Money and the Rule of Law

GLENN L. FURTON & ALEXANDER WILLIAM SALTER

THE REVIEW OF AUSTRIAN ECONOMICS

Abstract: Contemporary monetary systems permit those in positions of authority to exercise discretionary power in the pursuit of monetary policy objectives. We argue there are strong prima facie reasons why this is normatively problematic. Engaging the literature on the rule of law, we argue that a general and nondiscriminatory rule ought to apply to monetary institutions for the same reasons such a rule ought to apply to other important institutions. We recognize that this prima facie case may be overcome by sufficiently strong consequentialist concerns, but show that these concerns are ungrounded: discretionary monetary authorities, both in theory and practice, perform poorly. We thus affirm the importance of the rule of law for monetary policy as a requisite for both non-arbitrary governance and macroeconomic stability.

The Influence of Patents on Science

J. TRERISE

POLITICS, PHILOSOPHY, AND ECONOMICS, Volume 15, Issue 4

Abstract: This paper is a critique of the current US patent system along general consequentialist lines. I present a pro tanto case against it because of its effects on scientific inquiry. The patent system is often thought to be justified (or necessary) because it provides incentives to innovate. I challenge this concern. Economists and legal scholars have spent a good portion of time analyzing particular aspects of the patent system. I here synthesize their work, showing how it amounts to a pro tanto moral case against patents. This is the case even though patents are said to incentivize innovation, its disclosure, and its transfer to interested parties. I explore all of these possibilities, finding them to only weakly (at best) support the institution of patent rights. Juxtaposing this weak case for patents along with various problems that patents cause for science, we find a pro tanto case against our current patent system. To my knowledge, no one has tried to synthesize the various concerns I raise, with particular attention to not only the patent’s system purported ability to incentivize innovation, but also to disclose and transfer technology.

When Civil Society Uses an Iron Fist: The Roles of Private Associations in Rulemaking and Adjudication

ROBERT C. ELLICKSON

AMERICAN LAW AND ECONOMICS REVIEW, VOLUME 18, ISSUE 2

Abstract: Alexis de Tocqueville and Robert Putnam are but two of the many admirers of the countless private associations that lie at the core of civil society. This article seeks to advance understanding of the law-like activities of these associations. Residential community associations and sports leagues, for example, make rules and levy fines on members who violate them. The New York Diamond Dealers Club and the Writers Guild of America, like many other associations, have established internal arbitral panels for the resolution of member disputes. Courts are highly likely to defer to the outcomes of these arbitrations. The article’s central positive thesis, hedged with qualifications, is that a private association tends to engage in social control when it is the most cost-effective institution for addressing the issue at hand. This thesis is used to illuminate some otherwise puzzling associational practices, such as the efforts of the National Football League and other professional sports leagues to control players’ domestic violence off the field of play.

No Progressive Taxation without Discrimination? On the Generality of the Law in the Classical Liberal Tradition

ÅSBJØRN MELKEVIK
CONSTITUTIONAL POLITICAL ECONOMY (2016). ADVANCED ONLINE PUBLICATION. DOI: 10.1007/s10602-016-9222-x

Abstract: Any liberal theory that would take seriously the question of equality before the law is bound to engage with discrimination-related matters, and so long as one is a liberal one should oppose all discrimination coming from the state. This, however, may be a double-edged sword since many classical liberals have quite readily opposed progressive taxation by invoking its discriminatory nature. Some liberals will therefore conclude that one cannot establish different tax brackets, lest taxation be illiberal. This paper endeavours to refute this assumption. Progression may be compatible with the classical liberal concern for the rule of law, provided legislative discretion on tax-related matters is duly limited by the principle of generality, as well as by a certain standard of reasonable lawmaking. Through a careful distinction between four concepts of differential treatment, this paper demonstrates that progressive tax arrangements do not necessarily discriminate against the well-off, and that it can efficiently fulfill some legitimate classical liberals objectives.

Legal Punishment of Immorality: Once More into the Breach

KYLE SWAN
PHILOSOPHICAL STUDIES (2016). ADVANCED ONLINE PUBLICATION. DOI 10.1007/s11098-016-0727-y

Abstract: Gerald Dworkin’s overlooked defense of legal moralism attempts to undermine the traditional liberal case for a principled distinction between behavior that is immoral and criminal and behavior that is immoral but not criminal. According to Dworkin, his argument for legal moralism “depends upon a plausible idea of what making moral judgments involves.” The idea Dworkin has in mind here is a metaethical principle that many have connected to morality/reasons internalism. I agree with Dworkin that this is a plausible principle, but I argue that some of the best reasons for accepting it actually work against his enforcement thesis. I propose a principled distinction between the immoral-and-criminal and the immoral-but-not-criminal, and argue that a principle at least very much like it must be correct if the metaethical principle Dworkin avows is correct.

Two Concepts of Religious Liberty: The Natural Rights and Moral Autonomy Approaches to the Free Exercise of Religion

VINCENT PHILLIP MUÑOZ
AMERICAN POLITICAL SCIENCE REVIEW 110.2 (2016): 369-381

Abstract: Due in part to the influence of Michael McConnell, free exercise exemptionism is generally thought to be compatible with, if not dictated by, the founders’ church-state political philosophy. This article rejects that position, arguing instead that America’s constitutional tradition offers two distinct conceptions of religious liberty: the founders’ natural rights free exercise and modern moral autonomy exemptionism. The article aims to distinguish these two approaches by clarifying how they are grounded upon divergent philosophical understandings of human freedom and by explaining how they advance different views of what religious liberty is, how it is threatened, and, accordingly, how it is best protected. The article also attempts to demonstrate how our modern approach expands the protection for religious liberty in some ways but limits it in others.

Economic Freedom and Public, Non-market Institutions: Evidence From Criminal Prosecution

CLAUDIO DETOTTO AND BRYAN C. MCCANNON
ECONOMICS OF GOVERNANCE (2016). ADVANCED ONLINE PUBLICATION. DOI10.1007/s10101-016-0183-3

Abstract: Economic freedom, which measures the protection of property and freedom to contract, is generally argued to capture the quality of a state’s institutions regarding market activity. As to be expected, numerous studies have found that economic freedom is associated with good economic outcomes. Additionally, much effort in public economics has worked to identify the features of quality non-market public institutions. No effort has been made to connect institutions that influence market activity and institutions that govern non-market activities. Continue reading