Second to None in the Creation of Extraordinary Wealth

The most important historical question to help understand our rise from the muck to modern civilization is: how did we go from linear to exponential productivity growth? Let’s call that question “who started modernity?” People often look to the industrial revolution, which is certainly an acceleration of growth…but it is hard to say it caused the growth because it came centuries after the initial uptick. Historians also bring up the Renaissance, but this is also a mislead due to the ‘written bias’ of focusing on books, not actions; the Renaissance was more like the window dressing of the Venetian commercial revolution of the 11th and 12th centuries, which is in my opinion the answer to “who started modernity.” However, despite being the progenitors of modern capitalism (which is worth a blog in and of itself), Venice’s growth was localized and did not spread immediately across Europe; instead, Venice was the regional powerhouse who served as the example to copy. The Venetian model was also still proto-banking and proto-capitalism, with no centralized balance sheets, no widespread retail deposits, and a focus on Silk Road trade. Perhaps the next question is, “who spread modernity across Europe?” The answer to this question is far easier, and in fact can be centered to a huge degree around a single man, who was possibly the richest man of all time: Jakob Fugger.

Jakob Fugger was born to a family of textile traders in Augsburg in the 15th century, and after training in Venice, revolutionized banking and trading–the foundations on which investment, comparative advantage, and growth were built–as well as relationships between commoners and aristocrats, the church’s view of usury, and even funded the exploration of the New World. He was the only banker alive who could call in a debt on the powerful Holy Roman Emperor, Charles V, mostly because Charles owed his power entirely to Fugger. Strangely, he is perhaps best known for his philanthropic innovations (founding the Fuggerei, which were some of the earliest recorded philanthropic housing projects and which are still in operation today); this should be easily outcompeted by:

  1. His introduction of double entry bookkeeping to the continent
  2. His invention of the consolidated balance sheet (bringing together the accounts of all branches of a family business)
  3. His invention of the newspaper as an investment-information tool
  4. His key role in the pope allowing usury (mostly because he was the pope’s banker)
  5. His transformation of Maximilian from a paper emperor with no funding, little land, and no power to a competitor for European domination
  6. His funding of early expeditions to bring spices back from Indonesia around the Cape of Good Hope
  7. His trusted position as the only banker who the Electors of the Holy Roman Empire would trust to fund the election of Charles V
  8. His complicated, mostly adversarial relationship with Martin Luther that shaped the Reformation and culminated in the German Peasant’s War, when Luther dropped his anti-capitalist rhetoric and Fugger-hating to join Fugger’s side in crushing a modern-era messianic figure
  9. His involvement in one of the earliest recorded anti-trust lawsuits (where the central argument was around the etymology of the word “monopoly”)
  10. His dissemination, for the first time, of trustworthy bank deposit services to the upper middle class
  11. His funding of the military revolution that rendered knights unnecessary and bankers and engineers essential
  12. His invention of the international joint venture in his Hungarian copper-mining dual-family investment, where marriages served in the place of stockholder agreements
  13. His 12% annualized return on investment over his entire life (beating index funds for almost 5 decades without the benefit of a public stock market), dying the richest man in history.

The story of Fugger’s family–the story, perhaps, of the rise of modernity–begins with a tax record of his family moving to Augsburg, with an interesting spelling of his name: “Fucker advenit” (Fugger has arrived). His family established a local textile-trading family business, and even managed to get a coat of arms (despite their peasant origins) by making clothes for a nobleman and forgiving his debt.

As the 7th of 7 sons, Jakob Fugger was given the least important trading post in the area by his older brothers; Salzburg, a tiny mountain town that was about to have a change in fortune when miners hit the most productive vein of silver ever found by Europeans until the Spanish found Potosi (the Silver Mountain) in Peru. He then began his commercial empire by taking a risk that no one else would.

Sigismund, the lord of Salzburg, was sitting on top of a silver mine, but still could not run a profit because he was trying to compete with the decadence of his neighbors. He took out loans to fund huge parties, and then to expand his power, made the strategic error of attacking Venice–the most powerful trading power of the era. This was in the era when sovereigns could void debts, or any contracts, within their realm without major consequences, so lending to nobles was a risky endeavor, especially without backing of a powerful noble to force repayment or address contract breach.

Because of this concern, no other merchant or banker would lend to Sigismund for this venture because sovereigns could so easily default on debts, but where others saw only risk, Fugger saw opportunity. He saw that Sigismund was short-sighted and would constantly need funds; he also saw that Sigismund would sign any contract to get the funds to attack Venice. Fugger fronted the money, collateralized by near-total control of Sigismund’s mines–if only he could enforce the contract.

Thus, the Fugger empire’s first major investment was in securing (1) a long-term, iterated credit arrangement with a sovereign who (2) had access to a rapidly-growing industry and was willing to trade its profits for access to credit (to fund cannons and parties, in his case).

What is notable about Fugger’s supposedly crazy risk is that, while it depended on enforcing a contract against a sovereign who could nullify it with a word, he still set himself up for a consistent, long-term benefit that could be squeezed from Sigismund so long as he continued to offer credit. This way, Sigismund could not nullify earlier contracts but instead recognized them in return for ongoing loan services; thus, Fugger solved this urge toward betrayal by iterating the prisoner’s dilemma of defaulting. He did not demand immediate repayment, but rather set up a consistent revenue stream and establishing Fugger as Sigismund’s crucial creditor. Sigismund kept wanting finer things–and kept borrowing from Fugger to get them, meaning he could not default on the original loan that gave Fugger control of the mines’ income. Fugger countered asymmetrical social relationships with asymmetric terms of the contract, and countered the desire for default with becoming essential.

Eventually, Fugger met Maximilian, a disheveled, religion-and-crown-obsessed nobleman who had been elected Holy Roman Emperor specifically because of his lack of power. The Electors wanted a paper emperor to keep freedom for their principalities; Maximilian was so weak that a small town once arrested and beat him for trying to impose a modest tax. Fugger, unlike others, saw opportunity because he recognized when aligning paper trails (contracts or election outcomes) with power relationships could align interests and set him up as the banker to emperors. When Maximilian came into conflict with Sigismund, Fugger refused any further loans to Sigismund, and Maximilian forced Sigismund to step down. Part of Sigismund’s surrender and Maximilian’s new treaty included recognizing Fugger’s ongoing rights over the Salzburg mines, a sure sign that Fugger had found a better patron and solidified his rights over the mine through his political maneuvering–by denying a loan to Sigismund and offering money instead to Maximilian. Once he had secured this cash cow, Fugger was certainly put in risky scenarios, but didn’t seek out risk, and saw consistent yearly returns of 8% for several decades followed by 16% in the last 15 years of his life.

From this point forward, Fugger was effectively the creditor to the Emperor throughout Maximilian’s life, and built a similar relationship: Maximilian paid for parties, military campaigns, and bought off Electors with Fugger funds. As more of Maximilian’s assets were collateralized, Fugger’s commercial empire grew; he gained not only access to silver but also property ownership. He was granted a range of fiefs, including Arnoldstein, a critical trade juncture where Austria, Italy, and Slovenia border each other; his manufacturing and trade led the town to be renamed, for generations, Fuggerau, or Place of Fugger.

These activities that depended on lending to sovereigns brings up a major question: How did Fugger get the money he lent to the Emperor? Early in his career, he noted that bank deposit services where branches were present in different cities was a huge boon to the rising middle-upper class; property owners and merchants did not have access to reliable deposit services, so Fugger created a network of small branches all offering deposits with low interest rates, but where he could grow his services based on the dependability of moving money and holding money for those near, but not among, society’s elites. This gave him a deep well of dispersed depositors, providing him stable and dependable capital for his lending to sovereigns and funding his expanding mining empire.

Unlike modern financial engineers, who seem to focus on creative ways to go deeper in debt, Fugger’s creativity was mostly in ways that he could offer credit; he was most powerful when he was the only reliable source of credit to a political actor. So long as the relationship was ongoing, default risk was mitigated, and through this Fugger could control the purse strings on a wide range of endeavors. For instance, early in their relationship (after Maximilian deposed Sigismund and as part of the arrangement made Fugger’s interest in the Salzburg mines more permanent), Maximilian wanted to march on Rome as Charlemagne reborn and demand that the pope personally crown him; he was rebuffed dozens of times not by his advisors, but by Fugger’s denial of credit to hire the requisite soldiers.

Fugger also innovated in information exchange. Because he had a broad trading and banking business, he stood to lose a great deal if a region had a sudden shock (like a run on his banks) or gain if new opportunities arose (like a shift in silver prices). He took advantage of the printing press–less than 40 years after Gutenberg, and in a period when most writing was religious–to create the first proto-newspaper, which he used to gather and disseminate investment-relevant news. Thus, while he operated a network of small branches, he vastly improved information flow among these nodes and also standardized and centralized their accounting (including making the first centralized/combined balance sheet).

With this broad base of depositors and a network of informants, Fugger proceeded to change how war was fought and redraw the maps of Europe. Military historians have discussed when the “military revolution” that shifted the weapons, organization, and scale of war for decades, often centering in on Swedish armies in the 1550s as the beginning of the revolution. I would counter-argue that the Swedes simply continued a trend that the continent had begun in the late 1400’s, where:

  1. Knights’ training became irrelevant, gunpowder took over
  2. Logistics and resource planning were professionalized
  3. Early mechanization of ship building and arms manufacturing, as well as mining, shifted war from labor-centric to a mix of labor and capital
  4. Multi-year campaigns were possible due to better information flow, funding, professional organization
  5. Armies, especially mercenary groups, ballooned in size
  6. Continental diplomacy became more centralized and legalistic
  7. Wars were fought by access to creditors more than access to trained men, because credit could multiply the recruitment/production for war far beyond tax receipts

Money mattered in war long before Fugger: Roman usurpers always took over the mints first and army Alexander showed how logistics and supply were more important than pure numbers. However, the 15th century saw a change where armies were about guns, mercenaries, technological development, and investment, and above all credit, and Fugger was the single most influential creditor of European wars. After a trade dispute with the aging Hanseatic League over their monopoly of key trading ports, Fugger manipulated the cities into betraying each other–culminating in a war where those funded by Fugger broke the monopolistic power of the League. Later, because he had a joint venture with a Hungarian copper miner, he pushed Charles V into an invasion of Hungary that resulted in the creation of the Austro-Hungarian Empire. These are but two of the examples of Fugger destroying political entities; every Habsburg war fought from the rise of Maximilian through Fugger’s death in 1527 was funded in part by Fugger, giving him the power of the purse over such seminal conflicts as the Italian Wars, where Charles V fought on the side of the Pope and Henry VIII against Francis I of France and Venice, culminating in a Habsburg victory.

Like the Rothschilds after him, Fugger gained hugely through a reputation for being ‘good for the money’; while other bankers did their best to take advantage of clients, he provided consistency and dependability. Like the Iron Bank of Braavos in Game of Thrones, Fugger was the dependable source for ambitious rulers–but with the constant threat of denying credit or even war against any defaulter. His central role in manipulating political affairs via his banking is well testified during the election of Charles V in 1519. The powerful kings of Europe– Francis I of France, Henry VIII of England, and Frederick III of Saxony all offered huge bribes to the Electors. Because these sums crossed half a million florins, the competition rapidly became one not for the interest of the Electors–but for the access to capital. The Electors actually stipulated that they would not take payment based on a loan from anyone except Fugger; since Fugger chose Charles, so did they.

Fugger also inspired great hatred by populists and religious activists; Martin Luther was a contemporary who called Fugger out by name as part of the problem with the papacy. The reason? Fugger was the personal banker to the Pope, who was pressured into rescinding the church’s previously negative view of usury. He also helped arrange the scheme to fund the construction of the new St. Peter’s basilica; in fact, half of the indulgence money that was putatively for the basilica was in fact to pay off the Pope’s huge existing debts to Fugger. Thus, to Luther, Fugger was greed incarnate, and Fugger’s name became best known to the common man not for his innovations but his connection to papal extravagance and greed. This culminated in the 1525 German Peasant’s War, which saw an even more radical Reformer and modern-day messianic figure lead hordes of hundreds of thousands to Fuggerau and many other fortified towns. Luther himself inveighed against these mobs for their radical demands, and Fugger’s funding brought swift military action that put an end to the war–but not the Reformation or the hatred of bankers, which would explode violently throughout the next 100 years in Germany.

This brings me to my comparison: Fugger against all of the great wealth creators in history. What makes him stand head and shoulders above the rest, to me, is that his contributions cross so many major facets of society: Like Rockefeller, he used accounting and technological innovations to expand the distribution of a commodity (silver or oil), and he was also one of the OG philanthropists. Like the Rothschilds’ development of the government bond market and reputation-driven trust, Fugger’s balance-sheet inventions and trusted name provided infrastructural improvement to the flow of capital, trust in banks, and the literal tracking of transactions. However, no other capitalist had as central of a role in religious change–both as the driving force behind allowing usury and as an anti-Reformation leader. Similarly, few other people had as great a role in the Age of Discovery: Fugger funded Portuguese spice traders in Indonesia, possibly bankrolled Magellan, and funded the expedition that founded Venezuela (named in honor of Venice, where he trained). Lastly, no other banker had as influential of a role in political affairs; from dismantling the Hanseatic League to deciding the election of 1519 to building the Habsburgs from paper emperors to the most powerful monarchs in Europe in two generations, Fugger was the puppeteer of Europe–and such an effective one that you have barely heard of him. Hence, Fugger was not only the greatest wealth creator in history but among the most influential people in the rise of modernity.

Fugger’s legacy can be seen in his balance sheet of 1527; he basically developed the method of using it for central management, its only liabilities were widespread deposits from the upper-middle class (and his asset-to-debt ratio was in the range of 7-to-1, leaving an astonishingly large amount of equity for his family), and every important leader on the continent was literally in his debt. It also showed him to have over 1 million florins in personal wealth, making him one of the world’s first recorded millionaires. The title of this post was adapted from a self-description written by Jakob himself as his epitaph. As my title shows, I think it is fairer to credit his wealth creation than his wealth accumulation, since he revolutionized multiple industries and changed the history of capitalism, trade, European politics, and Christianity, mostly in his contribution to the credit revolution. However, the man himself worked until the day he died and took great pride in being the richest man in history.

All information from The Richest Man Who Ever Lived. I strongly recommend reading it yourself–this is just a taster!

Pandemics and Hyperinflations

I wrote an article a few years ago about hyperinflation in ancient Rome (and blogged about it here), arguing that the social trust in issuing bodies has been a foundation for monetary value long before modern institutions.

I got a random notification that someone had actually read and cited my work in a recent article “The US Money Explosion of 2020, Monetarism and Inflation: Plagued by History?” I really liked the author’s concept: inflation during pandemic periods is staved off for years because of saving rates, but then the post-crisis period is actually when the most inflation occurs.

This passed my ‘gut check’: during a crisis, who blows their entire budget? It also passed my historical-precedent check, and not only because he researched the Spanish flu and medieval precedent; in the Roman hyperinflation, the inflation lagged decades behind the expanded monetary volume, and in fact came right as the civil wars that nearly brought the Empire to its knees came to an end.

So, in short, inflation-hawks, you are probably right to fear the dramatic expansion of the money supply; however, you won’t feel vindicated for potentially years to come. In an age where people look for causes today to become results tomorrow (EVERY DAY, the WSJ tells me “stocks moved up/down because MAJOR EVENT TODAY”), we need to lengthen our time horizons of analysis and recognize that, just maybe, the ramifications of today’s policies will not really be felt for years. Or, put in a more dire light, by the time we realize who is right, it will be too late to reassert social trust in monetary value, and the dollar will follow the denarius into histories of hyperinflations.

A couple of post-election thoughts

  1. The left has not learned the right lesson.
  2. What the hell is up with Predictit?

Trump was the perfect Madisonian teachable moment. A horrifying figure who I wouldn’t trust to watch my drink while I got up to hang my coat. The lesson should have been clear: scale back the power in the Oval Office. But now that the pendulum has swung the other way, they “are urging him to follow President Trump’s example”. This is why we can’t have nice things.

Meanwhile, in a world where people are putting their own money on the line, people are still holding out hope that Trump will win the election he just lost. The market for predicting the winner of the presidential election has 10’s of thousands of transactions and places the probability that Trump or Biden wins at 103%. As an economist I find it disconcerting that I can still buy contracts of “Biden to win” at 88 cents. The lesson I’m taking away is that (at least when Trump is involved) there’s a wide margin of error on how accurate the prediction market estimate is.

Triple-blinded trials in political economy

In medicine, randomized controlled trials are the most highly regarded type of primary study, as they separately track treatment and control groups to determine whether an observed effect is actually caused by the intervention.

Bias, the constant bane of statisticians, can be minimized further by completing a blinded trial. In a single-blinded trial, the patient population is not informed which group they are in, to prevent knowledge of therapy from impacting results. Placebos are powerful, so blinding has helped identify dozens of therapies that are no better than sugar pills!

However, knowledge can contaminate studies in another way–through the physicians administering the therapies. Bias can be further reduced by double blinding, in which the physicians are also kept in the dark about which therapy was administered, so that their knowledge does not contaminate their reporting of results. In a double-blind trial, only the study administrators know which therapy is applied to each patient, and sometimes an independent lab is tasked with analysis to further limit bias.

Overall, these blinding mechanisms are meant to make us more certain that the results of a study are reflective of an intervention’s actual efficacy. However, medicine is not the only field where the efficacy of many interventions is impactful, highly debated, and worthy of study. Why, then, do we not have blinded studies in political economy?

We all know that randomized controlled trials are pretty much impossible in political economy. North/South Korea and West/East Germany were amazing accidental trials, but we can still hope that politicians and economists make policies that can at least be tracked to determine their ‘change from baseline’ even if we have no control group. Because of how easy it is to harm socioeconomic systems and sweep the ruinous results under the rug, I personally consider it unethical to intervene in a complex system without careful prior consideration, and straight up evil to do so without plans to track the impact of that intervention. So, how can politicians take an ‘evidence-based approach’ to their interventions?

I think that, in recent years, politicians–especially in the US and especially liberals and COVID-reactionaries–have come up with an amazing new experimental method: the triple blinded study. Examples include the ACA, the ARRA, and the recent $3 trillion stimulus package. In a triple blinded study, politicians carefully draft bills so that they are (1) too long for anyone, especially the politicians themselves, to read; (2) filled with a mish-mash of dozens of strategies implemented simultaneously or that are delegated vaguely to administrative agencies; and (3) have no pre-specified metrics by which the policy will be judged, thus blinding everyone to any useful study of signal and response.

I am reminded of one of the most painful West Wing episodes ever made, in which “President Bartlett” is addressing an economic crisis, and is fielding dozens of suggestions from experts–without being able to choose among the candidate interventions. Donna, assistant to his Deputy Chief of Staff, tells a parable about how her grandmother would use ‘a little bit of this, a little bit of that’ to cure minor illnesses. Inspired, Bartlett adopts a policy of ALL suggested economic interventions, thus ensuring that we try everything–and learn nothing. I shudder to think that this strategy was ever broached publicly…and copied from fiction into reality.

In this way, politicians have cleverly enabled us to reduce the bias caused by any knowledge of the intervention or its impact. The patients (citizens), physicians (politicians), and study administrators (economists?) are all kept carefully in the dark so that none of them can know how a policy impacted the economy. Thus, anyone debating any of these topics is given the full freedom to invent whatever argument they want, cherry-pick any data they want, and continue peddling their politics without ever being called to task by the data.

Even more insanely, doctors are held not only to the standard of evidence-based medicine, but also to that of of the precautionary principle–where passivity is preferred to action and novel methods are treated with special scrutiny. “Evidence-based policy”, on the other hand, is a buzzword and not an actual practice to align with RCTs, and any politician who actually followed the precautionary principle would be considered ‘do-nothing’. Thus, we carefully keep both evidence and principles of ‘do no harm’ far from the realm of political action, and continue a general practice across politics of the blind making sure that they lead the blind.

In sum, political leaders, please ignore Donna. Stop intentionally blinding us to policy impacts. Stop doing triple-blinded studies with the future of our country. Sincerely, all data-hounds, ever.

Are we over profit maximization?

Friedman: A business is obligated to maximize shareholder value, nothing more.

Everyone else: That’s crazy! Profit maximizing businesses roll over all sorts of other stakeholders and fail to live up to basic ethical standards.

This relates to a complaint I’ve made before. Markets are good at generating prices that reflect aggregate views on the relative scarcity/importance of various goods. Markets aren’t good at charity. To roll other things in there means a good old fashioned price is now a price plus an obligation to do some moral calculus in how we each interact with the complex adaptive system that is the world economy. It’s a recipe for disaster.

So what do we do? We recognize the gap between a world where Friedman’s advice is reasonable and the world we live in, then we figure out how to close that gap. That Friedman’s doesn’t match our world says more about our world than it does about Friedman’s argument.

Rather than move Friedman’s starting point by trying to juggle competing demands of various stakeholders without markets, we should think about the legal framework these stakeholders are acting in.

If we refine our understanding of who has what rights to make what decisions we’ll see that the reason profit maximizers (and vote maximizers) sometimes do bad things is because it’s the best choice available to them. The answer isn’t to say “businesses lobby business therefore they shouldn’t respond to incentives!” it’s to say “therefore we should restrict opportunities to seek rents!”

Coase wasn’t trying to tell us that spillovers don’t matter. He was trying to tell us that transaction costs do matter and whenever they’re present, we need to be careful in allocating rights that have spillover effects. By the same token, we should think of Friedman’s advice as saying “in a perfect world, corporations should maximize profits, but the world needs work.”

Why the US is behind in FinTech, in two charts

The US is frankly terrible at innovation in banking. When Kenya (and its neighbors) has faster adoption of mobile banking–as they have since at least 2012–it is time to reconsider our approach.

Here is the problem: we made new ideas in banking de facto illegal. Especially since the 2008 financial crisis, regulatory bodies (especially the CFPB) has piled on a huge amount of potential liability that scares away any new entrant. Don’t believe me? Let’s look at the data:

bank creation

Notice anything about new bank creation in the US after 2008?

A possible explanation, in a “helpful resource” provided to banking regulators and lawyers for banks:

regulatory complexity

This shows: 8 federal agencies reporting to the FSOC, plus another independent regulatory body for fintech (OFAC/FinCEN). Also, the “helpful” chart notes state regulations just as an addendum in a circle…probably because it would take 50 more, possibly complex and contradictory charts.

So, my fellow citizens, don’t innovate in banking. No one else is, but they are probably right.

Real Decision Rights Theory and Political Coalitions

Libertarians understand these two big ideas:

  1. A system of individual rights can allow widespread cooperation and human flourishing.
  2. The world is full of emergent orders, like markets, with aggregate outcomes that are more than the sum of their parts.

But commitment to the first idea often blinds us to the full implications of the second.

Complex adaptive systems involve an infinity of illegible signals involving cooperation and competition in networks so complex that it would be impossible to replicate their success in any conceivable top-down system. The market is a discovery procedure. But the “it” that is the market is a collective thing. It’s a jointly produced phenomenon and it’s impossible to split it up without fundamentally changing it.

Likewise, a system of rights (including the rights underlying a functioning market) is a jointly produced common good.

Why does it mean anything to say that I own my laptop? Because when push comes to shove (if I’m willing to shove hard enough), other members of my community are willing to act in ways (formal and informal) that enforce my property right. (Interesting aside: If I reported my laptop stolen to the local police, they wouldn’t do anything about it. Perhaps this reflects the median voter’s level of regard for other people’s property rights…)

Ownership is not as simple as “I own this piece of property, period.” Instead, to own something is to have some bundle of rights to make particular decisions. I can decide what to plant in my garden, but I can’t decide to build a nuclear reactor in my front yard. I don’t need to go through some elaborate chain of natural rights reasoning to argue that your negative right to avoid externalities supersedes my positive right to do a thing. Doing so might be a useful exercise to see how (in)consistent our ruleset is. But the real system is much simpler (and much more ad hoc). Rights are as rights are enforced.

What am I driving at here? First, that we should be dealing with property decision rights as they are more than we deal with them as they ought to be. Second, individual rights require collective support. This puts constraints on how we move towards our Utopias.

Debating/convincing our intellectual opponents is necessary, but it’s really just a negotiation tactic. Discounting idiotic opponents is reasonable in the intellectual sphere, but we can’t just overlook the fact that those opponents are part of the environment we’re trying to shape. We don’t necessarily have to throw them a bone, but when we don’t make some group part of our coalition, we have to expect someone else will.

Our normative theories will convince us that group A can’t make group B’s lives worse for the sake of A’s ego. But if A perceives the subjective value of that ego boost to be high enough, and if A has the relevant rights, then B had better look out.

Improving the world isn’t simply a matter of making the right arguments well. We have to be entrepreneurial, and keep an eye out for how others might do the same. Political entrepreneurship means looking for the under-priced voters which is exactly what Trump did in 2016. He found a group A full of low-status voters who had been discounted by the political establishment. And because their rights to shape the collective outcome went unexercised so long, it was that much more disruptive when they were finally brought to the table. Likewise, BLM protests reveal that there is a group B that is ready to throw their weight around.

That leaves a big pile of questions. What is the cost of pride? How can we ensure people have enough dignity that they won’t want to destroy what a functioning (if imperfect) society? How do we account for potential political energy (particularly when we remember that voting is only a tiny part of political participation)?

I don’t know the answers, but I know this: we can’t escape getting our hands dirty and engaging in some political exchange. I don’t like it, but I’m not the only one deciding.

From the comments: follow on effects of liability rules?

Far be it from me to to tell anyone how to think, or what a word belonging to everyone really means. But I’m going to quickly indulge in a No True Scotsman-ism. Libertarianism means being skeptical of power. (I recently saw a great line on libertarians that needs sharing: “…every libertarian agrees on two things: that there’s only one libertarian and it’s them.”)

So I’m optimistic to see reductions in the amount of power government agents can exercise. I’m particularly optimistic to see changes that don’t take the form of “we’re going to manage that bit of power over there with a new bit of power over here” (i.e. regulation). A very short term version of such a change happened when Buffalo’s police union announced they wouldn’t cover the legal fees of their riot squad.

My enthusiasm was followed by the right question in the comments: “If this obtains, what is the likely effect upon the lives and property of Buffalo dwellers?”

In principle, we could dig into this question empirically, but not until we’ve got decent data with variation in the liability rules governing police behaviors. In the mean time…

Let’s break the question down: What are the average effects and how will those effects differ between different parts of Buffalo? What will be the effects on violent crime? What will be the effects on property crime? And how will those effects affect property values?

The most obvious and immediate change will be a reduction in police use of force. As we’ve seen, at least some of that force is used criminally. This change in the rules means reducing the likelihood of another Gugino incident. Which means a reduced likelihood of pulling resources away from productive uses to cover all the various costs involved in such incidents–the medical care and suffering, the resources surrounding arresting the perpetrators and keeping them safe should they end up incarcerated, the legal fees, etc. All else equal (i.e. ignoring secondary effects), this is equivalent to raising the cost of breaking windows–bad for the glazier, but more than offset to window owners.

Of course, the real question is about the impact of reducing the non-criminal use of force by police. The Buffalo experiment looks to be short-term and restricted to the riot squad, so we won’t be able to draw any conclusions from this (except, of course, that it confirms my priors and you’re looking at things the wrong way if you disagree with me. </s>)

The more interesting question is how extending this liability issue–i.e. curtailing qualified immunity–would affect the long run equilibrium? That outcome would eventually be capitalized into the prices of real estate. Safer neighborhoods will have higher property values.

Here’s my prediction: property values will increase in poor and non-white neighborhoods relative to wealthier and whiter neighborhoods.

Some caveats are in order:

  • I suspect that in most American cities poor neighborhoods are under-served by the police, so reduced legitimate police force will have minimal impact.
  • I also suspect (hopefully someone will share some helpful resources in the comments) that illegitimate police force is mostly concentrated in poor neighborhoods.
  • Wealthy neighborhoods might see some increased crime from reduced legitimate police force, but I’m doubtful. I think more likely the impact will be more like the effects of price discrimination–why pay more if the alternative isn’t terrible? To the extent poor neighborhoods get less terrible, the relative draw of rich neighborhoods will decreases.
  • There are any number of other changes coming down the pipeline that will make it difficult to disentangle the effects of qualified immunity holding all else equal.
  • To the extent we see a general improvement in the quality of policing (more ‘serve & protect’ and less cracking skulls) we should see an increase in property values across the board.
  • White flight is likely to happen which will bias results towards my conclusions. I want my hypothesis to be interpreted holding white flight constant.
  • The effects will go beyond just real estate price. I would expect something like this: for every $1 price reduction in rich neighborhoods, there will be <$1 price increase in poor neighborhoods, but the gap will be made up in other quality-of-life changes such as reduced chance of incarceration for victimless crimes, fewer hours of work missed, fewer injuries at the hands of police, etc.
  • I hope that these quality of life changes will make empirical analysis even more difficult as other follow on effects extend the time horizon of people in poor neighborhoods–e.g. if fewer people are sent to jail, that could lead to fewer young men getting involved in crime leading to entrepreneurs being more willing to invest in their communities.

My predictions are absolutely shaded by my ideological biases. And there’s no getting around how complicated these changes are (hopefully) going to be. But I feel confident predicting an implicit shift of wealth from the paranoid wealthy to the disenfranchised.

Is there anyone here who disagrees enough to help me clarify my thinking by putting money on it?

Legal silences

In law, there are different silences.

When lawmakers set out to establish legal standards, they inevitably don’t address every contingency. There are spaces for flexibility, for breadth of application, for unforeseen developments, for the careful discretion required for sound law enforcement. There are always gaps.

Yet the gaps raise serious questions. Foremost among these is the problem of delegated lawmaking power. The United States Constitution vests the legislative power in a bicameral congress. Exclusively. Yet gaps, though inevitable and sometimes desirable, can result in leaks of this exclusive authority to non-legislative actors–police, prosecutors, juries, regulators, etc.

Take a classic example, when the National Industrial Recovery Act of 1933 gave the President authority to make”codes of fair competition” for slaughterhouses and other industries. That was more than a gap–that was a gulf. It’s one of only two laws that the U.S. Supreme Court has ever invalidated as an unconstitutional delegation of lawmaking authority to a non-legislative actor.

But at what point does a crack become a crevasse? During Justice Neil Gorsuch’s confirmation hearing, Senator Al Franken mocked the notion that any line should be drawn at all: “When Congress passes laws that require agencies to implement them, … those agencies turn to experts to develop those policies …. And I think that is a good thing. We want experts doing the work. What we Senators do not want to be doing is deciding … what the distance in the slats are in a baby’s crib.”

As with most statements made by politicians in confirmation hearings (or most anywhere else), Franken tilts at a straw man. But his example helps to highlight different types of legislative silence. On one hand, Franken is of course correct–a legislature needn’t and probably shouldn’t become entangled in minutiae.

But Franken fails to see that there are different kinds of silence. On the one hand, permissible gaps to be filled in by agencies and law enforcers involve conditional lawmaking where a certain legal requirement hinges on delegated fact-finding responsibilities. I’m a bit skeptical that we want Congress legislating safety standards for baby cribs, but let’s run with Franken’s example anyway. Congress might pass a law that requires crib manufacturers to ensure that crib slats do not pose a serious safety risk to occupants. It can leave an agency to determine the exact distance between crib slats requisite for child safety because the agency is making a factual determination (again, I’m not sure we need or want regulators doing this but bear with me). We’ll call this crib-slat silence.

Crib-slat silence is not an unlawful delegation of lawmaking authority. It simply commits to federal agencies the fact-finding responsibilities already inherent in the executive branch’s duty to “take care that the laws be faithfully executed.”

Crib-slat silence is different in kind from an unlawful delegation of lawmaking power. An agency is doing something quite different when it sets a safety standard for crib slats than when it establishes “codes of fair competition.” It isn’t simply a difference in the size of the silence; it’s a silence of a different kind altogether. Take, for instance, how President Roosevelt put together “codes of fair competition” under the broad power given him by the National Industrial Recovery Act. He let New York poultry butchers do it for him. Anyone with a basic understanding of public choice theory can appreciate how a business allowed to write the law that governs its competitors might go about this task.

To no one’s surprise, the codes of fair competition made life harder for minority business owners, in particular kosher butchers. Specifically, the code prohibited butchers from letting customers select the specific chicken they wanted–a part of at least some kosher practices in New York at the that time. The Schechters brothers, who ran a kosher butcher shop, were criminally indicted for letting a customer select an “unfit” chicken, among other things. The Supreme Court held this to be an unlawful delegation of lawmaking authority because the National Industrial Recovery Act didn’t just make application of a particular law contingent on executive fact-finding–it delegated the policy choices inherent in the legislative power. This type of silence we’ll call Schechter silence.

Schechter silence and crib-slat silence aren’t just different in terms of the relative size of the gap. Take, for instance, an example of a smaller instance of Schechter silence, where the silence is not quite so huge as “codes of fair competition,” but still has the essential quality of letting the agency make policy choices rather than find facts. The Environmental Protection Agency and the Army Corps of Engineers share regulatory responsibility over the Clean Water Act. The Army Corps has statutory authority to issue permits for polluting protected water bodies, and the EPA has statutory authority to veto those permits, even after they’ve been issued, if the EPA decides that the permitted activity will have an “unacceptable adverse effect” on the environment. The statute hasn’t delegated the authority to create a regulatory code from whole cloth, but it has delegated authority to make normative judgment calls, not just executive fact-finding. Determining whether a certain adverse effect is “unacceptable” is unavoidably subjective and calls for much more than establishing the existence of certain objective facts. “Unacceptable” involves the weighing of various competing interests–economic, environmental, etc.–and making a judgment, not based on facts, but on agency policy preferences. Note also, that the EPA can decline to veto the permit even if it does find an adverse effect to be unacceptable. Hence, while the EPA’s veto authority isn’t especially sweeping in its effect, it still is an exercise of legislative power.

On the other hand, crib-slat silence can authorize executive acts of great national significance, like tariff rates. In 1928, an importer challenged the president’s statutory authority to set tariffs as a delegation of legislative power. But the statute at issue required the president to set such rates based on a variety of factual determinations–not on what the president considered appropriate in his own judgment.

There’s yet a third silence. Rather than interstitial gaps in statutory language, this thrid silence is the vacuum where Congress has chosen not to speak at all. Sometimes, courts and agencies have mistaken this silence for crib-slat silence. That mistake can be a serious problem for the structure of sound government.

One example is the Department of Labor’s regulation of “tip pooling.” The Fair Labor Standards Act establishes federal minimum wage law. The law allows businesses to set their wages below the default minimum if the businesses use a “tip credit”–the deficit between the wage and the legal minimum is filled in with the employee’s tip money.  If a business elects to use the tip credit, that business is prohibited from divvying up tip money among staff–you earn it, you keep it.

But the statute says nothing about prohibitions on tip-pooling for businesses that don’t take a tip credit. The Department of Labor didn’t like tip pooling, so it decided that the statute’s silence about tip pooling for non-tip-credit businesses was a delegation to the agency to do as it pleased. The Department of Labor promulgated a rule that extended the tip-pooling rule to all businesses, whether or not they took a tip credit. Incredibly, a federal court of appeals for the Ninth Circuit said this rule was just fine.

The silence extending outward from the edges of a statute are bookends, not blank pages.  Hence, I’ll call this third silence bookend silence. The idea that an agency can simply promulgate rules to fill up this endless silence destroys our system of separated powers. After all, the clear implication of allowing the Department of Labor to fill in that silence is that the executive branch of government has a boundless and inherent law-making authority that can only be circumscribed if Congress expressly tells the executive branch “no.” This is essentially a reversal of the first two articles of the Constitution, vesting the Executive with lawmaking authority and Congress with what amounts to no more than a glorified veto. Yet this is precisely what the largest appellate court in the country allows.

There’s no doubt, of course, that the Executive does have some inherent authority to act without legislative imprimatur, in areas like foreign affairs. But those are expressly granted powers, or they’re necessarily implied. For instance, the duty to take care that the laws are faithfully executed necessarily implies the ability to hire staff, promulgate regulations for managing staff , law enforcement practices, etc. This is all quite different than filling in bookend silence, a free-floating power to extend statutory prohibitions beyond the express scope laid out by Congress, simply on the basis that Congress hadn’t said “here and no farther.”

In law as in life, silence can be a virtue. But federal agencies can turn it into a vice. That depends on the kind of silence we’re talking about. Conflation of crib-slat silence and Schechter silence or bookend silence has resulted in a flaccid judicial response to delegations of lawmaking authority. It would help if courts acknowledged distinctions between the types of silence statutes exhibit.

Liability Rules!

“The union representing Buffalo police officers told its rank and file
members Friday that the union would no longer pay for legal fees to
defend police officers related to the protests…”

From Buffalo News.

This could be excellent news (at least in Buffalo). The threat of lawsuits means police will either be on their best behavior or won’t show up to work.

Paid Sick Leave and Schelling Focal Points

Paid sick leave is something I want more people to have. Of course it’s a good thing. Sick leave is valuable, but it’s not free so we have to ask it it’s worth it.

Right around the 11:30 mark is a tragic and hilarious line: “Dildos are not essential items. Books for kids, yes, but dildos? … No!” Good for John Oliver noting that deciding what is essential isn’t straight forward–apparently frivolous things might keep people inside and so serve the public health.

This is a classic Austrian point: prices (are supposed to) communicate information about how urgently people want a product. We run into trouble trying to prevent prices from reflecting the underlying economic crappiness of a crisis. Price gouging should be allowed for toilet paper and especially for grocery/Amazon workers. And the price of grocery workers should be passed on to consumers.

What we’ve got now requires each of us to not only ask “am I willing to pay this price?” but also engage in a moral calculus that is hard. I have to ask (as a person striving to be moral) if it’s really worth ordering X, Y, and Z from Amazon. But as a person who has to strive to be moral, it’s entirely too easy to fall for bad rationalizations.

So how do we help these essential-yet-replaceable* workers? Paid sick leave sure sounds good. And given the externalities involved in a pandemic, there’s a strong argument for mandating it.

But it’s worth remembering (particularly as a long run policy) that if we push on one part of a compensation bundle, something’s going to give. If we require employers to provide a company car (or simply encourage company cars through preferential tax laws), we shouldn’t be surprised to see monetary compensation fall. The same logic applies to paid sick leave.

But I’m my own devil’s advocate, so let me make a counter argument. I rarely use my sick days. I think I’ve taken 2 or 3 in the last 6 years. (I’m absolutely reevaluating that position now!) There’s this idea floating around in the back of my head that tells me to just tough it out and keep working. This isn’t because I carefully weighed pros and cons, it’s just received “wisdom” picked up by osmosis from the broader culture.

American culture values work over value. There’s no shortage of bullshit work because we’re in a work-too-hard equilibrium. This is not to say that hard work doesn’t have benefits. I’m happy when ambitious entrepreneurs work “too” hard to provide greater value. But there are a lot of cases where we create work for its own sake (especially in the higher ed racket, but apparently we’re not alone).

Essentially, we’re all playing a coordination game where we choose between “[appear to] work to make things better” and “stay home instead of passing your illness to other people.” Given American work culture, the Schelling focal point is <work, work>.

On the compensation end of things employers have to decide between offering more sick leave or some other compensation (like money). In this end, there is some benefit to zigging where other employers zag. If I’m running the only business to offer paid paternity leave, I get my pick of the best family-oriented workers while my competitors have to outbid each other to get the best of the other workers. But any mid-level HR manager is more likely to play the risk-averse strategy of following “best practices.”

So we’re in an equilibrium that underrates sick leave. We want to be in an equilibrium where it’s just good business sense to offer sick leave during a global pandemic. But coming from our current equilibrium, offering sick leave is a costly decision to privately provide a public good; it’s unlikely to happen unless the culture already promotes it.

I think we can get that equilibrium. I think we’re already moving towards it (ask yourself: would the board of the East India Company be more likely to offer sick leave than Amazon?). But we’re not there yet.

Paid sick leave should be good business sense right now**. But it depends on a culture where such behavior is widespread. I’m not convinced we could flip a switch and get that culture over night. Given that, I’m at least somewhat okay with contradicting my libertarian priors and calling for emergency mandates for paid sick leave. 2020 America isn’t likely to coordinate on the “right” short-term solution and coercion is probably the most efficient*** way to deal with this common pool problem. But outside of a public health emergency we shouldn’t allow top down mandates about the mix of compensation offered in markets (certainly not with the sort of people we elect to be on top).


(A couple rhetorical points: First, John Oliver isn’t speaking the language of those on the right. They won’t even be convinced that the issues he’s talking about are important. I think that’s a shame. Second, this is a tough time to try to argue against paid sick leave. In 2020 America, mandatory paid sick leave is probably required because we’re at the wrong Schelling point. Again, I don’t think conservatives or right-libertarians will find Oliver’s motivations convincing, but I believe that they could be persuaded. But that’s another blog post.)

(Two important counterpoints to the above: first, price increases hurt the poor. The way to solve that is to give charity money to the poor, not to try to make markets communicate information about relative scarcity and act as charity–that’s half-assing twice and it’s bound to be more inefficient than the charity would be costly. Second many people categorized as “essential” aren’t in a position to demand higher wages*. I don’t have an easy solution to this issue. Let’s talk about it in the comments.)

*Which is to say, workers who are in the same position as water in the diamond-water paradox.
**Not to say it would be cheap or easy.
***There you go. Now my friends on the left can accuse me of being a bloodless economist for opposing paid sick leave in general, and my friends on the right can accuse me of being a bloodless economist for supporting

Religious speech gets shorted again

Today, the U.S. Supreme Court denied a petition asking whether a transit authority can reject a Christmas ad for display on its buses just because the ad is religious. This is an easy question, and it’s a shame the Court denied the petition. Justices Gorsuch and Thomas, though, did write a short consolation prize, saying what they would have said if they granted the case: namely, the government can’t discriminate against a religious viewpoint on a topic while allowing other non-religious viewpoints.

The sides of buses are a frequent and heated battleground for free speech. Transit authorities often draw revenue by selling blank space on their buses. In this case, Archdiocese of Washington v. Washington Metropolitan Area Transit Authority, the Catholic Church tried to place a Christmas ad on D.C. buses with the silhouettes of a few shepherds and the phrase “Find the Perfect Gift.” The transit authority rejected the ad.

    The key fact here was that the transit authority allowed other ads about Christmas. All the parties, and the various courts, agreed that Christmas has a “secular” component and a “religious” component. Hence, Wal-Mart and Macy’s and every other retailer could slap their ads on buses across the metropolitan area clamoring about how to celebrate the holiday (by buying their stuff). But a religious advertiser could not express their views on how to celebrate the holiday in that same space, the only difference being the religious nature of the content.

    The Supreme Court has repeatedly stated in other settings that similar restrictions constitute viewpoint discrimination. If the government allows speech on a particular subject matter, it cannot then restrict speech on that topic simply because the viewpoint is religious. That’s true even if the proposed speech drips with religious sentiment–such sentiment deserves equal footing under the First Amendment.

    This isn’t to say that D.C. buses can now be overrun with religious zealotry. D.C. could lawfully limit advertisements to only commercial ads (they don’t). And of course they could always just forego the revenue and say no ads at all. But if the government opens up a space for expression, it must do so even-handedly.

    Life

    Screenshot 2020-03-26 at 12.15.15

    No matter how old, frail or vulnerable it may be, a life isn’t something to take or risk at another’s discretion. Nor does it undermine culpability when someone dies as a result of negligence. The common law ‘eggshell skull’ rule reflects this moral principle.

    During the Coronavirus pandemic, some erstwhile defenders of the famous Non-Aggression Principle (NAP) appear to have forgotten that natural rights are conceived to protect life as well as liberty and property. They seem to think that the liberties we ordinarily enjoy have priority over the right to life of others. The environment has changed and, for the time being, many activities that we previously knew to be safe for others are not. They are not part of our set of liberties until a reformed set of rules, norms and habits establishes a sufficiently hygienic public environment. To say that bans on public gatherings violate natural rights a priori is as untenable as G.A. Cohen’s claim that a prohibition on walking onto a train without a valid ticket is a violation of one’s freedom.

    The clue for anarcho-capitalist state-sceptics that this is a genuine shift in social priorities is that even organized criminal gangs are willing to enforce social distancing. You do not have to believe that the state itself is legitimate to see that the need for social distancing is sufficiently morally compelling that it can be enforced absent free agreement, just as one does not need free agreement to exercise a right to self-defense.

    Not every restriction is going to be justified, although erring on the restrictive side makes sense while uncertainty about the spread of infection persists. Ultimately, restrictions have to balance genuine costs with plausible benefits. But rejecting restrictions on a priori grounds does not cohere with libertarian principles. Right now, our absolute liberties extend to the right to be alone. Everything else must be negotiated under uncertainty. Someone else’s life, even two-weeks or so in the future, is a valid side-constraint on liberty. People can rightfully be made to stay at home if they are fortunate enough to have one. When people have to travel out of necessity, they can be temporarily exempted, compensated or offered an alternative reasonable means of satisfying their immediate needs.

    Seattle’s landlord regs at the Supreme Court

    Landlords in Seattle must rent to the first person to walk in the door, so long as they check out on paper. This “first-in-time” rule has slogged through several years of litigation over whether the rule violates landlords’ constitutional rights (full disclosure–I represent the plaintiffs). That case, called Yim v. City of Seattle, has now crescendoed with a petition to the United States Supreme Court. The Court should seize the chance to decide two pressing questions about the Constitution’s role in protecting property rights: (1) if regulation destroys a fundamental attribute of property ownership–like the right to exclude, or the right to sell–does the regulation result in a taking that requires compensation? and (2) if a regulation is “unduly oppressive” of individual rights, does it violate due process?

    The first-in-time rule is something of a novelty. The rationale behind the rule is to prevent implicit bias; a landlord can’t unconsciously discriminate if she doesn’t have any discretion to decide whom to rent to. Hence, the rule allows landlords to set pre-established criteria, though all criteria must have minimum thresholds (i.e., minimum credit score). The landlord cannot thereafter deviate from that criteria and must simply rent to the first person who qualifies, even if ten or fifteen applicants check all the boxes. After the landlord rents to the first comer, the lucky winner has 48 hours to sit on the offer, after which time the offer moves on to the next person in line.

    The bottom line is that landlords can no longer make common-sense judgment calls about who will live on their property. The practical challenges that result are daunting, for small landlords in particular. A landlord cannot, for instance, deny an applicant because they feel threatened or unsafe when an applicant tours a unit. That’s a big deal for plaintiff Kelly Lyles, a single woman and sexual assault survivor. Or for MariLyn Yim, who owns a triplex and lives in one of the units with her husband and kids. They share a yard and common spaces with their tenants–compatibility and safety are key. And some of the Yims’ units have roommates, where the ability to select people that will get along and feel comfortable with each other is essential. But basic discretion is out the window with first-in-time. If Lois Lane advertises the fortress of solitude for rent and Lex Luthor shows up with his spotless credit score and seven-digit income, she’s out of luck.

    And renting property often involves a give-and-take negotiation that’s no longer possible under the rule. Tom Riddle’s credit score is shabby, but he offers a two-year lease instead of one to make his application more appealing. Not under first-in-time. Pam Isley offers to do landscaping if the landlord drops rent by $50 a month. Nope. Nor can landlords offer leniency by deviating from their criteria because they want to give a second chance to someone down-and-out.

    MariLyn Yim and Kelly Lyles sued on the theory that removing everyday discretion in this manner constitutes an unconstitutional taking and a violation of due process. They won at trial and lost before the Washington Supreme Court. Now, the questions they bring to the Supreme Court’s attention raise some fundamental questions about the Fifth Amendment’s takings clause and the Fourteenth Amendment due process guarantee.

    The plaintiffs argue that a taking occurs when regulation destroys a fundamental attribute of property ownership. They invoke a well-known metaphor in property law: the “bundle of sticks.” Property is not really a single right–it’s a bundle of various rights that a person has with respect to a physical thing, such as the right to exclude others, the right to use the property, to occupy it, to sell it, and so on. Plaintiff’s theory is that each of these “sticks” in the bundle is entitled to independent constitutional protection; when one of those sticks is destroyed by regulation, that constitutes a taking of property as surely as a seizure of land. In this case, plaintiffs argue that denying them the right to decide who will occupy their property destroys their right to sell property to the person of their choosing and their right to exclude people not of their choosing.

    This is an important and uncertain question under the Fifth Amendment. The Supreme Court has held in the past that a taking occurred where various attributes of property ownership were destroyed. For instance, when the United States required a marina to open a private lagoon to the public, the Supreme Court held a taking occurred because the government had destroyed the right to exclude, “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” Likewise, the Supreme Court held that a taking occurred when Congress prohibited owners of tribal lands to pass on the property to their heirs, which was a “total abrogation” of a right that “has been part of the Anglo-American legal system since feudal times.”

    The trouble is, though, that some other decisions of the Supreme Court can be read to refute this approach to takings. Hence, the city of Seattle argues that these takings precedents don’t represent the current state of takings law. This question thus presents an important opportunity for the Court to clarify the scope and meaning of the Fifth Amendment.

    The second issue is no less compelling: does the oppressive impact of a law bear on whether it satisfies due process? The federal courts tend to answer yes, while a large number of state courts answer no. The Fourteenth Amendment’s due process clause imposes, at minimum, a floor of rationality–a law must be rationally related to a legitimate government interest. The question raised in the Yim petition asks the Court to address whether an unduly oppressive means (obliterating discretion) of achieving a legitimate government purpose (preventing discrimination) satisfies this threshold of rationality. The Supreme Court has repeatedly held that a law’s oppressive nature bears on whether the law is arbitrary or irrational. That is, a government has no legitimate interest in imposing oppressive laws on its people, and the use of oppression to achieve an otherwise legitimate government interest is arbitrary and irrational, in violation of due process.

    The Washington Supreme Court, however, held that the U.S. Supreme Court had implicitly overruled this “unduly oppressive” analysis. It also overruled a whopping 61 of its own cases recognizing and applying this “unduly oppressive” test–so many that it provided a separate index of cases fed through the shredder. By joining a growing number of states that refuse to recognize that an unduly oppressive law violates the rational basis test required by due process, the Washington Supreme Court has teed up an important issue that warrants the U.S. Supreme Court’s attention.

    These questions will grow in significance as government control of the rental market expands. Since enacting first-in-time, for instance, Seattle has imposed a ban on criminal background checks, a ban on winter evictions, a requirement that landlords rent to a tenant’s choice of roommate, and more. Other cities are enacting similar restrictions on landlord control over their own property. The U.S. Supreme Court should address the pressing constitutional questions that such regulations raise.

    Coronavirus and takings

    City governments are flirting with a ban on evictions during the coronavirus pandemic. I doubt, however, that doing so comports with the Constitution’s takings clause or, perhaps, the contracts clause.

    San Jose has introduced legislation that will ban evictions due to un/underemployment resulting from coronavirus. Seattle’s socialist firebrand, Kshama Sawant, calls for similar action. Her letter, though, betrays the truth behind many proposed emergency measures–she’s leveraging the crisis to further her political agenda, particularly her hatred of capitalism. In the letter, she froths: “The status quo under capitalism is deeply hostile to the majority of working people, and it would be unconscionable to place the further burden of the Coronavirus crisis on those who are already the most economically stressed.” Never mind that the status quo in the absence of capitalism would be grinding poverty.

    But, in any case, the proposal to ban evictions and force landlords to renew leases as the pandemic sweeps across the states raises serious constitutional concerns. Even in times of crisis, observance of constitutional norms remains essential. In part, this is because laws passed as emergency measures tend to hang about long after the emergency subsides. New York rent control began as a wartime measure, for instance, and that curse still plagues the New York rental market. The other reason, of course, is that the Constitution is built for just these moments. The pressure to invade rights, after all, comes when things are not going well. As Justice Sutherland once put it, “If the provisions of the Constitution be not upheld when they pinch, as well as when they comfort, they may as well be abandoned.”

    Forcing landlords to either renew leases or forego eviction for lease violations likely raises at least two constitutional problems: takings and impairment of contractual obligations. While such laws don’t literally seize property, they effectively impose a servitude on landlords’ property, stripping them of control over the disposition and occupation of their land. When an essential attribute of property ownership is destroyed by regulation in this manner, the government must offer compensation. We already know this compensation requirement applies during national emergencies. During World War II, for instance, the Supreme Court held that the United States had to compensate property owners and leaseholders when it temporarily seized factories for wartime production.

    The contract clause problem is also straightforward: barring landlords from enforcing lease terms impairs obligations under pre-existing contracts. The contracts clause, though, has been severely undermined in recent decades, such that a showing of a compelling interest like mitigating the impact of the pandemic may well satisfy the flaccid demands of the modern contracts clause.

    It may seem profoundly harsh to impose constitutional constraints on governments trying to resolve a crisis. But three things ought to be kept in mind.

    First, an emergency certainly means that some will face a heavy burden, but that fact tells us nothing about how that burden should be allocated. Why should landlords bear the costs? Indeed, As the Supreme Court said in Armstrong v. United States, the takings clause exists to avoid imposing societal burdens on specific individuals: “The Fifth Amendment’s guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”

    Second, we should keep in mind that lease agreements already account for risk. That’s baked into the price and terms that give rise to a mutually agreeable arrangement between parties. To simply allow one party to slip out of the terms of the lease distorts that arrangement.

    Third, the takings clause does not bar emergency measures, including the seizure of property, but only upon just compensation. No exigency should excuse cities like San Jose or Seattle from compensating for the costs they’re hoisting upon landlords. And in the case of the contracts clause, the government could still honor existing leases by acting as a guarantor for tenants who can’t pay the rent.

    All of these points apply to a world in which landlords do not voluntarily exercise leniency. But I think we’ll find that most landlords are forgiving during a temporary crisis. Most landlords have an extreme aversion to evicting tenants–it’s the nightmare, last-ditch option that they try hard to avoid. That, plus the simple dose of compassion that many landlords will feel inspired to offer, may do more toward helping see us through than any emergency measures.