Tim Muris on Fred McChesney

Timothy J. Muris —  8 November 2017 — Leave a comment

Timothy Muris is a George Mason University Foundation Professor of Law at the Scalia Law School at George Mason University and Senior Counsel at Sidley Austin LLP. From 2000-2004 he was Chairman of the Federal Trade Commission.

I knew Fred for over 40 years, and came to have a deep love and affection for his humanity, vivacity, and keen intellect. In October, 2011, I had the honor of introducing Fred when he was invested in the de la Cruz-Mentschikoff Chair in Law and Economics at the University of Miami School of Law. My remarks follow:

President Shalala, President LaBlanc, Mr. de la Cruz, Dean White, Dean Manne, Dean Gudridge, any deans that I have overlooked, friends of Fred, and last in order, but first in importance today and in our hearts, Fred.

Fred and I met in Washington 35 years ago. Our mutual friend, Senator Phil Gramm, liked to say that he did the Lord’s work in the devil’s city. Fred has done that work in Washington and beyond. Fred came to see me in 1976 at the FTC because he knew we shared many interests and that we would both be at this law school. Neither one of us would be here today without Henry Manne having brought us to Miami, one of the many gifts Henry has given to so many in the law and economics community.

Over the next two years, my first as a professor and Fred’s last two as a student, our life long friendship began. It was built on law and economics, baseball, fine food – especially countless outings at Shorty’s, Miami’s famous barbecue establishment – and myriad other shared interests. We learned together, wrote a joint article, more on that later, and even went on two spring training tours. Six games in three days: baseball, beer, and junk food. We saw The Bird pitch for Fred’s beloved Tigers, and, of course, the Tigers hope to eliminate the Evil Empire in a few hours.

Fred and I also played softball together here at the law school. On one memorable weekend, we won the school tournament, stringing together five or six improbable victories over more talented teams. There is no truth, however, to the rumor that it was Fred’s idea to stall late in the semi­ final because several of our opponents in the final had tickets to the soon-to-start Dolphins game.

In 1981, after a Ninth Circuit clerkship and a short stint with a major D.C. law firm, Fred joined us in the Bureau of Consumer Protection at the FTC. In the 1970s, the Agency had tried to become the second most powerful legislature in Washington, proposing rules to transform dozens of industries. We disagreed. Relying on our law and economics background, we thought that the common-law already provided crucial basic rules for the economy, such as avoiding fraud and deception and keeping your contractual promises. Because of inadequate procedures to enforce those rules in consumer transactions, there was an important role for a federal agency. With Fred’s help, we defined that role and the FTC began the long road to the prominence it enjoys today. There really was a Reagan Revolution at the FTC, and Fred was an important part of it.

Then, Fred began his remarkable academic career, first at Emory, then Cornell, Northwestern, and now Miami. Fred has returned to his original law school home. Let me highlight three themes in the extensive McChesney body of scholarship:

First, rent extraction. Few books have been more aptly titled than Fred’s 1997 Harvard publication, “Money for Nothing: Politicians, Rent Extraction, and Political Extortion.” Most have long understood that politicians offer favors, such as the latest pork barrel project. We see legions of lobbyists trolling Capitol Hill, engaged in rent seeking. But Fred explained that the politicians offer more: not doing something that a particular group finds onerous. Hence, money to politicians for doing nothing. Thus, to Fred, the 1986 Tax Reform Act was the Sistine Chapel of the political art. Not only did that Act simplify the tax code, allowing room for selling thousands of new complexities that plague us today, but the tax writers also threatened numerous onerous provisions that were never enacted. Fred put a new twist on Ronald Reagan’s apt description of Washington mores: “If it moves, tax it. If it keeps moving, regulate it. If it stops moving, subsidize it.”

Second, Fred has made important contributions to the property rights literature, perhaps best illustrated in his 2003 Princeton book with Terry Anderson, “Property Rights: Cooperation, Conflict, and Law.” Fred’s work on Native Americans is particularly insightful. Various laws have foreclosed these Americans from exercising the full property rights that others have in their land. As Fred documented, the predictable result has been less wealth for these citizens, only partly alleviated by revenues from casinos.

Third, Fred has insisted on applying public choice economics to antitrust, as illustrated by his 1995 Chicago book with Bill Shughart, “Cases and Consequences of Antitrust: The Public Choice Perspective.” For reasons hard to understand, many in the Chicago school of economics thought that government actors were guided by self-interest, except those in the antitrust field. Fred’s work has been a useful correction and reminder of the importance of economic incentives in all aspects of life.

Of course, there is much more. Did you know that some legal clinics not only charge less for routine legal services, but can also increase quality? Our 1979 article, using empirical data on legal clinic performance, explained that through advertising, legal clinics could obtain a sufficient volume. With that volume, they can specialize on certain services, thereby not only lowering price, but improving quality.
Fred also recently explained the benefits of property rights in one’s parking place on the street following Chicago snowstorms. By giving individuals who clear a space on the street for their car property rights, Chicago encourages snow removal, not only in the space involved, but in contiguous spaces because of increased melting next to the cleared land.

Why were the Indian wars on the plains so intense? As Fred explained, the Civil War created an officer class larger and more skilled then in the antebellum years. Those skills were used-or in the case of Custer, misused – against the Plains Indians.

Fred is not only a world class scholar, he is also a world-class individual. Fred makes friends easier than anyone. To eat at Shorty’s with Fred is to become engaged in a conversation with the entire picnic-style table, most of whom you have never met. Fred also knows more about pre­ Beatles rock’n’roll than anyone alive.

And to be with Fred at a baseball game – well, let me tell you about one particular night in 1982, illustrating another skill at which Fred is world-class. The Angels were playing the Orioles in Baltimore, and we were sitting down the right-field line. Jim Palmer was the winning pitcher for the Orioles, causing Fred to predict that we had probably seen the last game Palmer would ever win. This was not the aspect at which Fred is world-class, for Palmer that night began a long winning streak in the last great year of his Hall of Fame career.

No, it was another event that prompts my admiration for Fred’s skills. When the Angels were in the field, we were sitting close to one Reginald Martinez Jackson. Yes . . . Reggie. . . Mr. October. But it was Spring, and Reggie was playing poorly, both at bat and in the field. Fred, in his booming voice, let the slugger know his opinion. I guarantee you that his words can be used in polite company in virtually any setting, except perhaps “bum”! But that night Mr. Jackson did not appreciate the particular order in which Fred used those words. In an event as rare as a triple play, Mr. October yelled back, in words not necessarily suitable for today’s event.

So, there we have it, Fred McChesney: world-class scholar, world-class friend, and world-class fan. The Law School has gained a very special person.

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