Topic: Regulatory Studies

The Ninth Circuit’s Controversial New Class Action Decision

The Ninth Circuit has issued its long-awaited en banc decision in Dukes v. Wal-Mart, a pathbreaking class action seeking relief from Wal-Mart for alleged gender discrimination on behalf of somewhere between 500,000 and 1.5 million women. The upshot: a 6-5 partial affirmance of one of the most questionable class certification approvals in recent memory.

The case is sparking considerable commentary: see here, here, and here, for starters. Cataloguing all the myriad questionable parts of the 135+ page decision, which range from the standard for admitting expert testimony in support of certification, to the permissibility of so-called “issue classes,” to due process restraints on award of class-wide punitive damages, would take a blog post rivaling the length of the Ninth Circuit’s own monster-of-an-opinion.

Here, though, are a few problems that pop out on first reading.

First, the Ninth Circuit’s certification decision depends on an exceedingly questionable understanding of federal civil rights law. As Richard Nagareda has written, the case is premised on “a bold, new conception of prohibited discrimination under Title VII - a notion that the scholarly literature encapsulates in the term ‘structural discrimination.’” The idea is that a corporation can violate federal antidiscrimination laws by structuring the workplace in a way that enables unconscious discrimination by frontline managers.

Wal-Mart is said to have engaged in this sort of scheme because it permits its managers to engage in highly subjective decision-making about pay and promotion, rather than imposing uniform objective criteria. In effect, the idea is that Wal-Mart’s laissez faire approach to personnel management masks a conscious effort to use its managers, and their unconscious biases, as a conduit for the company’s own unstated policy of gender discrimination.

As Nagareda points out, the theory of structural discrimination “has enjoyed a run in academic discourse out of line with its meager acceptance as a matter of actual doctrine.” Indeed, as he notes, “one broadly shared starting point in the literature” is that structural discrimination is not consistent with current law. Yet, the viability of this suit turns on this theory. And the trial court and the original Ninth Circuit panel in turn authorized a class without ever squarely deciding whether Title VII does, in fact, embrace this theory.

The en banc panel appears to make some (meager) effort to rectify this problem. But its elliptical treatment of the structural discrimination theory, spanning a couple of paragraphs buried deep in the belly of the mammoth opinion, is ephemeral—a far cry from Nagareda’s suggestion that the panel first “resolve the meaning of the statute squarely and forthrightly” before undertaking class certification analysis. One senses the often-reversed Ninth Circuit, fearful of the Roberts Court peering over its shoulder, is trying to bury the lede.

Second, a more technical problem: the en banc decision exacerbates an already troublesome circuit split over the conditions for approving a class under Rule 23(b)(2). This is a popular vehicle for class actions among plaintiffs’ lawyers for two reasons: first, assuming a class qualifies for treatment under it, class members are not entitled to an automatic right to exit the class (or “opt out”) and, second, Rule 23(b)(2), in addition, imposes less stringent requirements for class certification. In their advisory notes, the drafters of the federal class action rule suggest a class qualifies for treatment under Rule 23(b)(2) if injunctive relief “predominates” over monetary relief. And one might think that in a suit, such as this, seeking massive punitive damages on behalf of an veritable army of women, certification under Rule 23(b)(2) is therefore obviously inappropriate. But rather than squarely so hold, the Ninth Circuit now stakes out an entirely new, multi-factored balancing test for determining when injunctive or monetary relief predominates—creating a three-way circuit split about the meaning of Rule 23(b)(2)’s predominance test.

Another more fundamental problem: The text and structure of the Civil Rights Act also strongly suggest that in suits seeking backpay and punitive damages, defendants must have a chance to present affirmative, individualized evidence, on a case by case basis, rebutting claims they have discriminated. In addition, the Supreme Court’s due process cases also strongly suggest punitive damages should be awarded based on an individualized determination of fault. Yet, although the ultimate trial plan remains in flux, the en banc panel greenlights jettisoning the defendant’s right to present this kind of affirmative, individualized, case-by-case rebuttal evidence. It has done so, of course, in the service of facilitating the class action: if a case-by-case opportunity to affirmatively rebut discrimination is mandated by Congress, or the Fifth Amendment, in hundreds of thousands of suits seeking back pay and punitive damages, its hard to avoid concluding that those claims predominate over the request for injunctive relief, disqualifying them from Rule 23(b)(2) treatment even under the Ninth Circuit’s new “third way” test … . and raising serious concerns about whether the claims for monetary relief are certifiable at all.

Class action practice is, alas, one area where the Supreme Court has been, largely, AWOL. The result—an ever-lengthening array of circuit splits on key questions that affect when a class action can be green-lighted. Dukes—a decision chock full of questionable, boundary-pushing decisions—is the inevitable result. Some suggest Supreme Court review of this decision is close to a sure thing. Let’s hope that’s right.

Obama for Entrepreneurs, but Not American Ones

Entrepreneur.org ran an article today that begins:

This afternoon, President Obama addressed the Presidential Summit on Entrepreneurship organized by the Department of State and the Department of Commerce … designed to promote entrepreneurship in Africa, the Middle East, and South, Central and Southeast Asia.

Meanwhile, on the home front, Obama signed into law a health bill, which includes a massive new mandate on businesses to file billions more tax returns for their routine business dealings. Obama supports a financial regulatory bill that could kill the angel investment industry, and thus end angel support of start-up businesses. Obama supports raising the top two income tax rates, even though 44 percent of the income hit will be small business income. And Obama supports raising the capital gains tax, even though a lower gains rate has been crucial to the success of high-tech entrepreneurship in Silicon Valley elsewhere.

The Obama administration and today’s Democrats are driven by regulatory zeal, lust for higher revenues, and apparent ignorance of the workings of the market economy. I don’t think they planned it this way, but their anti-market actions are accumulating cut by cut, threatening major long-term damage to America’s standard of living.

The IMF Is Urging Governments to Impose Regulatory and Tax Cartels to Benefit Politicians

Price fixing is illegal in the private sector, but unfortunately there are no rules against schemes by politicians to create oligopolies in order to prop up bad government policy. The latest example comes from the bureaucrats at the International Monetary Fund, who are conspiring with national governments to impose higher taxes and regulations on the banking sector. The pampered bureaucrats at the IMF (who get tax-free salaries while advocating higher taxes on the rest of us) say these policies are needed because of bailouts, yet such an approach would institutionalize moral hazard by exacerbating the government-created problem of “too big to fail.”

But what is particularly disturbing about the latest IMF scheme is that the international bureaucracy wants to coerce all nations into imposing high taxes and excessive regulation. The bureaucrats realize that if some nations are allowed to have free markets, jobs and investment would flow to those countries and expose the foolishness of the bad policy being advocated elsewhere by the IMF. Here’s a brief excerpt from a report in the Wall Street Journal:

Mr. Strauss-Kahn said there was broad agreement on the need for consensus and coordination in the reform of the global financial sector. “Even if they don’t follow exactly the same rule, they have to follow rules which will not be in conflict,” he said. He said there were still major differences of opinion on how to proceed, saying that countries whose banking systems didn’t need taxpayer bailouts weren’t willing to impose extra taxation on their banks now, to create a cushion against further financial shocks. …Mr. Strauss-Kahn said the overriding goal was to prevent “regulatory arbitrage”—the migration of banks to places where the burden of tax and regulation is lightest. He said countries with tighter regulation of banks might be able to justify not imposing new taxes.

I’ve been annoyingly repetitious on the importance of making governments compete with each other, largely because the evidence showing that jurisdictional rivalry is a very effective force for good policy around the world. I’ve done videos showing the benefits of tax competition, videos making the economic and moral case for tax havens, and videos exposing the myths and demagoguery of those who want to undermine tax competition. I’ve traveled around the world to fight the international bureaucracies, and even been threatened with arrest for helping low-tax nations resist being bullied by high-tax nations. Simply stated, we need jurisdictional competition so that politicians know that taxpayers can escape fiscal oppression. In the absence of external competition, politicians are like fiscal alcoholics who are unable to resist the temptation to over-tax and over-spend.

This is why the IMF’s new scheme should be rejected. It is not the job of international bureaucracies to interfere with the sovereign right of nations to determine their own tax and regulatory policies. If France and Germany want to adopt statist policies, they should have that right. Heck, Obama wants America to make similar mistakes. But Hong Kong, Switzerland, the Cayman Islands, and other market-oriented jurisdictions should not be coerced into adopting the same misguided policies.

SEC vs. Goldman Sachs: Legislation by Demonization

The Obama administration thinks it has discovered the perfect formula to cram legislation through in a hurry:  Demonize some prominent firm within an industry you plan to redesign, and then pass a law that has nothing to do with the accusation against the demonized firm.  They did this with health insurance and now they’re trying it with finance.

With health insurance, the demon was Anthem Blue Cross Blue Shield of California, which Obama accused of raising premiums by “anywhere from 35 to 39 percent.” Why didn’t some curious reporter interview a single person who actually paid 39% more, or quote from a letter announcing such an increase?  Because it didn’t happen.  Insurance premiums are regulated by the states, and California wouldn’t approve such a boost.  Yet the media’s uncritical outrage over that 39% rumor helped to enact an intrusive, redistributive health bill that has nothing to do with health insurance premiums (which remain regulated by the states).

Today, the new demon de jour is Goldman Sachs, a handy scapegoat to promote hasty financial rejiggering schemes  The SEC’s suspiciously-timed civil suit against Goldman looks as flimsy as the last month’s health insurance story.  It also looks unlikely to win in court.

As Washington Post columnist Sebastian Mallaby explains, “This is a non-scandal. The securities in question, so-called synthetic collateralized debt obligations, cannot exist unless somebody is betting that they will lose value.”  In such a zero-sum contest, big investors who went long knew perfectly well that other investors had to be taking the other side of the bet.  Goldman lost $90 million by betting this CDO would go up; John Paulson went short.

Columnists have moralized about the unfairness of the short investor (Paulson) negotiating the terms of this deal with a long investor, ACA Management, which had the last word. This too, notes Mallaby, “is another non-scandal.  An investor who wants to bet against a bundle of mortgages is entitled to suggest what should go into the bundle. The buyer is equally entitled to make counter-suggestions.  As the SEC’s complaint states clearly, the lead buyer in this deal, a boutique called ACA that specialized in mortgage securities, did precisely that.”

Like the earlier fuming about Anthem California, this new SEC publicity stunt is likewise irrelevant to the pending legislation.  Congress hopes to get standardized derivatives traded on an exchange. But synthetic collateralized debt obligations dealing with a customized bundle of securities could not possibly be traded on an exchange, and would therefore be untouched by reform.

Losses sustained by a few financial speculators on one exotic derivative had nothing to do with starting a global recession in December 2007 or the related financial crisis of September 2008. The core of the latter crisis was mortgage-backed securities per se, yet Goldman was only the 12th largest private MBS issuer in 2007.  Fannie Mae and Freddie Mac were and are the biggest risk; any reform that excludes them is a fraud.

The SEC’s dubious civil suit against Goldman is a wasteful diversion at best. It has nothing to do with the Obama administration’s suicidal impulse to impose more tough regulations and taxes on banks to encourage them to lend more.

[Cross-posted at NRO’s The Corner]

Libertarianism and Big Business: A Dissent

The March-April issue of Cato Policy Report featured a discussion among Timothy Carney, Uwe Reinhardt, and Ross Douthat of Carney’s book Obamanomics: How Barack Obama Is Bankrupting You and Enriching His Wall Street Friends, Corporate Lobbyists, and Union Bosses. The tenor of the discussion was reflected in the title, ”Big Business, Big Government, and Libertarian Populism.” Richard L. Gordon, a distinguished economist emeritus at Pennsylvania State University and a Cato adjunct scholar, took strong issue with all three commenters and sent us the following rebuttal, which we’re pleased to publish here:

The March/April Cato Policy Report covered a January 2010 Cato Book Forum on Timothy P. Carney’s Obamanomics. Carney summarized his book and there were responses from Uwe Reinhardt, a Professor at Princeton noted for advocacy of strong government intervention in health care, and Ross Douthat, a (first-year) New York Times columnist, a self-styled conservative who (from scanning his columns) seems a weak one. The result was three tirades about how big business runs government. It is surprising in the twenty-first century to see outside of WhiteHouse.gov, movies, and television dramas such naïve attacks on the power of big business. This is not the libertarianism that I know. However, superficially plausible dominance theories are too convenient not to revive frequently, regardless of enormous refutations. Thus, some key, familiar points need recollection.

The charge of big-business dominance has at least three flaws. First, it is a myth. Politicians created the massive growth of government with more input from intellectuals than from business executives. Second, it reverses causation; government ensnares industry. Third, it is absurd since big business, however defined, consists of diverse, often conflicting companies.

Much, including the most problematic, expansion of government, has almost nothing to do with big business and is certainly not what any big (or small) firms would want. The entitlements explosion is in social security, government-employee pensions, Medicaid, and Medicare. The first is notoriously a shifting of savings from private firms to an entirely government-run program with a rigid reliance on treasury paper debt whose repayment is dubious. Other government pension plans do invest in the private sector so they rely somewhat on private firms. Again, this only displaces what individuals would have done for themselves, despite the fears of libertarian interventionists.

The messes that are Medicaid and Medicare do involve among many others big businesses in pharmacy and medical insurance. In the latter case, the non-profit Blue Cross and Blue Shield companies are major, often dominant factors. The other, more important participants are the large number of separate medical providers and hospitals. The final involved sector is much of American business. To lessen the impact of World-War II wage and price controls, the U.S. government extended to medical insurance the legal fiction used for Social Security that part of insurance costs could be called “employer contributions” and not considered income subject to personal income tax. Basic economic theory amply confirmed by empirical research shows that these payments are labor costs and lead to reduced direct compensation.

The result is a system in which payment is widely separated from decisions about medical procedures. Physicians err on the side of ordering additional tests because they know that neither they nor the patient directly incur the costs. (The fear of lawsuits may increase that bias, but it is unclear that tort reform without reform of insurance provision would make a big difference.) The prime fault of Obama care is that it reinforces, rather than lessens, the separation of patient from payee. This again is hardly an ideal for business.

Even more obviously, another great problem area, education, suffers from a government takeover so ancient and thorough that only specialists are aware of its existence. The federal government increasingly intervenes into pre-college education. Since World War II, all government has greatly expanded its role in higher education to the extent that the great private universities are heavily government dependent. Congress tacked on to the health-care bill the total government takeover of college loans. Only a lunatic would postulate that any of this is due to a big-business conspiracy to control minds, particularly given the massive leftward tilt of academia.

The largest non-entitlement component of the federal government, defense, does notoriously, in part, involve an excessively cozy relationship with suppliers. However, spending for equipment is dwarfed by direct and indirect personnel costs. The spending on equipment, like many government decisions, is distorted by Congressional obsession with bringing jobs to their districts. No big-business excuse applies to nondefense discretionary spending. In short, it is a mockery to assert big business is the primary source of excessive government spending.

Second, politicians, rather than business executives, generate the dependence on government. What was described as a craven sellout to big pharma was actually part of the ruthless blackmail through which the Obama administration silenced a wide range of the potential criticism of its health-care monstrosity. Aside from all the normal government tools of torture such as the Internal Revenue Service, the antitrust agencies, and the Environmental Protection Agency, drug companies are subject to special and critical government scrutiny. The companies must endure the cumbersome, slow, expensive, ineffective Food and Drug Administration approval process. The industry relies on patent protection and re-importation bans to secure profits sufficient to recover research costs bloated by regulation.

The “big” drug and insurance companies were far from the only frightened firms. Despite widespread physician concerns, the American Medical Association abandoned its long-time opposition. More strikingly, AARP, the relentlessly wrong-headed self-created representative of seniors, flooded its publications with distorted pro-legislation articles.

This is unfortunately typical of the pressures companies face. Anyone who argues that lobbying is improper fails to recognize the excessive power that government possesses. It becomes essential to resist in every legitimate way widespread unbridled pressure. As Obama and his admirers constantly demonstrate, response to outrageous interventionist claims is regularly defamed. Efforts are made to discredit and even ban critics. In such a situation, limiting lobbying and other forms of response is an outrageous threat to constitutional government.

Famously, Microsoft did not take lobbying seriously until hit by dubious antitrust suits. In the energy sector, clearly pressures to go green and not oppose global-warming policies caused enormous fawning by a distressingly wide range of companies. Many leading retailers have jumped on green initiatives such as the long-life-bulb bandwagon arising because legislators responded to three decades of public resistance by forcing use of these bulbs. Exxon, after slander over its support, far smaller than that of the U.S. government, of research skeptical of global-warming concerns, has added a green tinge to its advertising, albeit not as blatantly as BP and Chevron. General Electric became a sell-out due to its involvement in financing, medical equipment, and power generating devices. The major banks and brokers faced and suffered badly from the political pressures to lend heavily to potential homebuyers with questionable financial situations.

At best, we can admit that big business is no less, but not no more, likely than any interest group to seek to twist the web of government control in its favor. A prime example of the defects is that Obama regularly assumes away trade-union influence in his attacks on interest groups. One of my great teachers, M.A. Adelman, forcefully argued that it is the voting power of interest groups that matters. He reached that conclusion in studying the antitrust attack on A&P that was driven by the extensive anti-chain store outlook of the thirties. His student Peter Pashigian showed that similarly automobile dealers secured protection from automobile manufacturers. When Adelman turned to oil, he found that “small” oil producers were sheltered at great cost to consumers from competition, domestic as well as imported, by big oil. A long-time concern about banking was the legislation limiting bank consolidation. A well-known, but regularly neglected part of this is the unreality of the big versus small company distinction. In most of these cases, the protected were rich local notables. In contrast, through pension funds and mutual funds increasingly, big companies are ultimately owned by much less affluent people.

Finally, a pro-big-business or even a general pro-business outlook is a nonsense concept. Big businesses conflict, not just with small business, but with each other. Protection of the once-big business of steel production was at the expense of the manufacturers of automobiles and other durable goods and their customers. The oil industry disagreed with the automobile industry on the best policy, given the inevitability of action, to reduce gasoline consumption legislatively. Large retailers relentlessly turn to imports when domestic producers, big and small, become too expensive.

This last point is key to understanding what libertarian economics is about. Decades before tea parties, libertarians were for limited government that involves among other things free markets. We want the market to decide winners and losers. We feel that private monopoly is so rare and difficult to detect and reform or regulate that we oppose purportedly anti-monopoly policies.

The real danger is the unopposed monopoly power of government. The need is protection from politicians unaware of the limits of prudent, constitutional government. The heath-care debate provided many examples. The quintessence of the disgraceful process of passing Obamacare was Nancy Pelosi, yielding a grossly oversized gavel, leading an unnecessarily confrontational walk up the Capitol steps through a wall of peaceful protestors, instead of taking the underground access that is available. Less dramatic, but more chilling, was the consistent dismissal by the law’s proponents of constitutional flaws in the bill. It suggests a variant on what Jimmy Durante’s character in Jumbo said when caught with an elephant, “Constitution, what Constitution?” As Cato has validly argued, what we need is less, not more, restrictions on speech and stringent term limits.

Richard L. Gordon
Pennsylvania State University

For some other libertarian views on this topic, see Roy A. Childs, Jr., “Big Business and the Rise of American Statism” or this discussion at Cato Unbound.

The Postal Service’s Union Problem

Comments from members of the House Oversight and Government Reform Committee at a recent hearing on the U.S. Postal Service’s woes indicate they don’t appreciate the USPS’s union problem. Postmaster General John Potter went before the committee to make his case for restructuring the postal operation, including greater labor flexibility.

From GovExec.com:

“You have to find people meaningful work, or no matter how compassionate you are, you’re not doing them any favors,” said Rep. Darrell Issa, R-Calif., the ranking member of the House Oversight and Government Reform Committee, criticizing holding rooms where underemployed postal workers wait until there are tasks for them to perform. “How many billions of dollars would have been saved if you’d aggressively right-sized the force before you came to us and said you want to go from six days [of mail delivery] to five?”

Congressman Issa should be informed that it is union rules that prevent postal management from laying off underemployed postal workers and having to put them in holding rooms.

Issa told Potter during his opening statement that the Postal Service has “more or less a third more people than you need,” but he said it “is not really acceptable” to convert full-time jobs to part-time positions, unless applicants are looking specifically for part-time work or part-time positions that lead to full-time work. Rep. Diane Watson, D-Calif., said she was concerned that part-time workers might not be treated fairly or could be excluded from collective bargaining agreements.

Lawmakers insisted repeatedly that even as the Postal Service confronts harsh financial realities, the agency must take into consideration the jobs of postal workers. “I’m hopeful this committee will find a way to deal with it that preserves the good faith that the people who serve the U.S. Postal Service have a right to expect,” said Rep. Dennis Kucinich, D-Ohio.

These members might want to read the Government Accountability Office’s latest report on the USPS, which called the mail monopoly’s business model “not viable.” Union labor is part of the problem. The average postal employee earns $83,000 a year in total compensation and 85 percent of its workforce is covered by collective bargaining agreements. Labor accounts for 80 percent of the USPS’s cost structure.

The GAO cites the following as reasons why USPS labor costs are so high:

  • The USPS covers a higher proportion of employee premiums for health care and life insurance than most other federal agencies, which is impressive because it’s hard to be more generous than federal agencies.
  • USPS workers participate in the federal workers’ compensation program, which generally provides larger benefits than the private sector. And instead of retiring when eligible, USPS workers can stay on the “more generous” workers’ compensation rolls.
  • Collective bargaining agreements limit the amount of part-time and contract workers the USPS can use to fit its workload needs, and they limit managers from assigning work to employees outside of their crafts. The latter explains why you get stuck waiting in line at the post office while other postal employees seemingly oblivious to customers’ needs go about doing less important tasks.
  • Most postal employees are protected by “no-layoff” provisions, and the USPS must let go lower-cost part-time and temporary employees before it can lay off a full-time worker not covered by a no-layoff provision.
  • If the collective bargaining process reaches binding arbitration, there is no statutory requirement for the USPS’s financial condition to be considered. This is like making the decision whether or not to go fishing, but not taking into consideration the fact that the boat has holes in its bottom.

The fact that Postmaster Potter has to go to Congress to plead for help to make business decisions points to a fundamental problem. Government-run businesses are necessarily hamstrung by the whims of politicians, who often only have a vague understanding of economics and business. If FedEx or UPS had to get congressional permission to manage its workforce, both would collapse. As mail volume falls, that’s where the USPS is headed unless we privatize it and deregulate postal markets.

Litan Warns Dodd Bill Would Harm Startups

I haven’t been following the debate over Sen. Dodd’s financial overhaul closely enough to have an opinion on the overall package, but Mike Masnick flags one aspect of the legislation that seems really troubling. Bob Litan explains:

Under existing law, startup companies can raise money easily and quickly from “accredited investors” – individuals with substantial wealth or income. There is no need for the companies or the investors to gain approval from any state or regulatory official.

All of this would change if Section 926 of the Dodd bill is included in any final reform legislation. That section would require, for the first time, companies seeking angel investment to make a filing with the Securities and Exchange Commission, which would have 120 days to review it. This would both raise the cost of seeking angels and delay the ability of companies to benefit from their funding.

The negative impact of the SEC filing requirement would be aggravated by the proposed doubling of the net worth or income thresholds required for investors to be “accredited.”

It’s hard to overstate how important a favorable regulatory climate is to the success of startups. Some of the most important startups have been founded by 20-somethings without the resources to hire lawyers or navigate regulatory bureaucracies. And startups frequently find themselves within weeks of insolvency before they have a big breakthrough. Having a crucial round of funding delayed by four months can be the difference between success and failure. If this description of the bill is accurate (and I have no reason to doubt that it is), this provision would be very bad for the future of high-tech innovation in the United States.