Law

Law and Liberty: Hobbesians vs Rechtsstaaters

Federico Sosa Valle Law , , , , , ,

Individual freedoms are tethered to law, but in what sense? We could call Hobbesian the insight into law and liberty which states that norms are addressed by the sovereign power to the individuals. The Sovereign is the only one who prescribes the law, being the individuals subject to the legal obligation. Even the limitations to the power of the government in the face of fundamental rights – such as the Due Process – are not expressed in terms of limits to the sovereign power but of commands to the public servants: for example, the imprisonment of an individual without accomplishing the legal standards of Due Process allows the government’s agents to punish their unlawful colleagues. The law is always addressed, in the last resort, to an individual by the State.

Proponents of individual liberty thus advocate equality before the law, which means simply “only one state for everyone,” or “individual rights before the state.” Examples include the said guarantee of Due Process, or a system of check and balances among the branches of the government as safeguards against arbitrary coercion by the State. However, they all have a severe difficulty in defending individual liberties without recourse to an extra-system concept, such as natural law, moral duties, or political statements. The emphasis in formal legal procedures would be the utmost in coherence between liberalism and Hobbesianism, but it is easy to slide from procedures that protect individual legal rights to devices assuring the enforcement of the law – which has the individual as its last subject. It seems it is hard to restrain oneself from invoking metaphysical rights when it comes time to advocate individual liberty.

Nevertheless, it should not be surprising that every limit to political power of the State over the individual depends on metaphysical notions, since it is a tenet of the Hobbesian insight that the power of the State is absolute. Moreover, the Minimal State – a true effort to advocate individual liberty without resting on metaphysical notions – owes to Thomas Hobbes its main inspiration.

Historical evidence suggests, however, that in the relation among power, law and liberty is the other way round. The development of common law in England and the phenomenon of the reception of the Roman law in Continental Europe show that law is not necessarily created ex nihilo by the State. The State could provide enforcement to a given system of law, as it is shown in the book System of the Modern Roman Law (System des heutigen Römischen Rechts), by F. K. v. Savigny. Moreover, the States could adapt legal notions originating in private law to elaborate procedures to follow in the public sphere. The principle “venire contra factum proprium non valet” was born in private law and today is a guarantee to the individual against the arbitrary action of the State.

This is the process of rationalization of power described by Max Weber, the German concept of Rechtsstaat or the widely known concept of “Rule of Law.” In that process of rationalization, lawyers outshone the sages, the mandarins, and the humanists in the administration of public affairs by incorporating legal procedures and principles taken from private law. There might be differences among these concepts and historical events, but their common invariances allows us to get the gist.

There is, also, an evolutionary case for the relative advantages of a Rechtsstaat over the notion of sovereignty. In the former the decisions are principle-based while in the latter they are mostly taken by expediency. Since the said principle of venire contra factum proprium non valet and other legal procedures constrain rulers’ whims, government actions are more rational, in the sense of transitivity of preferences.

Thus, in the long run, the performance of the Rule of Law is higher than the Rule of Men. Lawyers outshine mandarins in government posts and, in turn, governments run by lawyers outperform governments run by mandarins. One device to switch from a given form of State to another one is, for example, immigration: people flock to countries where the Rule of Law prevails.

What we have called the Hobbesian insight into Law and Liberty is tied up with the definition of liberty as power. Thus, the equation of law and liberty becomes a zero-sum game: the more state, the less individual liberty, and the less state, the more individual liberty. On the other hand, the definition of individual liberty as absence of arbitrary coercion engages with the concept of Rule of Law: to substitute principles for expediency reduces arbitrary coercion and, thus, enlarges individual liberty.

Does this Rechtsstaat insight into Law and Liberty dissolve the question about the dimensions of the State? Not at all. But it provides a more strategic view: a big State will demand more decisions to be taken on expediency. A small state will provide two advantages to the enjoyment of individual liberty as absence of arbitrary coercion: more decisions based on principles and a larger space for the law to evolve by its own and discover new legal principles in response to the constant changes in the society.

But even if the conclusions might be the same (a smaller State), the two insights carry within them a set of premises that ineluctably will unravel by themselves when it comes the time of a deeper controversy. Then, the Hobbesian Insight will present the disjunction between Minimal State and metaphysical boundaries to the absolute power of the State. The Rechtsstaat strain, instead, will provide a humbler but subtler position.

A feast of classical liberal thought: Mont Pelerin Society in Stockholm

Edwin van de Haar Comments, Current Events, History, Law, Liberty, Philosophy , , ,

Last week, Stockholm hosted a special meeting of the Mont Pelerin Society (MPS) on the populist threats to the free society. MPS meetings are held under Chatham House rules, which means I cannot report in any detail about the proceedings. Yet a few impressions can be shared.

I have been a MPS member since 2010, when my nomination was accepted at the end of the general meeting in Sydney. In those days the old rules still applied, which meant you had to attend three meetings before you could be nominated for membership. However, this strict rule led to the erosion of the membership base (the MPS was literally starving out), so the rules to join as a member have been made easier.

My first MPS meeting was in Guatemala City, in 2006. I had participated in the essay contest for young scholars which is always organized in the run-up to the bi-annual General Meetings. As a runner-up I won free entry to the meeting. I happened to be in the south of the USA in the weeks before, doing PhD research at the Mises Institute in Alabama, so could easily make the trip to Central America. Because I lived in Manila during those years, I could also easily attend the 2008 meeting in Tokyo.

I had are number of reasons for wanting to join the MPS. First of all, the quality of the meetings offer a great chance to listen to and speak with the leading scholars within current classical liberalism. Increasingly multidisciplinary (back in the old days the economists dominated), the programme committees of the MPS Meetings always succeed in attracting an impressive crowd of high quality speakers and commentators from across the globe. I always find this a great intellectual treat. Second, the meetings are characterized by extremely pleasant and open atmospheres. Everybody mingles with everybody, you can talk with everybody, no matter your age, or academic background. Thirdly, the meetings take place across the globe, so they offer a great opportunity to travel and see places. Although it must be added that even when you do not stay at the conference hotel, the meetings are never very cheap, so it remains an investment. Fourth, for a Hayekian like myself, it feels very good to be a member of the society founded by the master himself, which had and has such an illustrious membership, ever since its beginnings 70 years ago.

Besides the big one week General Meetings held every two years, there are shorter regional or special meetings in the other years. Last week’s MPS meeting in Stockholm was a special meeting, very well-organized by the Ratio Institute. The theme was discussed from numerous angles, through sessions on Russia’s foreign policy, the economic issue of secular stagnation, or the danger of political Islamism. Two sessions were focused on new classical liberal ideas to counter the threats. At the opening day there was a session for young scholars to present papers. This was of course also a way to attract new talent and interest in the MPS. And at the end of the second day there was something different: beer tasting while listening to Johan Norberg. A rather splendid combination!

The speakers and commentators were high level, including MPS chair Peter Boettke (George Mason), David Schmidtz (Arizona), Deirdre McCloskey (Illinois), John Tomasi (Brown), Leszek Balcerowic (former president of Poland’s Central Bank), Russia specialist Anders Aslund, German thinker Karen Horn, Jacob Levy (McGill), Mark Pennington (Kings College London), Paul Cliteur (Leiden), Amigai Magen (Hoover Institution), and the energetic Ralf Bader (Oxford). A lineup like this guarantees a number of new insights, solid arguments, and general intellectual stimulus. Many answers were provided, yet in true academic fashion, many questions remain.

While well represented in this program, International Relations are normally a minor topic at MPS meetings, and there are not many IR scholars around (nor are sociologists or legal scholars, by the way). Personally I am convinced that the future appeal of classical liberal thought also relies on taking into account world affairs. So there is a need to keep on writing and publishing about it, to expand the basis for thought, also in the MPS. To hear about the concerns and insights of other classical liberals in other disciplines helps my thought process, besides remaining up to speed with current classical liberal issues in general.

So it was a great meeting again, And for all you young scholars out there: if you are interested make sure to regularly check the MPS website (www.montpelerin.org) to see if there are opportunities to participate in one of the upcoming meetings.

Rules for Rulers

Rick Weber Economics, Law, Liberty , , ,

Watch to the end for details about the book (by Bruce Bueno de Mesquita and Alastair Smith) this video is based on.

  1. I think readers of NoL will enjoy this nicely condensed public-choice-y analysis of the constraints involved in operating (and thus changing) a government.
  2. The audiobook is available on Overdrive, so you can borrow it from your library. I’m just started listening to it and I’m enjoying it immensely.
  3. I suddenly found myself as the benevolent dictator of some country. My long-term objective is to shape my society into a libertarian utopia. Here’s my plan to deal with the constraints discussed in the video: all of my advisors are required to play devil’s advocate when I propose some change. Yes-men will be summarily executed. Assuming I stay benevolent but also ruthless, does my devil’s advocate scheme work out? Please discuss in the comments. Anyone who doesn’t earnestly try to poke holes in my idea will be sent to the work camps.

A short note on ideological neutrality

Brandon Christensen Law, Liberty , , ,

William‘s excellent post on dishonesty reminded me of an equally excellent post by John McGinnis over at Liberty Law Blog on the ACLU and free speech. The post ended, though, with the following sentence:

It would be a tragedy for our nation if the ACLU’s decision begins to dissolve the strong social fabric supporting the ideologically neutral First Amendment.

Ach. There is nothing neutral about the First Amendment. It’s a law based on liberal ideology. The idea of free speech is based on liberal ideology. The other ideologies out there pay great lip service to free speech, but there’s no First Amendment in the post-colonial states of Africa and Asia. Free speech is trumped by an ambiguous form of censorship called “hate speech” in other OECD countries (Western Europe, Australia-New Zealand, Japan). There is no First Amendment in Russia or China or Venezuela.

Liberalism is the only ideology out there that actually encourages rival ideologies to attack it, not with provocative laws but with one specific law that allows all factions the same space for their platform. The First Amendment is not neutral at all; it is instead an aggressive flaunting of liberalism’s staying power and ability to deliver freedom.

When libertarians start thinking of their preferred values as “neutral” or “centrist” they begin to echo the Left, which has been dishonest with itself for the past 45-50 years. That’s a road I’d hate to the movement plod through.

Cycling in Amsterdam

Aside Rick Weber Culture, Economics, Law, Liberty , , ,

I just got back from a week in London and a week in Amsterdam. Probably the most striking thing I encountered was the wonderful dutch cycling culture. Any transit system involves some implicit negotiation between motorists, pedestrians, and others. On Long Island the motorists won. In Amsterdam, cyclists won.

I’m on a bit of a Dutch cycling high, despite only spending about 2 hours on 2 wheels while in Amsterdam. The dutch take their bicycles seriously and they shape their environment to that end. The Airbnb I stayed at had frontage on a bicycle road but no direct access to a motorway. I’m not 100% on this, but I think the Netherlands’ liability laws make the faster vehicle strictly liable for accidents which serves as an implicit subsidy for bikes.

100_4514
A typical Dutch cycle path

Here are some things I like about this culture:

  • The engineering. I really like the way they do bike locks… nearly every bike has a built in lock that disables the rear wheel. Most of these locks also have a chain to lock the bike to a fence, but that chain locks with the same key for the rear wheel.
  • It encourages enough density to get people interacting with each other, but still expands your plausible travel distance. They’ve got a nice balance between closeness and congestion.
  • It’s easier on the environment (excluding the costs of building bikes and bike roads).
  • Light physical exercise feels great.
  • The infrastructure involved in managing bike traffic is pretty minimal. Speeds are slow enough that human judgement works well outside of the busiest areas.

Why should libertarians care? Well, most of them probably have better things to focus on. But those of us living in or near dense cities, this is an example of a way of life that fits nicely with our broader goal of a peaceful, prosperous, liberal order. If Manhattan tried to be more like Amsterdam it could be a huge boon (I think… based on my preferences and zero scientific analysis) to human flourishing.

Inventions that didn’t change the world

Kevin Kallmes Books, Culture, Economics, History, Law, Liberty, Politics , , , , , , , ,

Have you ever learned about an amazing invention–whether it was the Baghdad battery or the ancient Roman steam engine or Chinese firecrackers–and wondered why it didn’t do more to change the world? In this podcast, we examine a selection of curiosities and explore hypotheses for why their inventors didn’t use them to full effect.

We move VERY quickly through a range of fascinating examples and hypotheses, and therefore leave a lot up to discussion. We hope to see your thoughts, feedback, and additions in the comments section!

For any invention that you want to learn more about, see the links below:

Knossos’ toilets

In the 2nd millennium BC, a “palace” (now thought to be a building that served as administrative, trade, and gathering hub) had running-water toilet flushing. Much like the Roman Cloaca Maxima, likely a HUGE public-health benefit, but basically died out. Does this show that military protection/staving off the “Dark Ages” was the only way to maintain amazing inventions?

Link: http://www.nature.com/news/the-secret-history-of-ancient-toilets-1.19960;

The Nimrud lens

Whether it was a fire-starter, a magnifying glass, or (for some overeager astronomy enthusaists), the Neo-Assyrian ground-crystal Nimrud lens is an invention thousands of years out of place. While the Egyptians, Greeks, and Romans all used lenses of different sorts, and glass-blowing was certainly popular by the 1st century BC in Roman Egypt, no glass lenses were made until the Middle Ages and the potential scientific and engineering uses of lenses–that can hardly be understated even in their 16th-to-18th-century applications–had to wait another couple millennia. Many devices like the Baghdad battery and Antikythera device are heralded for their possible engineering genius, but this seems like a simple one with readily available applications that disappeared from the historical record.

https://en.wikipedia.org/wiki/Nimrud_lens

Hero of Alexandria’s steam engine

In the 1st century AD, Hero was a master of simple machines (that were mostly used for plays) and also invented a force pump, a wind-powered machine, even an early vending machine. However, he is likely most famous for his Aeolipile, a rotating steam engine that used heated water to spin an axle. The best attested use of this is for devotion to the divine and party tricks.

https://en.wikipedia.org/wiki/Aeolipile

The ancient mechanical reaper

Ancient Gallo-Romans (or just Gauls) invented a novel way of grain harvesting: rather than using sickles or scythes, they used a mechanical reaper, 1700 years before Cyrus McCormick more than tripled the productivity of American farmers. This antiquated device literally but the cart before the oxen and required two men to operate: one man to drive the beasts, and another to knock the ears off the stalk (this reaper was obviously far less sophisticated than McCormick’s). This invention did not survive the Volkswanderung period.

http://www.gnrtr.com/Generator.html?pi=208&cp=3

http://reapertakethewheel.blogspot.com/2013/03/impacts-of-invention.html

Note: the horse collar (which allowed horses to be used to plow) was invented in 1600-1400 BC in China AND the Levant, but was not applied widely until 1000 AD in Europe. https://en.wikipedia.org/wiki/Horse_collar.

Inoculation

Madhav, an Indian doctor, compiled hundreds of cures in his Nidana, including an inoculation against smallpox that showed an understanding of disease transmission (he would take year-old smallpox-infected flesh and touch it to a recently made cutaneous wound). However, the next 13 centuries did not see Indian medical understanding of viruses or bacteria, or even copied techniques of this, development. https://books.google.com/books?id=Hkc3QnbagK4C&pg=PA105&lpg=PA105&dq=madhav+indian+smallpox+inoculation&source=bl&ots=4RFPuvbf5Y&sig=iyDaNUs4u5N7xHH6-pvlbAY9fcQ&hl=en&sa=X&ved=0ahUKEwic8e-1-JXVAhUp6IMKHfw3DLsQ6AEIOjAD#v=onepage&q=madhav%20indian%20smallpox%20inoculation&f=false

At least, thank god, their methods of giving nose jobs to those who had had their noses cut off as a punishment survived: https://en.wikipedia.org/wiki/History_of_rhinoplasty

The Chinese:

List of all chinese inventions:

https://en.wikipedia.org/wiki/List_of_Chinese_inventions#Four_Great_Inventions

Gunpowder

Gunpowder was discovered by Chinese alchemists attempting to discover the elixir of life (irony, no?)

https://www.thoughtco.com/invention-of-gunpowder-195160

https://en.wikipedia.org/wiki/Four_Great_Inventions

(maybe a good corollary would be Greek fire, which was used effectively in naval warfare by the Byzantines, but which was not improved upon and the recipe of which is still secret: https://en.wikipedia.org/wiki/Greek_fire)

Printing

The Chinese invented the printing press possibly as early as the 6th century. However, unlike the explosion of literacy seen in much of Europe (particularly Protestant Europe–see our last podcast), the Chinese masses never learned to read. In fact, in 1950 fewer than 20% of Chinese citizens were literate. Compare this to Europe, where some societies saw literacy rates of as high as 90% (Sweden, Male population) in some societies within a few centuries of the introduction of the printing press. Why? There may be several reasons–cultural, religious, political–but in our opinion, it would have to be the characters: 100,000 blocks were needed to create a single set.

http://www.nytimes.com/2001/02/12/news/chinas-long-but-uneven-march-to-literacy.html

https://en.wikipedia.org/wiki/History_of_printing_in_East_Asia

They also invented pulped paper by the 2nd century BC: https://en.wikipedia.org/wiki/List_of_Chinese_inventions.

The compass

Invented by 200 BC for divination and used for navigation by the Song dynasty; despite this and the availability of easily colonizable islands within easy sailing distance, the Chinese did not colonize Indonesia, Polynesia, or Oceania, while the Europeans did within the century after they developed the technology and first sailed there.

https://en.wikipedia.org/wiki/History_of_the_compass.

The rudder

While they did not invent the rudder, they invented the “medial, axial, and vertical” sternpost rudder that would become standard in Europe almost 1,000 years before it was used in Europe (1st century AD vs 11th century).

Natural gas

The Chinese discovered “fire wells” (natural gas near the surface) and erected shrines to worship there.

https://link.springer.com/referenceworkentry/10.1007%2F978-1-4020-4425-0_9568

They even understood their potential for fuel, but never developed beyond primitive burning and bamboo piping despite having advanced mining techniques for it by the 1st century BC.

Chinese miscelleni:

Hydraulic powered fan: https://en.wikipedia.org/wiki/Fan_(machine)#History

Cuppola furnace for smelting and molding iron: https://en.wikipedia.org/wiki/Cupola_furnace.

Coke as a fuel source: https://en.wikipedia.org/wiki/Coke_(fuel).

Belt-drive spinning wheel: https://en.wikipedia.org/wiki/Coke_(fuel).

The Precolumbian wheel

The pre- and early Mayans had toys that utilized primitive wheels, but did not use them for any labor-saving purpose (even their gods were depicted carrying loads on their backs). This may have been because scaling up met with mechanical difficulties, but the potential utility of wheels in this case with a bit of investment literally sat unrealized for centuries.

https://tcmam.wordpress.com/2010/11/11/did-pre-columbian-mesoamericans-use-wheels/

The Tucker:

http://www.smithsonianmag.com/history/the-tucker-was-the-1940s-car-of-the-future-135008742/

The following book contained some of our hypotheses:

https://books.google.com/books?id=ynejM1-TATMC&pg=PA399&lpg=PA399&dq=roman+and+greek+labor-saving+devices&source=bl&ots=BI6GVGTrxC&sig=8ZJqirOVUyjH7TNq0fcW6UUPn1k&hl=en&sa=X&ved=0ahUKEwj55O7395XVAhVqwYMKHSb2Dy4Q6AEIKTAB#v=onepage&q=roman%20and%20greek%20labor-saving%20devices&f=false

 

The rest of our hypotheses were amalgamated from our disparate classes in economics and history, but none of them are our own or uncommon in academic circles. Thanks for listening!

Freedom of Conscience and the Rule of Law

Federico Sosa Valle History, Law, Liberty , , , , , , , ,

Of course the concept of “freedom of conscience” was forged in Europe by Spinoza, Locke, Voltaire, John Stuart Mill, and many other philosophers. But the freedom of conscience as an individual right that belongs to set of characteristics which defines the rule of law is an American innovation, which later spread to Latin America and to the Old Continent.

This reflection comes from the dispute which has been aroused in Notes On Liberty about the Protestant Reformation and freedom of conscience. Now, my intention is not to mediate between Mark and Bruno, but to bring to the Consortium a new line of debate. What I would like to polemize is what defines which rights to be protected by the rule of law. In this sense, might we regard a political regime that bans freedom of conscience as based on the rule of law? I am sure that no one would dare to do so. But, instead, would anyone dare to state that unification of language in a given country hurts the rule of law? I am afraid that almost nobody would.

Nevertheless, this is a polemical question. For example, the current Catalan independence movement has the language of Catalan as one of its main claims, so tracing the genealogy of the rights that constitutes the concept of rule of law is a meaningful task —and this is why the controversy over the Protestant Reformation and the origin of Freedom of Conscience at NOL is so interesting.

Before the Protestant Reformation, the theological, philosophical, scientific, and political language of Europe was unified in Latin. On the other hand, the languages used by the common people were utterly fragmented. A multiplicity of dialects were spoken all over Europe. The Catholic Kings of Spain, for example, unified their kingdom under the same religion, but they did not touch the local dialects. A very similar situation might be found in the rest of Europe: kingdoms with one religion and several dialects.

There was a strong reason for this to be so. Before the Medieval Ages Bibles in vernacular had existed, but the literacy rate was so low that the speed of evolution and fragmentation of the dialects left those translations obsolete and incomprehensible. Since printing books was extremely costly (this was before the invention of  the printing press), the best language to write and print books and constitutional documents was Latin.

The Evangelical movement, emerged out of the Protestant Reformation, meant that final authority of religion was not the Papacy any more but the biblical text. What changed was the coordination problem. Formerly, the reference was the local bishop, who was linked to the Bishop of Rome. (Although with the Counter-Reformation, in some cases, like Spain, the bishops were appointed by the king, a privilege obtained in exchange for remaining loyal to the Pope). On the other hand, in the Reformation countries, the text of the Bible as final authority on theological matters demanded the full command of an ability not so extended until that moment: literacy.

It is well-known that the Protestant Reformation and the invention of printing expanded the translations of the Bible into the vernacular. But always goes completely unnoticed that by that time the concept of a national language hardly existed. In the Reformist countries the consolidation of a national language was determined by the particular vernacular which was chosen to translate the Bible into.

Evidently, the extension of a common language among the subjects of a given kingdom had reported great benefits to its governance, since the tendency was followed by the monarchies of France and Spain. The former extended the Parisian French over the local patois and, in Spain of the XVIII Century, the Bourbon Reforms imposed Castilian as the national Spanish language. The absolute kings, who each of them had inherited a territory unified by a single religion, sowed the seeds of national states aggregated by a common language. Moreover, Catholicism became more dependent on absolute kings than on Rome —and that is why Bruno finds some Catholics arguing for the separation of Church from the state.

Meanwhile, in the New World, the Thirteen Colonies were receiving the European immigration mostly motivated on the lack of religious tolerance in their respected countries of origin. The immigrants arrived carrying with them all kind of variances of Christian confessions and developed new and unexpected ones. All those religions and sects had a common reference: the King James Bible.

My thesis is that it was the substitution of religion for language as the factor of cohesion and mechanism of social control that made possible the development of the freedom of conscience. The political power left what was inside of the mind of their subjects a more economical device: language. Think what you wish, believe what you wish, read what you wish, write what you wish, say what you wish, as long as I understand what you do and you can understand what I mean.

Moreover, an official language became a tool of accountability and a means of knowing the rights and duties of an individual before the state. The Magna Carta (1215) was written in Medieval Latin while the Virginia Declaration of Rights (1776), in English. Both documents were written in the language that was regarded as proper in their respective time. Nevertheless, the language which is more convenient to the individual for the defense of his liberties is quite obvious.

Often, the disputes over the genealogy of rights and institutions go around two poles: ideas and matter. I think it is high time to go along the common edge of both of them: the unintended consequences, the “rural nomos,” the complex phenomena. In this sense, but only in this sense, tracing the genealogy – or, better, the “nomology” – of the freedom of conscience as an intended trait of the concept of “rule of law” is worth our efforts.

AI: Bootleggers and Baptists Edition

Rick Weber Economics, Law, Liberty, Politics , , , , ,

“Elon Musk Is Wrong about Artificial Intelligence and the Precautionary Principle” – Reason.com via @nuzzel

(disclaimer: I haven’t dug any deeper than reading the above linked article.)

Apparently Elon Musk is afraid of the potential downsides of artificial intelligence enough to declare it “a rare case where we should be proactive in regulation instead of reactive. By the time we are reactive in AI regulation, it is too late.”

Like literally everything else, AI does have downsides. And, like anything that touches so many areas of our lives, those downsides could be significant (even catastrophic). But the most likely outcome of regulating AI is that people already investing in that space (i.e. Elon Musk) would set the rules of competition in the biggest markets. (A more insidious possible outcome is that those who would use AI for bad would be left alone.) To me this looks like a classic Bootleggers and Baptists story.

Rent-Seeking Rebels of 1776

Vincent Geloso Economics, History, Law, Liberty , , , , ,

Since yesterday was Independence Day, I thought I should share a recent piece of research I made available. A few months ago, I completed a working paper which has now been accepted as a book chapter regarding public choice theory insights for American economic history (of which I talked about before).  That paper simply argued that the American Revolutionary War that led to independence partly resulted from strings of rent-seeking actions (disclaimer: the title of the blog post was chosen to attract attention).

The first element of that string is that the Americans were given a relatively high level of autonomy over their own affairs. However, that autonomy did not come with full financial responsibility.  In fact, the American colonists were still net beneficiaries of imperial finance. As the long period of peace that lasted from 1713 to 1740 ended, the British started to spend increasingly larger sums for the defense of the colonies. This meant that the British were technically inciting (by subsidizing the defense) the colonists to take aggressive measures that may benefit them (i.e. raid instead of trade). Indeed, the benefits of any land seizure by conflict would large fall in their lap while the British ended up with the bill.

The second element is the French colony of Acadia (in modern day Nova Scotia and New Brunswick). I say “French”, but it wasn’t really under French rule. Until 1713, it was nominally under French rule but the colony of a few thousands was in effect a “stateless” society since the reach of the French state was non-existent (most of the colonial administration that took place in French North America was in the colony of Quebec). In any case, the French government cared very little for that colony.   After 1713, it became a British colony but again the rule was nominal and the British tolerated a conditional oath of loyalty (which was basically an oath of neutrality speaking to the limited ability of the crown to enforce its desires in the colony). However, it was probably one of the most prosperous colonies of the French crown and one where – and this is admitted by historians – the colonists were on the friendliest of terms with the Native Indians. Complex trading networks emerged which allowed the Acadians to acquire land rights from the native tribes in exchange for agricultural goods which would be harvested thanks to sophisticated irrigation systems.  These lands were incredibly rich and they caught the attention of American colonists who wanted to expel the French colonists who, to top it off, were friendly with the natives. This led to a drive to actually deport them. When deportation occurred in 1755 (half the French population was deported), the lands were largely seized by American settlers and British settlers in Nova Scotia. They got all the benefits. However, the crown paid for the military expenses (they were considerable) and it was done against the wishes of the imperial government as an initiative of the local governments of Massachusetts and Nova Scotia. This was clearly a rent-seeking action.

The third link is that in England, the governing coalitions included government creditors who had a strong incentives to control government spending especially given the constraints imposed by debt-financing the intermittent war with the French.  These creditors saw the combination of local autonomy and the lack of financial responsibility for that autonomy as a call to centralize management of the empire and avoid such problems in the future. This drive towards centralization was a key factor, according to historians like J.P. Greene,  in the initiation of the revolution. It was also a result of rent-seeking on the part of actors in England to protect their own interest.

As such, the history of the American revolution must rely in part on a public choice contribution in the form of rent-seeking which paints the revolution in a different (and less glorious) light.

The Deleted Clause of the Declaration of Independence

Kevin Kallmes Books, Culture, History, Law, Liberty, Philosophy, Politics , , , , , , ,

As a tribute to the great events that occurred 241 years ago, I wanted to recognize the importance of the unity of purpose behind supporting liberty in all of its forms. While an unequivocal statement of natural rights and the virtues of liberty, the Declaration of Independence also came close to bringing another vital aspect of liberty to the forefront of public attention. As has been addressed in multiple fascinating podcasts (Joe Janes, Robert Olwell), a censure of slavery and George III’s connection to the slave trade was in the first draft of the Declaration.

Thomas Jefferson, a man who has been criticized as a man of inherent contradiction between his high morals and his active participation in slavery, was a major contributor to the popularizing of classical liberal principles. Many have pointed to his hypocrisy in that he owned over 180 slaves, fathered children on them, and did not free them in his will (because of his debts). Even given his personal slaves, Jefferson made his moral stance on slavery quite clear through his famous efforts toward ending the transatlantic slave trade, which exemplify early steps in securing the abolition of the repugnant act of chattel slavery in America and applying classically liberal principles toward all humans. However, this very practice may have been enacted far sooner, avoiding decades of appalling misery and its long-reaching effects, if his (hypocritical but principled) position had been adopted from the day of the USA’s first taste of political freedom.

This is the text of the deleted Declaration of Independence clause:

“He has waged cruel war against human nature itself, violating its most sacred rights of life and liberty in the persons of a distant people who never offended him, captivating and carrying them into slavery in another hemisphere or to incur miserable death in their transportation thither.  This piratical warfare, the opprobrium of infidel powers, is the warfare of the Christian King of Great Britain.  Determined to keep open a market where Men should be bought and sold, he has prostituted his negative for suppressing every legislative attempt to prohibit or restrain this execrable commerce.  And that this assemblage of horrors might want no fact of distinguished die, he is now exciting those very people to rise in arms among us, and to purchase that liberty of which he has deprived them, by murdering the people on whom he has obtruded them: thus paying off former crimes committed against the Liberties of one people, with crimes which he urges them to commit against the lives of another..”

The second Continental Congress, based on hardline votes of South Carolina and the desire to avoid alienating potential sympathizers in England, slaveholding patriots, and the harbor cities of the North that were complicit in the slave trade, dropped this vital statement of principle

The removal of the anti-slavery clause of the declaration was not the only time Jefferson’s efforts might have led to the premature end of the “peculiar institution.” Economist and cultural historian Thomas Sowell notes that Jefferson’s 1784 anti-slavery bill, which had the votes to pass but did not because of a single ill legislator’s absence from the floor, would have ended the expansion of slavery to any newly admitted states to the Union years before the Constitution’s infamous three-fifths compromise. One wonders if America would have seen a secessionist movement or Civil War, and how the economies of states from Alabama and Florida to Texas would have developed without slave labor, which in some states and counties constituted the majority.

These ideas form a core moral principle for most Americans today, but they are not hypothetical or irrelevant to modern debates about liberty. Though America and the broader Western World have brought the slavery debate to an end, the larger world has not; though countries have officially made enslavement a crime (true only since 2007), many within the highest levels of government aid and abet the practice. 30 million individuals around the world suffer under the same types of chattel slavery seen millennia ago, including in nominal US allies in the Middle East. The debates between the pursuit of non-intervention as a form of freedom and the defense of the liberty of others as a form of freedom have been consistently important since the 1800’s (or arguably earlier), and I think it is vital that these discussions continue in the public forum. I hope that this 4th of July reminds us that liberty is not just a distant concept, but a set of values that requires constant support, intellectual nurturing, and pursuit.

For more underrecognized history surrounding the founding of America, see my Before the Fourth series!

The Old Deluder Satan Act: Literacy, Religion, and Prosperity

Kevin Kallmes Culture, Economics, History, Law, Liberty, Religion , , , , , , ,

So, my brother (Keith Kallmes, graduate of the University of Minnesota in economics and history) and I have decided to start podcasting some of our ideas. The topics we hope to discuss range from ancient coinage to modern medical ethics, but with a general background of economic history. I have posted here our first episode, the Old Deluder Satan Act. This early American legislation, passed by the Massachusetts Bay Colonists, displays some of the key values that we posit as causes of New England’s principal role in the Industrial Revolution. The episode: 

We hope you enjoy this 20-minute discussion of the history of literacy, religion, and prosperity, and we are also happy to get feedback, episode suggestions, and further discussion in the comments below. Lastly, we have included links to some of the sources cited in the podcast.

Sources:

The Legacy of Literacy: Continuity and Contradictions in Western Culture, by Harvey Graff

Roman literacy evidence based on inscriptions discussed by Dennis Kehoe and Benjamin Kelly

Mark Koyama’s argument

European literacy rates

The Agricultural Revolution and the Industrial Revolution: England, 1500-1912, by Gregory Clark

Abstract of Becker and Woessman’s “Was Weber Wrong?”

New England literacy rates

(Also worth a quick look: the history of English Protestantism, the Puritans, the Green Revolution, and Weber’s influence, as well as an alternative argument for the cause of increased literacy)

Immigration and States’ Rights

Rick Weber Law, Liberty , , ,

Bryan Caplan (arguing the affirmative) and Christopher Wellman recently debated whether immigration is a human right.

Wellman won the debate according to audience votes, but I think his argument was significantly weaker. He made confused arguments that, when given second thought lend credence to Caplan’s position. But through hand waving he transitioned to “and therefore states’ rights!” I am far from convinced that state’s rights are valid, but I do want to explore an interesting issue he raised: the moral weight of collective phenomena.

Markets generate economic information more intelligently than any individual participant. Competition and collaboration in cultural spaces generate more and better art than any individual on their own. Society is the outcome of individual choices, but the collective is something apart from those individuals.

We have various collectives (e.g. cultural regions, markets, local communities, families, national identities, sports fandom, science, etc.), many of which are special. They provide club goods (sometimes club bads), and require the support of their members. These networks exhibit emergent properties–the whole is more than the sum of its parts.

So surely those members should have some say in the management of the collective?

This is where Wellman went off track. Yes, these collectives are important. Yes, they require some form of governance. But that doesn’t unambiguously imply involvement of government.

Consider an excellent example Wellman gives: families. Families are an essential part of the structure of society and one we are each deeply familiar with. If there’s a collective entity with moral weight, surely it’s the family.

Wellman posed the hypothetical around the 32:45 mark: what if he returned home and found that his wife had unilaterally adopted a new child? Clearly this is freedom of association run amok! But the example doesn’t imply the need for state involvement; it implies the need for couples therapy! If he and his wife together decide to adopt, then the question remains, “why should the government have a say in this?” Currently it does, which means that whatever the median voter is cool with is acceptable, even if that means preventing this adoption that clearly doesn’t affect them. That seems untenable unless we have strong evidence that adoptions tend to create large negative spillovers.

The moral weight of a family doesn’t imply either state involvement or democratic decision making. Members can be added to a family through birth or marriage. The decision is made by the one or two individuals most directly involved (perhaps with some role for other family members). And those decisions are made non-coercively. Parents may intervene to prevent teenage Romeos and Juliettes from getting married, but adults are basically allowed to make their own decision.

I’m guessing here, but I’d bet that 90% of people would agree that the way we do freedom of association in families is basically the right way to do things.

Polycentrism!

The scope of a family does not fit neatly into the boxes drawn on a map, nor do most other collective phenomena. Red Sox Nation isn’t just Boston. Regional cultures overlap. Languages cross borders.

We want the collective decision making institutions to reflect the area of spill-overs. Decisions affecting a family should be made within the family. I shouldn’t be directly involved in decisions about how to provide local public services in San Diego. Global spillovers justify global decision making, but local spillovers don’t.

When it comes to immigration, we have to ask:

  1. What collectives will they affect? (certain labor markets, local communities)
  2. Are they likely to create large negative spillovers?
  3. What is the current form of institutions governing those collectives?

There are high stakes for many potential immigrants (especially those coming from places typical Americans are most afraid of), so we should probably go a step further: if there’s a solution to some potential spillover problem that isn’t significantly more costly than immigration restrictions, we should feel obliged to use that solution. For example, it should be easier to come here to live and work than it is to get welfare benefits (although getting that policy to work raises a host of other questions).

Rights imply action

Let’s agree on this: there are collective phenomena that are special. We want to take care of these phenomena which means figuring out the appropriate form of governance for each case.

Wellman gives another family example that blows his own argument out of the water: what if he was put in an arranged marriage? This would deny him important scope for self-determination. And therefore (he argues) states, being important collective phenomena, have a right to self-determination.

How did the audience not notice this?! Immigration restrictions deny me choice over who to voluntarily associate with and so deny me scope for self-determination.

Even if it feels weird from a rational-individualist perspective, there is something special about (e.g.) a country. But that doesn’t mean we should abandon methodological individualism. We know that only individuals make choices, even if they make those choices for the sake of collectives. A collective can have moral weight but still lack the ability to choose. To my mind, this kills the idea of states’ rights (as in “right to do x” or “right to self-determination”) in general.

What we’re left with is the original question: how do we manage the collective? What decisions do we make collectively, and what do we decide piecemeal?

For many (most?) collectives, including the most important ones, we allow freedom of (dis)association and leave the state out of it. Wellman did not answer the question of “why should immigration be different?” I suspect there are strong arguments to be made, but the closest I heard in this debate is that we can think of this as a question of governance, and that government sometimes provides governance.

As Wellman points out (around the 30:00 mark) there is (sometimes) a tension between rules favoring individual freedom and rules requiring collective decision making. There are plenty of examples of scenarios where we uncontroversially prefer to limit some individual rights–we do this automatically with negative rights by denying you the freedom to murder in support of your right to life.

It’s not clear to me that the expected effects of immigrants are widespread enough to justify as sweeping a policy as “only the following people are allowed in these particular thousands of square miles.” For immigration (but not access to the welfare state), the presumption of liberty seems the way to go.

tl;dr: We have various collective goods that are special (e.g. the “character” of a community). This calls for some form of governance to allow the individuals directly involved to manage collective goods. This frequently calls for constraints on individual freedoms for the benefit of the community, but that doesn’t mean that the special collective identity of a country justifies a presumption of closed borders.

The debate over whether the nation state is violating human rights by restricting immigration (with caveats made for “obviously” reasonable restrictions like keeping out known murderers) is not closed by pointing out that there is a collective good associated with the nation state. States can be special without having states’ rights.

An argument against Net Neutrality

Rick Weber Current Events, Economics, Law, Liberty , , , , ,

First off, Comcast sucks. Seriously, screw those guys.

But let’s assume a can opener and see if that doesn’t help us find a deeper root problem. The can opener is competition in the ISP network. Let’s consider how the issue of Net Neutrality (NN) would play out in a world where your choice of ISP looked more like your choice of grocery store. Maybe a local district is set up to manage a basic grid and ISPs bid for usage of infrastructure (i.e. cities take a page out of the FCC’s playbook on spectrum rights). Maybe some technological advance makes it easy to set up decentralized wireless infrastructure. But let’s imagine that world.

Let me also assume a bit of regulation. The goal is to create some simple rules that make the market work a bit better. Two regulations that I’d like to see are 1) a requirement that ISPs have a public list of any websites they restrict access to*, and 2) a limitation on how complicated end user agreements can be. I’m not sure these things would be possible in my anarchist utopia, but in a second best world of governments I’m pretty comfortable with them.

Let’s also create a default contracts for content providers with ISPs. “Unless otherwise agreed to, content providers (e.g. YouTube, my crazy uncle Larry, the cafe around the corner, etc.) relationship with ISPs is assumed to take the following form:…” An important clause would be “access/speed/etc. to your content will meet ______ specifications and cannot be negatively altered at the request of any third party.”

A similar default contract could be written for ISPs and end users. “Universal access under ____________ conditions will be provided and cannot be negatively altered at the request of any third party.”

Explicitly and publicly setting neutral defaults means we can get NN by default, but allow people the freedom to exchange their way out of it.

Do we need, or even want, mandated NN in that world? There are some clear potential gains to a non-neutral Internet. Bandwidth is a scarce resource, and some websites use an awful lot of it. YouTube and Netflix are great, but they’re like a fleet of delivery trucks creating traffic on the Information Super Highway. Letting them pay ISPs for preferred access is like creating a toll lane that can help finance increased capacity.

Replacing NN with genuine competition means that consumers who value Netflix can pay for faster streaming on that while (essentially) agreeing to use less of the net’s bandwidth for other stuff. We should encourage faster content, even if it means that some content gets that extra speed before the rest.

Competing ISPs would cater to the preferences and values of various niches. Some would seem benign: educational ISPs that provide streamlined access to content from the Smithsonian while mirroring Wikipedia content on their volunteer servers. Bandwidth for sites outside the network might come at some price per gigabyte, or it might be unlimited.

Other ISPs might be tailored for information junkies with absolutely every website made available at whatever speed you’re willing to pay for. Family friendly ISPs would refuse to allow porn on their part of the network (unsuccessfully, I suspect), but couldn’t stop other ISPs from anything. Obnoxious hate group ISPs would probably exist too.

There would be plenty of bad to go along with the good, just like there is in a neutral network.

I’m okay with allowing ISPs to restrict access to some content as long as they’re honest about it. The Internet might not provide a universal forum for all voices, but that’s already the case. If you can’t pay for server space and bandwidth, then your voice can only be heard on other people’s parts of the Internet. Some of those people will let you say whatever you want (like the YouTube comments section), but others are free to ban you.

Similarly, big companies will be in a better position to provide their content, but that’s already the case too. Currently they can spend more on advertising, or spend more on servers that are physically closer to their audience. A non-neutral net opens up one more margin of competition: paying for preferred treatment. This means less need to inefficiently invest physical resources for the same preferred treatment. (Hey, a non-neutral net is Green!)

There might be reason to still be somewhat worried about the free speech implications of a non-neutral net. As consumers, we might prefer networks that suppress dissident voices. And those dissident voices might (in the aggregate) be providing a public good that we’d be getting less of. (I think that’s a bit of a stretch, but I think plenty of smart people would take the point seriously.) If that’s the case, then let’s have the Postal Service branch out to provide modestly priced, moderate speed Internet access to whoever wants it. Not great if you want to do anything ambitious like play Counter Strike or create a major news network, but plenty fine for reading the news and checking controversial websites.

tl;dr: I can imagine a world without Net Neutrality that provides better Internet service and better economizes on the resources necessary to keep the Information Super Highway moving. But it’s not the world we currently live in. What’s missing is genuine market competition. To get there would require gutting much of the existing regulatory frameworks and replacing it with a much lighter touch.

What I’m talking about seems like a bit of a pipe dream from where we’re sitting. But if we could take the political moment of the Net Neutrality movement and redirect it, we could plausibly have a free and competitive Internet within a generation.

*Or maybe some description about how they filter out websites… something like a non-proprietary description of their parental filters for ISPs that (attempt to) refuse adult content access.

Some ideas to guide your thoughts on health care

Rick Weber Economics, Law, Liberty, Politics , , , , , , ,

This post is meant to help my non-economist friends think more clearly about how we pay for health care. I’ll talk about markets, but the truth is that the American system is built of deeply bastardized markets. If our car markets worked like our health markets, most of us would walk to work. I’m trying to focus on the essential logic of the situation which is going to sound Utopian because Congress isn’t going to give us any sort of logical policy any time soon. But we aren’t going to get a logical solution until we as voters understand the logic of health care finance.

I’ve got a few big points to make:

  1. Trying to health insurance also work like charity is bound to end poorly for everyone.
  2. A single-payer system has a lot of nice features for individuals, but a lot of systemic problems.
  3. It’s fundamentally impossible to insure pre-existing conditions. Insurance is about sharing risk, not unavoidable expenses.

(This post is longer than I’d like, so thanks for your patience!)

Markets and Charity

I’ve said it before, and I’ll say it again: we don’t have to ruin markets to do charity.

The essence of markets is that they aggregate knowledge about the relative costs and benefits of different goods based on the preferences of the real people involved in producing and consuming those goods.

The demand side of markets provide information by giving you (as a consumer) a choice between more of something you like and more money to spend on other stuff. On the supply side they give you (as a supplier–probably of your own labor) the choice between providing more of what people are willing to pay for or having less money to buy the stuff you want. Markets crowdsource cost-benefit analysis.

Prices also give suppliers an incentive to produce things that consumers want while trying to save resources (i.e. cut costs). In other words, a price is a signal wrapped up in an incentive.

So what about fairness? The bad news is that markets are a system of “from each according to their ability, to each according to how much other people are willing to pay for the product of their ability.” (Not very catchy!) It’s mostly fair for most of us, but doesn’t do much good for people who are just unlucky (e.g. kids born with genetic defects). Here’s the good news: we can use charity alongside markets.

We can debate how much role government should play in charity some other time. For now, let’s whole-ass one thing instead of half-assing two things. We have to appreciate that interfering with markets interferes with the ability of those markets to function as sources of reliable information. It doesn’t matter how good our intentions are, we face a trade off here… unless we do something to establish a functioning charity system parallel to the health care finance system.

Single Payer

Anecdotes about the merits of a single-payer health care system are powerful because they shed light on the biggest benefit to such a system: individual convenience.

Part of the appeal has to do with the general screwiness of the American system. It’s a cathedral built of band-aids. But even in an idealized market system, a single-payer system has the advantage of not making me go through the work of evaluating which plan best suits my needs.

A single-payer system is, from an individual perspective, about as ideal as having your parents pay for it. But we don’t really  want our parents buying our stuff for us.

Single payer system sacrifice the informational value of markets (probably even more so than America’s current system of quasi-price controls). Innovation would be harder as long as new treatments had to be approved by risk-averse bureaucrats (and again, we already face a version of this with Medicare billing codes and insurance companies).

Essentially, a single payer system creates a common pool problem: each of us gets the individual benefit of being able to be lazy. But then we’re left trusting bureaucrats, special interest groups, and think tanks to keep an eye on things. It could be an improvement over the current American system, but that’s like saying amputation is better than gangrene.

Insurance

Premium = expected cost + overhead

Consider two alternatives. In scenario A you start with $150, flip a coin, and if it comes up tails you lose $100. In scenario B you get $90. The expected value of A is $100, but most of us would still prefer the sure thing.

Here’s how insurance works: You start with $150, give $60 to the insurance company, then flip the coin. If it comes up tails, you lose $100, but the insurance company gives you back $40. You’ve just gotten the sure thing. And by taking on thousands of these bets the insurance company is able to make enough money to pay their employees.

But here’s the thing: the premium they charge is fundamentally tied to that expected value. Change the odds, or the costs (i.e. the claims they have to pay for) and you’ll change the premium.

(BTW, Tim Harford did a nice ~8 minute podcast episode on insurance that’s worth checking out.)

Pre-existing conditions are the equivalent of changing our thought experiment to a 100% chance of flipping tails. No amount of risk sharing that will get you to the $90 outcome you want. You can’t insure your car after you’ve been in an accident and you can’t insure a person against a loss they’ve already realized. If you’re Bill Gates, that’s no big deal, but for many people, this might mean depending on charity. That’s a bummer, but wishful thinking can’t undo that.

If we insist that insurance companies cover pre-existing conditions* the result can only be higher premiums. This is nice for people with these pre-existing conditions, but not so great for (currently) healthy poor people. Again, charity matters needs to be part of the debate, but it needs to be parallel to insurance markets.

Covering more contingencies also affects premiums. The more things a policy covers, the higher the expected cost, and therefore the higher the premium. We each have to decide what things are worth insuring and what risks we’re willing to face ourselves. Politics might not be the best way to navigate those choices.

High deductibles and catastrophic care

Actuaries think about the cost of insuring as a marginal cost. In other words, they know that the odds that you spend $100 in a year are much higher than the odds that you spend $1000. So the cost of insuring the first dollar of coverage is much higher than the cost of insuring the 5000th dollar. This is why high deductible plans are so much cheaper… they only pay out in the unlikely situation where something catastrophically bad happens to you. This is exactly why most of us want insurance. We aren’t afraid of the cost of band-aids and aspirin, we’re afraid of the cost of cancer treatment.

For those of us firmly in the middle class, what we really need is a high-deductible plan plus some money in the bank to cover routine care and smaller emergencies. (Personally, my version of this is a credit card.) Such a plan has the added benefit of encouraging us to be more cost conscious.

A big problem with our current system is that it’s set up like an all-you-can-eat buffet. You pay to get in (your premiums) but once you’re in the hospital, any expenses are the insurance company’s problem (read: everyone else on your health plan). The logic here is the same as with pollution. When I drive my car I get the benefits of a quick and comfortable commute but I also suffer a little bit more pollution. But I don’t have incentive to think about how that pollution affects you so I pollute more than would be ideal. Multiply that by millions of people and we can end up with smog.

tl;dr

If I were trying to put together a politically palatable alternative to our current system, I’d have an individual mandate with insurance vouchers for the poor (it’s not very libertarian, and it’s far from my Utopian ideal, but I think it would be a huge improvement over what we’ve got now). I would also expand the role of market competition by encouraging high deductibles plus flexible health savings accounts.

Reality is complicated, but I’m trying to get at the fundamental logic here. We don’t have a properly functioning market system. To get there we need competition, transparency, and a populace with the mental tools and mathematical literacy necessary to understand what their insurance can and can’t do. That’s a tall order, but it doesn’t mean we shouldn’t keep trying to move in that direction.

To have a fruitful debate we need to understand what we want from our healthcare system: help for the poor (charity), convenience, and efficiency from an individual and social perspective. By trying to lump all these things together we muddy the waters and make it harder to understand one another.

*I don’t know what the deal is with the idea that the AHCA will treat rape as a pre-existing condition. Some webpages give a bunch of random tweets as evidence of this, and others call bullshit. Let’s just leave it at this: in a competitive market this would be considered terrible marketing and savvy companies wouldn’t do it. The lesson then is to keep calling companies on bad marketing, and avoid protecting politically powerful companies from market competition.

Would regulation stop the mistakes of rating agencies that contributed to the 2008 crisis?

Kevin Kallmes Economics, Law, Liberty, Politics , , , , ,

I remember watching The Big Short and feeling great indignation at the S&P employee who told Steve Carell that rating agencies were pressured into issuing unreasonably high ratings because they were beholden to their customers. If true, this represented an unbelievable moral hazard, which is often cited as the reason for the failures of the ratings agencies–and as a reason for regulating these agencies.

However, more in-depth research and consideration reveals that this answer is incomplete and, in many ways, incorrect. Claire Hill, a law professor at the University of Minnesota Law School and director of the Institute for Law and Rationality, clearly and convincingly critiques this simplistic explanation by recognizing market influences and proposing alternate causes, which also means that if we are looking to avoid a future crisis, we need to look to alternative solutions to the regulatory measures that we currently employ. I don’t think it could be said better than she does in her abstract:

Why did rating agencies do such a bad job rating subprime securities? The conventional answer draws heavily on the fact that ratings are paid for by the issuers: Issuers could, and do, “buy” high ratings from willing sellers, the rating agencies.

The conventional answer cannot be wholly correct or even nearly so. Issuers also pay rating agencies to rate their corporate bond issues, yet very few corporate bond issues are rated AAA. If the rating agencies were selling high ratings, why weren’t high ratings sold for corporate bonds? Moreover, for some types of subprime securities, a particular rating agency’s rating was considered necessary. Where a Standard & Poor’s rating was deemed necessary by the market, why would Standard & Poor’s risk its reputation by giving a rating higher (indeed, much higher) than it knew was warranted?

Finally, and perhaps most importantly, giving AAA ratings to securities of much lower quality is something that can’t be done for long. A rating agency that becomes known for selling its high ratings will soon find that nobody will be paying anything for its ratings, high or low.

In my view, that issuers pay for ratings may have been necessary for the rating agencies to have done as bad a job as they did rating subprime securities, but it was not sufficient. Many other factors contributed, including, importantly, that rating agencies “drank the Kool-Aid.” They convinced themselves that the transaction structures could do what they were touted as being able to do: with only a thin cushion of support, produce a great quantity of high-quality securities. Rating agencies could take comfort, too, or so they thought, in the past – the successful, albeit short, recent history of subprime securitizations, and the longer history of successful mortgage securitizations.

“Issuer pays” did not so much make the rating agencies give higher ratings than they thought were warranted as it gave the agencies a “can do” mindset regarding the task at hand – to achieve the rating the issuers desired, working with them to modify the deal structures as needed. That the issuers were paying motivated the agencies to drink the Kool-Aid; having drunk the Kool-Aid, the agencies gave the ratings they did. My account casts doubt on the efficacy of many of the solutions presently being proposed and suggests some features that more efficacious solutions should have.

I very much recommend reading the full article, which gives more nuance and information about the weaknesses of proposed solutions for rating agency mistakes or malfeasance. This should also be food for thought concerning the general perspective we should have in examining “market failures,” as there are often market feedback systems that mitigate problems, and turning to regulation by reflex can cause unintended harm or even miss the mark entirely.

Reference: Hill, Claire. “Why Did Rating Agencies Do Such a Bad Job Rating Subprime Securities?” University of Pittsburgh Law Review (2010): 10-18. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1582539.