Truth on the Market

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Welcome Baby 7B!

Posted by Thom Lambert on October 31, 2011

According to the United Nations, sometime around Halloween a newborn baby will push the world’s population above seven billion people.  Welcome to our spectacular planet, Little One!

I should warn you that not everyone will greet your arrival as enthusiastically as I.  A great many smart folks on our planet—especially highly educated people in rich countries like my own—have fallen under the spell of this fellow named Malthus, who once warned that our planet was “overpopulated.”  Although Mr. Malthus’s ideas have been proven wrong time and again, his smart and influential disciples keep insisting that your arrival spells disaster, that this lonely planet just can’t support you. 

Now my own suspicion is that modern day Malthusians, who are smart enough to know that actual events have discredited their leader’s theories, continue to parrot Mr. Malthus’s ideas because they lend support to all manner of governmental intervention into private affairs.  (These smarty-pants Malthusians, who are well-aware of their own intelligence, tend to think they can arrange things better than the “men and women on the spot” and are constantly looking for reasons to go meddling in others’ business!)  Whatever their motivation, Mr. Malthus’s disciples just won’t shut up about how our planet is overpopulated.

You should know, though, that this simply isn’t true.  The first time you hear one of Mr. Malthus’s followers decrying your very existence by insisting that our planet is overpopulated, you should ask him or her:  “Overpopulated relative to what?”  Modern Malthusians can never give a good answer to that question, though they always try.

Sometimes they say “living space.”  But that’s plain silly.  Our planet is really pretty huge.  Indeed, if all seven billion people on the planet moved to the state ofAlaska, each person would have 2,300 square feet of living space!  Now I realize lots of cities get crowded, but that’s because people choose to live in those areas—they’ve decided that the benefits of enhanced economic opportunity in a densely populated area outweigh the costs of close confines.  If they really wanted extra living space, they could easily find it in our planet’s vast uninhabited (or sparsely inhabited) regions.

Sometimes modern day Malthusians say the planet is overpopulated relative to available food.  Wrong again.  In the nations of the world where institutions have evolved to allow people to profit from coming up with new ideas that enhance welfare, individuals have developed all sorts of ways to get more food from less land.  Accordingly, food production has always outpaced population growth.  Now, modern day Malthusians will probably tell you that food prices have been rising in recent years – a sign that food is getting scarcer relative to people’s demand for it.  But that’s because governments, beholden to powerful agricultural lobbyists, have been requiring that huge portions of agricultural output be diverted to fuel production even though the primary biofuel (ethanol) provides no environmental benefit.  As usual, it’s actually bad government policy, not population growth, that’s creating scarcity.

In recent days, Mr. Malthus’s disciples have insisted that the world is overpopulated relative to available resources.  Nothing new here.  Back in the 1970s, lots of smart folks contended that the earth was quickly running out of resources and that drastic measures were required to constrain continued population growth.  One of those smarty pants was Stanford University biologist Paul Ehrlich, who, along with his wife Anne and President Obama’s science czar John Holdren, asked (in all seriousness): “Why should the law not be able to prevent a person from having more than two children?”  (See Paul R. Ehrlich, Anne H. Ehrlich & John P. Holdren, Ecoscience 838 (1977).)  (Ehrlich also proclaimed, in his 1968 blockbuster The Population Bomb, that “The battle to feed all of humanity is over. In the 1970s hundreds of millions of people will starve to death in spite of any crash programs embarked upon now. At this late date nothing can prevent a substantial increase in the world death rate.”)

In 1980, Prof. Ehrlich bet economist Julian Simon (a jolly fellow who would have welcomed your birth!) that the booming population would raise demand for resources so much that prices would skyrocket.  Mr. Simon thought otherwise and therefore allowed Prof. Ehrlich to pick five metals whose price he believed would rise over the next decade.  As it turns out, the five metals Prof. Ehrlich selected — chromium, copper, nickel, tin, and tungsten – fell in price as clever, profit-seeking humans discovered both how to extract more from the earth and how to substitute other, cheaper substances.  Mr. Simon was not at all surprised.  He recognized that the long-term price trend of most resources points downward, indicating that resources are becoming more plentiful, relative to human needs, over time.  (Modern Malthusians may point to some recent price trends showing rising prices for some resources, especially precious metals.  It’s likely, though, that those price increases are due to the fact that central banks all over the world have been creating lots and lots of money, thereby threatening inflation and causing investors to hold their wealth in the form of commodities.)

The fundamental mistake Mr. Malthus’s disciples make, Little One, is to assume that our planet is the ultimate source of resources.  That’s just not true.  Our planet does contain lots of useful “stuff,” but it’s human ingenuity – something only you and those like you can provide – that turns that stuff into “resources.”  Take oil, for instance.  For most of human history, messy crude oil was a source of annoyance for landowners.  It polluted their water and fouled their property.  But when whale oil prices started to rise in response to scarcity (or, put differently, when the world started to look “overpopulated” relative to whale oil), some clever, profit-seeking folks discovered how to turn that annoyance into kerosene, and eventually petroleum.  Voila!  A “resource” was created!

Just as people once worried about overpopulation relative to whale oil supplies, lots of folks now worry about overpopulation relative to crude oil.  Well I’m not that worried, and you shouldn’t be either.  As oil prices rise, more and more clever profit-seekers will turn their energies toward finding new ways to obtain oil (e.g., hydraulic facturing), new techniques for reducing oil requirements (e.g., enhanced efficiency), and new substitutes for oil (e.g., alternative fuels).  Mr. Malthus’s disciples will continue to fret about the limits to growth, but the historical record is clear on this one:  Human ingenuity – the ultimate resource – always outpaces the diminution in useful “stuff.”

And so, Little Resource, your arrival on our planet should be celebrated, not scorned!  As you and your fellow newborns flex your creative muscle, you’ll develop new sources of wealth for the world.  As you do so, birth rates will plummet, as they typically do when societies become wealthier, and the demand for a cleaner environment, demand that rises with wealth, will grow.  We therefore need not worry about “overpopulation.”

We do, though, need to ensure the survival of those institutions – property rights, free markets, the rule of law – that encourage resource-creating innovation.  I, for one, promise to do my best to defend those institutions so that you and your fellow newborns can add to our planet’s resource base.

Posted in economics, entrepreneurship, environment, food, free to choose, markets, musings, regulation, technology | 10 Comments »

The Bulldozer Solution to the Housing Crisis

Posted by Hal Singer on October 24, 2011

My inaugural blog on two-sided markets did not elicit much reaction from TOTM readers. Perhaps it was too boring. In a desperate attempt to generate a hostile comment from at least one housing advocate, I have decided to advocate bulldozing homes in foreclosure as one (of several) means to relieve the housing crisis. Not with families inside them, of course. In my mind, the central problem of U.S. housing markets is the misallocation of land: Thanks to the housing boom, there are too many houses and not enough greenery. And bulldozers are the fastest way to convert unwanted homes into parks.

(Before the housing advocates lose their cool, an important disclaimer: Every possible effort should be made to keep a family in their homes, including taxpayer-financed principal modifications for deserving, underwater borrowers. My proposal applies only to vacated homes that have completed the foreclosure process.)

Until the Washington Post ran an article last week, titled Banks turn to demolition of foreclosed properties to ease housing-market pressure, I was reluctant to admit my position in public. I had whispered my idea into the ears of several finance professors, but none was willing to stand behind it. And for good reason: How can one advocate bulldozing a home when so many families are losing their homes?

According to the Post, some of the nation’s largest banks have begun giving away abandoned properties to the state and even footing the $7,500 bill per demolition. In 2009, Ohio passed a law creating “land banks” with the power and money to acquire unwanted properties and put them to better use, like community gardens. Similar laws were passed in Georgia, Maryland, and New York. Wells Fargo donated 300 properties nationwide last year, and Fannie Mae donated 30 properties per month to the Cuyahoga (Ohio) land bank. The story even identified a “land bank expert” at Emory University. Now that the Post has given me cover of plausibility, let’s discuss the costs and benefits.

One of the first lessons in an undergraduate microeconomics class is that bulldozing homes to create construction jobs is a bad idea. Even after those new construction workers rebuild the bulldozed homes, society has the same amount of homes as before but lacks whatever output those workers could have created in the alternative. The objective of economic policy is not to maximize jobs—if that were the case, entire cities would be bulldozed and reconstructed—but rather to allocate resources efficiently. Because so many economists have this lesson in mind (and because so many are pacifists), it is hard to embrace any policy that involves a bulldozer.

But this bulldozer scheme is motivated for different reasons. Too much land has been allocated to homes, many of which were built in bubble during the early half of last decade. As a result, too many neighborhoods in America are afflicted with abandoned properties. A vacant house is estimated to be worth half its normal market value. Imagine trying to sell your house at market rates when a close facsimile is available across the street for half the price! To add insult to injury, the excess supply of abandoned houses invites vandalism and neighborhood blight—the textbook negative externality—further depressing home values. Using data from foreclosures in the Cleveland area, Kobie and Lee (2010) show that the length of time that a home is in foreclosure has a significant drag on neighboring home values.

Well-functioning markets tend to equilibrate supply and demand, but housing markets are highly inefficient in this regard because of the time lag between beginning construction and selling a home: A housing boom sends signals to builders that new construction will be profitable. By the time the housing bust comes, the new builds become permanent mistakes.

To illustrate this “market failure,” consider downtown Miami. A drive down Brickell Avenue reminds one of New York City. Whereas there used to be one row of high-rises on the bay-side, the avenue now boasts rows and rows of developments as far as the eye can see. Had the developers known that many of these complexes would stand empty—the Census Bureau estimates that a whopping 18 percent of Florida’s homes stood vacant in March 2011—they would have tempered their enthusiasm. According to the Florida Association of Realtors, the inventory overhang has sent home prices plunging: the median price for homes sold in January 2011 was seven percent less than January 2010, and prices are expected to fall by another five percent in 2011.

And why is this so troubling for the economic recovery? According to the Fed, the nation’s stock of household real estate declined by $6.5 trillion since 2006. A family spends its income based in part on its perceived wealth; when housing values decline, families spend less. Economists call this the “housing-wealth effect.” Case, Quigley and Shiller (2006) found a statistically significant and rather large effect of housing wealth upon household consumption, and weak evidence of a stock market wealth effect.

A robust stock market might offset this decline in wealth (and hence spending), but the Dow hasn’t cracked 13,000 since April 2008. In the meantime, families are hoarding their cash. The $6.5 trillion elimination in household wealth puts the President’s $300 billion jobs-stimulus program in perspective: If the housing-wealth effect is dragging down spending, then a one-time injection of $300 billion dollars won’t have much of an impact. In contrast, a 10 percent increase a housing wealth—housing values are off 30 percent since 2006—would increase consumption between 0.4 and 1.4 percent according to Case, Quigley and Shiller.

When applied to vacated homes that have completed the foreclosure process, the bulldozer scheme would eliminate some of the excess supply of housing, which would temper the downward pressure on home values. In the place of a cluster of abandoned homes sucking the life of a neighborhood, imagine a children’s park, a dog park, or a community garden. Now that the banks have figured out bulldozing can be cheaper than maintaining the properties, paying taxes, and marketing the properties, the only thing stopping this idea from gaining traction is public sentiment.

My lunch crowd, comprised of economists, retort that the elimination of excess housing supply via bulldozers might be a boon to existing homeowners but would punish future homeowners. But wouldn’t a future homeowner prefer to invest in a slightly more expensive asset class with expected growth over a less expensive asset class with negative expected growth for the foreseeable future?

Finally, the bulldozing scheme need not be mutually exclusive with other schemes to relieve the housing crisis. Other ideas are worth trying, even if they wouldn’t spur much economic activity. Some are calling on Congress to eliminate the barriers keeping underwater homeowners from refinancing their mortgages. According to Macroeconomic Advisers, such a plan might boost GDP growth by 0.1 to 0.2 percentage points, as it merely redistributes money from lenders to borrowers. Others have called for massive debt forgiveness, achieved via a federal program to purchase troubled mortgages and give homeowners better rates. As Ezra Klein of the Post points out, however, the politics of using taxpayer dollars to pay off mortgages are impossible to crack. To stabilize the housing market, Larry Summers calls on government sponsored enterprises to finance mass sales of foreclosed properties to those prepared to rent them out, and to drop their posture of opposition to experimentation for programs such as principal reductions.

Whichever course we take, speed is of the essence: The housing drag is not going away on its own. According to RealtyTrac, the nation’s banks, along with Fannie Mae and Freddie Mac, have an inventory of more than 816,000 foreclosed properties, with an additional 800,000 working their way through the foreclosure process. Insisting that each of those homes be paired with a family—a noble cause—is tantamount to pushing off recovery for several more years.

I modestly propose to remove a fraction of these homes from inventory. If you don’t like the ring of a bulldozer scheme, how about “The Neighborhood Parks” scheme? Even if I can’t convince any economists to get on board, environmentalists should be pleased.

Posted in banking, consumer protection, economics, financial regulation, markets | Tagged: , , , , | 11 Comments »

A Macro Conference

Posted by Paul H. Rubin on October 14, 2011

I was invited to attend the Financial Times Global Conference “The View From the Top: The Future of America” and since I was in New York anyway I thought it would be fun.  I don’t hang around with macro types much, and even less with liberal macro types.  I will not summarize the entire conference, but a few observations:

  1. Reinhart-Rogoff was a hit, mentioned several times.  Aside from the merits of the book, I think people were trying to give Obama cover for no recovery.  R-R apparently says it takes an average of 7 years to get out of a financial crisis.
  2. The first speaker (Gene Sperling) was late and the Gillian Tett of the FT, the moderator, took some informal polls of the audience (mainly business journalists.)  Pretty pessimistic: Thought that there would be a double-dip, the EU would lose at least one member, and yields would not increase.
  3. Sperling (Director of the National Economic Council) spent a lot of time talking about how bad unemployment is and arguing for the President’s Jobs plan (which the Senate has already rejected.)  Not much new to propose.
  4. Peter Orszagh (former OMB Director, now with CITI) made a few interesting points.  He said that the Administration got the original forecast wrong, and did not realize that the recession was “L” and not “V” shaped.  He also predicted that middle class incomes will not return to their original level and that policy should not fool people into thinking they would.
  5. Several speakers (Laura Tyson of Berkeley and former CEA Chair; Steve Case , AOL founder) argued for better immigration laws (no quarrel there: the Republicans have got themselves into a terrible position on immigration).  Tyson in particular argued for more STEM (science, technology, engineering, mathematics) education.  I asked her if she thought the increasing gender imbalance in colleges (now about 2 women per man) was responsible for the STEM problem and she indicated that it might be part of the problem.  Really something worth further examination and some policy analysis.  Of course the immigration mess makes this problem worse since it is harder to import engineers from abroad.
  6. Someone (I think Steve Rattner, former Auto Czar) made the point that while the American economy is doing badly and unemployment is a real problem, American companies are doing very well, in part because of foreign earnings.  There were also several inconclusive discussions of a tax holiday for repatriation of foreign earnings.  Some said that this would be “unfair” but others understood that future effects, not past fairness, was what was relevant.  Not clear what the effects would be, however.
  7. A few mentions of Sarbanes-Oxley and Dodd-Frank, but mostly the role of regulation was ignored.  Health care was mentioned but not, I believe, Obamacare.  Everyone agreed that businesses were “afraid” to spend money but little discussion of the source of the fear.
  8. Most were not worried about conflict with China.  I asked about Chinese demographics (aging population, gender imbalance with too many males.)  Whenever I hear discussions of China I raise this issue since people seem to ignore it and it is a serious issue.  Michael Spence (Nobel Laureate, now at NYU) said that China was in a position to establish a viable retirement program (no details) but that the gender issue was not one that was being dealt with.  There seemed to be almost envy of the ability of the Chinese to do what they wanted independent of the desires of the people.
  9. Laurence Fink of BlackRock made the interesting point that the current situation seems a lot like the 1970s, including the widespread pessimism.  Martin Wolf, Chief Economics Commentator of the FT, agreed.  But the lesson he drew was that we need more and wiser regulation.  I spoke with him briefly and indicated that I was in the Reagan Administration, and that last time we got in a pessimistic mess like this deregulation al la Reagan was the solution.  He rejected this approach.  But I am hopeful.

Posted in business, economics, Education, financial regulation, markets, sarbanes-oxley | Tagged: | 1 Comment »

Amazon and Internet Commerce

Posted by Paul H. Rubin on October 2, 2011

Stewart Baker at the Volokh Conspiracy has a very interesting post on the new Amazon browser.  He thinks it might revolutionize doing business on the Web, with a tremendous increase in security.  This increase in security will entail a loss in privacy, so let’s hope the privacy guys don’t stop it.

Posted in business, Internet search, markets, privacy | Tagged: | Comments Off

Concluding Unlocking the Law

Posted by Larry Ribstein on September 20, 2011

It’s been a great symposium.  Many thanks to all of our outstanding contributors!  This Symposium demonstrated blogging’s potential for productive intellectual discussion of an important current topic.  We expect to have more such virtual conferences.

We’ll have a wrap-up tomorrow of all of the posts here.  I will offer some reactions after I’ve had time to absorb the volume of ideas presented.  In the meantime watch this space for more Truth on the Market.

Posted in law school, lawyers, legal profession, markets, unlocking the law | Comments Off

Robert Crandall on It Is Time to Move Ahead with Deregulation

Posted by totmauthor on September 20, 2011

As we approach the end of this Symposium, I am struck by how much consensus exists on this subject. Of course, we are not conducting this exercise under the auspices of the ABA. Nevertheless, there is sufficient intellectual backing for a major push to begin the deregulation of legal services. Despite warnings that this is a bad time to consider such action, I think that there are reasons why this is a very good time to proceed. Contrary to popular wisdom, the number of employed lawyers has expanded through the recession, if one is to believe the results of the CPS household survey. But the employment in legal services firms has declined according to the BLS establishment survey. This is consistent with Larry Ribstein’s view on the decline of Big Law. The number of lawyers is growing slowly, but they are not having as much fun as before and are therefore less likely to come to the defense of their guild.

Cliff Winston and I think that the best way to proceed is through a variety of different state experiments. Some states could allow bar exams for persons who have not attended law school or who have subscribed to on-line law school programs. Others could offer a variety of different exams for different prospective specialties. Still others could repeal their unauthorized practice of law prohibitions. Others could allow non-lawyers to own legal services operations. Still other variants could be tried, including total deregulation. Let’s see what works – and not only in the United Kingdom.

Posted in law school, lawyers, legal profession, markets, unlocking the law | 5 Comments »

Bruce Kobayashi on Copyrighting Law and Deregulation

Posted by Bruce Kobayashi on September 20, 2011

My first post discussed one primary impediment to deregulating all the lawyers – which is the current system of legal regulation of lawyers.   Even if one agrees that deregulating all the lawyers may be the ultimate goal, this still leaves the question of how best to achieve this result.  Deregulating all the lawyers may not be the first thing we do.  One plausible candidate is fixing intellectual property protection for law.

This view is based upon the assumption that the best way to achieve the goal of deregulating all the lawyers is to create incentives for entrepreneurs to produce new and innovative legal information products.  As noted in my earlier post, innovation and entry by entrepreneurs into the legal information market can be a powerful force that weakens of the economic and political power of those whose interests are aligned with maintaining the current regulatory regime.  One result of this process is that deregulation becomes more likely.   This dynamic is why I love Virginia wine, even though I never drink it.

Creating incentives for entrepreneurs to innovate and enter requires a mechanism that allows them to appropriate a return to their investments.  Intellectual property rights can be an essential mechanism through which this occurs. Indeed, intellectual property rights can effectively protect many innovative legal information products.  However, in several important cases, legal information is subject to what can be described as a form of legal exceptionalism that results in weakened intellectual property rights.  In general, the availability and scope of intellectual property rights are limited so that the costs of restricting the use of already produced information do not exceed the benefits associated with the marginal incentives to create the information.   Intellectual property rights for law and related works seem to be further limited because of heightened concerns regarding use costs that are specific to legal information.

Perhaps the best example of legal exceptionalism is the legal treatment of the privately produced model building codes in Veeck v. SBCCI, 293 F.3d 791 (5th Cir. 2002, en banc).  In this case, Veeck posted SBCCI’s copyrighted model building codes on a website in violation of a license agreement that prohibited copying or distributing the work. The court held that the copyrighted code text entered the public domain when adopted as law by several local jurisdictions.  Through SBCCI retained copyrights to its model codes, they could not enforce them against Veeck, who identified the posted SBCCI model codes as the building codes of two municipalities.

Current copyright law precludes copyright protection for any work “prepared by an officer or employee of the United States Government as part of that person’s official duties”.  Under this definition, court opinions written by federal judges, congressional bills and statutes, and federal regulations are ineligible for copyright protection.  Courts have applied similar rules to state legal materials, including state judicial opinions, statutes, and regulations.   These rules assume that the use costs of intellectual property protection outweigh gains from improved private incentives to produce model laws.   Copyright law does not explicitly preclude copyright for model codes and other privately produced laws.  However, the court’s holding, by elevating due process concerns with public access to the law over providing economic incentives to produce model codes, effectively extends this prohibition to privately produced model codes and laws that have been adopted as law.

Protecting due process concerns does not require precluding copyright protection for privately produced works adopted as law.  Broad fair use privileges for those bound by the laws or codes could address these concerns while simultaneously protecting model codes from appropriation by competing commercial interests and other jurisdictions.   Restrictive licenses can also serve to appropriately balance the use-creation tradeoff by clarifying parties’ expectations regarding permitted uses and pricing of the copyrighted model law.   As part of these licenses, jurisdictions that adopt privately produced and copyrighted model codes could alleviate due process concerns by authorizing use by citizens bound by the law while preventing reproduction for other purposes.  Courts could require similar licenses to be granted by those wishing to file briefs and other potentially copyrightable documents.

The court’s holding in Veeck unnecessarily limits the ability to use these mechanisms by effectively eliminating copyright protection rather than retaining the protection and using the mechanisms discussed above that would permit limited public use and mitigate any due process concerns.  In doing so, the courts holding, along with other similar forms of legal exceptionalism unnecessarily weakens incentives for legal innovation and can result in less pressure to deregulate all the lawyers.

Posted in lawyers, legal profession, markets, unlocking the law | 1 Comment »

James Cooper on Antitrust Treatment of Expansive Interpretations of Ethical Rules

Posted by totmauthor on September 20, 2011

Attorneys earn excess rents by maintaining barriers to entering the legal profession.  Legislation and regulation expanding the scope of work that only an attorney legally can perform is an obvious way in which attorneys attempt to expand or protect the market for their services.  The FTC has a long history of trying to convince state legislators and courts that expanding the scope of the practice of law is likely to have unjustified anticompetitive consequences.   A more subtle way attorneys limit competition for legal services is by interpreting existing legislation and rules in a manner that expands the universe of practices that are considered “unethical” or “unauthorized practice of law.”  In this symposium, I will address the application of antitrust law to this conduct.

The Legal practice no stranger to antitrust scrutiny.  Indeed, in several seminal antitrust cases the Supreme Court has grappled with the tension between a national policy in favor of competition and states’ abilities as sovereigns to regulate the practice of law.  See e.g., Bates v. State Bar of Arizona; Goldfarb v. Virginia; Hoover v. Ronwin.  Taken together, what these cases make clear that entry barriers erected directly by the state supreme court acting in its legislative capacity are ipso facto exempt from antitrust scrutiny as acts of the state sovereign.  Agreements among private attorneys (e.g., via a private state bar association as opposed to a mandatory state bar) to set competitively sensitive variables (like price and advertising), on the other hand, clearly are not unless both the “clear articulation” and “active supervision” tests from Midcal are met.  One area that has yet to be addressed, but which I think merits closer attention, is the use of ethics opinions or threats of enforcement for violations of ethical codes to limit competition in the market for legal services.

Let me provide a hypothetical to motivate this discussion:

  • Imagine a firm that uses a website to match attorneys with potential clients.  The site works like this:  you post on the website that you’re looking for someone to draft partnership agreements under Virginia law for your new business; attorneys who have paid to participate in the platform see your request, and, if interested, post a reply describing their qualifications and in some cases price.  The website make money from attorney subscriptions.  Recently, however, the state bar ethics committee issued an ethical opinion that participation in this platform would violate the state bars’ ethics rules by constituting and illegal payment to a non-attorney (the web site) for a referral.  Now, as an attorney in State X, you have a dilemma.  The website has been quite useful in helping you build your practice, but if you continue to participate, you risk being sued – either by an arm of the state bar, or a private attorney acting to protect the integrity of the legal practice – for violation of ethical rules.  The possible penalties (in addition to legal and opportunity costs to address any ethical challenge) could include fines, suspension, or even disbarment.

In this case, the state has not issued a new rule or regulation that explicitly expands the legal monopoly.  Instead, a group of attorneys (who most likely do not work full time for the state bar) have merely opined on what the state ethics rules require.  This opinion, however, has the practical effect of discouraging use of the online legal platform by threating legal sanctions.   In this manner, it has a clear anticompetitive effect of reducing consumer choice and retarding competition among attorneys.  Established attorneys with large client bases and existing referral systems operated by local bar associations, moreover, are likely to be the primary beneficiaries of this new opinion.

The interesting antitrust questions that arise in this scenario are (1) whether the state action doctrine protects this conduct; and (2) does this conduct constitute a restraint of trade.

Is This State Action?

Turning to the state action issue, the ethics committee of a state bar is not the sovereign, so its actions are not ipso facto immune from antitrust scrutiny.  Thus, a necessary condition for state action exemption is that the ethics committee was acting pursuant to a clearly articulated and affirmatively expressed state policy. Less clear, however, is whether this is also a sufficient condition for state action protection.  I argue that it is not, and that in addition the ethics committee must show that the state approved its decision to adopt an interpretation of the ethics rules that was likely to have anticompetitive effects.

Support for this position can be found in the FTC decision, In re North Carolina State Board of Dental Examiners (NCDE), (Feb. 8, 2011).  NCDE concerned a state dental regulatory board composed of private dentists that had sent cease and desist letters to non-dentists who performed teeth whitening procedures.  The Board acted on its interpretation that these non-dentists were engaging in the unauthorized practice of dentistry.  The Dental Board, however, lacked the authority to enjoin anyone from teeth whitening; its statute only allowed it to file a complaint in state court alleging unauthorized practice of dentistry.  The Board claimed state action exemption, arguing that as a state subdivision it needed only to show that it satisfied the clear articulation prong of the Midcal test.  The FTC disagreed, and held that to enjoy state action protection the Board also must show that the state actively supervised its decision to issue the cease and desist letters. (Id. at 9-11).

The important factor in the FTC analysis was its conclusion that the Dental Board’s interests were insufficiently independent from the interest of those it was regulating.  Turning to first principles, the Commission explained:

[I]f a state permits private conduct to go unchecked by market forces, the only assurance the electorate can have that the private parties will act in the public interest is if the state is politically accountable for any resulting anticompetitive conduct . . . .  Decisions that are made by private parties who participate in the market that they regulate are not subject to these political constraints unless these decisions are reviewed by disinterested state actors to assure fealty to state policy.

Id. at 10-11.  The Commission went on to find that the state of North Carolina had not supervised the Dental Board’s decision to classify teeth whitening as the practice of dentistry, thereby restraining competition in the market for teeth whitening, “was subject to any supervision, let along sufficient supervision to convert the Board’s conduct into that of the state of North Carolina. “ Id. at 17.

The reasoning in NCDE is equally applicable to expansive interpretation of rules or statutes to limit competition in legal services.  For example, in the above hypothetical, the ethics committee’s opinion should not enjoy state action protection unless the committee can show that the state reviewed and approved its decision to limit competition.  True, this rule will impose costs, but as I (along with Bill Kovacic) have argued elsewhere (see 90 B.U.L. Rev. 1555, 1597 (2010)) this is the price a state must pay if it wants to circumvent the national policy in favor of competition.  In deference to federalism, Parker and its progeny allow states to adopt policies that contravene the antitrust laws.  But regulatory bodies comprising unelected market participants are not sovereign, so deference to their anticompetitive policies does not vindicate the federalism principles that animate the state action doctrine.   What’s more, these bodies are likely to pose a greater risk to competition than elected officials, who at least are politically accountable for the anticompetitive policies that they pursue.

Finally, I argue that ex post review by a state court of decisions by ethics committees that expand the definition of the practice of law or that suggest some new practice is unethical should be insufficient to constitute active state supervision.   The active supervision prong of Midcal requires the state to approve prices set by a private cartel before they go into effect, so logically it should also require the state to approve ex ante an ethics committee’s decision to interpret ethical rules in a manner that is likely to restrain competition in the market for legal services.

Restraint of Trade?

Even if the ethical committee’s actions are not protected by the state action doctrine, we must also address a second question:  does the ethics committee’s opinion constitute a restraint of trade under the antitrust laws?  In Schachar v. Am. Academy  of Ophthalmology, 870 F.2d 397 (7th Cir. 1989), an ophthalmologist challenged the AAO under the antirust laws for opining that radial keratotomy was an experimental procedure.  Judge Easterbrook held that this could not be a restraint because although the AAO’s opinions carried weight due to its reputation, it had no power to prevent anybody from performing radial keratotomy.   Could the same issue exist for my hypothetical?  Is an opinion by the ethics committee no different from that of a trade association or an expert body?  I argue no, because unlike that AAO in Schachar, the ethics committee is acting under the color of law, which provides a reasonable basis for attorneys licensed in State X to believe that they risk state sanction if they fail to heed the warning.

Again, NCDE is illuminating.  Following the Commission’s state action decision, and after a full trial, the ALJ found that the Board’s conduct related to non-dentist teeth whiteners constituted an unreasonable restraint of trade. (see http://ftc.gov/os/adjpro/d9343/110719ncb-decision.pdf).   He based this finding on two grounds: the nature of the Board’s conduct coupled with its power to exclude competitors, which flowed from the fact that it was a state agency; and evidence that the Board’s actions actually caused some non-dentist teeth whiteners to exit the marketplace.   It would be hard to distinguish a state bar’s ethics committee’s expansive interpretation of an ethical requirement from the facts in NCDE; both regulatory bodies have the power to exclude competition because their opinions, unlike those of a private association, carry the possibility of legal sanction for non-compliance.

Posted in antitrust, lawyers, legal profession, markets, unlocking the law | Comments Off

Nuno Garoupa on Reforming Legal Professions In East Asia

Posted by totmauthor on September 20, 2011

The traditional narrative is that Asian jurisdictions have fewer lawyers than in the West because they are much less litigious societies; they don’t need lawyers! Recent evidence has suggested the causation is probably reversed; there are not enough lawyers to provide services to all potential litigants.

Legal markets in East Asia were largely kept closed by excluding foreign law firms and imposing a significantly low passing rate for bar exams (usually less than 10%). In this context, Japan and Korea have enacted important legal reforms to modernize their legal practice and make it more competitive in the last ten years. Quite remarkably, they have been inspired by the U.S. model of legal education. The most immediate consequence has been the notable increase of passing rates in the Japanese and Korean bar exams, still low for U.S. standards (below 50%), but clearly above the traditional figures. The transformation of the law degree from undergraduate to postgraduate (similar to a J.D. program) has been less far-reaching than expected, since the undergraduate degrees were not fully eliminated.

Taiwan and Hong Kong have been changing at a slower pace. The political context (a process of democratization) has been fundamentally influenced by lawyers, but the changes in the market for legal services have been less remarkable than in Japan and Korea. Taiwan is the Asian jurisdiction with more law professors educated in the United States (still a minority though). The Hong Kongnese legal profession has been shaped by the British. Its vibrant market and the strategic location within the Greater China have attracted the attention of the big law firms.

Mainland China is a different story. For many political and historical reasons, the reform of the legal profession has not been a major priority. Passing rates in Chinese bar are extremely low (possibly below 5%) which, in my view, explains the big Chinese demand for U.S. LLMs degrees (even if low, the chances of passing the New York bar are higher than passing the Chinese bar). The big demand for legal services is concentrated in Beijing and Shanghai. Legal education has expanded significantly since the early 1990s, but most commentators agree that quality is a serious problem. The market is heavily regulated by the government (which does not exclude the possibility of less strict informal practices).

We cannot say we see a pattern of deregulation of legal services in East Asia. At best, most jurisdictions have been investing on improving the quality of their legal human capital. Entry controls traditionally were severe (they still are in mainland China), thus failing to create a competitive market (probably with the exception of Hong Kong). Recent reforms might change this pattern in the future but, at this stage, their impact is unclear. Local commentators are divided on the merits of these reforms.

Posted in law school, lawyers, legal profession, markets, truth on the market, unlocking the law | 2 Comments »

Renee Newman Knake on Corporations, the Delivery of Legal Services, and the First Amendment Part II

Posted by totmauthor on September 20, 2011

In Part I of this post, I identified a jurisprudential thread of cases that suggest corporations have a First Amendment right to own and invest in law practices for the delivery legal services.  These decisions include NAACP v. Button, the union trilogy, and Bates v. State Bar of Arizona.  Two recent cases shed light on how the Supreme Court might view my collective reading of NAACP v. Button and its progeny: Citizens United v. Federal Election Commission and Sorrell v. IMS Health.

Citizens United accomplished at least two tasks related to understanding the free speech interests bound up in access to the law and the delivery of legal services via a corporation:  (1) the majority made clear that for-profit and nonprofit corporations alike enjoy the same protections as individuals under the First Amendment and (2) the holding broadened prior decisions related to the need for speech to further economic competition.  Writing for the majority, Justice Kennedy observed: “The identity of the speaker is not decisive in determining whether speech is protected.  Corporations and other associations, like individuals, contribute to the discussion, debate, and the dissemination of information and ideas that the First Amendment seeks to foster.”   If the majority’s opinion means what it says, Rule 5.4’s blanket ban against outside investment and ownership of law practices unconstitutionally interferes with the corporation’s ability to disseminate legal services.

In Sorrell, the Court struck down a Vermont statute restricting the sale and use of pharmacy records to so-called data miners.  Writing the 6-3 majority opinion, Justice Kennedy quoted from the Bates case, observing that the “consumer’s concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue.”  The Sorrell decision recognizes that dissemination of information is essential to the First Amendment. The corporation is uniquely situated to engage in wide-scale distribution of legal services in a way that currently does not occur largely due to cost restraints associated with economies of scale.  It simply isn’t economically feasible for a traditional law firm to market and deliver en masse representation to the general public for routine wills, child custody, divorce, mortgage foreclosure, standard contracts, small business needs, immigration, bankruptcy, housing disputes, and other basic matters.

Let me return for a moment to the NYT editorial on America’s justice gap that I mentioned in Part I of this post.  The remedies proposed in that piece have not succeeded to date and are unlikely to come to fruition.  Funding for the Legal Services Corporation is on the decline, as it has been since established in 1974.  It is unclear how required pro bono reporting would make any meaningful difference in offering legal services to the untapped market of consumers that could be reached by corporations like Wal-Mart or Google.  As law schools struggle to control tuition and manage their budgets, expanding loan forgiveness programs seems unrealistic.  At best, permitting nonlawyers to engage in limited categories of simple legal representation might offer some relief but that, alone, is not enough.  Missing from this list of solutions, as I noted in my previous post, is the reform most likely to result in the dissemination of legal representation for those in need and to create jobs for unemployed lawyers:  corporate ownership of law practices.

We need a novel resource to facilitate competition, fuel innovation, and increase access to quality legal services.  Corporations have the potential to provide this resource.  Not only do economic realties and global competition demand this, but it is a matter of First Amendment concern as well.

Posted in lawyers, legal profession, markets, unlocking the law | 3 Comments »

 
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