Topic: Regulatory Studies

Let’s Regulate Harder. That’ll Provide More Jobs For Young Law Grads!

No, legal academics don’t usually come right out and say this, but Hazel Weiser, executive director of the Society of American Law Teachers (SALT), did say it as part of a discussion of the woes of new law graduates in a slow hiring market:

Rather than deregulate the legal profession, which is notoriously bad at self-policing, the best way to get more jobs for these unemployed recent graduates is to up regulation, not do away with it. Another op ed piece, “It’s Consumer Spending, Stupid” dated October 25, 2011, by James Livingston, a professor of history at Rutgers, puts it perfectly: “…private investment – that is, using business profits to increase productivity and output – doesn’t actually drive economic growth. Consumer debt and government spending do. Private investment isn’t even necessary to promote growth.” Government spending means regulation as well as bridges and tunnels. Let’s hire these young attorneys to enforce the laws of the land!

In a similar vein, note this blog post by University of Michigan law professor Sam Bagenstos, a leading disabled-rights expert who served in the Obama administration until last year as Principal Deputy Assistant Attorney General for Civil Rights, the number two official in the Civil Rights Division. Commenting on a report that the city of Mobile, Alabama, was preparing to spend $146,000 to comply with new federal rules governing its public swimming pools, Prof. Bagenstos ran the item under the headline “New ADA Regs: Job Creators.” (Update: It was a joke, he says.)

Next time you read about some daffy new idea out of Washington, keep in mind that there’s a whole school of thought out there that, faced with a choice between a mild and a stringent regulatory option, imagines that by going with the more stringent Washington can create more jobs. It explains a lot.

If the ‘Volcker Rule’ Is So Great, Why Exempt Treasuries and Agencies?

One of the more controversial provisions of the Dodd-Frank Act is its restrictions on proprietary trading, contained in Section 619. Setting aside the fact that even Paul Volcker has said the provision would have done little to avoid to the recent crisis, the Act’s various exemptions illustrate the confusion and hypocrisy underlying the rule.

Foremost among these exemptions is the allowance of proprietary trading when the financial instrument in question is either a U.S. Treasury bill/bond or a security issued by Fannie Mae and Freddie Mac. These instruments are actually the bulk of proprietary trading. Remember the failed hedge fund Long Term Capital Management? Their signature trade was arbitraging on-the-run and off-the-run Treasuries. Ever hear of Bear Stearns? The largest single asset in Maiden Lane I, those Bear Stearn assets guaranteed by the New York Federal Reserve, were Fannie and Freddie securities.

Countries around the World, such as Japan and Canada, have already raised concerns that if their government debt is subject to the Volcker rule, the result will be less liquidity and higher funding costs. But then one has to suspect that former senator Chris Dodd (D-CT) and Rep. Barney Frank (D-MA) understood this, as they allowed an exemption for Treasuries and Agencies (Fannie/Freddie). While I’m no expert on trade policy, this may very well raise World Trade Organization questions since the Volcker rule, as proposed, favors U.S. debt over foreign debt. Of greater concern should be that the Volcker rule favors non-productive investment, that of the U.S. government and Fannie/Freddie, over productive investment, such as corporate paper.

As in so many other areas, Dodd-Frank does leave the actual decision-making to the bank regulators. (Is it too much to ask Congress to actually legislate?) Section 619 is very clear that regulators may exempt Treasuries and Agencies, which implies they also may not. The first best solution would be to just scrap the Volcker rule, but if we are going to have it, then apply it to everyone and all asset classes. Otherwise, one is just introducing additional distortions into our financial markets, some of the same distortions that actually lead to the financial crisis.

Internet Regulation & the Economics of Piracy

Earlier this month, I detailed at some length why claims about the purported economic harms of piracy, offered by supporters of the Stop Online Piracy Act (SOPA) and PROTECT-IP Act (PIPA), ought to be treated with much more skepticism than they generally get from journalists and policymakers.  My own view is that this ought to be rather secondary to the policy discussion: SOPA and PIPA would be ineffective mechanisms for addressing the problem, and a terrible idea for many other reasons, even if the numbers were exactly right. No matter how bad last season’s crops were, witch burnings are a poor policy response.  Fortunately, legislators finally seem to be cottoning on to this: SOPA now appears to be on ice for the time being, and PIPA’s own sponsors are having second thoughts about mucking with the Internet’s Domain Name System.

That said, I remain a bit amazed that it’s become an indisputable premise in Washington that there’s an enormous piracy problem, that it’s having a devastating  impact on U.S. content industries, and that some kind of aggressive new legislation is needed tout suite to stanch the bleeding. Despite the fact that the Government Accountability Office recently concluded that it is “difficult, if not impossible, to quantify the net effect of counterfeiting and piracy on the economy as a whole,” our legislative class has somehow determined that—among all the dire challenges now facing the United States—this is an urgent priority. Obviously, there’s quite a lot of copyrighted material circulating on the Internet without authorization, and other things equal, one would like to see less of it. But does the best available evidence show that this is inflicting such catastrophic economic harm—that it is depressing so much output, and destroying so many jobs—that Congress has no option but to Do Something immediately? Bearing the GAO’s warning in mind, the data we do have doesn’t remotely seem to justify the DEFCON One rhetoric that now appears to be obligatory on the Hill.

The International Intellectual Property Alliance—a kind of meta-trade association for all the content industries, and a zealous prophet of the piracy apocalypse, released a report back in November meant to establish that copyright industries are so economically valuable that they merit more vigorous government protection. But it actually paints a picture of industries that, far from being “killed” by piracy, are already weathering a harsh economic climate better than most, and have far outperformed the overall U.S. economy through the current recession.  The “core copyright industries” have, unsurprisingly, shed some jobs over the past few years, but again, compared with the rest of the economy, employment seems to have held relatively stable at a time when you might expect cash-strapped consumers to be turning to piracy to save money.

Since the core function of copyright is to incentivize the production of creative works, it’s also worth looking for signs of declining output associated with filesharing. Empirically, it’s surprisingly hard to find an effect. Rather, a recent survey study by Felix Oberholzer-Gee of the Harvard Business School concluded that “data on the supply of new works are consistent with the argument that file sharing did not discourage authors and publishers” from producing more works, at least in the U.S. market.

So, for instance, Nielsen SoundScan data shows new album releases stood at 35,516 in 2000, peaked at 106,000 in 2008, and (amidst a general recession) fell back to mid-decade levels of about 75,000 for 2010. That’s against a general background of falling sales since 2004—mostly explained by factors unrelated to piracy—which finally seems to have reversed in 2011. The actual picture is probably somewhat better than that, because SoundScan data are markedly incomplete when it comes to the releases by indie artists who’ve benefited most from the rise of digital distribution.

If we look at movies, the numbers compiled by the industry statistics site Box Office Mojo show an average of 558 releases from American studios over the past decade, which rises to 578 if you focus on just the past five years. The average for the previous decade—before illicit movie downloads were even an option on most people’s radar—is 472 releases per year. (As we learn from a recent Congressional Research Service report, it’s weirdly hard to detect a strong overall correlation between output and employment in the motion picture industry, which actually fell slightly from 1998 to 2008, even as profits and CEO pay soared. One reason the growing trend in recent decades for “Hollywood” features to actually be produced in Canada or Australia.)

That’s all very nice, one might object, but wouldn’t these heartening numbers be even higher if labels and studios could recapture some of the revenue lost to illicit downloads? Well, they surely might—but it’s not nearly as clear as you’d think.

One reason is that they already are recapturing much of that revenue through “complementary” purchases. As Oberholzer-Gee observes, recording industry numbers show large increases in concert revenues corresponding to the drop in recorded music sales. That suggests that, as people discover new artists by sampling downloaded albums online, they’re shifting consumption within the sector to live performances. In other words, people have a roughly constant “music budget,” and what they don’t spend on the albums they’ve downloaded gets spent on seeing that new band they discovered.  For the firms that specifically make their money from the sale of recordings, that may seem like cold comfort, but if we’re concerned with the music industry as a whole, it’s a wash. Something similar might occur with respect to purchases of merchandise based on licensed film properties.

Another factor is that, notwithstanding projections of a “long tail” effect resulting from lower search and distribution costs in the digital era, most entertainment industries continue to operate on a “tournament” or “lottery” model, where a few hits generate jackpot revenues, sufficient to make up for losses on the majority of new products.  Unsurprisingly, the most heavily pirated movies each year tend to be the ones that are also highly successful at the box office and in DVD sales, with similar patterns in album downloads. In other words, bleeding revenue to piracy is going to be a problem to the extent that your product is a hit, in a market where the core uncertainty about this crucial fact (at the time when the decision whether to greenlight production is made) looms a lot larger than the marginal loss from illicit downloads if you are successful.

It’s a tricky but more or less tractable problem to estimate roughly how many full-time jobs you’ll need regionally to support one additional $150 million movie production next year. It’s a totally different question how aggregate sectoral employment in a volatile and evolving industry changes based on investor responses to a $150 million across-the-board drop in the size of the total film jackpot, especially given that arcane financial arrangements are one place Hollywood does show a genius for constantly adapting its business model. If you want to know how many people are getting laid off when McDonald’s revenues drop, it makes a difference whether it’s each of 13,000 franchises earning $100 less per year, or one franchise earning $1.3 million less, even though the total reduction is the same.

Finally, more demand for content being captured by the content industries is not always the same thing as demand for more content, in the sense of “a greater variety of output.” I noted earlier that the past few years have seen a significant spike in the number of movie titles released annually. But as the Los Angeles Times reported in 2008, studio executives soon began complaining about a “glut” of new movies, many of which were targeted at the same demographics, and therefore cannibalizing their own audiences. As one executive suggested, that meant that (at least in a market dominated by a few huge distributors) releasing fewer titles could yield higher profits—and, indeed, the number of titles released in the following two years dropped back to mid-decade levels. The key point here is that shifting some portion of the pirate audience to some form of legal viewing doesn’t necessarily change this basic calculus, because there’s an upper bound to the number of hours most people are going to spend watching (say) racing movies, whether they’re paying for the privilege or not. Rising demand can just as easily, for instance, bid up star salaries for a fixed number of films.

The point here isn’t that piracy by American consumers is somehow completely independent from output or employment rates in the content industries—though, again, that’s not at all the same thing as the overall U.S. employment rate. Obviously, at some level it has to have some effect. But the link is, to use the technical economic term, weirder than in many other sectors of the economy. In many industries, the relationship between consumer spending and job creation is relatively straightforward. If demand for widgets or restaurant meals rises, satisfying that demand requires a roughly linear increase in widget factories and restaurants, in hiring of widget-makers and cooks and waiters, and in purchases of the raw material inputs for those goods. Distribution of copyrighted content—and in particular digital distribution over the Internet—is a bit more complicated, for precisely the same reason piracy is an issue: once the first copy of a work has been created, an unlimited number of additional units (of the digital product) can be produced at effectively zero cost.

Let’s imagine, implausibly, that a measure  like SOPA did manage to reduce online piracy by U.S. consumers by some meaningful amount. A small potion of that reduction, the minority of downloads representing legal purchases displaced by file sharing, would translate into sales for the content industries. What form would these take? It seems reasonable to suppose that the majority of people who were previously getting their music and movies from The Pirate Bay are not typically lining up to buy shiny plastic discs at Wal-Mart. Rather, they’re probably disproportionately displacing legal digital downloads from venues like iTunes and Amazon, or subscription services like Netflix and Spotify, which are pretty clearly where the overall market is quickly going anyway.  (Apparently, literal thieves don’t even bother stealing physical media anymore.) For movies, there’s probably also some displacement of theatrical ticket sales, though as the theatrical experience is in many ways a distinct good, it’s hard to say how much substitution it’s reasonable to expect.

In the very short term, increased legal purchases of digital content wouldn’t seem likely to generate many additional jobs. If spending in the physical retail sector jumps 20 percent, shops need to hire more clerks, and their suppliers more manufacturing workers, to meet the increased demand. If spending in the iTunes store jumps 20 percent, Apple probably needs to pay a few bucks more for bandwidth and electricity, but basically everyone just gets to smile and pocket the extra profit. The jobs effects estimates we’re seeing tossed around, however, are coming from a 2007 study that would have had to employ, at the most recent, adjustments made several years before that to the benchmark multipliers the Bureau of Economic Analysis developed in 2002. Even leaving aside its many other problems, then, the job impact estimates in that study would have been largely based on legacy assumptions from a brick-and-mortar economy. (The loss estimates relied on would also, necessarily, fail to account for the recent rise of popular, legal streaming services that have likely lured many consumers back from the pirate market. There is, alas, no very good data here, but I’d wager Hulu and Netflix have done exponentially more to reduce piracy losses than enforcement crackdowns ever will.) In any event, you’d expect the most immediate effect of consumer spending shifts from widgets and restaurants to digital downloads would be, if anything, fewer net jobs.  The output and employment effects, rather, would show up in the longer term as lower returns reduce incentives to produce new content—and hire the workers needed to support that production.  For some of the reasons discussed above, though, empirically there’s just not much evidence for a dramatic effect of this kind.

No doubt piracy is costing the content industries something—or they wouldn’t be throwing so much money at Congress in support of this kind of legislation. If we could wave a magic wand and have less piracy, obviously that would be good.  But in the real world, where enforcement has direct costs to the taxpayer, regulation has costs on the industries it burdens, and the reduction in piracy they’re likely to produce is very small, it seems important to point out that the credible evidence for the magnitude of the harm is fairly thin. As a rough analogy, since antipiracy crusaders are fond of equating filesharing with shoplifting: suppose the CEO of Wal-Mart came to Congress demanding a $50 million program to deploy FBI agents to frisk suspicious-looking teens in towns near Wal-Marts. A lawmaker might, without for one instant doubting that shoplifiting is a bad thing, question whether this is really the optimal use of federal law enforcement resources. The CEO indignantly points out that shoplifting kills one million adorable towheaded orphans each year. The proof is right here in this study by the Wal-Mart Institute for Anti-Shoplifting Studies. The study sources this dramatic claim to a newspaper article, which quotes the CEO of Wal-Mart asserting (on the basis of private data you can’t see) that shoplifting kills hundreds of orphans annually. And as a footnote explains, it seemed prudent to round up to a million. I wish this were just a joke, but as readers of my previous post will recognize, that’s literally about the level of evidence we’re dealing with here.

In short, piracy is certainly one problem in a world filled with problems. But politicians and journalists seem to have been persuaded to take it largely on faith that it’s a uniquely dire and pressing problem that demands dramatic remedies with little time for deliberation.  On the data available so far, though, reports of the death of the industry seem much exaggerated.

Bryan Caplan Rates Jonathan Gruber’s ObamaCare Graphic Novel ‘Awful’

Over at EconLog:

Given my interest in health economics and graphic novels, I was initially hopeful about Jonathan Gruber’s graphic novel, entitled Health Care Reform: What It Is, Why It’s Necessary, How It Works.  But in all honesty, the book is awful.  Gruber crafts his argument like a salesman, not an economic educator.  He’s careful to avoid outright mistakes, and makes a couple of awkward disclosures.  Yet he omits a long list of crucial, damaging points.

Caplan discusses 13 of them.

EEOC: Hiring Only High School Grads May Violate ADA

You may have taken time off from work last month, but the federal Equal Employment Opportunity Commission (EEOC) was quite busy. As the Bureau of National Affairs and the Washington Times report, it posted to its website an informal advisory letter that has been getting a lot of businesspeople’s attention. To quote the BNA:

“[I]f an employer adopts a high school diploma requirement for a job, and that requirement ‘screens out’ an individual who is unable to graduate because of a learning disability that meets the ADA’s definition of ‘disability,’ the employer may not apply the standard unless it can demonstrate that the diploma requirement is job related and consistent with business necessity. The employer will not be able to make this showing, for example, if the functions in question can easily be performed by someone who does not have a diploma,” EEOC said.

Further, to satisfy the ADA, the employer must show that a job applicant with a disability cannot perform the job’s essential functions with or without a reasonable accommodation, even if he or she does not meet a standard that is job-related and consistent with business necessity, the commission added.

Employers require high school diplomas as prerequisites for many jobs. Yet if the matter gets to court, it can be quite expensive and cumbersome for them to establish that such a screen is “job related and consistent with business necessity” — necessity being of course a legal term of art.

Some suggest the policy is not all that new or special since the EEOC has long taken the position that diploma requirements must be “job related and consistent with business necessity” if they serve to screen out members of minority groups less likely to have graduated from high school. But diploma requirements aren’t actually challenged very often on racial-impact grounds, perhaps because correlations between ethnicity and high school graduation rates are shifting and contingent. The new wrinkle this time — that the protected group are the learning-disabled themselves — makes a big difference. The diploma’s very purpose, after all, is to signal that its holder has achieved a level of proficiency that some with severe learning disability will find forever out of their reach.

“If I were hiring a janitor,” notes columnist Amy Alkon, “I’d need that janitor to be able to read the back of bottles of chemicals.” But it’s growing ever clearer that the point of the game is to attack employers precisely for wanting to hire candidates of ability.

Obama’s Constitutional Gamble on Consumer Finance Nomination

President Obama is announcing today that despite the fact that the Senate is not in recess, he’s going to recess appoint Richard Cordray to be the head of the Consumer Financial Protection Bureau (CFPB), created under the Dodd-Frank Act.

Of course the President is actually claiming that the Senate isn’t in session and that its “pro forma” sessions are just a “gimmick”.  Funny I don’t remember then Senator Obama complaining about gimmicks when the Senate used the sames tactics to block Bush recess appointments.  But then again this is the guy who signs a bill allowing indefinite detention of American citizens after having campaigned on shutting down Guantanamo.  Only a former constitutional law professor could be so creative with the Constitution.

More importantly the “recess” appointment of Cordray doesn’t solve the President’s problem.  The Dodd-Frank Act is very clear, even a law professor can probably understand this section, that authorities under the Act remain with the Treasury Secretary until the Director is “confirmed by the Senate”.  A recess appointment is not a Senate confirmation.  Now don’t ask me why Dodd and Frank included such unusual language, they could have just given the Bureau the new authorities, but they didn’t.  So even with this appointment, the CFPB won’t be able to go after all those non-banks, like the pay-day lenders and check-cashiers that caused the financial crisis (oh wait, those industries didn’t have anything to do with the crisis).

This appointment also guarantees that Obama, even if he gets a second term, is unlikely to ever get a CFPB Director past the Senate.  Maybe not such a big deal for Cordray since the rumor has always been this is just a political stepping stone so he can go back to Ohio and run for office.  The real harm is that Obama has decided to take a gamble with the Constitution, risk the further erosion of the Senate’s advise and consent powers, solely to have another campaign issue.  So he can try to paint Republicans as captive to Wall Street, all despite the fact the new agency exempts Wall Street (who will continue under the ever effective oversight of the SEC).  Maybe he can have Geithner and the various Goldman alum in the Administration stand next to him to help remind us how hard he is fighting for the middle class.