately owned garbage company, our collection schedules never changed. Our collections were always on time. Our garbage collectors were kind and reliable because, if they weren’t, I could hire new collectors who would materialize in my driveway the next morning with shining smiles on their faces.

It’s simple enough to follow an altered holiday schedule, so that’s what we did in Auburn, only the collectors declined to follow that schedule themselves. After Thanksgiving, when trash tends to pile up, we placed our trash bin out on the street according to schedule. So did our neighbors. Yet nobody picked up our trash. Our entire street tried again the next week, on the appointed day, and once again nobody picked up the trash. A concerned neighbor called the City, and we were able to remedy the now-messy situation, but not without spending time and energy that could have been channeled toward better things.

When I was a child my brother and I were tasked each year with clearing trees, weeds, and shrubs that were growing along the pond in our backyard. We would pile sticks and sawed-up tree trunks and other debris on the curb of our driveway, along with bags of grass clippings, and our garbage collectors, who worked for a private company, would always pick up these items without question or complaint. We were so grateful that sometimes we’d leave them envelopes with extra cash to express our thanks.

In Auburn, however, I was once unable to squeeze an additional garbage bag into our trash bin, which was full, so I rolled the bin to the street and placed the additional bag beside it. I then lumbered inside for my morning coffee, when all of a sudden the garbage collector drove up and parked beside my bin. I watched from the window as he descended from his truck, shook his head, climbed back into his truck, picked up a pad and paper, and began scribbling with his pen. The next thing I knew he was issuing a yellow citation for an alleged infraction. It turned out to be a mere warning, but it indicated, right there in bold letters, that the next time we did something so egregious as putting our trash out for collection without using the bin, some repercussion — I forget what — would visit us.

When I think about the things the garbage collectors would remove from our driveway in Atlanta — an old door, a broken toilet, a malfunctioning lawnmower — I marvel that the City requires you to purchase tags at the Revenue Office if you wish to place things like dryers, water heaters, refrigerators, or microwaves on the street for garbage collection. Yet I remain optimistic, and not only because Joseph Salerno is coming to town to hold the newly endowed John V. Denson II chair in the Department of Economics at Auburn University.

I’m optimistic because I see some positive change. We recently organized a garage sale and came to discover, two days before the big day, that the City required a permit for such events. This time when we called the City to ask about the mandatory permit for garage sales, we received good news: those permits were no longer required as long as we conducted the sale in our own driveway. However minor, that’s progress. Perhaps it’ll spill over into other sectors of our little local community. Until then, War Eagle!

[UPDATE:  Two weeks after the Mises Institute published this piece, the City showed up on my driveway, removed the old trash bin and replaced it with a new trash bin.  Causation has never been established, but coincidence seems unlikely.]

Razing the Bar

In American History, History, Humane Economy, Law, Legal Education & Pedagogy, Liberalism on June 17, 2015 at 8:45 am

Allen 2

This piece originally appeared here in The Freeman.

The bar exam was designed and continues to operate as a mechanism for excluding the lower classes from participation in the legal services market. Elizabeth Olson of the New York Times reports that the bar exam as a professional standard “is facing a new round of scrutiny — not just from the test takers but from law school deans and some state legal establishments.”

This is a welcome development.

Testing what, exactly?

The dean of the University of San Diego School of Law, Stephen C. Ferrulo, complains to the Times that the bar exam “is an unpredictable and unacceptable impediment for accessibility to the legal profession.” Ferrulo is right: the bar exam is a barrier to entry, a form of occupational licensure that restricts access to a particular vocation and reduces market competition.

The bar exam tests the ability to take tests, not the ability to practice law. The best way to learn the legal profession is through tried experience and practical training, which, under our current system, are delayed for years, first by the requirement that would-be lawyers graduate from accredited law schools and second by the bar exam and its accompanying exam for professional fitness.

Freedom of contract

The 19th-century libertarian writer Lysander Spooner, himself a lawyer, opposed occupational licensure as a violation of the freedom of contract, arguing that, once memorialized, all agreements between mutually consenting parties “should not be subjects of legislative caprice or discretion.”

“Men may exercise at discretion their natural rights to enter into all contracts whatsoever that are in their nature obligatory,” he wrote, adding that this principle would prohibit all laws “forbidding men to make contracts by auction without license.”

In more recent decades, Milton Friedman disparaged occupational licensure as “another example of governmentally created and supported monopoly on the state level.” For Friedman, occupational licensure was no small matter. “The overthrow of the medieval guild system,” he said,

was an indispensable early step in the rise of freedom in the Western world. It was a sign of the triumph of liberal ideas.… In more recent decades, there has been a retrogression, an increasing tendency for particular occupations to be restricted to individuals licensed to practice them by the state.

The bar exam is one of the most notorious examples of this “increasing tendency.”

Protecting lawyers from the poor

The burden of the bar exam falls disproportionately on low-income earners and ethnic minorities who lack the ability to pay for law school or to assume heavy debts to earn a law degree. Passing a bar exam requires expensive bar-exam study courses and exam fees, to say nothing of the costly applications and paperwork that must be completed in order to be eligible to sit for the exam. The average student-loan debt for graduates of many American law schools now exceeds $150,000, while half of all lawyers make less than $62,000 per year, a significant drop since a decade ago.

Recent law-school graduates do not have the privilege of reducing this debt after they receive their diploma; they must first spend three to four months studying for a bar exam and then, having taken the exam, must wait another three to four months for their exam results. More than half a year is lost on spending and waiting rather than earning, or at least earning the salary of a licensed attorney (some graduates work under the direction of lawyers pending the results of their bar exam).

When an individual learns that he or she has passed the bar exam, the congratulations begin with an invitation to pay a licensing fee and, in some states, a fee for a mandatory legal-education course for newly admitted attorneys. These fees must be paid before the individual can begin practicing law.

The exam is working — but for whom?

What’s most disturbing about this system is that it works precisely as it was designed to operate.  State bar associations and bar exams are products of big-city politics during the Progressive Era. Such exams existed long before the Progressive Era — Delaware’s bar exam dates back to 1763 — but not until the Progressive Era were they increasingly formalized and institutionalized and backed by the enforcement power of various states.

Threatened by immigrant workers and entrepreneurs who were determined to earn their way out of poverty and obscurity, lawyers with connections to high-level government officials in their states sought to form guilds to prohibit advertising and contingency fees and other creative methods for gaining clients and driving down the costs of legal services. Establishment lawyers felt the entrepreneurial up-and-comers were demeaning the profession and degrading the reputation of lawyers by transforming the practice of law into a business industry that admitted ethnic minorities and others who lacked rank and class. Implementing the bar exam allowed these lawyers to keep allegedly unsavory people and practices out of the legal community and to maintain the high costs of fees and services.

Protecting the consumer

In light of this ugly history, the paternalistic response of Erica Moeser to the New York Times is particularly disheartening. Moeser is the president of the National Conference of Bar Examiners. She says that the bar exam is “a basic test of fundamentals” that is justified by “protecting the consumer.” But isn’t it the consumer above all who is harmed by the high costs of legal services that are a net result of the bar exam and other anticompetitive practices among lawyers? To ask the question is to answer it. It’s also unclear how memorizing often-archaic rules to prepare for standardized, high-stakes multiple-choice tests that are administered under stressful conditions will in any way improve one’s ability to competently practice law.

The legal community and consumers of legal services would be better served by the apprenticeship model that prevailed long before the rise of the bar exam. Under this model, an aspiring attorney was tutored by experienced lawyers until he or she mastered the basics and demonstrated his or her readiness to represent clients. The high cost of law school was not a precondition; young people spent their most energetic years doing real work and gaining practical knowledge. Developing attorneys had to establish a good reputation and keep their costs and fees to a minimum to attract clients, gain trust, and maintain a living.

The rise in technology and social connectivity in our present era also means that reputation markets have improved since the early 20th century, when consumers would have had a more difficult time learning by word-of-mouth and secondhand report that one lawyer or group of lawyers consistently failed their clients — or ripped them off. Today, with services like Amazon, eBay, Uber, and Airbnb, consumers are accustomed to evaluating products and service providers online and for wide audiences.  Learning about lawyers’ professional reputations should be quick and easy, a matter of a simple Internet search.  With no bar exam, the sheer ubiquity and immediacy of reputation markets could weed out the good lawyers from the bad, thereby transferring the mode of social control from the legal cartel to the consumers themselves.

Criticism of the high costs of legal bills has not gone away in recent years, despite the drop in lawyers’ salaries and the saturation of the legal market with too many attorneys. The quickest and easiest step toward reducing legal costs is to eliminate bar exams. The public would see no marked difference in the quality of legal services if the bar exam were eliminated, because, among other things, the bar exam doesn’t teach or test how to deliver those legal services effectively.

It will take more than just the grumbling of anxious, aspiring attorneys to end bar-exam hazing rituals. That law school deans are realizing the drawbacks of the bar exam is a step in the right direction. But it will require protests from outside the legal community — from the consumers of legal services — to effect any meaningful change.

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