Category Archives: Law

Edward H. Levi – An Introduction to Legal Reasoning, Second Edition

Edward H. Levi – An Introduction to Legal Reasoning, Second Edition

A depressing read, but not on purpose. Basically, Levi argues that much legal reasoning is ad hoc, rather than stemming from general principles or logic. Basically, people just make it up as they go along. There is a long history of common law analysis that ties in with spontaneous order and social evolution. This book is not necessarily part of that tradition. As Levi shows, while case law can adapt to changing social mores or work around ineffective or counterproductive statutes, the process is slow, mistakes are common, people are wrongly punished, and even then bad laws aren’t necessarily reformed. The confusing mix of statute and case law makes for a confusing thicket that is extremely reform-resistant. As the name of this blog says, inertia always wins. Levi sheds some insight into why. Levi wrote this book in the 1940s while teaching law at the University of Chicago; he would later serve as President Greald Ford’s attorney general.

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Interview on the Case against Antitrust Law

Here is an interview I recently did on Wayne Crews’ and my paper on antitrust law. My segment starts at about the 57-minute mark.

The paper is here.

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.

Charles Dickens – A Tale of Two Cities

Charles Dickens – A Tale of Two Cities

Those two cities being London and Paris. Their differences in character were put in stark contrast by the French Revolution; cool London and hot France could not be more different. Dickens’ characters find themselves in the middle of all kinds of duality. Not just Revolution and ancien regime, but rich and poor, young and old, and past and future all come into play. Dickens, while occasionally sappy, conventional, and a little too PG-rated to give a truly vivid picture of the times, still manages to convey good insight about the value of keeping a level head during turbulent times, even as his characters tend to be studies of contrast rather than nuance.

CEI Makes the Case against the Use of Antitrust Law

This is a CEI press release for Wayne Crews’ and my new paper on antitrust reform, cross-posted from CEI.org

The Competitive Enterprise Institute today released a report making the case that government use of antitrust law to break up big companies has a chilling effect on long-term investment and innovation and harms competition and consumers.

In “The Case against Antitrust Law: Ten Areas Where Antitrust Policy Can Move on from the Smokestack Era,” co-authors Ryan Young and Wayne Crews argue that the renewed call for use of antitrust law by policymakers on both sides of the aisle is dangerous for both consumers and producers. Young and Crews make the case that antitrust provisions of law should be repealed.

“While advocates of antitrust enforcement believe its use will bolster competition, the facts show the mere threat of antitrust penalties have a chilling effect on entrepreneurs and their ability to innovate,” warned Ryan Young, CEI senior fellow and report co-author. “Repealing antitrust laws in favor of a market-based approach to competition would reduce regulatory uncertainties for businesses and foster an environment where companies and entrepreneurs can innovate, which only benefits consumers.”

The antitrust issue has taken on greater urgency as politicians – both Republicans and Democrats – push for more aggressive antitrust enforcement. Policymakers in both the United States and the European Union have expressed an interest in using antitrust law to break up big technology companies like Facebook, Apple, Amazon, Netflix, and Google.

“Despite the calls for more antitrust regulation from Washington, the best outcome for consumers and a competitive marketplace would be to repeal antitrust laws and regulations entirely,” said Wayne Crews, CEI Vice President for Policy and report co-author. “Subjecting our dynamic economy to the policies of the smokestack era would be devastating for the many types of innovation we are seeing in the modern, diverse marketplace. Consumers benefit from competition and innovation, not heavy-handed government intervention and regulation.”

The report makes several key recommendations, including:

  • Repeal the Sherman Act of 1890. If a company is making extraordinary monopoly profits, the only way it can keep competitors at bay is to use government to protect its position from competitors. The solution is taking away the government’s power to protect such companies from competition.
  • Stop equating mergers with monopoly. Horizontal mergers – between companies competing in the same market – reduce the number of competitors in a given market while increasing their average size and are a red flag for antitrust regulators. But size or market concentration of an entity or industry should not be an antitrust offense, far from it. In an era in which it is readily apparent and agreed-upon that we need larger-scale infrastructure, and further expect novel ventures like commercial space travel, some firms and industries of the future need to be far larger than what we see today. Laws and regulators should not be concerned with size but whether the company attains its size through competition or from government favors.
  • Stop worrying about “predatory pricing.” Antitrust regulators can punish a company if it charges lower prices than its competitor, under the guise of predatory pricing. The idea is that a company can sell its wares at a loss in order to gain market share, perhaps even causing competitors to go bankrupt. But the only way for a “predator” undercutting its “prey” to keep a permanent monopoly is to permanently sell at a loss. That results in bankruptcy, not monopoly.
  • Repeal the Robinson-Patman Act. Price discrimination is selling goods to different people at different prices and is regulated by the Robinson-Patman Act. Common examples of price discrimination include putting products temporarily on sale, giving bulk discounts for large quantity orders, or membership programs. There is much uncertainty around what is permissible and what is illegal price discrimination, making the Robinson-Patman Act unworkable and unenforced. Repealing it would take away needless uncertainty and give consumers and businesses peace of mind.

View the report and the rest of its recommendations, The Case against Antitrust Law: Ten Areas Where Antitrust Policy Can Move on from the Smokestack Era by Ryan Young and Wayne Crews.

Read more:

Robert H. Bork – The Antitrust Paradox: A Policy at War with Itself

Robert H. Bork – The Antitrust Paradox: A Policy at War with Itself

Probably the most influential book ever written on antitrust policy, though it has its flaws. I analyze several of its arguments in an upcoming paper; I’ll try to remember to update this post with a link when the paper is out.

From its Progressive Era beginnings, antitrust law was dominated by lawyers who disdained economics, and it showed in the quality of their policies and court decisions. During the Depression and the New Deal, President Roosevelt mostly abandoned antitrust law in favor of government-approved, or even government-managed cartels, in a similar disregard of economics. This model was mostly abandoned after World War II, when regulators resumed antitrust enforcement. Prosecutions reached record levels by the late 1950s and early 1960s.

Around that time, a new law and economics movement was underway, especially at the University of Chicago. Bork was one of many scholars who were part of it, along with Aaron Director, George Stigler, Ronald Coase, Richard Posner, and many others. They proposed, instead of attacking the Brandeisian “Curse of Bigness,” moving to a consumer welfare standard. Under this thinking, big isn’t automatically bad. Antitrust measures should only be taken if it can be proven that a company is causing consumer harm. Bork wasn’t the first to make this argument, but he was the most influential, and The Antitrust Paradox remains the most widely cited book on the subject, by friend and foe alike (this writer is somewhere in between).

Bork and other consumer welfare standard advocates, while an improvement over Brandeisian populism, don’t get everything right, at least in my view. Better to get rid of bad policies altogether than simply use them less frequently, as Bork favors. But his compendium of case law, economic reasoning, and legal history is immensely useful regardless of one’s priors. While not the breeziest of reads, Bork does occasionally show some flashes of wit, such as when he compares the Robinson-Patman Act’s attempt to control prices to a baseball player who might be a lousy hitter, but balances it out by also being a poor defender.

Dominick T. Armentano – Antitrust and Monopoly: Anatomy of a Policy Failure

Dominick T. Armentano – Antitrust and Monopoly: Anatomy of a Policy Failure

There are two main schools of thought on antitrust regulation. The traditional populist school prefers an active antitrust policy. Justice Brandeis famously advocated a “big is bad” rule, where big companies should be broken up due to their size, regardless of how consumers are affected. Other populists reach similar policy conclusions for different reasons, such as a larger vision of the good society.

This is usually contrasted with the Chicago approach, most famously exemplified by Richard Posner and Robert Bork. They advocate the consumer welfare standard, where big is ok unless it harms consumers. This is the general rule of thumb today, when antitrust enforcement is more restrained than in its smokestack-era heyday.

Armentano favors just getting rid of the whole antitrust mess altogether. He bases his approach mostly in economic reasoning, but also uses some logical and legal arguments and empirical evidence. He comes across as shrill and ideological at times, but his arguments are mostly sound.

The first two chapters give an overview of the economic and logical objections to antitrust regulation, and most of the rest of the book applies that theory to nearly a century of case law in various areas, from price fixing and price discrimination to tying and mergers.

Armentano’s book is surprisingly current for a book published in 1982. The post-Chicago antitrust slowdown means that only two major cases are missing—the 1980s AT&T breakup and the 1990s Microsoft case. With a populist president and progressive activists pushing for an antitrust revival against a mostly passionless opposition, this issue could get hot. What was old is new again, and could cause enormous consumer harm.

This book has its shortcomings. It relies too much on blackboard thinking for my taste, and Armentano understates the importance of regulatory capture and rent-seeking throughout, which both would have strengthened his position.

But his general approach needs to be a part of the debate. One side wants a lot of a bad thing. The other side also wants the bad thing, just less of it. Armentano argues that both sides have it wrong. Don’t have less of it, get rid of it.