Minnesota State Senator John Jasinski recently argued in favor of continuing the drug war on the basis of sunk costs. He argued that because police have spent thousands and thousands of dollars on training drug-sniffing dogs, that investment is lost if the drug war ends. He sees this as a cost. In fact, ending the drug war would reduce costs because police in the future would not have to spend thousands and thousands of dollars training drug-sniffing dogs. You can see it here. HT2 Eric Garris. (0 COMMENTS)

Last week, economist Tim Kane put on YouTube a civil and brief 3-way discussion among himself, Robert Litan, and Allison Schrager about what 3 economic policies each would advocate to “save” U.S. democracy. One of Schrager’s policy proposals (at the 9:04 point) was to federalize occupational licensing rules. She argued, correctly, that state rules reduce mobility across states because someone who is licensed in state X might not be able to practice in state Y due to different rules in state Y. Schrager’s case is that if we had federal licensing, people with particular licenses could move freely between states and not have to retrain, attend classes, etc. before practicing in the new state. That’s the upside. But in the discussion following, Tim Kane notes the downside: that someone in the Labor Department 20 years down the road (I would say fewer than 5 years down the road) will require a 5,000-word essay for plumbers or whatever. How, Tim asks (at the 10:40 point), do we stop that. Schrager doesn’t answer. Instead she says that we have that at the state level. She’s right. But if we get it at the federal level, the federalism exit option is blocked. There is some good news here. Federalism is working to some extent. The Arizona government, under previous Governor Ducey, changed the law to allow people who are licensed in one state to automatically get a license for the same occupation in Arizona. Also, New Hampshire governor Chris Sununu, in his Executive Budget Summary proposed the following: [T]he budget eliminates 692 unnecessary statutory provisions, 14 unnecessary regulatory boards, and 34 license types. Licensing timeframes will be standardized for all professionals to eliminate administrative burden and ensure that everyone in New Hampshire who applies for a license receives it in a timely manner. At the same time, universal recognition of licensed professionals in other states is established making it simple to relocate and join our state’s workforce. Florida governor Ron DeSantis has moved Florida somewhat in that direction. And, although this isn’t quite the same, Pennsylvania governor Josh Shapiro, in his first day in office, signed an executive order eliminating the college degree requirement for 65,000 state government jobs. If we had state governments representing even 40% of the U.S. population implement such reforms, that would be so much better than shifting things to the federal level.   (0 COMMENTS)

In his new book entitled The Federal Reserve: A New History, Robert Hetzel notes the following: The 1912 Democratic Platform opposed “the so-called Aldrich bill or the establishment of a central bank” and demanded “protection form the control of . . . the money trust” A year later Woodrow Wilson signed the Federal Reserve Act. One can find many similar examples throughout US history.  President McKinley held dovish views on foreign policy, and then led us into war against Spain.  The Democratic platform of 1932 promising a balanced budget.  Lyndon Johnson warned that Goldwater would lead us into war in Vietnam.  The examples are endless. Does this mean that elections do not have consequences?  I don’t think so, for several reasons.  First, there are many examples of candidates fulfilling their campaign pledges after being elected.  But in my view the most important role of elections is in encouraging good behavior.  Leaders know that when the country does poorly, the incumbent is likely to be thrown out.  This gives leaders more of an incentive to please the voters by producing peace and prosperity.  Elections are a device for disciplining politicians. It’s no surprise that elected leaders often abolish democracy when they are about to engage in ruinous ventures.  Thus Hitler abolished German democracy in the 1930s, and Putin has abolished Russian democracy in recent years. (0 COMMENTS)

Many of us take so much for granted nowadays, from smartphones to good food to relatively cheap transportation to health care. So I thought it would be a good idea to report an imaginary conversation I would have if my brother, Paul, who committed suicide in July 1970 at age twenty-two, somehow showed up today at my home in Pacific Grove, California, and we talked about what I have and what daily life is like. Imagine he knows nothing about what happened between 1970 and 2023. This is from David R. Henderson, “A Visit From the Past,” Defining Ideas, February 16, 2023. What follows is an imaginary dialogue between Paul and me. An excerpt: At the Thai restaurant, I see the doctor who operated on my wife, Rena, when she had an aggressive form of breast cancer in September 1986. I introduce him to Paul. That gets us talking. Paul: Did Rena have cobalt treatments after her surgery, the way Mum did? [Our mother had a radical mastectomy for breast cancer in October 1966, followed by cobalt treatments. Her cancer came back, and she died in December 1969, a factor, I believe, in Paul’s suicide seven months later.] David: No. Fortunately, cancer treatments have improved a lot. Rena had a few weeks of radiation treatment and many months of chemotherapy. Paul: Wow! That does sound like an improvement. What else has changed in the medical world? David: There are so many procedures now that deal with various diseases that can kill you. There are many treatments for cancer. Doctors can now take a kidney from a donor or a cadaver and use it to replace a failing kidney in a patient. About five years ago, a friend of mine got a good heart from a donor and is still alive. Polio, which Dad had in 1943 and April [our sister] had in 1952, is virtually gone. And the procedures for sicknesses and injuries that are unlikely to kill you are much improved. About fifteen years ago, the wife of one of my best friends had a bicycling accident and broke her arm. She’s a dentist, and missing work would cause her to lose a lot of income. But the technology had improved so that she got a special fix (I can’t remember the details) that got her back to work a few weeks earlier than otherwise. Health care has improved in another way too, Paul. Remember how depressed you would get? Back then, we had hardly heard of therapy. To us, therapy was something you got after your broken leg had healed. But since then, the kind of therapy where you sit and talk to a professional about your problems has boomed. Also, there are various antidepressants that didn’t even exist when you were alive. It’s quite conceivable that therapy would have worked for you and that if those antidepressants had existed, one or more of them would have worked for you. If so, you might be alive today. And, at the end, a little humor about Prime Minister Trudeau. HT2 Don Boudreaux, who assured me that I wasn’t a nut for doing this. The picture above is my photograph of a pencil drawing that Paul did of himself in the late 1960s. It’s incredibly accurate. (0 COMMENTS)

Regulation hinders progress. But if regulation stays moderate, the market process can overcome detrimental regulation and ensure overall progress. And with this the market process quietly supports the popularity of regulation because it makes it seem as if regulation led to more wealth and progress. In a recent comment here on EconLog, user Mactoul made an interesting observation: “With so much socialism and ever increasing regulations, the world continues to grow ever richer”. This points to a conundrum which has already puzzled Sam Peltzman of the Chicago School. Economics tells us that regulation will make us poorer. But we do have lots of regulation and we’re getting richer, overall. So, perhaps economics is false? Does regulation, in fact, make us richer? Not so, argues Peltzman in his paper “Regulation and the Wealth of Nations: The Connection between Government Regulation and Economic Progress,” with an explanation that also goes a long way toward explaining the continuing popularity of regulation and the mixed economy. To Peltzman, government regulation indeed has little chance to do good. It distorts market prices, or at least makes it more difficult to respond to them. Consequently, regulation makes us poorer. But while regulation has this effect, it can stay on a quite moderate level. If this is the case, the free market’s entrepreneurial forces are to a sufficient degree left in play. Clever entrepreneurs engaged in competition will continue to find ways to make profits and thereby continuously satisfy the shifting wants of consumers and with this increase wealth and ensure progress. When we have lots of regulation and things overall get better, people will usually conclude that regulation was fine and remains desirable for the future. Peltzman succinctly summarizes: “The fact is there was regulation; there was progress, so why change anything?” (p. 199). And this is just what Mactoul was pointing at. People usually follow the logic post hoc ergo propter hoc. Since the regulation of the economy, in the Western world at least, is moderate, there is enough scope for beneficial entrepreneurial action and the market process. It is the ongoing competition within markets which makes us better off. And since it is strong enough to overcome damaging regulation, it bolsters this moderate regulation which permeates our economies. The superficial observer will think that regulation, and not the competitive market, is responsible for much of the progress we make. Housing, she may be led to think, got more comfortable and cheaper not because of competitors who incessantly innovated and improved their product to win out against their rivals, but because of regulation that stopped greedy real estate sharks from exploiting poor tenants. The market process, it turns out, may then be regulation’s best friend, covering up the pernicious effects it has. This notwithstanding, it is sobering to look at some examinations of the consequences of regulation for progress. For instance, John W. Dawson and John J. Seater in their 2013 paper “Federal regulation and aggregate economic growth” find that the new regulation which was implemented in the US since 1949 reduced the average growth rate by about 2 percent. Their estimates indicate that the 2005 annual output is roughly 28 percent of that level it would have reached had it not been for additional regulation since 1949. These figures are colossal. They may of course overestimate the effects of regulation. And regulation can of course protect things valuable to us, e.g., the beautiful scenery in a conservation area. But the figures strongly indicate that while regulation is usually insufficiently strong to kill growth, it does hamper growth very much – to such a degree that we should be skeptical as to its desirability. The market process and regulation form a one-sided friendship.   Max Molden is a PhD student at the University of Hamburg. He has worked with European Students for Liberty and Prometheus – Das Freiheitsinstitut. He regularly publishes at Der Freydenker. (0 COMMENTS)

Chief Jerry Asp says any community can change its destiny in a message that reverberates around the world For generations the Tahltan Nation of northern British Columbia (with a territory comprising 11% of the province’s landmass) endured the poverty and exclusion known to many First Nations in Canada. Inspired by the memory of a previously successful era of trading, pre-colonization, Chief Jerry Asp began a series of reforms to restore economic freedom, grounded in historic cultural values and norms. In retelling a transformation of truly epic proportions, Chief Asp is often called to do so in his capacity as a business icon in Canada. Dig deeper and it is clear his leadership was focused on the social transformation of a people, in which markets were a vital means but not an end. Policymakers are taking note on the international stage. In 1983 and 1984, 80% of the Tahltan Nation were on welfare and unemployment stood at 98%, following the dispossession of property and other human rights across spanning generations. Severe alcohol and drug problems characterized social life, along with high suicide rates and very low levels of educational attainment. By 2013, it had all changed: 100% employment, zero suicides and an above-the-national-average graduation rate, from universities to trade schools. Chief Asp was clear that wealth was always to be created and could never be taken. Federal funding was firmly declined and returned to the government, along with all conditions it required. (Many activists detail cautionary tales of the restrictive constraints accompanying government grants). Today funds are independently generated in the marketplace. All that is contributed toward the general welfare is locally controlled: the Tahltan Heritage Trust Fund contains C$159 million (US$117 million) set aside for investment in education, environmental management, business opportunities, and future generations. To empower a community of share owners, Chief Jerry Asp established the Tahltan Development Corporation in the 1980s. Today, it ranks in the top 5% of British Columbia-based businesses. Equity rights and land titles were key components of wealth creation, including the tradability of those equity rights within the framework established by the Tahltan Central Government – undertaken to protect ‘’the Tahltan inherent aboriginal rights and title’’ and ‘’the eco-systems and natural resources of Tahltan traditional territory’’. Traded rights have not only been an economic tool, but generated resources for improved environmental outcomes, with the protection of eco-systems a priority at the forefront of community life. The latest is the Tahltan’s a new 3,500-hectare conservancy adjoining the Mount Edziza Provincial Park. Recently, Skeena Resources Limited and the Tahltan Central Government – who in a historic move now control their own development permitting – announced that they had entered into an investment agreement. The Tahltan Investment Corporation invested C$5 million into Skeena, by purchasing 1,597,138 Tahltan investment rights. The traded investment rights purchased are in turn owned directly by the community members as common shares, providing a direct stake in local projects acquired on the open market. Chief Asp says we made ‘[p]rovision for the widest possible development of Tahltan business opportunities over which the developer may have control or influence.’’ Such was and remains the confidence in individuals to trade, establish businesses, and determine their destinies. From 98% unemployment to zero, Chief Asp concludes his keynote addresses and presentations with a point of dignified pride and victorious optimism: ‘’We broke the welfare culture of the Tahltan Nation forever.’’ A single message reverberates not only across North America, but globally: ‘’If the Tahltan can do it, any Indigenous Nation can do it!’’   Garreth Bloor is a former executive politician in South Africa and currently resides in Toronto. (0 COMMENTS)

The Economist has an interesting article on obesity.  You may know that in earlier centuries the rich tended to be more obese, whereas today the correlation has flipped in many developed countries.  What you may not know is that this new correlation is almost entirely driven by women: That poor people are more likely to be overweight has often been explained by arguments that obesity, in the rich world, is a feature of poverty. Poor people may struggle to afford healthy foods. They may reach for processed or fast foods because they lack the time to prepare meals at home or have less time to exercise because low-wage jobs often involve working long shifts and can be less flexible than those performed by the “laptop class”. Or because low income is often a function of limited education, perhaps, so goes the thinking, that lack of education extends to a lack of knowledge about how to maintain a healthy weight. The problem with all of these explanations is that the correlation between income and weight at the population level in advanced countries is driven almost entirely by women. In America and Italy the relationship between income and weight or obesity is flat for men and downward-sloping for women. In South Korea the correlation is positive for men but this is more than offset by the sharply negative correlation in women. In France the relationship slopes gently downwards for men, but the slope is much steeper for women. The Economist discusses factors such as bias in the workplace, but I’d like to offer another explanation.  Let’s suppose that thinness is at least mildly correlated with some other factor that leads to success.  (BTW, I’ve known highly successful overweight women, so I’m not suggesting that the correlation is anywhere near 100%.) If thinness is correlated with some sort of X-factor linked to productivity, then why don’t we observe the same relationship for men?  The Economist suggests that women have a more powerful incentive to be thin, due to the fact that overweight women are viewed more negatively than overweight men: All women eventually recognise the importance placed upon their bodies. It is as though girls are walking through a forest unaware and are then shown the trees. They can wonder how the trees got there, how long they have been growing and how deep their roots really go. But there is little they can do about them and it is almost impossible to imagine the world any other way. And the fiction that clever and ambitious women, who can measure their worth in the labour market on the basis of their intelligence or education, need pay no attention to their figure, is difficult to maintain upon examination of the evidence on how their weight interacts with their wages or income. The relationship differs in poor countries where rich people are generally heavier than poor ones. Bryan Caplan has argued that colleges don’t necessarily make students all that much more productive, and that the wage premium from education largely reflects signaling.  A degree from Harvard doesn’t signal that you learned a lot at Harvard, it signals that you are the sort of person that can achieve a Harvard education.  Similarly, being thin might signal that a woman succeeded in the difficult task of holding down their weight in a world where physical labor is increasingly rare and we are surrounded by tasty food options. Because men are less likely to be victims of fat shaming, wealthy men are less focused on holding down their weight. PS.  This post is purely descriptive, I’m not suggesting that this state of affairs is desirable. PPS.  The photo at the top of this post shows Alfred Hitchcock and Tippi Hedren, which can be viewed as an example of Hollywood’s double standard regarding weight.  Younger readers might recall Hedren’s daughter Melanie Griffith.  Much younger readers might recall Griffith’s daughter Dakota Johnson. PPPS.  Slightly off topic, this tweet caught my eye: [The blank states in 1987 are missing data.  Notice how far New York and Kentucky have diverged just since 2003.] If find this perplexing.  I was 32 years old in 1987, and I don’t recall life being much different than today.  America was full of fast food even back then.   My weight hasn’t changed at all since 1987, and yet I don’t have an unusual amount of self control–I’m just an ordinary person.  Lucky genetics?  Very likely.  But the genetics of the overall population hasn’t changed much since 1987.  Like you, I’ve read lots of explanations, but none of them seem all that plausible.  Warm states like Hawaii, California and Florida are a bit on the low side, but much of the south is more obese than the north.  I suppose that any time series/cross sectional explanation will require multiple factors–some combination of climate, income, education, gender bias, sedentary jobs, decline in smoking, processed foods, cultural attitudes, etc. PPPPS.  This tweet is also interesting: (2 COMMENTS)

Up until the previous posts in this series, I’ve simply done my best to try to accurately explain the views of Jeffrey Friedman, as he laid them out in his final book Power Without Knowledge: A Critique of Technocracy. While I agree with much of what he writes, there are specific points where I think he falls short. I alluded to one such area in my previous post – I think he overstates his criticisms of both rational ignorance, as well as Bryan Caplan’s model of rational irrationality. The first flag for me is what I call the “unnecessary ‘or’” – it’s not always the case that a phenomenon always comes down to one explanation or another. One of Friedman’s chapters is titled “Public Ignorance: Radical, Not Rational” – but why must we say people are either radically ignorant or rationally ignorant, or, indeed, rationally irrational? I think all three of these models can be useful to explain different behavior in different circumstances. While I think Friedman does argue successfully for a greater role for radical ignorance, I’m not convinced it’s the one and only method for understanding human behavior and choice. He also seems to apply much stricter standards to evaluating rival models of behavior than he does to his own. For example, when criticizing the idea of rational ignorance as described by Ilya Somin in his book Democracy and Political Ignorance, Friedman displays complicated mathematical equations calculating costs and benefits of political information and asks if we can really believe “billions of citizen-technocrats have been explicitly making calculations of the following sort to determine, respectively, whether they should vote and whether they should acquire political information…even though these formulae did not appear in print until 2013 (in Somin’s Democracy and Political Ignorance).” Friedman briefly acknowledges that writers like Somin and Jason Brennan suggest that voters need only implicitly understand the low odds of casting a tie breaking vote, without needing to do the complex math, but he rejects this idea. But in laying out his own theories, Friedman often describes them in terms of implicit understanding, tacit assumptions, and unconscious biases and thought processes, none of which require the kind of explicit attitudes he insists rival theories embody. For example, when he forms his theory of citizens holding to a simple society ontology, he says that “none of these elements would normally operate at the explicit or conscious level.” He also says people acting according to a naively realistic worldview “may not, and probably do not in most cases, understand themselves to be doing this” and may even be unaware of “subscribing to a worldview in the first place.” It seems to me that if Friedman allows for this kind of implicit, tacitly understood reasoning to operate in his models, he should be willing to grant that to other theories as well. This shortcoming is most apparent in Friedman’s criticism of Bryan Caplan’s model of rational irrationality. According to Friedman, rational irrationality means voters start off by knowing what’s true, decide that acting on true information isn’t worth it, and therefore deliberately choose to believe what they know to be false for the sake of emotional gratification. This model, Friedman says, means that voters “are aware of, but averse to, the manifest truth,” and in the endnotes to the book, Friedman also claims “the ‘rational’ component of ‘rational irrationality’ entails the incoherent claim that voters believe that their beliefs are false.” But this is a serious misunderstanding on Friedman’s part. Rational irrationality doesn’t mean voters believe they hold false beliefs. As Caplan himself emphasizes in his book The Myth of the Rational Voter, “rational irrationality does not require Orwellian underpinnings [such as doublethink]…Above all, the steps should be seen as tacit…There is no need to posit that people start with a clear perception of the truth, then throw it away. The only requirement is that rationality remain on ‘standby,’ ready to engage when error is dangerous.” Yet, Friedman goes on to posit the very thing Caplan explicitly called out to not be posited. Contra Friedman, the “rational” aspect of rational irrationality doesn’t mean voters explicitly decide their false beliefs are worth holding, despite knowing them to be false. It only means that voters don’t bother to question if their currently existing beliefs are worth reevaluating, when they act in their capacity as voters. While I think Friedman is right that people are too quick to declare things “obvious” or “self-evident,” particularly in the face of widespread disagreement about what’s supposed to be obvious, he seems to take that further than I’d be willing to grant. Too many people conflate “X seems obvious to me” with “X is self-evident”, and it’s important to realize that these are very different statements. But Friedman seems to hold a standard so strict that pretty much nothing can clear the self-evident bar. He says “Only a universal consensus among all rational observers” would suffice to make something self-evident, and even then, this doesn’t give us reason to suppose it’s true, because “People may universally err. But if they universally agree, it is at least possible that what explains the consensus is the self-evidence of their shared conclusion. If they do not agree, self-evidence is logically impossible.” If something can only be self-evident if it’s universally agreed to, then nothing is self-evident. The law of noncontradiction? Not self-evident. 2+2 = 4? Not self-evident. Friedman does allow himself some wiggle room by saying the universal consensus must be among rational observers, but he doesn’t give any details about what makes an observer count as rational in this context. Is the law of noncontradiction not self-evident, because rational observers like Graham Priest dispute it? Or is Graham Priest not a rational observer, because he disputes a self-evident truth like the law of noncontradiction? I have no idea how Friedman would answer this. Friedman’s alternative to technocracy, an exitocracy supplemented by wide-scale income redistribution, seems questionable to me. He makes a persuasive case for the superiority of exitocracy over technocracy, and his explanation for how minimally regulated markets best facilitate exit is very well put. But his income redistribution argument falls short. He says, “if the experimentation promised by the exit option is to be possible for more than the rich, economic redistribution is called for.” But in his arguments for the superiority of exit-based options over technocratic, voice-based options, he cites multiple examples of exit being successfully used to this effect by the global poor – so the benefits of exit already are available to more than the rich, at least when those exit options aren’t being blocked by technocratic policy. His exitocracy would also dismantle the vast majority of economic regulations, because “voice-based macros solutions” will “necessarily block exit-based micro-solutions.” So an exitocracy, even without income redistribution, would remove a huge amount of technocratic regulation which currently has the effect of blocking people from utilizing exit to improve their situation, making exit even more effective than the examples he cites. However, Friedman’s goal with income redistribution isn’t to merely improve the options for the poor by removing the mass of technocratic policies blocking their exit options. He seeks to maximize the available options of the least well-off person – hence his call for income redistribution to be arranged along John Rawls’ difference principle. Rawls recognized that attempts to equalize outcomes too aggressively could result in a situation where the least well-off person might end up worse off than a society with greater inequality but a higher floor. Similarly, Friedman recognizes that income redistribution that is too aggressive might reduce exit opportunities for the poor by preventing the creation of new entrance opportunities for them. But this only tells us what Friedman would aim for – he doesn’t give any details on how it would be achieved. How are we to know what level of income redistribution would meet his exit-based maximin goal? It seems like the only way to answer that question is by appealing to the kind of technocratic knowledge that Friedman had spent hundreds of pages arguing is unachievable. Despite these and other flaws, I would still highly recommend the book. While I’ve spent a total of ten posts discussing it, many of the ideas and arguments it contains were left out. As just one example, Friedman devotes an entire chapter to a deep dive into the debate over social complexity and its implications between Walter Lippmann and John Dewey. It’s fascinating intellectual history (and caused me to pick up some of Lippmann’s work!), but I had to pretty much ignore that entire section for the sake of brevity – or at least, my attempt at brevity. No matter who you are, this is a book you can learn from, and find your views challenged by. To me, there is no higher endorsement than that.   Kevin Corcoran is a Marine Corps veteran and a consultant in healthcare economics and analytics and holds a Bachelor of Science in Economics from George Mason University.  (0 COMMENTS)

The first session of our virtual reading group on Bruno Leoni, last week, was exciting. We had many participants, and everybody had something interesting to say. I was pleased to see that Leoni’s book is still eliciting controversies and providing people with new ideas. I was particularly pleased that those who came from a legal background found Leoni’s work valuable and interesting. Some participants had problems with one of Leoni’s most important points, which is that in Roman law and in the common law system jurisconsults and judges were entrusted with the idea of “discovering rather than enacting” the law. Since common-law judges work on a case-by-case basis, Leoni conceived the common-law law making process as a vast, continuous and spontaneous collaboration between the judges and the other participants in order to discover “rules”. He also makes the point of comparing judges and jurisconsults to scientific experts. In particular, it is still surprising to many that Leoni considered “judge-discovered” law a less arbitrary approach than legislation. Some of our friends argued that judge-discovered law is basically an ideological cover-up for judge-made law (a formulation which reminded some of contemporary legal activism). and hence is arbitrary and without even the not too strict limits that elected legislators face. These views reflect the criticism by Jeremy Bentham, who thought the common law had little to do with custom and reflected the ideas of the judges, period. He deemed the common law to be “sham law.” Leoni’s point is that the operations of judges are limited by several factors. In particular, he assumes the process of adjudication to be a complex and expensive one; the judges will judge the cases brought to them by the people and this means, firstly, that the parties need to consider the controversy important and significant enough to appeal to a judge. The parties must also have arguments, which they’ll use in court and that the judge will evaluate, too. Behind all this there is a conception of the law as something bound to change, because new claims appear because of technological changes and cultural shifts. Many assume that changes should be accommodated by legislators: and this is what happens today. Leoni thought that to be arbitrary – and perhaps we should too, when we see that legislators act to prevent or nudge technological and cultural changes. Judges would be more reactive and less proactive, but that’s not necessarily a bad thing: perhaps people could be left alone, accommodating change, with new rules being forged only when they reflect an evolved sensibility. Leoni built this understanding on his knowledge on Roman law and the role of jurisconsults. In a splendid little work on ancient (Greek and Roman) thinking, recently published in a good Italian edition, he emphasize that the Roman jurisconsult had a “realistic and empirical conception of the law”: the jurisconsult feels to be a dispassionate observer, a cold appraiser of legal relationships. As a consequence, jurisconsults are – as a rule – less the defenders of a case than the conveyors of an opinion pro veritate (…) The jurisconsult does not aim to persuade (as he does not intend to convince his audience, as opposed to the Greek rhetors), as instead to establish the facts of the case and this scientific, as it were, impartiality is recognized by both the citizens and the government, thus leaving to him always and everywhere the task of defining what is the law In our online conversation, I mentioned a big tome on the law by C.K. Allen, Law in the Making. I’d like to quote a few passages on the matter. The quotation is long but, I believe, clear. The context is that of the English common law. We have seen that the English judge exercises a function more avowedly creative than a Continental judge; and that at its early formative period much of our Common Law took its shape from doctrines  consciously evolved by the royal courts. … A great deal of controversy has centered on this question of how far the judge can and does legitimately ‘make’ law. We must use this word ‘make’ with caution; and I think we shall find that, in one sense of it at least, judges are to merely resorting to what Bentham called ‘a childish fiction’ when they disclaim the capacity to create new law. There are … a number of cases by no means inconsiderable, in which judges have to lay down a rule for the first time without any assistance from express enactment or previous decision. … A judge, in laying down a rule to meet these situations, is certainly making a new contribution to our law, but only within limits, usually well defined. If he has to decide upon the authority of natural justice, or simply ‘the common sense of the thing’, he employs that kind of natural justice or common sense which he has absorbed from the study of the law and which he believes to be consistent with the general principles of English jurisprudence. The ‘reason’ which he applies is, as Coke said, not ‘every unlearned man’s reason’, but that technically trained sense of legal right … with which all his learning imbues him. … The phrase commonly used is that he decides ‘not on precedent, but on principle’. The difference is that in the one case he is applying a principle illustrated by previous examples, in the other case he is applying a principle not previously formulated, but consonant with the whole doctrine of law and justice. Although, therefore, he is making a definitive contribution to the law, he is not importing an entirely novel element into it. Still less, in that overwhelming majority of cases where precedent is cited and adopted, is the judge seeking to import anything novel into the law. His whole effort is to find the law, not to manufacture it. He is always working with materials which exist in the present or the past; his concern is not with the future effect of the rule which he is laying down, but with the application of what he conceives to be an existing rule to a concrete case before him…. In this sense it is no ‘childish fiction’ to say that he does not and cannot ‘make’ the law and it was not without reason that Lord Esher M.R. said:; ‘There is in fact no such thing as judge-made law, fior the judges do not make the law, though they frequently have to apply existing law to circumstances as to which it has not previously been authoritatively laid down that such law is applicable’. I don’t think either Leoni or Allen (or Hayek) thought judges were infallible, nor this process always conducive to lasting and uncontroversial outcomes. But you can argue that the pluralism of judges makes human fallibility less of an issue, than attempting to put all your eggs in the basket of legislated law. Of course one may wonder if any of this is still relevant in our world these days. I am not a lawyer, so I won’t dare to opine. But I think it is relevant to get what Leoni had in mind right. (0 COMMENTS)

“Homeowner invokes ‘builders remedy’ in brazen plan to build 20-unit housing complex in Los Altos Hills.” So reads the headline of a news story in the San Jose Mercury News, January 13. The homeowner involved is Sasha Zbrozek. Brazen? Wow! What does Zbrozek want to do with the housing complex? Rent it to dealers in illegal drugs, perhaps? Or make it a house of ill repute? If so, the Mercury writers, Ethan Varian and Aldo Toledo, forgot to mention it. No, the plan is brazen because it would, gasp, allow more apartments in a city devoted mainly to large expensive houses. Interestingly, Zbrozek didn’t start out with that plan. Varian writes: Zbrozek said he got the idea to use the builder’s remedy during what he describes as an ongoing nightmare trying to get the necessary approvals and permits to repair his home after it was severely water damaged by storms in 2019 not long after he bought it. So soon after the January housing plan deadline passed, he filed the proposal with the town’s planning department. As the late Ayn Rand would have said, “Brothers, you asked for it.” Note: For more on the “builder’s remedy,” see this. In essence, the builder’s remedy would allow developers to build any size residential building as long as a portion of the units are under price controls. It would apply only if city governments fail to get plans approved by the state government for allowing more housing. As Varian writes: As of Saturday afternoon, Los Altos Hills was just one of the 105 of 109 Bay Area cities and counties that hadn’t gotten the state to sign off on their every-eight-year plans due Jan. 31. Further note: The pic above is of part of a brazen building plan, more commonly referred to as an apartment block. (0 COMMENTS)