It stands as a fundamental principle of justice that we cannot entrust one party to unilaterally judge its disputes with other parties. This poses a problem for the resolution of disputes between a State and those subjected to its legal jurisdiction. How impartially can agents of the State, acting as the judges of its courts, decide such disputes? "Not well enough," citizens and residents might worry. It thus looks at least unwise, and arguably unjust, to give federal authorities exclusive jurisdiction over disputes that call for applying the U.S. Constitution.
If we view the U.S. Constitution as a contact—a standard form agreement offered on a take-it-or-leave-it basis by an awesomely powerful government to a comparatively powerless individual—we cannot help but note the glaring inequity of letting only federal authorities decide questions of federal power. No just court would enforce a standard form agreement between grossly unequal parties, imposed by one on the other under conditions that raise serious doubts about the offeree's consent, that lets the all-powerful offeror alone decide disputes arising under the agreement. A clause reading, "I have the sole power to interpret this agreement," reeks too much of substantive unconscionability to win a court's approval. Indeed, the patent unfairness of such a clause cannot help but raise procedural doubts about whether the parties bargained for an exchange at all, undermining the enforceability of the entire agreement.
Happily, we can easily read the U.S. Constitution to avoid the vice of self-judgment. Its plain text by no means mandates that only federally employed judges can decide the scope of federal power. . . . We thus remain at complete liberty to adopt this remedy for self-judgment: Decide disputes between the federal government and other parties under the same arbitration procedures that private parties customarily use in deciding their contractual disputes. In other words, we should establish Citizen Courts.
A Citizen Court would arise at the option of any party to a legal dispute with the federal government being heard by a federal court. Each party—including the federal one—would choose one judge. Those two judges would then agree on a third. Together, the panel of three judges would decide the parties' dispute. Rather than leaving questions about the power of the federal government solely in the hands of federal agents, therefore, a Citizen Court would rely on judges to which the disputants have consented. A Citizen Court would help to remedy the partiality of federal courts and, thus, would offer more justifiable judgments.
[NB: The foregoing comes, after various edits, from Part III.B.3.c. of Graduated Consent Theory, Explained and Applied, Chapman University School of Law, Legal Studies Research Paper Series, Paper No. 09-13 (March 2009) [PDF].]
Wednesday, March 18, 2009
A Call for Citizen Courts
Thursday, September 18, 2008
Burn After Reading
I saw it Saturday. Highly recommended. It’s like Fargo set in the halls of power, or at least sort of near them. If you have a black sense of humor (and if you don’t, what’s up with that?), then go see it. What the Coen brothers do best is comedy, and they’re back in familiar territory.
I admire George Clooney and Brad Pitt because they could play hunky leading roles in every movie, but instead they occasionally choose to make asses of themselves in a goofball movie like this. Both are hilarious. But I think what I enjoyed most about the movie was its depiction of political/bureaucratic decision-making…
Okay, a short digression. I think libertarians as a group gravitate toward two different, and somewhat inconsistent, attitudes toward government: government is bad because it’s evil, and government is bad because it’s incompetent. Those libertarians who fall in the former group are mostly concerned with deliberate misuse and abuse of power for personal gain. They often end up being conspiracy theorists. Those in the latter group are concerned with the poor incentives in government to do anything right. They rely a lot on public choice theory.
As readers of this blog can probably guess, I fall mostly in the latter category, though I’ll admit the former is sometimes right. But whichever attitude is more accurate, they lend themselves to different forms of entertainment. The government-is-evil attitude can make for great drama, but the government-is-incompetent attitude goes down best with comedy. Burn After Reading is amusing because the government agents in the movie are not highly motivated, hyper-competent experts; they are lazy, clueless, and kind of sad – like everyone else in a Coen brothers comedy, perhaps more so. In this regard, pay special attention to the minimal but brilliant supporting role of J.K. Simmons.
Monday, November 26, 2007
The New Negative Railroad
Megan McArdle’s explanation for why American high-speed rail sucks...
The answer is that the Acela uses existing track, which is twisty, the better to serve every congressional district between here and Boston. Real high speed rail needs to be fairly straight, for the same reason you don't take hairpin turns at 120 mph in your car.…reminded me of Frederic Bastiat’s tongue-in-cheek proposal for a “negative railroad” – that is, a railroad consisting entirely of stops:
But if Bordeaux has a right to profit from a break in the tracks, and if this profit is consistent with the public interest, then Angoulême, Poitiers, Tours, Orléans, and, in fact, all the intermediate points, including Ruffec, Châtellerault, etc., etc., ought also to demand breaks in the tracks, on the ground of the general interest—in the interest, that is, of domestic industry—for the more there are of these breaks in the line, the greater will be the amount paid for storage, porters, and cartage at every point along the way. By this means, we shall end by having a railroad composed of a whole series of breaks in the tracks, i.e., a negative railroad.That was written in 1845, by the way. The more things change...
Saturday, September 08, 2007
Economic Naturalism and Public Choice
I’m reading Robert Frank’s The Economic Naturalist. It’s entertaining and readable, and I’m seriously considering adopting Frank’s approach for my own microeconomics classes. That said, I have a quibble: Frank seems a bit too willing to assume the incentives of regulators and policymakers match up with those of consumers and firms.
For instance, one of Frank’s favorite examples is the question, “Why do the keypad buttons on drive-up cash machines have Braille dots?” The natural answer is that it’s less costly for the ATM producers to produce just once kind of button for both walk-up and drive-up ATMs, instead of two different kinds of button. But a reader of Frank’s introductory textbook, which included this example, wrote him an email objecting:
[T]he real reason for the dots is that the Americans with Disabilities Act requires them. He sent me a link to a webpage documenting his claim. Sure enough, there is a requirement that all ATM keypads have Braille dots, even at drive-up locations.Frank then responds by saying:
I wrote back to my correspondent that I tell my students their answers don’t have to be correct. But I also urged him to think about the circumstances under which the regulation was adopted. If it had been significantly more costly to require Braille dots on the drive-up machines, would the rule have been adopted? Almost certainly not. And since the dots cause no harm and might occasionally be of use, regulators might well find it advantageous to require them, thereby enabling themselves to say, at year’s end, that they had done something useful.The “almost certainly not” is the part that bothers me. In this case, the regulators required something inexpensive (indeed, cost-reducing) that ATM producers probably would done regardless. But even if the Braille mandate had been very expensive, the regulators might very well have created it anyway. The Americans with Disabilities Act is well known, even notorious, for requiring all kinds of accommodations even when they are highly expensive and of trifling benefit. And that’s because regulators face costs and benefits that differ from those of the rest of us. They get the benefits of seeming to have done something, while imposing most of the cost on private parties.
But I haven’t finished reading the book yet. Maybe later Frank addresses the incentives of politicians and bureaucrats more directly.
Friday, August 10, 2007
Rodrik vs. Tabarrok on Interventionism
Dani Rodrik makes an argument that is straight-up bizarre; Alex Tabarrok thinks it might be the worst argument ever. Interestingly, it’s Rodrik himself (in responding to Alex) who puts the libertarian response in its pithiest form: “ok, now that we have shot ourselves in one foot, you think we should shoot the other foot as well?” Indeed.
And then, after aptly summarizing the libertarian position, Rodrik doesn’t try to refute it; he just lets loose with another round of “libertarians are simplistic and dogmatic while the rest of us are sophisticated and empirical.” See Alex’s dead-on response.
It’s really mind-boggling. Essentially Rodrik starts off by saying that government interventions in healthcare, education, macroeconomic stabilization, ad infinitum, are desirable despite the fact that the problems justifying such interventions are “rarely documented with any precision,” and despite that fact that “empirical evidence on these market imperfections is sketchy, to say the least” (Rodrik’s own words). And then he turns around and accuses libertarians of being dismissive of empirical evidence!
He also adds, “[T]here are really deep philosophical differences here [between libertarians and interventionists] that have nothing to do with economics per se. Most importantly, I believe government can be a force for good; they do not.” Of course, most libertarians do admit some role for government, such as in enforcing rights of person and property, so it’s a strawman to imply that libertarians don’t think government can ever be a force for good. But set that aside. What’s really interesting here is the self-proclaimed empiricist trying to shunt real economic issues into the realm of untestable philosophical differences. There are pure philosophical differences, to be sure. But whether government is likely to produce effective and efficient policies is assuredly an economic question that can be addressed both theoretically and empirically. Public choice economics has shown in theory why politicians, voters, and bureaucrats face systematically poor incentives to adopt good policies, and the evidence amply demonstrates that government agents often do behave in a manner inconsistent with the interests of the public. So who is ignoring the evidence here?
Wednesday, August 08, 2007
Smart Parking Meters
Via Lynne Kiesling, I found this article about smart parking meters. The smart meters allow drivers to pay with debit or credit cards instead of change, and then they call drivers to warn them when their time is about to run out. And then you can feed the meter by phone as well! Like Lynne, I’m excited about this development. But my inner – wait, no, outer – cynic says not to expect municipalities to install them any time soon. Why not? Because I suspect that parking fines are not primarily meant to deter parking violations, but to raise revenue. Helping drivers feed their meters in time will reduce revenue from parking tickets, which is great for drivers but bad for city managers.
Evidence for my cynicism? Well, how else to explain the decision to fine a friendly clown for filling other people’s meters in Santa Cruz? If the city were merely interested in the meter revenue, it wouldn’t matter who paid. I figure the ordinance requiring drivers to feed their own meters was passed precisely because it would raise ticket revenue. Fortunately for Santa Cruzans, the good clown went to bat for them, and the city council repealed the ordinance. But I’ll bet lots of other cities have similar ordinances still in place.
Friday, June 29, 2007
You Can't Drink That!
Economist Bruce Yandle has observed that government intervention is often supported by an alliance of Baptists and bootleggers. By “Baptists,” he means the true believers, such as the religious zealots who helped push through alcohol prohibition. By “bootleggers,” he means the special interests who benefit financially from the intervention, usually through the limitation of competition.
This article about raw milk, forwarded to me by frequent commenter Ran, provides a nice example of how paternalists often occupy the Baptist role. “Raw milk” means milk directly from the cow, not processed or pasteurized. I can’t say whether the advocates of raw milk are correct about its health benefits; nor can I say whether its opponents are right about its health risks. But it’s apparent that the people who prefer raw milk aren’t just making rash, ill-considered choices. They have reasons backed by personal experience as well as some scientific research for thinking raw milk is better for them, and many go to considerable lengths to get it.
So why are governments and their public health departments making it so difficult to get raw milk? Why, for instance, has North Carolina recently banned “cow shares,” whereby someone can own a share of the output produced by a cow cared for on a local farm? One answer is what Ran calls “scientific groupthink.” Some people in the public health field just cannot tolerate ordinary people reaching their own conclusions and making their own decisions on health matters. Another answer is that it’s about the money. Milk processors and distributors benefit from regulations that bar direct dealing between milk producers (especially independents) and consumers. The truth, I suspect, is both: we have a Yandle-style alliance between the paternalistic public health community and the profit-seeking milk processors.
And this is what milk has in common with alcohol, even in the modern post-prohibition era. We have distributors – the middlemen between the alcohol producers and alcohol retailers – making common cause with nanny-statists who want to raise the price and reduce the availability of alcohol for our own good. Hence the delicious irony of alcohol shippers being among the most vociferous preachers on the dangers of the demon drink.