July 19, 2005
Widows and Orphans
Posted by Will Baude

In his kind introduction, Vic described my summer employers, The Institute For Justice, as "protect(ing) widows and orphans from large corporations. Or maybe it's the other way around." The discussion in the comments of my last post counsel me to point out that IJ does indeed protect widows and orphans, quite literally.

The discussion in those comments has focused on the 6th Circuit case of Craigmiles v. Jiles, (UPDATE: A more readable HTML version is here) which some people suggest raises the specter or promise of Lochnerism. In Craigmiles, the 6th Circuit struck down part of the Tennessee casket monopoly, which forced people to undergo two years of special education before they could sell caskets. The ulterior motive, as with the bar exam, teaching certifications, and the Louisiana florists' license, is to raise a barrier to entry, keeping supply artificially low and therefore keeping prices artificially high. Further background, from IJ, is here [For what it is worth, this same challenge was laughed out of the 10th Circuit].

Christine's reaction is typical of what I tend to hear from those who ponder the economic merits. Who could be in favor of letting funeral directors use the power of the state to rook extra money out of widows and orphans? The skeptics tend to be those who still don't support this particular piece of protectionist legislation, but worry that some day, some future piece of protectionist legislation that they do like will fall to the same scythe.
Of course, I am being a bit unfair to Craigmiles's critics in the paragraph above-- there are also those who simply think that nothing in the text (or history?) of the 14th Amendment justifies even vaguely serious review of legislation that injures only widows, orphans, and entrepreneurs. This is fair enough, I suppose, but it is nice to be clear about who the victims are.
[This post is also the perfect occasion for a disclaimer-- nothing I post here should be attributed to anybody other than me, especially, for example, The Institute for Justice, The Yale Law School, or other bloggers back at Crescat.]

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Comments (6)

1. Posted by Donald on July 19, 2005 @ 8:44 | Permalink

For a more readable version of this opinion (Will linked to the Sixth Circuit's booklet-style format), try:


2. Posted by Will Baude on July 19, 2005 @ 8:48 | Permalink

Thanks! I'll update the post.

3. Posted by Kate Litvak on July 19, 2005 @ 9:41 | Permalink

I would add that protecting property rights, both of individuals and corporations, *is* the best way to protect widows and orphans in the long run. The collapse of the communist bloc taught as at least that much.

4. Posted by Vic Fleischer on July 19, 2005 @ 10:50 | Permalink

IJ is certainly good at finding sympathetic plaintiffs, which is what makes IJ so effective at PR if not always in the courts (eg Kelo). But I'm sort of curious about where it stops. Is the IJ's long-term strategy to use sympathetic cases to achieve an ultimate goal of no/minimal economic regulation? Is the Lochnerism accusation unfounded? Is this the libertarian version of the NAACP's strategy in the 50s, 60s and 70s -- which was not, of course, just about nibbling at the edges, but rather about getting rid of de jure discrimination altogether? Or are you guys seeking some middle ground?

5. Posted by Will Baude on July 19, 2005 @ 12:09 | Permalink

I think there is a serious problem of collective intent here-- different lawyers, different clients, and different donors have very different visions about the ideal political and constitutional system. But pretty much all of them agree that as it stands things have gone too far in some direction or another. I think Cass Sunstein calls this something like "incompletely theorized agreement".

6. Posted by Th. B. on July 19, 2005 @ 15:37 | Permalink

I hope I'm not changing the subject too dramatically, but with due respect to Ms. Litvak, I think her characterization of the "lesson" to be learned from the fall of the Eastern Bloc is awfully problematic.

Almost no one, even on the left, would argue that "protecting property rights" would be bad for widows and orphans. But of course, it depends on what one means by the phrase "protecting property rights"--i.e., the meaning of both "protecting" and "property rights."

If, as I suspect, Ms. Litvak believes that "protecting property rights" is equivalent to the economic program favored by many libertarian L&E scholars--though I may be overreading her comment--I think it's very, very difficult to draw that conclusion from the fall of the Eastern bloc. If, say, Sweden were to collapse into chaos, that would of course be a different matter; but that doesn't appear to be likely to happen.

It seems to me that the much more sensible, if less pretentious, lesson to be drawn from the events of 1989-1991 is that communism doesn't work. Or perhaps not even that: perhaps the lesson is merely that nomenklatura-style communism doesn't work. (Although one could easily retort that, in practice, nomenklatura-style communism is the only communism that is possible.)

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