The Volokh Conspiracy

Both the Economist and the BBC have just published interesting articles on the use of property rights to prevent overfishing in various places around the world.

Coincidentally, I covered this very topic in my Property class at Penn just a few days ago. I love it when education is "relevant!"

HT: Penn Property students Ramsey Younis and Michael Bolos.

Various libertarian and libertarian-leaning bloggers are disappointed that Canada (7th) ranks ahead of the United States (8th) in the latest Cato/Fraser Institute economic freedom rankings. In reality, the difference between Canada's score (8.05 on a 10 point scale) and ours (8.04) is statistically insignificant. However, it probably is the case that Canada - as well as several other nations that rank ahead of us in the Cato/Fraser study - really has equalled or surpassed the United States in economic freedom, thanks to the massive expansion of government in the Bush era of "big government conservatism." As the individual country data sets in the Cato/Fraser study reveal (the US data is on pg. 177), the United States ranked 2nd in 2000 and 4th in 1995, the last two pre-Bush era rankings.

Also interesting are America's scores in specific categories of economic freedom that the Cato/Fraser study aggregates into the overall ranking. One important category where the United States (7.58) trails Canada (8.47) by a large margin is "protection of property rights." I haven't closely analyzed the methodology Cato and Fraser used to compile these numbers; so it is possible that they are the result of some sort of methodological error. However, I suspect that the two rankings are roughly accurate. Compared to the United States, Canadian authorities pay higher compensation to property owners whose land has been taken by eminent domain. In theory, the United States Constitution provides more extensive protection for property rights than Canada's does; in practice, however, property rights continue to the be the "poor relation" of constitutional law and rarely get more than a bare minimum of protection from the Supreme Court. Finally, I suspect that Canadian provincial and local governments don't condemn property for "economic development" and "blight" alleviation as often as their American equivalents. Certainly, there are few if any Canadian takings comparable in scope to cases like Poletown.

I have not studied Canadian property rights law and policy in detail, so these tentative conclusions are based on limited knowledge. I welcome correction from Canadian property scholars and others with relevant expertise. Also, it's worth noting that there is wide variation between American states in the degree to which they protect property owners; the best American states are probably well ahead of the Canadian average. Subject to these important caveats, however, I fear that our oft-maligned neighbor to the North really does do a better job of protecting property rights than we in the US of A. The True North isn't always "strong and free." But its property owners may enjoy stronger legal protection and greater freedom than ours do.

CONFLICT OF INTEREST WATCH: I suppose I should mention that I am a Cato Institute adjunct scholar (an unpaid, purely honorary, position). I didn't have any role in writing Economic Freedom in the World.

Widely respected columnist Stuart Taylor writes:

[O]ne reason that candidates get away with dishonest campaign ads and speeches may be that it is so hard for undecided voters like me to discern which charges are true, which are exaggerated, and which are false. Most people can't spend hours every day cross-checking diverse sources of information to verify the accuracy of slanted stories and broadcasts.

In other words, political candidates and media outlets often get away with deceptive campaign tactics and inaccurate charges because voters don't know the truth and don't have sufficient incentive to rectify that ignorance through investigation. Taylor goes on to blame the media for this state of affairs, suggesting that more accurate reporting would increase our knowledge. Here, I partly disagree with Taylor. The media is indeed flawed in many ways. But its failures are not the only, or even the principal, cause of widespread political ignorance. Surveys show that most citizens are ignorant of many very basic facts about politics - such as the very existence of major programs (e.g. - Bush's massive prescription drug benefit, the largest new government program since the 1960s, which 70% of the public was not aware of). These basic facts are widely and accurately reported in the media, yet most people still don't know them.

Moreover, the media are not completely autonomous; if they want to stay in business, they have to give viewers and readers what they want. If the public wanted unbiased and accurate coverage and was willing to reject outlets that turned out to be biased and inaccurate, the media would have strong incentives to comply. Newspapers and TV news stations that continued to be biased or inaccurate would lose market share.

In reality, of course, most people either don't follow political news at all, or prefer outlets that are biased in favor of their own preferred party or ideology. Thus, the demand for Fox News, the New York Times, and many other media outlets that are strongly biased towards one party or the other. Social science research going back to the 1940s shows that Republicans tend to prefer Republican-leaning media and Democrats the opposite.

Ultimately, the root of the problem is the insignificance of the individual vote to electoral outcomes. For people whose only motive for acquiring political information is to be a better voter, it turns out that there is little incentive to acquire political knowledge at all. They are "rationally ignorant." Some people, of course, seek out political knowledge for reasons unrelated to voting. For example, they find politics entertaining or they enjoy rooting for their preferred party or ideology - much as sports fans enjoy rooting for their favorite team, even though they know they have little chance of affecting the outcome of games. For this latter group, however, there is little incentive to analyze the information they acquire in an unbiased way or even to check up on its accuracy. To the contrary, listening to pundits and reporters who have the same biases as you do while heaping abuse on the opposition, is part of the fun of being a fan. Political fans often avoid opposing points of view for much the same reasons that most of my fellow Red Sox fans prefer to listen to pro-Red Sox sports radio rather than pro-Yankees shows. That's the main reason why left and right-leaning blogs usually have similarly inclined readers. People also tend to discount political information that goes against their prior views and overvalue anything that seems to reinforce them. Economist Bryan Caplan calls this phenomenon "rational irrationality."

I discuss both rational ignorance and rational irrationality in more detail in this article, as well as provide citations to some of the social science literature documenting the finding that most people evaluate political information in a highly biased way and prefer media outlets that favor their preexisting views.

Knowing that most of the public is rationally ignorant, highly biased in its evaluation of political information or both, candidates take these realities into account. They can see that lies, deception, and unfair charges will often increase their chances of winning, and act accordingly. Indeed, even an altruistic, public-spirited candidate might adopt such tactics, so long as he genuinely believes that his victory will benefit the nation. After all, abjuring them would likely ensure the victory of his more unscrupulous opponents whose policies - the principled candidate believes - would be worse for the country than his own. Media outlets face similar incentives. Those who don't cater to the prejudices of one or another side of the political spectrum are at a competitive disadvantage relative to their rivals. The same goes for those who emphasize in-depth news analysis at the expense of entertainment value.

It's easy to blame unscrupulous politicians and reporters for the flaws in our political discourse. But the root of the problem lies elsewhere - in the structural weaknesses of democracy itself.

Senior Conspirator Eugene Volokh has done an excellent good job of taking apart three Ohio Supreme Court justices' opinions that claim that claim that state law has no "rational basis" for allowing private owners but not government to ban the carrying of concealed firearms on their land. But, as a property professor, I can't resist the urge to pile on.

In addition to Eugene's well-taken points, there are two other important and relevant distinctions between private and public property. First, most private properties that are accessible to the general public are subject to the constraints of market competition. Privately owned stores, recreation facilities, bars, parks, and the like compete with each other to attract customers. As such, there are likely to be different stores that cater to customers with divergent preferences. If many Ohioans prefer to go to a gun-free bar, it is likely that there will be establishments that are happy to accommodate them. Those who prefer to bring their guns with them when they drink can go to other bars that cater to their preferences.

By contrast, many government buildings carry out functions over which government has a monopoly, or something close to it. Consider court buildings, the registry of motor vehicles, welfare offices, and so on. People who seek to use these public services often have no choice but to go to the government buildings in question, regardless of whether the policies there fit their preferences or not. Basic economic theory suggests that it is often necessary to regulate the policies of a monopolist more tightly than those of participants in competitive markets.

Second, and closely related, market competition gives private owners a stronger incentive to accommodate consumer preferences than government owners have. If a private business allows too many guns on its premises, rendering them unsafe, that will tend to drive customers away and reduce the business' profits. The same thing is likely to happen if the business adopts overly restrictive policies and thereby alienates gun-owners who want to be able to take their concealed firearms with them. Businesses have strong incentives to weigh these considerations against each other and come up with a policy that satisfies the most customers at the least cost. On the other hand, a government office that adopts flawed policies won't lose money as a result. Indeed, the bureaucrats in question might actually benefit from reducing the number of people who seek out their services. They will continue to collect the same pay, while having to do less work.

To be sure, really egregious errors by bureaucrats might eventually be punished at the polls; perhaps the voters will pick new state legislators who might cut the offending bureaucrats' budgets or otherwise force them to change their ways. However, the "rational ignorance" of the electorate ensures that all but the grossest and most highly visible bureaucratic mistakes are likely to pass unnoticed by the public.

Obviously, there are some exceptions to these generalizations. A few private businesses are monopolists, and a few government offices are subject to more rigorous market competition than that generally faced by public sector entities. Nevertheless, these points are valid as a general rule. And that should be more than enough to satisfy the loose standards of the "rational basis" test that, as Eugene explained in his post, applies to this case. Indeed, I think it should be enough to satisfy even significantly more exacting judicial scrutiny. Overall, there are many good reasons to regulate government officials' use of public property more strictly than private owners' use of their own land.

Columnist Steven Chapman has an interesting column arguing against claims that ladies night's in bars should be banned because they discriminate against men:

When it comes to relations between the sexes, a little common sense goes a long way. It's not sex discrimination to bar men from women's locker rooms. It's not sex discrimination to let only females audition for the role of Juliet. It's not sex discrimination to roughly balance males and females in an entering college class. And it should not be sex discrimination to offer favors to one sex in order to benefit people of both sexes.

Why, after all, would a bar offer discounts to women? Not because the owner harbors a deep-seated hostility toward men, perpetuating centuries of oppression. People who run such establishments understand that a lot of men patronize taverns partly to meet women, and that they will come more often and stay longer if women are abundant than if they are scarce.

Since females are generally less attracted to the bar scene, discounts may be needed to draw them out in respectable numbers. The owner of the Coastline Restaurant and Bar in Cherry Hill, the target of the complaint, said after the ruling came down that his male customers are unhappy "because they're wondering, 'Are the girls going to show up?'" ....

Offering a discount for women, to George Washington University law professor John Banzhaf, is no more defensible than charging whites less than blacks. "Sex discrimination is wrong, no matter whose ox is being gored," he declares.

But context is crucial, and relations between the sexes are different from relations between the races. We don't accept racially segregated restrooms, but we do accept sexually segregated restrooms. All-white colleges would be offensive, but all-female schools are not.

Charging whites less than blacks would suggest a desire to drive away black customers because of racial animus. Charging women less than men suggests nothing comparable.

I blogged about some of the legal issues involved in the ladies' night litigation in this series of posts last year. I argued that ladies' nights don't violate the 14th Amendment and that the anti-ladies' night plaintiffs should not be allowed to proceed with a class action case under which they get to be class representatives for male bar patrons as a group; quite obviously, they would be poor representatives of this class because most male bar patrons actually benefit from ladies' nights and would be harmed by the lawsuits' success. I'm far less certain that ladies' nights are legal under the public accommodations provisions of the Civil Rights Act of 1964. If they are not, however, that is a weakness in the law, not a virtue.

UPDATE: I had foolishly forgotten that Title II of the Civil Rights Act of 1964 only bans discrimination in places of public accommodation on "the ground of race, color, religion, or national origin." It doesn't forbid sex discrimination. Therefore, ladies nights in bars are perfectly legal, at least so far as Title II is concerned.

UPDATE #2: It turns out that Tim Sandefur of the libertarian Pacific Legal Foundation has recently filed an amicus brief in a California ladies' night case making arguments similar to some of those advanced in my posts on the subject. The brief is available here.

UPDATE #3: Some commenters argue that Chapman's argument can also be used to justify affirmative action. To some extent, this is true. However, my view is that private sector affirmative action programs should be legal. Therefore, there is no contradiction between my positions on the two issues.

I don't often find myself agreeing with Dennis Kucinich. But I have to commend him for his opposition the the massive state and federal subsidies for the construction of the new Yankee Stadium:

A congressional panel has taken tough swings at the New York Yankees and New York City government over a new stadium for the Yankees. But neither the team nor the city budged from their positions on the $1.3 billion structure.

Rep. Dennis Kucinich said Thursday he found "waste and abuse of public dollars" in the financing of the new stadium under construction in the South Bronx.

Kucinich is an Ohio Democrat who heads a House Oversight and Government Reform subcommittee. He charged that city officials misrepresented to the IRS the value of the property, helping them to get special tax deals from the federal government and in effect dumping the cost of construction onto taxpayers.....

"In the case of the new Yankee Stadium, not only have we found waste and abuse of public dollars subsidizing a project that is for the exclusive benefit of a private entity, the Yankees, but also we have discovered serious questions about the accuracy of certain representations made by the City of New York to the federal government," Kucinich said.

The panel's investigation found "substantial evidence of improprieties and possible fraud by the financial architects of the new Yankee Stadium," he added.

The criticism highlights tensions felt nationwide as governments increasingly support stadiums for profitable pro sports teams with multimillion dollar payrolls.

As I discussed in this post, construction of the new Yankee Stadium is being subsidized with up to $450 million in public funds, plus an additional $941 million in government-backed tax-exempt bonds. This is the largest government subsidy for stadium construction in the history of the United States, and there is no good justification for it.

I first criticized the Yankee Stadium deal in this 2006 post, where I summarized the extensive evidence that there is no public benefit justifying subsidies for sports stadium construction. In fairness, what the Yankees have done is similar to what many other pro sports teams have gotten away over the last several decades. The Yankee Stadium situation is unusual primarily because of its massive size. Hopefully, Kucinich's hearing and others like it will succeed in exposing this kind of sports stadium socialism to public scrutiny and eventually put an end to it. But I am not optimistic.

NOTE: As a Red Sox fan, I'm obviously unhappy about government subsidies to the rival Yankees. However, I would oppose similar deals for any team, including Boston teams. For example, I was against various proposals that have come up over the years to build a new government-subsidized stadium for the Red Sox. I love the Red Sox, but I could not love them half as much loved I not liberty more.