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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