Radley Balko and Tucker Carrington – The Cadaver King and the Country Dentist: A True Story of Injustice in the American South

Radley Balko and Tucker Carrington – The Cadaver King and the Country Dentist: A True Story of Injustice in the American South

Disclosure: Balko was briefly a colleague about 15 years ago.

Mississippi is likely a bit of an outlier regarding its dysfunctional criminal justice system. But the vividness of its stories Balko and Carrington tell here applies nationwide. The differences from other states are in degree, not in kind. Two of the main themes explored in this book are braggadocio and incompetence, and they go together very closely in this book.

Hayne the medical examiner and West the bite-mark analyst both exude confidence and are quick to puff up their already-inflated credentials. But sloppiness, poor standards, ethical violations, personal enrichment schemes, and general incompetence mar their work and have put numerous innocent people in jail–some on death row. Often in error but never in doubt, Hayne and West repeatedly double down on their mistakes, rather than admit to them when caught. They even tampered with evidence. Hayne, on video, once created bite marks on a dead child’s body that eventually put an innocent man in jail for murder. Imagine doing that to another person and having that on your conscience–or being the person wrongly jailed for murdering a child while the real killer still ran free.

Their eventual fall from grace was a long time coming. The delay was due to a number of factors, from lingering racism to institutional inertia and public indifference. Many of the injustices Hayne and West committed will never be put right, and they are far from the only ones at fault. Systemic problems are what make such actions possible. Reforms that don’t target these larger systemic problems will not have lasting benefits.

If there is a silver lining, Balko and Carrington are at least able to tell the stories of some people whose stories have better, if still unhappy, endings, such as Kennedy Brewer and Levon Brooks, who are now free. Carrington’s group, the Innocence Project, is devoted to making more such stories come true.

Balko and Carrington also give a fascinating tour of the history of forensics and criminal investigation, and ably explain which techniques are junk science and which are useful. They also give the historical context for why Mississippi’s criminal justice system is in such bad shape. Racism is still very much alive, and cultural change is just as important for criminal justice reform as any suite of policy or personnel changes. Sadly, the process will likely take generations more.

Fortunately, Balko and Carrington are doing as much as anyone to help right those wrongs, in Mississippi and across the country. They could use some company. Hopefully this book will gain them some.

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Antitrust Regulation Is Turning into a Campaign Issue

Both parties are making antitrust regulation a 2020 campaign issue. Neither President Trump nor most of the Democratic candidates are proposing improvements. Over at the Washington Examiner I take a closer look:

After a two-decade lull following the Microsoft case, big antitrust enforcement cases are back in vogue. Both political parties are making antitrust regulation a 2020 campaign issue. Regulators, politicians, and voters have reasonable concerns about concentrated corporate power. But few policies are easier for big companies to game than antitrust regulation. Reformers should favor having fewer regulations for special interests to capture, not more.

Read the whole piece here. See also Wayne Crews’ and my new paper, “The Case against Antitrust Law: Ten Areas Where Antitrust Policy Can Move on from the Smokestack Era.”

James M. Cain – The Postman Always Rings Twice

James M. Cain – The Postman Always Rings Twice

This short 1934 book helped give birth to the modern detective noir genre. Much popular literature of the period was on the vanilla side; this one was downright scandalous, with murder, adultery, and drunken car crashes looming large in the plot. Think of this book as a predecessor to today’s hard-boiled, Elmore Leonard-style stories. While not entirely to my taste, the sleazy story does have its low-brow appeal, to which I am not immune.

Arthur Conan Doyle ­- The Complete Sherlock Holmes

Arthur Conan Doyle ­- The Complete Sherlock Holmes

The audio version, narrated by Stephen Fry, is a delight. I enjoyed the Benedict Cumberbatch BBC series a few years ago, and Fry’s radio programs on Victorian culture sparked an interest in reading some primary source material. Though lengthy—four novels and countless short stories—this collection made driving, exercising, and doing chores go by much more quickly. I also followed along on the Kindle edition, which is free.

This Week in Ridiculous Regulations

The Notre Dame cathedral in Paris caught fire and sustained heavy damage. The rebuilding will likely take years, though people began politicizing it almost instantly. In other news, the Mueller report was publicly released on Thursday. Cable news networks on both sides of the partisan divide, in a show of unity, have reportedly agreed to report on nothing else for the remainder of 2019. Meanwhile, rulemaking agencies issued new regulations from synthetic cannibinoids to grapefruit grading.

On to the data:

  • Last week, 66 new final regulations were published in the Federal Register, same as the previous week.
  • That’s the equivalent of a new regulation every two hours and 33 minutes.
  • Federal agencies have issued 769 final regulations in 2019. At that pace, there will be 2,530 new final regulations. Last year’s total was 3,367 regulations.
  • Last week, agencies published 487 notices, for a total of 6,245 in 2019. At that pace, there will be 20,543 new notices this year. Last year’s total was 22,205.
  • Last week, 1,516 new pages were added to the Federal Register, after 1,286 pages the previous week.
  • The 2019 Federal Register totals 16,600 pages. It is on pace for 54,606 pages. The 2018 total was 68,082 pages. The all-time record adjusted page count (which subtracts skips, jumps, and blank pages) is 96,994, set in 2016.
  • Rules are called “economically significant” if they have costs of $100 million or more in a given year. One such rule has been published this year. Six such rules were published in 2018.
  • The running compliance cost tally for 2019’s economically significant regulations currently ranges from $139.1 million to $175.8 million. The 2018 total ranges from $220.1 million to $2.54 billion, depending on discount rates and other assumptions.
  • Agencies have published 25 final rules meeting the broader definition of “significant” so far this year. 2018’s total was 108 significant final rules.
  • So far in 2019, 142 new rules affect small businesses; 10 of them are classified as significant. 2018’s totals were 660 rules affecting small businesses, with 29 of them significant.

Highlights from last week’s new final regulations:

For more data, see Ten Thousand Commandments and follow @10KC and @RegoftheDay on Twitter.

Herbert Simon on the REINS Act

Most regulations are issued by the executive branch, not Congress. This limits their accountability to elected officials. Bills such as the REINS Act seek to address this by requiring Congress to vote on major new agency regulations (see my 2016 paper on REINS). One objection to REINS is that it would require an additional 40 to 50 congressional votes per year; Congress often has too much on its plate as it is. Herbert A. Simon foresaw that objection several decades ago on p. 65 of the 4th edition (1997) of 1947’s Administrative Behavior (emphasis in original):

Second, the fact that pressure of legislative work forbids the review of more than a few administrative decisions does not destroy the usefulness of sanctions that permit the legislative body to hold the administrator answerable for any of his decisions.

Blocking the T-Mobile-Sprint Merger: Competition, Rent-Seeking, and Uncertainty

Nationwide 5G networks are coming. They will expand possibilities for everything from smartphone applications to GPS to streaming video, and will enable new technologies that have not yet been invented. President Trump wants the U.S. to be a world leader in 5G adoption. But his Justice Department’s antitrust division might hinder that goal by blocking the proposed merger between Sprint and T-Mobile.

The antitrust division’s rationale is that the deal would decrease the number of major wireless carriers from four to three. But my colleague Jessica Melugin argues that without the merger, the number of carriers might actually be two: “T-Mobile and Sprint will [need to] be able to combine their resources [in order to] stay competitive with Verizon and AT&T, and hopefully help the mobile communications industry in the United States win the race to build the first 5G network.” Together, they might survive. Apart, both might go under.

On the other hand, the rule of thumb is that 90 percent of mergers are failures, remember. This could well be the next AOL-Time Warner. Nobody knows how Sprint-T-Mobile would turn out, including the Justice Department, as well as the companies themselves. But unlike antitrust regulators, Sprint and T-Mobile have skin in the game, and thus a stronger incentive to make the right decision.

Then there is the rent-seeking angle. As my colleague Wayne Crews notes: “It’s also important to note that invoking antitrust laws in this case is de facto corporate welfare for Verizon and AT&T. It means they can stand pat rather than reacting to dynamic changes to the marketplace.”

Third, there is the uncertainty angle. There are no set criteria for what makes a merger legal or illegal. Regulators decide at their own discretion—and politics are often involved, as with President Trump’s recent unsuccessful attempt to block the AT&T-Time Warner merger (Time Warner owns CNN, which is often critical of Trump).

There are ways to measure market concentration, such as the Herfindahl-Hirschman Index. But its numbers are easy to manipulate to reach any conclusion—just define the relevant market however narrowly or broadly you want, and you can generate a number showing any desired degree of market concentration. The Federal Trade Commission has a set of merger guidelines, but they are not binding and can easily be ignored if politics or other merit-unrelated factors are more important at the moment.

This regulatory uncertainty has costs far beyond whatever happens with the Sprint-T-Mobile deal. Even if the merger goes through, and a merged T-Mobile-Sprint proves a viable 5G-era competitor, the fact that mergers are approved or denied at a whim will continue to have its chilling effect on companies far outside of technology or communications. For some companies, the upside is not worth the cost in legal fees, political engagement, and potential bad publicity. This is consumers’ loss, not just entrepreneurs’ and investors’.

For more reasons to be skeptical not just of the move to stop the Sprint-T-Mobile merger, but of antitrust regulation in general, see Wayne Crews’ and my just-released paper, “The Case against Antitrust Law: Ten Areas Where Antitrust Policy Can Move on from the Smokestack Era.”