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- Law Order vs. Lawyer Order: Analyzing the Development of Jury Independence
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| Law Order vs. Lawyer Order: Analyzing the Development of Jury Independence Posted: 27 May 2021 02:15 PM PDT ABSTRACT: This essay develops a model to analyze jury independence. Jury independence can be seen as a game between elites and the citizens who make up the jury. This essay first presents a historical look at jury independence by looking at jury nullification. Then using the model developed, the evolution of jury independence is analyzed as well as how juries and the elites operate today. The essay finds that jury independence has changed due to changes in the philosophical/moral understanding of the law, which has resulted in the movement from law order to lawyer order. KEYWORDS: jury nullification, elites, jury independence, Blackstonian view of law, Darwinian view of lawFeler Bose (bosef@iue.edu) is an Associate Professor of Economics and Finance at the School of Business and Economics at Indiana University East. "Only the checks put upon magistrates make nations free; and only the want of such checks makes them slaves. They are free, where their magistrates are confined within certain bounds set them by the people … And they are slaves, where the magistrates choose their own rules, and follow their lust and humours … those nations only who bridle their governors do not wear chains." – John Trenchard, 1722 "If we could eliminate the jury, we would save a lot of time. You can try a case without a jury in one day that would take you a week or two weeks with a jury." – Chief Justice Warren Earl Burger, Time Magazine, June 20, 1969 INTRODUCTIONThere have been different theories as to the development of law and the relationship between the elites and the people in the West and the United States in particular. One such theory is that the development of American law was the product of conflict between economic interests. In this conflict, the commercial interests benefitted at the expense of the less powerful groups such as farmers, workers, and consumers. The commercial and industrial interests sought more efficient debt collection, restricted the state in areas of "fair dealing," and sought low-cost economic development, among other reforms (Horwitz 1975). An example is the law of contributory negligence which was pushed by the business interests as they influenced the courts (Burns 2017, 2). Another perspective comes from the idea that the revival of Roman law with the discovery of Corpus iuris civilis resulted in a move from the medieval "enumerative" approach to law to a more mathematical/scientific deductive approach to law. Hence, Roman law was elitist, as it was only accessible to a few who could understand and apply the details (Hoeflich 1986). Although these theories provide insight into the development of the law in the US, the approach presented in this paper will seek an explanation using the jury system and the philosophy underpinning the understanding of the law. This explanation provides a complementary explanation for the development of law in the US by focusing on jury independence. The development of the independence of the jury has a long history mainly situated in the English-speaking world. The hypothesis to be tested in this paper is that when the jury and the elite have a Blackstonian understanding of the origins of the law, there is minimal conflict between them, resulting in law order; however, when the understanding of the law becomes Darwinian, elites seek to have control of the law and its development, resulting in lawyer order and conflict between elites and juries. The Blackstonian-Darwinian distinction is not new, and a similar distinction has been suggested before by Chafee (1947), who uses the terms Blackstonian and Austinian (after John Austin, a legal scholar from the 1800s). Austin believed that judges make law as opposed to discovering law (as William Blackstone believed); however, Chafee's understanding of the nineteenth-century changes in the understanding of law is not complete. He believes that the changes are as natural as a pendulum swinging back and forth between the Blackstonian and Austinian understanding of law over hundreds of years (1947, 420), but he does not provide much evidence for this repeating pattern and further his understanding of the Blackstonian view needs further development. If there is one theme that runs through the works of Horwitz (1975), Hoeflich (1986), and Chafee (1947), it is that the law has become elitist, leaving the common person with minimal input. This article arrives at the same outcome, but the explanation comes from moral/philosophical changes. This article will mainly focus on the role of juries in criminal cases in the US but will also look at juries in civil cases. Jury nullification is when a criminal trial jury decides not to enforce a law because they believe it would be unjust or misguided to convict. This allows average citizens, in deliberative bodies, to limit the scope of the criminal sanction, so that acts not broadly condemned are not widely punished. History shows juries have taken this enormous power very seriously, and have used it responsibly (Conrad 2003, xix). The article is organized as follows. First, a brief historical overview of the development of the jury system is provided. A model is then developed as a framework for analyzing the jury system. The model is then used to analyze jury nullification over time by highlighting the philosophical underpinnings and also discusses possibilities for reform. The final section concludes. INITIAL DEVELOPMENT OF JURY INDEPENDENCEThis section focuses on the early development of juries and the development of jury independence. Although many historians begin with jury development in England, one in fact must go further back in history to the Hebrews. The Ancient Hebrew Court The ancient Hebrew courts had four levels of appellate courts. The court at the top was the Great Sanhedrin of seventy-one elders located in Jerusalem. The Small Sanhedrin of twenty-three elders1 were the next level, located in the other major cities. The third level was the Bench of Twelve,2 and each synagogue had one of these bodies. Below that was the Authorized Bench, composed of experienced men. Finally, there was the Unauthorized Bench, or the Bench of Idiots. The Unauthorized Bench was so named because it was not authorized by the Great Sanhedrin and ιδιος (idios), meaning unique, one of a kind, indicating that this unauthorized bench met for a particular case only, "bringing to bear the idios-syncracies of the conscience of each juror"(Winters 2008, 461) resulting in independence from the influence of elite preferences. This model of the Hebrews was also adopted by the early church, especially the Unauthorized Bench, even when under Roman civil law. Paul encouraged the church to use the "least esteemed" to judge the small matters, i.e., not those who held offices in the church (Winters 2008).3 The Unauthorized Bench model followed by the early church diffuses and disperses judicial power from the professional class. England Prior to the Magna Carta, the criminal justice system in England had three types of trials. The first was trial by compurgation, the second was trial by ordeal, and the third was trial by battle (Levy 1999, 4). Only the trial by compurgation seems to be non–elite based, as it entailed wider involvement from the people. The trial by ordeal required the accused person to undergo a physical test such as putting their hand in hot water, drinking poison, walking through fire, etc. If one was injured, then one was guilty. The trial by ordeal was practiced by some in Europe but was opposed by the church and others such as the Norman kings of England. The trial by ordeal was based on the belief that nature is normative and determines one's innocence or guilt (Rushdoony 1973, 606). The trial by battle gained ascent when the trial by ordeal was abolished. Here the idea was that the winner was the one who was right. This method of trial gradually disappeared in the Middle Ages (Conrad 1998, 16). The trial by compurgation required an accused person to prove their innocence and provide several witnesses to take an oath attesting to the accused person's innocence. This method was like the jury trial in that it involved nonelites, and some defendants preferred this method to the jury trial, as one could select one's own compurgators or oath hurlers. This method was outlawed in England only in 1833 (Conrad 1998, 16). The root of the modern jury system began in 1164, "the Constitutions of Clarendon prescribed the use of a recognition by twelve sworn men to decide any dispute between laymen and clergy on the question whether land was subject to lay or clerical tenure" (Levy 1999, 11). The Assize of Clarendon in 1166 further encouraged the growth of what would become known as the jury trial (Levy 1999, 11). In 1215, at the time of the Magna Carta, the trial by jury was established for civil cases but not criminal cases. The Fourth Lateran Council of 1215 forbade the clergy from being involved in the use of ordeals, which reduced the approved methods of trial in criminal trials (Levy 1999, 16). Over the decades the trial by jury replaced the other methods for criminal trials (Levy 1999, 16ff.). Further, the jury could be moved by "whim, mercy, sympathy, or pigheadedness, refused to convict against all law and evidence, the prisoner was freed, and that was that" (Levy 1999, 46). If the jury made a prejudicial judgment against a prisoner, the judge could request that the king pardon the prisoner. The unanimity rule4 for criminal trials seems to have been settled in the late fourteenth century. Juries that did not return verdicts pleasing the Star Chamber5 could be punished; however, their verdicts were honored in criminal trials. It was only in 1670 that it was finally established that a jury could not be punished if it returned a verdict not in line with the evidence or the direction the court desired (Levy 1999, 49). The jury system was transplanted to the American colonies. In 1606, the charter for the Virginia Company provided for jury trials. The other colonies also introduced jury trials (see table 1 for dates). An early case of interest occurred in New York, where a printer, Peter Zenger, was charged with being a "seditious person" for criticizing the royal governor. In the defense, his lawyer stated that Zenger did print the articles but that they were the truth. The chief justice said that truth could not be used as a defense. The jurors were instructed that "it was their duty to decide the case as stated in the indictment, namely, whether Zenger had published the articles" (Vidmar and Hans 2007, 46). The jury declared him not guilty. Table 1: Dates of official recognition of jury trials in colonial America. Note that jury trials were common in many of these colonies prior to the official recognition (Vidmar and Hans 2007, 47).
One of the effects of the Zenger trial and other earlier trials was the issue of whether English law and precedent could be directly applied in America, which had different religious, cultural, economic, and social conditions. Out of this difference developed the idea of double jeopardy, the mistrust of lawyers who might try to find loopholes, the use of juries extensively, etc., (Vidmar and Hans 2007, 49). During colonial times, common law was based on natural justice, and in many cases, judges did not provide any instructions to the jury on the law and at times might even provide contradictory instructions. This allowed the jury to decide the law and the facts in the various cases they confronted (Vidmar and Hans 2007, 49ff.). After independence, many states guaranteed jury trials through the Constitution for civil and criminal trials. However, although the federal government allowed for jury trial for criminal cases (in Article III6 and the Sixth Amendment7), the right to a civil jury trial was limited via the Seventh Amendment8 to those trials tied to common law actions (Vidmar and Hans 2007, 54). MODELING THE RELATIONSHIP BETWEEN THE ELITE AND JURIESJuries can be seen as councils since their advice is valuable for judges/elites9 to hear in reaching a just decision. Further, juries improve the decisions made. The Condorcet jury theorem suggests that the median opinion tends to be accurate over extreme opinions (Mueller 2003, 128). On the issue of whether laws are just or not, if the majority of juries rule against a law, for example, the information coming from juries is that the law is unjust. Figure 1: Matrix indicating the role of juries resulting in different orders based on whether juries have anything to say regarding the validity of the law and whether they have access to relevant facts.
Figure 1 shows the scope of juries. On one axis is the validity of the law: Is the jury allowed to discern the validity of the law? On the other axis is the truth of the facts: Does the jury have access to relevant facts to make a determination of the truth? If the jury has access to the relevant facts to apply the law and is allowed to discern validity of the law, there is law order (quadrant I). The jury is truly independent in this scenario. If the jury has access to the relevant facts but is not allowed to discern the validity of the law, there is lawyer order under common law (quadrant II). If the jury is not authorized to discern the validity of the law nor has access to relevant facts, this also is lawyer order (quadrant III). In this quadrant the jury is for intents and purposes eliminated. If the jury is authorized to discern the validity of the law but does not have access to the relevant facts, this is also lawyer order (quadrant IV). EROSION OF THE RIGHT TO JURY INDEPENDENCEThis section provides a concise overview of the erosion of jury independence in the US and the status of jury independence today. Further, this section uses the model to analyze the conflict between elites and the people in the area of jury independence. Finally, this section also discusses how changes in the philosophical underpinnings of the understanding of the law have affected jury independence. Phase 1: The Blackstonian View of the Law and the Era of Law Order During phase I, the view of law was that it was based on natural justice (Vidmar and Hans 2007, 49). This era is the Blackstonian era because during this time Blackstone's Commentaries on the law was the most popular textbook; "most students, and no doubt most bar examiners, felt that a mastery of Blackstone was an adequate preparation for the practice of the law … it may safely be assumed that practically all lawyers in the United States prior to 1900, at one time or another, read all or part of the Commentaries" (Lockmiller 1938). The Blackstonian era was the time of law order, as the elites and juries had much in common and juries judged both law and facts. As Blackstone's work suggests, under the common law, judges were basically managers and juries were the superintendents (Stacey 2008). Moreover, the origin of common law is based on two sources: scripture and natural law.10 As Blackstone (who is one of the most-cited thinkers in the American founding era [Lutz 1984, 194]) states: Man, considered as a creature, must necessarily be subject to the laws of his Creator, for he is entirely a dependent being…. And consequently, as man depends absolutely upon his Maker for everything, it is necessary that he should in all points conform to his Maker's will. This will of his Maker is called the law of nature…. This law of nature, being coeval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this. . . The doctrines thus delivered we call the revealed or divine law and they are to be found only in the Holy Scriptures. These precepts, when revealed, are found upon comparison to be really a part of the original law of nature…. Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these. (Blackstone [1753] 1893, 2:39, 2:41-42) For this reason, Blackstone believed that if a bad law is overturned, then it was not law in the first place. "For if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law; but that it was not law" (Blackstone [1753] 1893, 2:69–70, italics in original). With this understanding of the law and with people at this time carrying their Bibles and Blackstone Commentaries with them, John Adams could write in his diary that the "general Rules of Law and common Regulations of Society" were "well enough known to ordinary Jurors," and that the "Great Principles of the Constitution, are intimately known" by every Briton, such that "it is scarcely extravagant to say, they are drawn in and imbibed with the Nurses Milk and first Air" ([1771] 2007). Further, the Protestant Reformation had emphasized universal schooling as a means to read the Bible (Becker and Woessmann 2009). Therefore, it made sense that during this period many judges gave the jury no instructions on the law, as the jury was to discover the law11 from scripture and natural law, or that judges would give differing instructions regarding the law, which then gave the jury a wide latitude to interpret the law and facts (Vidmar and Hans 2007, 49). In fact, the framers of the Constitution saw "judges as equals to laymen with regard to knowledge of the Law" and juries as playing the role of "spoiler in the judicial branch, protecting local citizens against arbitrary acts of government power" (Roots 2011, 5, 13). Hence, under common law, justice was administered by amateurs who acted based on a "Christian sense of justice and the legal tradition of the community" (Rushdoony 1984, 88). In this era, both the jury and elites understood what the "rule of law" meant, and the elites and juries did not have much conflict, hence being in quadrant 1 (a law order). Further, since the law was understood by all, the hurdle to practice law was low. One just had to pass the bar exam, and this could be done with only a high school diploma. Many individuals used apprenticeships with judges or lawyers as a pathway to study for the bar (Stacey 2008, 97–99; Hoeflich 1986, 118) while others attended a preparatory school to get the necessary training (Lind 2004, 96). However, conflicts with the juries arose when the elites tried to impose English imperial laws and taxes on the colonies, which resulted in juries ruling against the elite by refusing to convict those who violated English law (Vidmar and Hans 2007, 52). Finally, in the Supreme Court decision in Georgia v. Brailsford,12 Chief Justice John Jay states that juries have the right "to determine the law as well as the fact in controversy" solidifying the juries' role as credible veto players and being in quadrant 1. There was to be no asymmetrical informational relationship between juries and judges. Phase 2: The Darwinian View of the Law and the Rise of Lawyer Order In the 1800s, the older Blackstonian view of law was slowly being replaced with the "scientific" approach to law. This resulted in more conflict between the elites and juries, and juries lost their power to decide civil cases in Massachusetts in the early part of the nineteenth century. This was partly due to the desire of industrial interests to have more uniform laws instead of a patchwork of local laws. Further, instead of having many judges in a courtroom as in the past, only one judge would now be there to explain what the law meant. Virginia, on the other hand, took a longer time in curbing the power of juries (Vidmar and Hans 2007, 54). However, in criminal cases the efforts by judges to control the juries met with resistance. This conflict resulted in the voters of Indiana (1851) getting passed into the Indiana Constitution the right by the jury to decide law as well as fact.13 However, the same year, the Supreme Court of Indiana ruled that juries should limit themselves to understanding the law as determined by the judge. Other states continued to struggle with the role of juries in determining the law and facts, and nearly all state courts have come in favor of limiting juries to determining fact, even if some of the state constitutions provide for the jury to determine law and fact (Vidmar and Hans 2007, 55). This limiting of the juries results in less trust of the judge (Marder 2017). The federal courts also worked to limit the right of the jury to decide the law as well as fact. This culminated in Sparf et. al. v. United States, where the court ruled 5–4 that the federal judges did not have to inform the jurors of their inherent right to decide the law.14 The Philosophical/Moral Change Much of this shift toward elite control and direction of law occurred when the Blackstonian type of understanding of the origin of law was replaced by a Darwinian understanding of law. The Darwinian idea of evolution through natural selection had an impact beyond the biological sciences. Charles Darwin's successors brought the Darwinian method into the social sciences and the law. [T]here proceeded during the 19th century, under the influence of the evolutionary concept, a thoroughgoing transformation of older studies like History, Law and Political Economy; and the creation of new ones like Anthropology, Social Psychology, Comparative Religion, Criminology, Social Geography. (Branford 1949, 912) The Darwinian method was developed in 1870 by Christopher Columbus Langdell, the dean of Harvard Law School. Although Langdell developed this method, there were many antecedents (Hoeflich 1986). The doctrine of evolution had been anticipated in the eighteenth century, and insofar as its implications for the social sciences meant the rejection of the notion of fixed and unchangeable laws…. [w]hat shattered that traditional world was science which … substituted the operation of the laws of evolution for the laws of God. (Commager 1978, 1005–06) Langdell introduced the case study method (Lind 2004). Whereas Blackstone saw law as derived from the divine and natural law, Langdell focused on law as derived from man's experience (through cases) and sought to divorce legal education from natural law. Law, considered as a science, consists of certain principles or doctrines…. Each of these doctrines has arrived at its present state by slow degrees;…. This growth is to be traced in the main through a series of cases; and much the shortest and best, if not the only way of mastering the doctrine effectively, is by studying the case in which it is embodied (Langdell 1871, vi). Further, professional experts (e.g., university professors) were now needed to identify the cases (fossils) to make up the curriculum. This evolutionary progress must be made by experts and not through passive adaptation via jury cases. Experts must use foresight and calculation to achieve the ends. The superiority of expert-directed adaptation over passive adaption via jury trials is that it reduces enormous waste (e.g., dead-end mutations and extinct species) and increases efficiency (Ward 1883, 73–74). These ideas were further developed by Oliver Wendell Holmes Jr.,15 who believed that laws could change fast and that nothing is self-evident: We do not realize how large a part of our law is open to reconsideration upon a slight change in the habit of the public mind. No concrete proposition is self evident no matter how ready we may be to accept it (Holmes 1897, 9). This legal revolution turned upside down the Blackstonian view of law. An additional major innovation occurred with Louis Brandeis's introduction of what is now known as the Brandeis brief in a Supreme Court case (Muller v. Oregon).16 Brandeis argued not just legal theory, but also used empirical studies. The Brandeis brief naturally flows from the idea that experts should direct the evolution of law, and it made social science the foundation of law. Therefore, when social science changes through statistical analysis, the law also must change. "If laws of social events could be statistically formulated, they could be used for scientific lawmaking" (Ward 1915, 46). With this legal revolution, the law became professionalized such that only the elite could understand and explicate it; juries had to follow the instruction of judges and experts, as they were not capable of understanding the law. The notion of "rule of law" now meant only what the elites understood the law to be and, hence, there was a move away from law order to a lawyer order (from quadrant I to quadrant II). Further, to train in law now required attending law school (Lind 2004, 96).17 The motivation and justification for "curtailing the power of the jury to decide questions of law was a desire for greater certainty and consistency in the application of law" (Lahn 2009, 574), hence the Darwinian perspective allowed for the law to be seen as an endeavor directed by experts. Independent nullifying juries would introduce an unpredictableness (harmful mutations) that could not be tolerated. Additionally, the developments in quantum physics18 in the 1920s also provided the impetus to the notion that laws are not fixed but are evolving. As a former Harvard Law School's dean states: Nothing has been so upsetting to political and juristic thinking as the growth of the idea of contingency in physics. It has taken away the analogy from which philosophers had reached the very idea of law. It has deprived political and juristic thought of the pattern to which they had conceived of government and law as set up. Physics had been the rock on which they had built. When physicists began to play with the idea of chance, when they began to entertain an idea of jumps and breaks … [it] uprooted the faith in discovered eternal and immutable laws (Pound 1940, 34). The Twentieth Century The twentieth century saw the rise of controversy over civil juries awarding large tort awards. Much of this change came with the rise of the Industrial Revolution and product liability. Costs were applied to those who could diffuse them, i.e., manufacturers of the product. Further, trial by jury was declining at the federal and state levels as elites shifted disputes out of the courts. Much of this was due to the rise of alternative dispute resolution with mediators and negotiators, which kept many cases out of the courts (Vidmar and Hans 2007, 61ff.). Moreover, nontrial dispositions ("e.g. settlement, plea agreement, summary judgement") continued the decline in jury trials (Bornstein and Greene 2017, 8). Under summary judgments the judge now weighs the evidence and not the jury, especially in civil trials. Although this is done in the name of efficiency, it denies the role of the jury as a check on state power and minimizes it as an effective veto player (Steagall 2009, 470–73). The jury is not to take part in the development or discovery of the law, which means that it is functioning in quadrant-III (lawyer order). Another innovation that favored the elites was the rise of administrative law. Harold Berman saw the West losing its liberties in the twentieth century with the rise of administrative law: In the United States, for example, fields of administrative law such as taxation, labor management relations, securities regulation, public housing, social security, environmental protection, and a dozen others, which hardly existed before the Great Depression of the early 1930s, have now achieved predominance. (Berman 1983, 34) The rise of administrative law means that the ability of the jury to access relevant facts and discern the validity of the law is eliminated. All laws/rules are written by bureaucrats and interpreted by lawyers, bureaucrats, and judges, i.e., the elites. This is the ultimate expression of lawyer order, quadrant III in the model elaborated here. Further, private law, such as contract law, tort law, and property law, has been so heavily influenced by legislation and bureaucracy, that governmental permission is needed, for example, to work on your own property (Berman 1983, 35). This revolution, as Berman pointed out, is a threat to the liberty of the West, as instead of emphasizing the individualism of traditional law through "private property and freedom of contract," law now emphasizes collectivism on "state and social property, regulation of contractual freedom in the interest of society" (Berman 1983, 36). Blackstone also foresaw this threat when he stated that "[e]very new tribunal, erected for the decision of facts, without the intervention of a jury … is a step towards establishing aristocracy, the most oppressive of absolute governments" (Blackstone [1753] 1893, 1:380). One change that has helped juries is the abandoning of the key man system. The key man system is when "jury commissioners or court clerks asked prominent members of the community to supply names of potential jurors" (Knack 1993, 100). It was established in colonial times as a check against an abusive judiciary, particularly the royally appointed justices. Even after independence, when judges rode circuit, judges might not always be familiar with the local customs and sense of justice. The jury commissioner's job "was to identify 'key men' who would represent the interests and values of the community when deciding cases" (Hannaford-Agor and Waters 2010, 49). This was especially useful in small communities. This system worked well under the Blackstonian era, when everyone had a general understanding of the law and the law was simple to understand (law order); however, in the Darwinian era, this method could skew the results toward the elites as the system moved toward a lawyer order. For example, in some states key men preferred white jurors over black jurors either intentionally or simply because of divisions in communities where key people may not have interacted with minorities (Fukurai, Butler, and Krooth 1991; Hannaford-Agor and Waters 2010, 49). But in the 1960s, states and the federal government19 started using voter registration lists (some states also used driver's license lists) to select jurors in order to obtain a wider jury pool (Vidmar and Hans 2007, 76). This innovation protected the common person against the elite in the lawyer order era. Another innovation by the elites which has complicated matters, is vague laws that make it easy for any individual to become the target of a federal prosecution (Silverglate 2011). Through jury suppressions, vague laws used by clever prosecutors can result in many innocents being targeted. Malleable law gives elites the ability to manipulate juries into seeing the law as the elites see it due to asymmetric information. Further, multicount indictments, whose goal is for some charge to stick on the defendant, is a tool for elites to overwhelm juries into finding the defendant guilty (Roots 2013). In the area of sex laws, the elite in the American Law Institutes (ALI) developed the Model Penal Code (MPC) to replace much of the common law provisions protecting women and children. Much of the MPC is written in a way that suppresses the power of juries to judge and increases the power of experts through their testimonies to direct which subclassification and penalty is applied. Richard Kuh, a prosecutor from New York succinctly states this problem: If the draftsmen [ALI/MPC] wish to force trial judges to stop and puzzle over abstruse wording, that discipline can do no harm. But the trouble is that the draftsmen are here engaged in linguistic embroidery to which lay jurors would inevitably be exposed. This worries me…. But awkward phrases and shrouded concepts bother me; for instructions in the law—jury charges—are delivered to jurors orally, and may go on for hours. Furthermore, they may contain a variety of precepts with which the jurors have never before had to deal, and concerning which, if a verdict is to be reached, the jurors must all end up as of one mind, convinced beyond a reasonable doubt. (Kuh 1963, 622) Further, even when there is a jury trial, the jury is not always informed about its power to judge the law. Even in the three states whose constitutions allow for juries to judge the law, the courts "in these jurisdictions have eviscerated any literal translation of these constitutional provisions" resulting in lawyer order (Parmenter 2006, 391). Moreover, even in the vast majority of criminal cases the jury trial has been eliminated through the use of plea bargaining and is only used when defendants can be sentenced to more than six months in prison (Roots 2011, 4), again resulting in lawyer order (quadrant III). Current Trends The advent of high-profile jury nullification in the 1990s such as those of Jack Kevorkian and O. J. Simpson resulted in a visceral reaction from the elites. The courts have: (1) begun removing any juror who is aware of their nullification power; (2) interfered with jury deliberations by investigating jurors who may intend to nullify; (3) removed jurors who seem poised to nullify, even after the start of deliberations; (4) interfered with the discretion of trial judges to render jury instructions or admit evidence which might allow a jury to consider jury nullification; and (5) arrested and jailed jury nullification advocates. (Parmenter 2006, 411) This clampdown by the elites has not, it seems, resulted in any reduction in the jury nullification rate (Hannaford-Agor et al. 2002, 2). Further, when there is a hung, or acquittal, jury, it does not mean that jury nullification is the cause (Hannaford-Agor and Hans 2003, 1276). However, people have reacted to the clampdown on juries in unanticipated ways. Much of this has been assisted by the internet. Organizations such as the Fully Informed Jury Association have used the internet to educate citizens of their right to judge the law and to use jury nullification to battle the elites. Some of this effort seems to be providing dividends. In 2012, New Hampshire passed a law (HB 146) that allowed defense attorneys to inform the jurors of their right to judge the law and possibly nullify it. One case that seems to highlight the quadrant-IV lawyer order scenario in our model is the Bundy case in Las Vegas. This was a highly politicized case in which the government prosecutors sought a certain outcome. "The prosecution exploited every possible advantage, winning rulings from the judge which barred the defendants from even mentioning most of their possible defenses" (Roots 2018). In other words, the relevant facts were not accessible to the jury. The defense lawyers ended up making no closing arguments due to the stifling of the judge. However, the jury did nullify the case on most counts, indicating that they found the law as applied unjust and the tactics used unjust. Will major reform be possible? This is unlikely in the near future, since the change that has to occur is for the elites to recognize the common person/juror as one who can understand and interpret the laws. For this to occur, a major shift toward a Blackstonian understanding of the law is required. This would require a deprofessionalization of the legal system and a giving-up of power by the elites. Moreover, the laws should not be vague. The internet as a tool to convey information widely certainly helps with educating jurors about their ability to strike down laws that do not comport with notions of justice. CONCLUSIONThe understanding of law has changed from the Blackstonian view to the Darwinian view, and this has minimized the power of the juries. Further this philosophical change has resulted in a movement in the US from a law order to a lawyer order. "Power and discretion have shifted away from the jury and more and more now is in the hands of the judge. To put it another way, the long-term historical development is to shift decision making from amateurs to professionals" (Friedman 2004, 10). This article has provided a framework to study the interaction of elites and juries. This interaction had different outcomes in the different phases of US history. Although juries still have a lot of power in certain areas, they are currently not informed of that power. In other areas of law, such as administrative law, juries have no power. The only way for juries to be relevant again as a check to judicial/elite power is through a Blackstonian/organic understanding of the law, where the "law of the lawyers ha[s] to justify itself in the eyes of the community through its proxy the jury, a space of ethical action in which lay people ha[ve] the power and the right to determine the rules of decision in a given case" (Lahn 2009, 572).
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| Posted: 27 May 2021 12:00 PM PDT Volume 8, Number 1 (1986) IIn the Preface to The Mirage of Social Justice, the second volume of his trilogy on Law, Legislation and Liberty, F. A. Hayek explained that "circumstances have contributed to delay the publication of the second volume of this work."1 The chief circumstance was "dissatisfaction with the original version of the central chapter ... in which I had tried to show for a large number of instances that what was claimed as demanded by 'social justice' could not be justice because the under lying consideration (one could hardly call it a principle) was not capable of general application." Hayek was dissatisfied because he had now become convinced ... that "the people who habitually employ the phrase simply do not know themselves what they mean by it, and just use it as an assertion that a claim is justified without giving a reason for it."2 I propose to challenge this conclusion, arguing that Hayek's first thoughts were more nearly correct. The expression "social justice" does appear to be employed by a great many people as almost, if not quite, synonymous with the word "equality," which is then construed as involving neither equality before the law nor equality of opportunity but equality of income or of outcome. But now, in that understanding, what is claimed to be demanded by social justice certainly is not and could not be justice. Justice is an essentially backward-looking notion, concerned with people getting and being able to keep their several and presumably often different deserts and entitlements—deserts and entitlements we have antecedently acquired by being what we are and have been, and by doing or refraining from doing what we either have done or have refrained from doing. The Procrustean ideal, on the other hand, the ideal of a universal equality of condition necessarily enforced and maintained by an all-intrusive socialist state is, equally essentially, forward-looking. Regardless of what people are or have been, have or have not previously done, their future condition is to be made (ever more if never perhaps perfectly) equal.3 Protagonists of this Procrustean ideal would, if they were both clear-headed and frank, sacrifice the propaganda advantages of presenting it as a kind of justice. Instead, and taking a leaf from the book of the orthopsychiatrists and other self-styled penal progressives, they would mount a bold and radical onslaught on the very notion of justice-denouncing the whole business as antique, gothic, reactionary, and—what is the truth—irreducibly backward-looking.4 IIThat social justice and the Procrustean ideal are often thus identified can perhaps best be seen by considering the extraordinary tickertape reception accorded to John Rawls's A Theory of Justice, for this author, his different and more ambitious title notwithstanding, proclaims from the beginning that "our topic ... is that of social justice."5 In his Critical Notice in the New York Review of Books, the lifelong British socialist Stuart Hampshire wrote: "I think that this book is the most substantial and interesting contribution to moral philosophy since the war, at least if one thinks only of works written in English. It is a very persuasive book, being very well argued and carefully composed." It presents, Hampshire continues, "a noble, coherent, highly abstract picture of the fair society, as social democrats see it.... This is certainly the model of social justice that has governed the advocacy of R. H. Tawney and Richard Titmuss and that holds the Labour Party together." Again, and similarly, the author of one of the first volumes in a new International Library of Welfare and Philosophy sees the implications of the present equation, likes them, and construes this as a license to help himself to the premise from which they follow. Having sketched a Rawlsian account of (social) justice as a (qualified) equality, he remarks that one "reason for linking equality and justice is that within the theory of justice one can provide the necessary moral premises for adopting the principle of equal welfare as a prescriptive recommendation."6 (Why should we resist the temptation to quote Bertrand Russell, who once remarked that the Method of Postulation had all the well-known advantages of theft as compared with honest toil?) Hayek himself appears to have been blinded by charity to the significance of this welcome, for, with his usual irenic generosity, he refrains from settling accounts with A Theory of Justice, "because the differences between us seemed more verbal than substantial."7 Yet it would be easy to extend indefinitely the list of quotations from British socialist sources showing some sort of near if not always perfect equation between the establishment of a general equality of welfare and a meeting of the demands of (social) justice. Such persons also take "equality" to be virtually synonymous with "equity": An equitable distribution for them, therefore, just is an equal distribution. For example: A leading Labour Member of Parliament, Mrs. Barbara Castle once made a very characteristic statement in a debate on a Queen's Speech: "Our complaint against the Government, and in particular the Prime Minister, is that brick by brick they have set out to create an unjust society."8 (The Prime Minister thus arraigned was, of course, Edward Heath.) A Fabian Society review of the two subsequent Labour administrations is full of more of the same. Nick Bosanquet and Peter Townsend proclaim in their Editorial Preface to Labor and Equality,9 a Preface reprinted on the back cover, "that the Labour Party can and should light a flame in a world of injustice and inequality." Contributor after contributor to this volume speaks of "socialist canons of equality and social justice" and of "a more socially just and equal society."10 One author goes so far as to assert—without attempting to explain either what this might mean or why we should accept it as true—that, in particular, "racial equality requires a society which is equal in all respects."11 Perhaps the strongest evidence that we are dealing with an equation is provided by David Piachaud's harshly confident denunciation: "The Conservative government—this time that of Margaret Thatcher—"is renouncing the search for social justice."12 For Piachaud's point must surely be, what is perfectly true, that instructed Conservatives reject the Procrustean enforcement of equality; rather than, what would be a well-nigh Hitlerian Big Lie, that we all despise and disown old-fashioned, without prefix or suffix, justice. IIIIn Section I, I said what I proposed to do. In Section Il, I tried to show, against Hayek, that many people do give a fairly definite meaning to the expression "social justice." Now it is time to start to fulfill the undertaking to show that what is claimed as "demanded by 'social justice"' certainly is not and could not be justice. The greatest difficulty in this task is to find any strong and direct opposing argument to confront. For there seems until only yesterday to have been no general disagreement about the concept of justice, though plenty about what in particular justice requires. In Book I of The Republic, for instance, before going on to develop his own hopefully persuasive redefinition, Plato scripts Polemarchus to offer what any contemporary would surely have accepted as a correctly descriptive account of the meaning of the Greek word translated "justice". It is, Polemarchus suggests, "rendering to everyone their due."13 Their due, of course, will be their several and presumably often different deserts and entitlements-moral deserts and moral entitlements if we are talking about morals; legal and legal if we are talking about the positive law. The same theme is taken up and repeated by the Roman lawyers. Thus in that grand epitome, the Institutes of Justinian, we can read that the mark of the just man is "constans et perpetua jus suum cuique tribuere"—a constant and perpetual will to assign to each his own. More recent treatises have often cited a fuller Latin sentence, adding two further clauses before that crucial and traditional "to each his own." This runs: "Honeste vivere, neminem laedere, suum cuique tribuere"—"To live honestly, to injure no one, to assign to each his own." This fundamental agreement about the concept of justice—about the correct descriptive definition of the word "justice"—has not extended to embrace a similar happy agreement either about what people's several deserts and entitlements actually are or about what are the proper bases of desert and entitlement. It is thus possible, putting the same point in another terminology, to share the same concept but nevertheless to have different and conflicting conceptions of justice. But surely any conception that either rejects the notions of desert and entitlement or holds that those of everyone are in all respects, and without regard to any differences between individuals, equal, cannot be a conception of justice. But, if this is obvious, why do so many nowadays identify the Procrustean production of equality of outcome with the pursuit of justice? There are, I suggest, three main reasons. First, justice does indeed demand one sort of equality, although that son is not this son. Second, these people never address themselves to questions about the meaning of the word "justice." Instead they are content merely to parrot a cant expression, the use of which shows them to be (in the United States)acceptably "liberal" and (in the United Kingdom) "not at all right-wing." Third, they want to secure the hooray word "justice" as the attractive brand label for their favored policies, in much the same way that soviet Germany prefers to call itself, and be called, the German Democratic Republic. The first of these three reasons can be disposed of in very short order. Certainly any rules of justice, like any rules at all, must, to be rules, be applied in the same way, and hence equally, to all those to whom they are applicable. But this is a very different thing from saying that, to be just, you have to treat everyone in the same way, in all respects without exception. Nor is there any doubt but that justice requires equality before the law, in the sense that all offenders must be treated in the same way with no one privileged because of color, relationship to the dictator, or anything else of a similar nature. But any system of what purported to be criminal justice that refused to treat offenders in any way differently from nonoffenders would—as Kant might have said—contradict itself as a system of criminal justice. Again, equal consideration should not be mistaken to imply that everyone has an equally legitimate claim to equal shares of everything—although today, it seems, it often is. For what equal consideration has traditionally meant, and should continue to mean, is that everyone is equally entitled to his day in court. But what the court will then decide is bound to be, in different cases, different and maybe, as between one litigant and another, very unequal indeed. The third of the three reasons will eventually be disposed of with similar dispatch; for, once the full traditional meaning of the word "justice" has been reestablished, it will become immediately obvious that the Procrustean who misrepresents himself as pursuing justice incurs costs that are bound to prove altogether unacceptable. So the next job is to attempt to enforce the contention that that meaning is what it is, bringing out some of the most relevant implications. Perhaps the most effective way of tackling this job is to confront the challenge of A Theory of Justice. IVBefore beginning to engage that philosophical enemy more closely, let us treat ourselves to one wide-ranging comment. Just as Plato in The Republic developed a uniting and justifying ideology for the absolute rulers of his supposedly ideal state, so Rawls too has, in his own somnambulistic and pedestrian way, done the same thing for that New Class which sees its own most unequally powerful and most unequally prosperous future in the enforcement, through the ever expanding welfare-state machine, of equality for all others. Now to detail. Readers of the Sherlock Holmes stories will remember the remarkable thing about Watson's hearing the dog barking in the middle of the night. That remarkable thing was that Watson did not bear it, because no dog barked. The similarly remarkable thing about the definition of "justice" that Rawls provides is that he provides none. Nor does he offer any reasons for rejecting all traditional accounts. Indeed this may well be the first work pretending to be a treatise on justice that is not, even in over 600 pages, able to find room to quote any of those previously mentioned variations on the theme of suum cuique tribuere. Instead this extraordinarily unlinguistic former chairman of Harvard's Department of Philosophy takes credit for an assumption that "allows us to leave questions of meaning and definition aside and to get on with the task of developing a substantive theory of justice."14 As everyone interested in such matters has known for some time, Rawls sets about this chosen task by reviving the notion of a Social Contract. What we have to do now is to bring out the nature and significance of certain assumptions built into either the content or the context of that hypothetical and not historical contract. Rawls himself, as well as most of his critics, have failed to appreciate either that these assumptions are being made and/or how crucial they are to the entire enterprise. (a) First, there is the assumption that all present and potential property really belongs to the collective and is therefore available for distribution or redistribution, subject to no legitimate prior claims, at the absolute discretion of that collective. This is a pretty big and fundamentally socialist assumption. Yet it is wholly typical of the unselfcritical parochialism of Rawls that, since be never even notices that be is making it, he finds no room to essay any justification. Indeed he goes so far as to state that "justice as fairness—his own brand-label for his system—is neutral as between a private, pluralistic economic order and total, state-monopoly socialism.15 Yet he still assumes that all the wealth either already produced or in the future to be produced within the to-them-unknown national frontiers of the hypothetical contracting parties is, as has been said, available for collective distribution, free of all prior claims to individual ownership. Most remarkably, yet it seems never elsewhere remarked, this collectively owned wealth must be taken to include all those services that are the actions of individuals. (b) Consistent with this original, totally socialist assumption, Rawls also takes it absolutely for granted throughout that any particular rights or resources enjoyed by any individual either are or ought to be allocated collectively. Consider, for instance, two statements: first, that "the justice of a social scheme depends on how fundamental rights and duties are assigned";16 and, second, that "the chief primary goods at the disposition of society ... liberty and opportunity, income and wealth ... are to be distributed equally...."17—unless, he will later add, an unequal distribution is positively advantageous (and not merely not disadvantageous) to the least advantaged (not individual but) group. Rawls is thus, from the very beginning and throughout, making the same enormous socialist assumption as is made in the blurb of Michael Harrington's The Twilight of American Capitalism: "A notable study which analyzes reasons why sharp inequalities in the sharing of the nation's wealth are inevitable outcomes of American capitalism."18 (c) A third major assumption, which both determines that the terms of the hypothetical contract must be Procrustean and thus disqualifies the result as A Theory of Justice, actually is argued for elsewhere. Typically, however, Rawls never notices either that or how this assumption both removes all possible grounds for individual self-respect-something he says he values greatly19—and lays his own theory open to what he himself rightly insists is the great objection to any utilitarianism—that "it does not take seriously the distinction between persons."20 This third assumption decisively eliminates from consideration all possible grounds for individual differences in desert and entitlement. It ensures that the only deserts or entitlements any individual could have must be universal human deserts or entitlements-the deserts appertaining to original sin, perhaps, or the rights claimed by the American Declaration of Independence. So what is this crucial third assumption? To appreciate its nature and full significance, we have to approach it slowly and rather indirectly. Remember that the hypothetical contractors in the Rawls system are supposed to negotiate behind "the veil of ignorance."21 And what they have collectively to choose are "the first principles of a conception of justice which is to regulate all subsequent criticism and reform of institution."22 In these days, and after the captivating frankness of his confession that "we want to define the original position so that we can get the desired solution," it should come as no surprise that these Rawlsian contractors cannot but "acknowledge as the first principle of justice one requiring an equal distribution." Indeed, Rawls adds, "this principle is so obvious that we would expect it to occur to anyone immediately."23 To bring out the nature of the enormous third assumption by which this conclusion becomes "so obvious" to Rawls, we must recognize the stated main purpose of proceeding behind "the veil of ignorance." It has been usual for commentators to discuss this comprehensive blinkering as having been stipulated to secure impartiality. This, as Richard Hare reminded us in his critical notice,24 makes the whole business no more than a dramatization of the colorless Humean appeal to the ideally impartial spectator. Now, certainly, Rawls does mention this as one purpose: "We should insure further that particular inclinations and aspirations, and person's conceptions of their good, do not affect the principles adopted."25 But the stated primary aim is altogether different, and altogether preposterous: "Once we decide to look for a conception of justice that nullifies the accidents of natural endowment and the contingencies of social circumstance as counters in the quest for political and economic advantage, we are led to these principles. They express the result of leaving aside those aspects of the social world that seem arbitrary from the moral point of view."26 In the end it emerges that Rawls will have to include under the rubric, things "that seem arbitrary from the moral point of view," everything that distinguishes one individual from another; everything, that is, that any individual has done or another has not done, as well as everything that one individual is and another is not. For only by such wholesale discounting of all the differentiating characteristics of every individual as, allegedly, "morally irrelevant" can he maintain the supposedly quite obvious "first principle of justice, one requiring equal distribution." Without that discounting he would be laying himself open to pressure from those who do indeed "take seriously the distinction between persons." For we want to respect some of the different and hence often (horrid thought!) unequal claims urged by and on behalf of different people; claims grounded in differences between what those different people severally have done, or are. Rawls never spells out in full how much he would have us include under the descriptions "the accidents of natural endowment and the contingencies of social circumstance ... those aspects of the social world that seem arbitrary from the moral point of view." Had he done so, he could scarcely have failed to realize the absurdity of offering his "justice as fairness" either as a conception of justice; or as a reform alternative to all versions of utilitarianism that fail "to take seriously the distinction between persons"; or as a system within which we must and can place a very high value on individual self-respect. What Rawls does is present some unsound argument for the crucial conclusion that these accidents and contingencies are indeed "arbitrary from a moral point of view." He starts from the observation that natural endowments are not themselves deserved. From this innocuous truth he draws two invalid references: first, that what these endowments make possible cannot, therefore, be itself a proper basis of desert; second, because they are not deserved, therefore they must be, in some scandalous way, undeserved. This second invalid inference is taken to establish the "principle that undeserved inequalities call for redress; and since inequalities of birth and natural endowment are undeserved, these inequalities are to be somehow compensated for."27 Such compensation is provided by the Difference Principle. This, Rawls tells us, "represents, in effect, an agreement to regard the distribution of natural talents as a common asset and to share in the benefits of this distribution whatever it turns out to be. Those who have been favoured by nature, whoever they are, may gain from their good fortune only on terms that improve the situation of those who have lost out."28 As Rawls sees it, "The natural distribution of abilities and talents," and also presumably of disabilities and ineptitudes, is the outcome of a "natural lottery." And, furthermore, "Even the willingness to make an effort, to try, and so to be deserving in the ordinary sense is itself dependent upon happy family and social circumstance."29 Two further objections against this common and apparently seductive line of argument have to be raised, however briefly.
VSuppose that someone now objects, as some have objected, that Rawls has a different conception of justice, that his is not "an entitlement theory." Certainly he has a different conception, so different that what Rawls calls justice is not justice at all. A conception of justice, to be such, must he a conception of what people's several deserts and entitlements are, and/or of what are the proper and legitimating bases of desert and entitlement. But Rawls, as we have seen, has no room for notions either of desert or of not-deserved entitlement, while he categorically denies the moral relevance of any of those various characteristics in respect of which one individual differs from another, and upon which all differences of desert or of not-deserved entitlement cannot hut be grounded. Plato's Socrates wisely concludes Book I of The Republic by remarking, sadly, that "so long as I do not know what justice is, I am hardly likely to know whether or not it is a virtue, or whether it makes a man happy or unhappy ."31 We might wish that Rawls had paid some attention to this warning. Instead, as we have seen, he rashly preferred "to leave questions of meaning and definition aside and get on with the task of developing a substantive theory of justice." Someone here could respond that all the objections deployed above have been merely verbal, not substantive. Yet this would reveal grotesque misunderstanding. The differences between the objector to and the protagonists of "equality and social justice" are a matter merely of words only in the silly sense in which the difference between a verdict of "guilty" and "not guilty" is a difference of a single word. The point is that different words carry different implications; and the differences between such different implications may sometimes be, as in the latter example, a matter of life and death. There are various very solid, though not by the same token respectable, reasons why Rawls—and many others much nastier and more worldly-wise than Rawls—want to present their cherished Procrustean norms as the mandates of (social) justice. In the first place, of course, there is the enormous propaganda advantage of presenting new and alien ideals in old and well-loved bottles. And what Procrustean does not wish to see himself, and to be seen, as a sort of Shane figure out of a good old-fashioned, traditional Western, a man dedicated to doing the justice "which a man has to do."32 In the second place, if the Procrustean can get us to accept that his norms are indeed the imperatives of justice, he will have acquired a knock-down answer to an objection that might otherwise be embarrassing: "By what right are you proposing to employ the machinery of the state to impose on everybody, or more often it is everybody else, your own personal ideal?" For everyone is ready to allow that what is prescribed by (moral) justice may properly, though not always prudently, be enforced by (legal) law. Let us conclude with a third observation, the pressing home of which holds out our only hope of persuading the Procrusteans to abandon their false, proud claims to be promoting (social) justice. If justice really did require and warrant an equal distribution, then everyone would be entitled to no more and no less than an equal share (tautology). But now all the Procrusteans of my own acquaintance are, on these assumptions, rather conspicuously underdeprived. They are all, to speak less delicately, in possession and enjoyment of considerable amounts both of capital and income, to say nothing of power and position, over and above those equal or nearly equal shares to which alone they are, on their own accounts, justly entitled. In accordance with their own constantly reiterated principles, therefore, such excesses constitute property stolen (by keeping) from others worse off than themselves. This unlovely picture is not the one they want either to see themselves or to show to the rest of us!
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| More Evidence the American Economic "Recovery" Will Disappoint Posted: 27 May 2021 09:00 AM PDT The University of Michigan consumer confidence index fell to 82.8 in May, from 88.3 in April. More importantly, the current conditions index slumped to 90.8, from 97.2 and the expectations index declined to 77.6, from 82.7. Hard data also questions the strength of the recovery. April retail sales were flat, with clothing down 5.1 percent, general merchandise store sales fell 4.9 percent, leisure and sporting goods were down 3.6 percent, with food and drink services up just by 3 percent. United States industrial production was also almost flat in April, rising just 0.4 percent month on month in April, pushed by a 4 percent slump in motor vehicle production. You may think this is not that bad until you see that industrial capacity utilization came in at 74.7 percent in April, significantly below the prepandemic levels. Employment also questions the "strong recovery" thesis. Nonfarm employment is still down 8.2 million, or 5.4 percent, from prepandemic levels, yet gross domestic product is likely to show a full recovery in the second quarter. These figures are important because they come after trillions of dollars of so-called stimulus and because the entire thesis of the V-shaped recovery comes from a view that consumption is going to soar. Reality shows otherwise. In fact, reality shows that retail sales showed an artificial bump due to the wrongly called stimulus checks, only to return to stagnation. The rise in inflation further calls into question the idea of a consumption boom, certainly for the middle class. Why? If we look at the 4.2 percent rise in the Consumer Price Index in April, it includes a 25 percent increase in energy, a 12 percent increase in utility prices, a 5.6 percent increase in transportation services, a 2.2 percent in medical services, etc. As consumers perceive a higher rise in prices, especially in those essential goods and services that we purchase every day, consumption decisions become more prudent and propensity to save rises. This is something that we have seen in numerous countries. In Japan, years of "official" messages about the risk of deflation clashed with citizens' perception of cost of living, and tendency to save increased, rightly so. Citizens are not stupid, and you can tell them that there is no inflation or that it is transitory, but they feel the rise in cost of living and react accordingly. Two things should concern us. First, the weakness of the recovery in the middle of the largest fiscal and monetary stimulus seen in decades, and second, the short and diminishing effect of these programs. A $2 trillion stimulus package creates a very short-term impact that lasts less than five months. I recently had a discussion with Judy Shelton, and she stated that the recovery would be stronger without stimulus. She is probably right. Neo-Keynesians will likely say that if the above figures persist, the solution is more stimulus, but it is not. More money to government programs means slower growth and weaker recoveries. The American consumer is not happy. They do not see the official optimism about the job market or the macro figures, and the current sugar high is likely to lead to an abrupt sugar low.  This posting includes an audio/video/photo media file: Download Now |
| Let's Level the Playing Field between the Dollar and Competing Currencies Posted: 27 May 2021 07:00 AM PDT Thanks to so many government restrictions on the use of potential monies that aren't the dollar, we can only guess as to what the relationship between dollars and bitcoin would be in a functioning marketplace. But it doesn't have to be that way. Original Article: "Let's Level the Playing Field between the Dollar and Competing Currencies" This Audio Mises Wire is generously sponsored by Christopher Condon. Narrated by Michael Stack.
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| Does Bitcoin Use "Too Much" Electricity? Posted: 27 May 2021 07:00 AM PDT Elizabeth Warren has decided that bitcoin mining uses "too much" electricity. This raises an important question: Is Senator Warren qualified to decide on the "correct" amount of electricity usage? Original Article: "Does Bitcoin Use "Too Much" Electricity?" Narrated by Jessica Hill.  |
| There's No Conflict Between Profit and "Social Responsibility" Posted: 27 May 2021 04:00 AM PDT The slogan People over Profits once again is being heard in Washington and elsewhere in the country. This time, however, the sloganeering doesn't come from Jane Fonda or Bernie Sanders (although both have used that mantra for many years) but rather from business sources themselves. From the US Chamber of Commerce to the Business Roundtable, we are being told that private enterprise has "discovered" that "social responsibility" should be the key to running a business, not profitability:
The new rhetoric we hear from business leaders such as Tim Cook from Apple and Jamie Dimon from JPMorgan Chase seems to be in line with the Build Back Better slogan of the Joe Biden presidential campaign and the Great Reset that seems to be the rage today with the Bilderberg crowd. The idea seems to be as follows: capitalism unleashes uncontrollable forces that while creating new wealth also create problems such as air and water pollution, along with climate change, and the process of making some people wealthy also means many others are thrown into poverty. Profits themselves in this view are an extraction of wealth from the community, something that "responsible" businesses try to mitigate by ensuring that "stakeholders" are not neglected. (Defining "stakeholders" is a bit more difficult, as the list of people meeting that qualification seems to be ever expanding.) Thus, by seeking to do something other than just be profitable, businesses become "responsible corporate citizens." For all the self-congratulations members of the Business Roundtable are heaping upon themselves for this supposed newly discovered role for private enterprise, a few things are in order. First, business executives in 2021 are more than a century late in the "We want to be respectable" sweepstakes. The progressives more than a century ago sought to make "big business" respectable and shake the "robber baron" image that had been a staple in the press since the late 1800s. Whether or not such descriptions were warranted is quite another matter. Burton W. Folsom dealt with that era effectively in his The Myth of the Robber Barons: A New Look at the Rise of Big Business in America and pointed out that there was a difference between the market entrepreneurs and the political entrepreneurs. Unfortunately, today's climate of business "respectability" doesn't make that distinction, assuming, instead, that all business success is the result of a firm exercising "power," a term progressives don't try to accurately, confusing the power of the state with the so-called market power that business firms have. The former can have you killed without recourse; the latter is subject to the whims and decisions of consumers. Mises writes in Bureaucracy:
Mises's words are important because they point away from the standard progressive belief that businesses can extract wealth from the community through normal business practices without possessing the legal privileges reserved for state actors. The simple acts of producing goods and selling them, according to progressives, can be interpreted as a forced extraction and, thus, coercive and violent. (Black activist Jesse Jackson, for example, often has referred to normal business practices as "economic violence.") Conversely, progressives refer to state action as democracy in action, implying that such action toward regulation of business firms is done to protect people from private sector predations. That "our democracy" is run by people with guns who are not afraid to use them on innocent people somehow does not register with them. The state is a manifestation of The Will of the People; private enterprise fosters violence upon us. If one concludes that businesses in a market system (as opposed to what Randall Holcombe calls political capitalism) operate in a setting in which they cannot coerce buyers and suppliers, but must depend upon voluntary contracts and trust, then the popular descriptions of their activity using terms related to violence simply don't fit. Nonetheless, our leading institutions, from education to media to religion to government, portray markets as coercive and exploitative, earning profits at the expense of the well-being of others. While Karl Marx claimed that profits were unjust expropriations of wealth from labor, most of the modern criticism of private enterprise is less systematic and, frankly, less sophisticated than any analysis that Marx might have undertaken. Despite the lack of rigorous thought that characterizes much of today's anticapitalism (and especially the anticapitalism held by American elites), one still needs to provide some answers that deal with their objections, even though we know that the usual suspects have no intention of honestly dealing with other systems of thinking. So, what is the typical objection to profits? Some critics claim that profits create higher prices, which the Jimmy Carter administration believed when it laid out its wage-price-profit guidelines in the late 1970s. In fact, any firm that had profit margins of greater than 6 percent could be declared ineligible to receive federal government contracts. I dealt with that objection in 2004, writing:
The first thing to remember is that profits do not come about because businesses charge exorbitantly high prices but rather because entrepreneurs have successfully found ways to lower potential costs. Murray N. Rothbard writes in Man, Economy, and State:
Peter Klein in The Capitalist and the Entrepreneur points out that uncertainty is necessary for profitability in a market system:
The anticapitalist critics would pounce here, claiming that the greedy capitalist had "underpaid" factor owners (especially labor) to gain profits. (Most likely, the critics would claim that the business owners also charged "unjust" prices, but they are going to make that claim no matter what the circumstances, with the assumption of "injustice" also being the conclusion, the classic "begging the question" informal fallacy.) There is a major weakness in that argument, however, and while the critics never will move past their own anticapitalist assumptions (since all progressives know that capitalism causes poverty), they assume that the entrepreneurs know that labor is "underpriced" ex ante. Yet, as Klein and Rothbard point out, because entrepreneurs operate within the arena of uncertainty, they only can surmise that at least some factors are underpriced, since they only can know for sure ex post. Furthermore, since entrepreneurs also experience losses, factors owners are overpaid in those situations, and that includes labor. (One doubts that the progressive critics of capitalism will demand that workers give back their windfall should the entrepreneurial venture lose money.) Note again that the critics of capitalism hold that it is naturally exploitative and that unless government steps in to force employers to pay "just" wages, employers will force employees to work for substandard wages. Declares the Christian socialist publication Sojourners:
If the above statement were correct, then most people would be employed at $7.25 an hour (unless state or local minimum wages were higher) and supply and demand for labor would have no effect upon what people are paid. In other words, they believe that wages are not connected to economic reality and are nothing more than mere numbers. (One doubts that anyone at Sojourners would have their minds changed when confronted with the real and racist history of the minimum wage—that it was implemented precisely to make the abovementioned minority workers less employable. It is utterly ironic that the people at Sojourners believe that even though progressives in the first half of the twentieth century hated racial minorities and wanted them eliminated from American society, they somehow unwittingly imposed and demanded economic policies that benefitted the very people they hated.) If one believes what clearly is obvious—that prices in unhampered markets send accurate signals to market participants—then profits are not gained by harming others. Markets by their very nature involve voluntary action by consenting parties, which by definition is nonexploitative. Profits in a free market system exist, because entrepreneurs have made correct predictions about future consumer choices and acted on their beliefs. This is not profits over people, but rather profits benefitting people.  This posting includes an audio/video/photo media file: Download Now |
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