Category Archives: Law

Charles de Secondat Baron de Montesquieu – The Spirit of Laws

Charles de Secondat Baron de Montesquieu – The Spirit of Laws

One of the most important texts of the French Enlightenment. Interested in human progress, Montesquieu sought out larger laws of history that might explain why some countries are rich and others poor, why some have despotic governments while others use a lighter touch, and why social customs differ—and how this might affect future progress.

Montesquieu also offers a defense of free trade, which he called doux commerce, or sweet or gentle commerce. The theory is that trade and economic interdependence foster peace and prevent war, a sentiment U.S. Secretary of State Cordell Hull very much had in mind in attempting to rebuild post-Depression trade infrastructure and prevent World War III.

Montesquieu also offers an early version of the quantity theory of money. Finally, he in ludes lengthy narrative histories of Roman and French law.

If all that sounds a little scattershot, that’s because it is. The book almost has a stream of consciousness quality, as though Montesquieu, like Montaigne before him, simply wrote down whatever arguments and facts he had in his head as he sat at his desk.

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Philip Hamburger – Is Administrative Law Unlawful?

Philip Hamburger – Is Administrative Law Unlawful?

Administrative law is essentially a fancy name for regulation. This is arguably the most important regulatory studies book of the last decade. Hamburger argues that in many cases, yes, administrative law is unlawful. Regulatory agencies, not legislatures, do most of today’s legislating. Many agencies even have their own courts and judges outside of the traditional judicial system, which are immune from its checks and balances from the other branches.

A partial list of the administrative state’s systemic rights violations include “separation of powers, the grants of legislative and judicial powers, the internal divisions of these powers, the unrepresentative character of administrative lawmaking, the nonjudicial character of administrative adjudication, the obstacles to subdelegation, the problems of federalism, the due process of law, and almost all the other rights limiting the judicial power.” (pp. 499-500)

Hamburger traces the intellectual roots of modern American administrative power abuses back to absolutist royal prerogative under King James I of England and his Star Chamber in the early 1600s, and the German Historical School of the late 19th century.

While the reaction against James I eventually begat the Glorious and American Revolutions, German historicism had the opposite effect. It was a major ideological influence for early progressivism and President Woodrow Wilson, who did as much as any politician to enable the modern administrative state to grow. Then again, German historicism’s dominance also inspired a rebellious F.A. Hayek to emphasize instead a bottom-up philosophy of emergent order, which continues to be an animating principle of today’s larger market liberal movement.

This is a landmark book for regulatory scholars, though drily written. The innumerable distinctions, divisions, subdivisions, and legal parsing inherent to the subject reminded me of my distaste for legal studies.

Many people treat legal structures as unquestionably sacred and eternal. But in the end, people just made them up over time. Disturbingly few people ever ask “why,” not just “what.”

Hamburger is better than most legal scholars about this, and spends plenty of time digging into why principles such as separation of powers and due process are good ideas, or why we have separate codes and court systems for criminal law and administrative law. But the accumulated legalistic minutiae are so overwhelming that even Hamburger gets lost in all the what.

An Antitrust Analogy

From p. 382 of Robert Bork’s 1978 book The Antitrust Paradox: A Policy at War with Itself:

One often hears of the baseball player who, although a weak hitter, was also a poor fielder. Robinson-Patman is a little like that. Although it does not prevent much price discrimination, at least it has stifled a great deal of competition.

An Antitrust Analogy

One of the biggest problems with antitrust regulation is that the statutes are so vague it can be difficult to tell what is legal and what isn’t. From p. 28 of Robert Bork’s 1978 book The Antitrust Paradox: A Policy at War with Itself:

To put the matter roughly, lawyers forming a partnership could lawfully agree on fields of exclusive specialization (which is market division) and the fees each should charge (price fixing), while the same lawyers, if they were not in a partnership, could not do these things lawfully.

The same logic applies to anything a company does in-house. Hiring an in-house accountant instead of using an outside firm is a form of vertical merger. So is hiring cleaning or cafeteria staff instead of using contractors. More than a century of case law has not settled the matter, at least for companies above a certain size (which also hasn’t been defined). The uncertainty can make companies hesitant to make efficiency-enhancing decisions that might benefit consumers.

Lawyers Have Been Unpopular for a Long Time

From p. 1064, footnote 19 of Edward Gibbon’s Decline and Fall of the Roman Empire, the first volume of which was published in 1776:

The Germans, who exterminated Varus and his legions, had been particularly offended with the Roman laws and lawyers. One of the barbarians, after the effectual precautions of cutting out the tongue of an advocate and sewing up his mouth, observed with much satisfaction that the viper could no longer hiss.

17th Century Fart Jokes

A commentary on the rule of law from p. 95 of Nicholas Vincent’s Magna Carta: A Very Short Introduction:

Oliver Cromwell, chief architect of the most violent of the 17th-century revolutions, informed as Lord Protector that he was acting contrary to Magna Carta, is said to have replied that ‘their Magna Farta should not control [Cromwell’s] actions’.

The author also did an excellent podcast with Russ Roberts on EconTalk, which you can listen to here.

CEI Podcast for July 24, 2014: Victory in Halbig v. Burwell

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General Counsel Sam Kazman talks about what the Halbig decision means for the Affordable Care Act, as well as broader principles such as taxation without representation and the rule of law. Click here to listen.