Save Wal-Mart, Save Class Action Law?

I’ve got a short Regulation Magazine piece on the notorious (or glorious, depending on your perspective) Dukes v. Wal-Mart case–a gender discrimination class action composed of as many as 2 million women, according to some estimates. You can read more about the case here and download my Regulation piece here.

Many believe the case is headed to the Supreme Court–if not this upcoming term, then the next. If it does, and if the Court takes up Wal-Mart’s constitutional arguments against certification, then, I argue, it might just set the stage for some far-reaching, and overdue, conceptual changes in the way we think about the constitutional rights of class action defendants. My piece uses Dukes as a springboard for sketching some of these defenses–admittedly quite adventurous–which just might become a bit less exotic if Wal-Mart succeeds.

Cost Overruns, More Liars

“Liar” is not a very scholarly word, but I don’t know how else to describe some of the comments that come from public officials. It’s not just the farm bill, check out this paragraph from a Washington Post story today on the Virginia highway project:

“Project officials hailed the interchange as ‘on time and under budget.’ But although the mid-2007 target date for completion was met, the final cost was nearly three times what was first projected. A more recent cost estimate of $676 million was ultimately met.”

Well, of course, the final estimate was met because it’s the final estimate. Obviously, what’s important for taxpayers is that politicians and government agencies stick to the numbers that they agree to when they first vote to approve projects.

It is my view that in many, but certainly not all, large government projects there is deliberate subterfuge about ultimate project costs. Many projects balloon in cost 50 percent or more.

For more on cost overruns, see this and this.

Yochai Benkler and the Libertarian Center

If you haven’t been reading Cato Unbound this month, you should be. Brink Lindsey defends his notion of libertarian centrism from left, right, and, um, Julian.

I found Jonah Goldberg’s follow-up contribution particularly interesting. He points out that much of what was wrong with the progressive movement of the early 20th century was due to its infatuation with centralizing institutions that were ascendant at the time: the army, heavy industry, and later, large-scale scientific endeavors like the Manhattan Project. Bigness and centralization were in, and intellectuals believed that the entire country should be governed in a similarly hierarchical fashion.

Goldberg thinks liberals will just discard the economic argument for central planning and move on to another one: public health, the environment, whatever. But I wanted to point out that there are also some liberals who are adopting a more appropriately skeptical attitude toward central planning itself.

One reason to think the 21st century is going to be more libertarian than the 20th is that the defining technology of our generation, the Internet, is radically decentralizing. After a century in which our cultural and economic lives were dominated by large, vertically-integrated corporations, we’re entering an era in which decentralization and disintermediation are the dominant trends. Instead of producing components in house, they develop networks of independent suppliers, knit together by sophisticated supply chains. And instead of vertically-integrated media companies like the New York Times and NBC, we’re increasingly moving toward a world in which writers, musicians, and other creators can reach their audiences directly.

The left, which has always fancied itself the party of modernity, is already beginning to be affected by these cultural currents. No work typifies the shift better than Yochai Benkler’s The Wealth of Networks, a book about how the emergence of the Internet is reshaping the cultural landscape. What’s striking about the book is how much Benkler draws on the thought of libertarian thinkers like Smith, Hayek, and Coase in explaining how he envisions the media landscape of the 21st century. Indeed, on page 16 Benkler, who is not a libertarian by any stretch of the imagination, concedes:

My approach heavily emphasizes individual action in nonmarket relations. Much of the discussion revolves around the choice between markets and nonmarket social behavior. In much of it, the state plays no role, or is perceived as playing primarily a negative role, in a way that is alien to the progressive branches of liberal political thought. In this, it seems more of a libertarian or an anarchistic thesis than a liberal one. I do not completely discount the state, as I will explain. But I do suggest that what is special about our moment is the rising efficacy of individuals and loose, nonmarket affiliations as agents of political economy.

Benkler’s argument is too long to summarize in a blog post. You can get a taste for it in my review of Wikinomics, a book that draws heavily from Benkler’s insights. But I’ll just note the possibility that just as the technological developments of the early 20th century pushed progressive intellectuals in a socialist direction, so the emergence of decentralizing technologies like the Internet will push liberal intellectuals like Benkler in a libertarian direction.

An even more extreme example is Eben Moglen, the free software movement’s leading lawyer. He’s definitely a left-winger, and he has a lot of opinions that libertarians would not find congenial. But I find it striking how often he finds himself coming to libertarian conclusions almost despite himself. For example, check out this excerpt from a speech about the success of the free software movement:

People out there who had money to burn said: “Wait a minute. This software is good. We won’t have to burn money over it. And not only is this software good as software, these rules are good. Because they’re not about ambulance chasing. They’re not about a quick score. They’re not about holding up deep pockets. They’re about a real cooperation between people who have a lot and the people who have an idea. Why don’t we go in for that?” And within a very short period of time they had gone in for that. And that’s where we live now. In a world in which the resources of the wealthy came to us, not because we coerced them, not because we demanded, not because we taxed, but because we shared. Even with them, sharing worked better than suing or coercing. We were not afraid. We did not put up barbed wire, and so when they came to scoff, they remained to pray.

You may not share Moglen’s belief that proprietary software is inherently evil. I don’t. But as libertarians, we do have to respect the fact that he’s advanced his beliefs, and produced some great software, using entirely non-coercive means. In another era, Moglen might have been calling for the nationalization of the steel industry or the creation of a cradle-to-grave welfare state.

Instead, his policy agenda, to the extent he has one at all, is deregulatory. He believes that copyright and patent law are infringing on the freedom of programmers to do as they please with their computers, and so he wants to repeal the Digital Millennium Copyright Act and software patents. Not all libertarians would agree with those goals, but they’re a far cry from nationalizing the software industry.

Word Abuse

In Washington, no word is more overused and abused than “reform.” But a Washington Post story today shows the abuse taken to new heights:

Farm bloc lawmakers yesterday offered the U.S. fruit and vegetable industry $1.8 billion in new federal grants over the next five years as part of a farm bill that would leave in place far larger subsidies for grain, cotton and dairy producers.

The concessions were part of a balancing act by House Democrats to craft a bill that will satisfy politically powerful farm interests while also bearing a Democratic imprint of reform. The House Agriculture Committee was set to vote on the legislation late last night or today.

The package, unveiled yesterday by Committee Chairman Collin C. Peterson (D-Minn.), also increases funding for land conservation, wetlands protection and nutrition programs – popular with environmental groups and urban lawmakers.

House Speaker Nancy Pelosi (D-Calif.) called the package ‘a good first step toward needed reform.’

Let’s see: Congress is keeping all the old programs, creating new subsidies for fruits and vegetables, increasing funding for conservation and nutrition programs. That’s reform?

The story title is also worthy of The Onion: “Farm Bill Leaves Some Subsidies.” Some subsidies?!

Great Moments in Local Government, Part I

I became a libertarian in high school and college thanks to Ronald Reagan’s eloquent commentary against big government. I remain a libertarian because of Virginia’s Department of Motor Vehicles. Several years ago, I had to make four trips to the DMV to get my son his learner’s permit (I don’t remember all the details, but I periodically have flashbacks about Social Security cards, birth certificates, and DNA samples).

Today, I began a new odyssey in an attempt to renew the registration on one of my vehicles.

Theoretically, DMV was supposed to send something in the mail, but that never arrived and I was unaware that my registration expired until one of DC’s finest recently pulled me over (to his credit, he gave me a warning rather than impounding the car, which ostensibly is the law in such situations).  So I went online to find out about renewing the registration, and was horrified to discover that I had to make a visit to DMV because my registration had lapsed (needless to say, I can’t think of a single reason why this should require an in-person visit).

Resigned to an unpleasant experience, I woke up early so that I could avoid a three-hour line at the DMV office and managed to see someone after a wait of just 15 minutes. But when I attempted to register, I was told that Fairfax County had placed a hold on my registration because of unpaid taxes. I would like to claim that I was being a principled tax protester, but I meekly pay my car taxes…at least when I’m aware that a bill is due.  I don’t know whether to blame the Post Office or the vehicle bureaucracy, but there are no letters from Fairfax County in my inbox.

In any event, the logical next step should have been for me to pull out a credit card and take care of both the unpaid tax and the registration. Silly me. Not surprisingly (and this may be a good thing), there is no coordination between Fairfax County and the state government. So I had to surrender my spot at the counter and go look at a sign with numbers for various local tax offices. I called Fairfax County’s automated system, filled with naive thoughts about making an automated payment and then taking care of my registration.

 I was surprised to learn that Fairfax County thinks I have four cars. Unfortunately, the system does not tell you the cars you ostensibly own, or which car has the unpaid tax bill. But the amount was not very large, so I was willing to pay it - even if it was for a car I didn’t own. Like any sensible person, my top goal was to avoid having to make a repeat visit to the DMV. So I spent the next five minutes typing in a bunch of numbers in response to about 10 different prompts, only to be told that my credit card was not accepted. So I then typed in the information for another credit card and got the same rejection message. Since I know my credit cards are good (I used one of them last night and used the other one after leaving DMV just to make sure), I opted out of the automated system and eventually got to speak to live bureaucrat. For reasons that I will never understand, though, the bureaucrats can only process payments if you have a Discover card.

Utterly defeated, I tucked my tail between my legs and went to work. At some point, before a less-friendly cop pulls me over, I will now have to visit the Fairfax County tax office and then make a second visit to the DMV. And if that is all that I have to do, I will consider myself lucky.

But there is a silver lining to this dark cloud. I now am fully re-energized in my disdain for government.

Farm Fibs

My toddlers have recently been having fun with the phrase “liar, liar, pants on fire.” I’d like to set them loose on the farm bill debate in Congress. 

Take a comment today in a Michigan news source by Rep. Timothy Walberg, a member of the House Agriculture Committee: “We want our food cheap, and we’ve become used to that, and that’s where the farm bill comes in. It guarantees cheap and plentiful food.”

But numerous farm programs raise food prices. I’ll give you three: milksugar and related products such as chocolate, and infant formula. And don’t forget about federal ethanol policies, which are pushing up prices for corn and derived products. 

Heck, Why Not Just Burn Him At The Stake?

Just when you thought partisan idiocy in Washington couldn’t get any worse, the House voted last night to cut off the salary of Andrew Biggs, the new Deputy Commissioner of Social Security. No one doubts Biggs’ qualifications for this position. But his sin is having supported proposals to allow younger workers to privately invest a portion of their Social Security taxes through individual accounts. Apparently holding a position that Democrats disagree with is now so abhorrent that it disqualifies you from public office.