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Paul J Larkin - One of the best experts on this subject based on the ideXlab platform.

  • Public Choice Theory and occupational licensing
    Harvard Journal of Law and Public Policy, 2016
    Co-Authors: Paul J Larkin
    Abstract:

    1. The Rehabilitation of Lochner Some contemporary scholars have urged the Supreme Court to reconsider its New Deal era precedents, including ones upholding occupational licensing restrictions, on the ground that "property" rights are no less important than "liberty" rights. (214) In their opinion, the prevailing view of Lochner grossly overstates the adverse effect of that decision. Progressives won the battle over intrusive judicial review of social and economic legislation, those academics concede, (215) and the victors always write the history. But the story they tell is inaccurate because Lochner was hardly the legislative kryptonite it has been made out to be. The Supreme Court of that era upheld more laws than it struck down, and some of those that the Court held unconstitutional were classic examples of special interest legislation. (216) The Court also did not throw in with the interests of large businesses. For example, the poor were the principal beneficiaries of decisions that held entry restrictions invalid. (217) These scholars maintain that the Supreme Court mistakenly abandoned the field of economic regulation to the political process in the 1930s while strictly scrutinizing any government effort to restrict civil or political liberties. "While few Americans will discount the importance of the so-called civil liberties, the reality is that economic liberties are the lubricant of a market economy." (218) Each category of liberties should receive the same respect as the other. In fact, the current state of the law is not only mistaken, but also undeniably elitist, because the "average person," the people who form the majority of the nation, would enthusiastically trade off some personal freedoms for greater economic opportunity. (219) So far, the Supreme Court has been unwilling to fundamentally re-examine its New Deal era economic regulation precedents and apply the same degree of scrutiny to economic legislation that it has used to assess restrictions on certain personal freedoms. Litigants, of course, could try to resurrect substantive due process principles. If they do, they likely would argue along the following lines. 2. A New Old Fundamental Right to Property A changed economic Theory. Critics of New Deal jurisprudence would start out by noting that the economic background to the New Deal era decisions has changed, justifying a reexamination of those rulings. The argument would be that the nation has witnessed a fundamental shift in how economic policy and law should treat competition. The Depression caused a lack of Public confidence in the efficacy of free markets and a desire for government intervention. (220) New Deal economics sought to protect rivals against the "brutal ethos" and "anarchical" effects of "excess" or "ruinous competition" through government regulation of price, output, and factors of production. (221) Part of the rationale for government intervention was the fear that price wars would add to the greatest unemployment rate in American history, but another component was the belief that central planning could rationally avoid the faults of a laissez-faire free market economic system. (222) The demise of Marxist economies beginning in 1989 shows that central planning cannot produce economic growth. (223) "Today, claims of ruinous competition usually are met with a snicker and the observation that ruinous competition is nothing more than competition." (224) Contemporary national competition policy has changed direction by one hundred-eighty degrees. American law now strongly demands that competition between rivals be robust and, with limited exceptions, prohibits state actions that would foreclose rivalry or lead to the cartelization of an industry. (225) The difference in how the law treats competition is due to a fundamental shift, universally acknowledged, in the focus of the federal antitrust laws away from protecting the interests of rivals to advancing the interests of consumers. …

  • Public Choice Theory and occupational licensing
    Social Science Research Network, 2015
    Co-Authors: Paul J Larkin
    Abstract:

    Occupational licensing is now one of the most widespread and fastest growing forms of labor market regulation. Occupational licensing requirement generally are defended on the ground that they offset the information disparity between service providers and consumers by guaranteeing a minimal level of qualifications. Over time, however, a large number of federal government officials, scholars, and commentators have criticized the widespread use of occupational licensing requirements. They have argued that licensing requirements benefit licensees, not consumers, by helping to create a cartel that can avoid competition and raise prices. Public Choice Theory is a useful tool for analyzing licensing requirements because it applies microeconomic and game Theory to the political process. Doing so gives rise to the remarkable irony that the justification for regulation has come full circle. Originally, the rationale was that government intervention would remedy economic market failures in furtherance of the Public interest. Today, we see that government intervention causes political market failures in furtherance of private interests. Government has become the problem, not the solution.That conclusion justifies a re-examination of the constitutionality of many occupational licensing schemes. Then Supreme Court has been unwilling to re-examine the constitutionality of these programs since the new Deal, but there are two grounds that might prove useful. One is the Equal Protection Clause. It requires a rational basis for treating similarly situated people differently. Here, the argument would be that the basis for requiring licenses is due to the operation of political bribery and extortion, which is not a legitimate state interest. The second argument would be that many license schemes vest lawmaking authority in private parties, which the Private Delegation Doctrine forbids.

  • Public Choice Theory and overcriminalization
    Social Science Research Network, 2013
    Co-Authors: Paul J Larkin
    Abstract:

    Overcriminalization is a neologism describing the overuse and misuse of the criminal justice system. Overcriminalization can take several forms — e.g., superfluous criminal statutes, undue expansion of common law accessorial liability doctrines, grossly disproportionate punishments, etc. — but the worst form that overcriminalization takes is the criminalization of conduct that no reasonable person would think is or should be a crime. Legislatures and chief executives are principally responsible for overcriminalization, because there is no opposing force in contemporary politics that would temper politicians’ desire to appear to be “tough on crime” by expanding already bloated criminal codes. The courts are the only hope for stemming or reversing the overcriminalization trend. There are several criminal law doctrines that could be used to deal with the harms of overcriminalization, such as reliance on the “rule of lenity” or recognition of a “mistake of law” defense. But the best hope may be simply for judges to identify this problem for the Public and explain why they should be concerned about it. The Public can halt this trend if judges can persuade the electorate that overcriminalization is a serious harm to the body politic.

Zachary James Gubler - One of the best experts on this subject based on the ideXlab platform.

  • Public Choice Theory and the private securities market
    North Carolina Law Review, 2012
    Co-Authors: Zachary James Gubler
    Abstract:

    One of the most important developments in the capital markets over the past decade presents a puzzle that needs to be solved. The development is the dramatic expansion of the unregulated market for private securities in the United States. The puzzle is that Public Choice Theory, the dominant Theory for explaining the behavior of the Securities and Exchange Commission (“SEC”), fails to account for it. After all, the traditional Public Choice account predicts that the SEC will grow its regulatory turf, not erode it. This Article develops a Theory that solves this puzzle. The argument is that the traditional Public Choice account overlooks an important class of cases where regulators have incentives to expand the unregulated portion of their industry. With respect to the SEC, this Article argues that, by growing the private securities market, actors at the SEC maximize support for their current and future careers in the face of uncertainty over how to reinvigorate a dysfunctional Public market.

  • Public Choice Theory and the private securities market
    Social Science Research Network, 2012
    Co-Authors: Zachary James Gubler
    Abstract:

    One of the most important developments in the capital markets over the past decade presents a puzzle that needs to be solved. The development is the dramatic expansion of the unregulated market for private securities in the United States. The puzzle is that Public Choice Theory, the dominant Theory for explaining SEC behavior, fails to account for it. After all, the traditional Public Choice account predicts that the SEC will grow its regulatory turf, not erode it. In this article, I develop a Theory that solves this puzzle. The argument is that the traditional Public Choice account overlooks an important class of cases where regulators have incentives to expand the unregulated portion of their industry. With respect to the SEC, I argue that by growing the private securities market, the SEC maximizes its career support in the face of uncertainty over how to reinvigorate a dysfunctional Public market. The Theory developed in this article has important implications for securities regulation and beyond. With respect to securities regulation, it suggests that any attempts to minimize the potentially high social costs of an expanding private securities market will need to take into account the effect of underlying political forces. To this end, I sketch the outline of a novel approach for dealing with an expanding private securities market, the centerpiece of which is an entity (independent from the executive branch and accountable to Congress) whose goal it would be to focus greater Public scrutiny on the SEC for the purpose of counteracting the political forces underlying the growth of that market. This Theory also has important implication for the literature on regulatory arbitrage and optimal policy-making more generally. In particular, it suggests that the conclusions drawn in these literatures are misleading to the extent that they downplay or ignore the possibility that political forces may favor regulatory arbitrage and that these same political forces may cause regulators and lawmakers to avoid uncertainty in policymaking altogether, just as the SEC has sought to avoid the uncertainty associated with reform of the Public securities market.

Axel Dreher - One of the best experts on this subject based on the ideXlab platform.

  • the bigger the better evidence of the effect of government size on life satisfaction around the world
    Public Choice, 2007
    Co-Authors: Christian Bjornskov, Axel Dreher, Justina A V Fischer
    Abstract:

    This paper empirically analyzes whether government size is conducive or detrimental to life satisfaction in a cross-section of 74 countries. We thus provide a test of the longstanding dispute between standard neoclassical economic Theory and Public Choice Theory. According to the neoclassical view, governments play unambiguously positive roles for individuals' quality of life, while the Theory of Public Choice has been developed to understand why governments often choose excessive involvement in – and regulation of – the economy, thereby harming their citizens' quality of life. Our results show that life satisfaction decreases with higher government consumption. For low, middle income, and male people, this result is stronger when the government is leftwing, while government consumption appears to be less harmful for women when the government is perceived to be effective. Government capital formation and social spending have no significant impact on life satisfaction.

  • the bigger the better evidence of the effect of government size on life satisfaction around the world
    2005
    Co-Authors: Christian Bjornskov, Axel Dreher, Justina A V Fischer
    Abstract:

    This paper empirically analyzes the question whether government involvement in the economy is conducive or detrimental to life satisfaction in a cross-section of 74 countries. This provides a test of a longstanding dispute between standard neoclassical economic Theory, which predicts that government plays an unambiguously positive role for individuals’ quality of life, and Public Choice Theory, that was developed to understand why governments often choose excessive involvement and regulation, thereby harming voters’ quality of life. Our results show that life satisfaction decreases with higher government spending. This negative impact of the government is stronger in countries with a leftwing median voter. It is alleviated by government effectiveness – but only in countries where the state sector is already small.

  • a Public Choice perspective of imf and world bank lending and conditionality
    Public Choice, 2004
    Co-Authors: Axel Dreher
    Abstract:

    The paper explains IMF and World Bank lending and conditionality stressing changes in relative bargaining power of different stakeholders over time. It applies Public Choice Theory to explain the interests of the institutions' member states, its borrowers and staffs as well as private actors attaching their money to the IFIs' programs. Using panel data for 43 countries between 1987--99 it is shown that the number of Fund conditions seems to be influenced by contemporaneous World Bank activity and ``bad'' policies.

Bob Tarantino - One of the best experts on this subject based on the ideXlab platform.

  • calvinball users rights Public Choice Theory and rules mutable games
    Social Science Research Network, 2018
    Co-Authors: Bob Tarantino
    Abstract:

    This article proposes the “rules mutable game” as a metaphor for understanding the operation of copyright reform. Using the game of Calvinball (created by artist Bill Watterson in his long-running comic strip Calvin & Hobbes) as an illustrative device, and drawing on Public Choice Theory’s account of how political change is effected by privileged interests, the article explores how the notion of a game in which players can modify the rules of the game while it is being played accounts for how users are often disadvantaged in copyright reform processes. The game metaphor also introduces a normative metric of fairness into the heart of the assessment of the copyright reform process from the standpoint of the user. The notion of a rules mutable game tells us something important about the kinds of stories we should be telling about copyright and copyright reform. The narrative power of the “fair play” norm embedded in the concept of the game can facilitate rhetoric which does not just doom users to dwell on their political losses, but empowers them to strategize for future victories.

George Alexander Boyne - One of the best experts on this subject based on the ideXlab platform.