Category: Law
The Political Economy of Protective Labor Laws for Women
From a new NBER working paper:
During the first half of the twentieth century, many US states enacted laws restricting women’s labor market opportunities, including maximum hours restrictions, minimum wage laws, and night-shift bans. The era of so-called protective labor laws came to an end in the 1960s as a result of civil rights reforms. In this paper, we investigate the political economy behind the rise and fall of these laws. We argue that the main driver behind protective labor laws was men’s desire to shield themselves from labor market competition. We spell out the mechanism through a politico-economic model in which singles and couples work in different sectors and vote on protective legislation. Restrictions are supported by single men and couples with male sole earners who compete with women for jobs. We show that the theory’s predictions for when protective legislation will be introduced are well supported by US state-level evidence.
That is by Matthias Doepke, Hanno Foerster, Anne Hannusch, and Michèle Tertilt.
AI Goes to College…for the Free Money
Last year, the state [CA] chancellor’s office estimated 25 percent of community college applicants were bots.
Everyone understands that students are using AI; sometimes to help them learn, sometimes to avoid learning. What I didn’t appreciate is that community colleges offering online courses are being flooded with AI bots who are taking the courses:
The bots’ goal is to bilk state and federal financial aid money by enrolling in classes, and remaining enrolled in them, long enough for aid disbursements to go out. They often accomplish this by submitting AI-generated work. And because community colleges accept all applicants, they’ve been almost exclusively impacted by the fraud.
The state has launched a Bladerunner-eque “Inauthentic Enrollment Mitigation Taskforce” to try to combat the problem. This strikes me, however, as more of a problem on the back-end of government sending out money without much verification. It’s odd to make the community colleges responsible for determining who is human. Stop sending the money to the bots and the bots will stop going to college.
Sam Altman, as usual, is ahead of the game.
The Library Burned Slowly
A powerful but grim essay by John McGinnis, Professor of Constitutional Law at Northwestern. For decades, the federal government—driven by the left—expanded its control over universities. The right, most notably Ronald Reagan, tried to resist, shielding civil society from state overreach. They failed. Now, a new right has turned to the left’s playbook and is imposing its own vision of the good society. Chris Rufo mocks classical liberals like myself and their naive ideas of neutrality, fairness and open institutions. Principles are for losers. Seize power! Crush your enemies. Rufo does know how to crush his enemies. But what happens when the devil turns? Bludgeoning your enemies is fun while it lasts but you can’t bludgeon your way to a civilization. Hayek’s civil society dies in the rubble.
It seems remarkable that seemingly antisemitic protests by undergraduates, such as those at my own university of Northwestern, could threaten the biomedical research funding of its medical school. But the structure of civil rights laws as applied to universities has long allowed the federal government to cut off funding to the entire university based on the wrongful actions of particular units or departments.
Ironically, the left, now alarmed by the federal government’s intrusive reach, bears direct responsibility for crafting the very legal weapons wielded against the universities it dominates. Almost four decades ago, progressive legislators demanded sweeping amendments to civil rights law, expanding federal oversight over higher education. The sequence of events reveals a cautionary tale of political hubris: progressive confidence that state power would reliably serve their ends overlooked the reality that governmental authority, once unleashed, recognizes no ideological master. Today’s circumstances starkly illustrate how expansive federal control over civil society, originally celebrated by progressives, returns to haunt its architects. The left’s outrage ought to focus not on this particular administration but on its own reckless empowerment of the state.
…Clumsy governmental dictates on contentious matters such as transgender rights do not merely settle disputes; they inflame societal divisions by transforming moral disagreements into winner-takes-all political battles. Civil society, by contrast, thrives precisely because it embraces diversity and facilitates compromise, allowing pluralistic communities to coexist peacefully without being conscripted into ideological warfare. The left, fixated upon uniform outcomes, consistently undervalues the power of voluntary cooperation and cultural persuasion. Their shortsightedness has delivered into the hands of their opponents the very instruments of coercion they forged, vividly confirming an enduring truth: the power you grant government today will inevitably be wielded tomorrow by your adversaries.
Read the whole thing.
The Prophet’s Paradox
The political problem of disaster preparedness is especially acute for the most useful form, disaster avoidance. The problem with avoiding a disaster is that success often renders itself invisible. The captain of the Titanic is blamed for hitting the iceberg, but how much credit would he have received for avoiding it?
Consider a pandemic. When early actions—such as testing and quarantine, ring vaccination, and local lockdowns—prevent a pandemic, those inconvenienced may question whether the threat was ever real. Indeed, one critic of this paper pointed to warnings about ozone depletion and skin cancer in the 1980s as an example of exaggeration and a predicted disaster that did not happen. Of course, one of the reasons the disaster didn’t happen was the creation of the Montreal Protocol to reduce ozone-depleting substances (Jovanović et al. 2019; Tabarrok and Canal 2023). The Montreal Protocol is often called the world’s most successful international agreement, but it is not surprising that we don’t credit it for skin cancers that didn’t happen. I call this the prophet’s paradox: the more the prophet is believed beforehand, the less they are credited afterward.
The prophet’s paradox can undermine public support for proactive measures. The very effectiveness of these interventions creates a perception that they were unnecessary, as the dire outcomes they prevented are never realized. Consequently, policymakers face a challenging dilemma: the better they manage a potential crisis, the more likely it is that the public will perceive their actions as overreactions. Success can paradoxically erode trust and make it more difficult to implement necessary measures in future emergencies. Hence, politicians are paid to deal with emergencies not to avoid them (Healy and Malhotra 2009).
Since politicians are incentivized to deal with rather than avoid emergencies it is perhaps not surprising to find that this attitude was built into the planning process. Thus, the UK COVID Inquiry (2024, 3.17) found that:
Planning was focused on dealing with the impact of the disease rather than preventing its spread.
Even more pointedly Matt Hancock testified (UK COVID Inquiry 2024, 4.18):
Instead of a strategy for preventing a pandemic having a disastrous effect, it [was] a strategy for dealing with the disastrous effect of a pandemic.
From my paper, Pandemic preparation without romance.
Deregulation suggestions
If you have ideas for cutting regulations, the US government wants to hear from you! This could be important. Provide details on the exact regulation in the CFR.
Pandemic Preparation Without Romance
My latest paper, Pandemic Preparation Without Romance, has just appeared at Public Choice.
Abstract: The COVID-19 pandemic, despite its unprecedented scale, mirrored previous disasters in its predictable missteps in preparedness and response. Rather than blaming individual actors or assuming better leadership would have prevented disaster, I examine how standard political incentives—myopic voters, bureaucratic gridlock, and fear of blame—predictably produced an inadequate pandemic response. The analysis rejects romantic calls for institutional reform and instead proposes pragmatic solutions that work within existing political constraints: wastewater surveillance, prediction markets, pre-developed vaccine libraries, human challenge trials, a dedicated Pandemic Trust Fund, and temporary public–private partnerships. These mechanisms respect political realities while creating systems that can ameliorate future pandemics, potentially saving millions of lives and trillions in economic damage.
Here’s one bit:
…in the aftermath of an inadequate government response to an emergency, we often hear calls to reorganize and streamline processes and to establish a single authority with clear responsibility and decision-making power to overcome bureaucratic gridlock. By centralizing authority, it is argued that the government can respond more swiftly and effectively, reducing the inefficiencies caused by a fragmented system.
Yet, the tragedy of the anti-commons was also cited to explain the failure of the government after 9/11. Indeed, the Department of Homeland Security was created to centralize a fragmented system and allow it to act with alacrity. Isn’t a pandemic a threat to homeland security? And what about the Swine Flu pandemic of 2009? While not nearly as deadly as the COVID pandemic, 60 million Americans were sickened, some 274 thousand hospitalized with over 12 thousand deaths (Shresha et al. 2011). Wasn’t this enough practice to act swiftly?
Rather than advocating for a reorganization of bureaucracies, I propose accepting the tragedy of the anti-commons as an inevitable reality. The tragedy of the commons is an equilibrium outcome of modern-day bureaucracy. Bureaucracy has its reasons and some of those reasons may even be reasonable (Wittman 1995). It is too much to expect the same institution to respond to the ordinary demands of day-to-day politics and to the very different demands of emergencies. Indeed, when an institution evolves to meet the demands of day-to-day politics it inevitably develops culture, procedures and processes that are not optimized for emergencies.
Instead of rearranging organization charts we should focus on what has proven effective: the creation of ad-hoc, temporary, public–private organizations. Two notable examples are Operation Warp Speed in the United States and the British Vaccine Taskforce. These entities were established quickly and operated outside regular government channels, free from the typical procurement, hiring, or oversight rules that hinder standard bureaucracies.
…Operation Warp Speed exemplified the “American Model” of emergency response. Rather than relying on command-and-control or government production, the American Model leverages the tremendous purchasing power of the US government with the agility and innovation of the private sector.
The only problem with the “American Model” was its inconsistent application.
I am especially fond of this paper because it is the first, to my knowledge, to cite separate papers from Alex, Maxwell and Connor Tabarrok.
Addendum: This paper isn’t about lockdowns. It’s about avoiding lockdowns!
It’s happening, UAE edition
The United Arab Emirates aims to use AI to help write new legislation and review and amend existing laws, in the Gulf state’s most radical attempt to harness a technology into which it has poured billions.
The plan for what state media called “AI-driven regulation” goes further than anything seen elsewhere, AI researchers said, while noting that details were scant. Other governments are trying to use AI to become more efficient, from summarising bills to improving public service delivery, but not to actively suggest changes to current laws by crunching government and legal data.
“This new legislative system, powered by artificial intelligence, will change how we create laws, making the process faster and more precise,” said Sheikh Mohammad bin Rashid Al Maktoum, the Dubai ruler and UAE vice-president, quoted by state media. Ministers last week approved the creation of a new cabinet unit, the Regulatory Intelligence Office, to oversee the legislative AI push.
Here is more from the FT.
Our non-eggcellent regulations
Germany, Italy, Poland and Sweden are among the nations the U.S. Department of Agriculture approached to address the shortage brought on by a bird flu outbreak, according to European industry groups.
But supplying Americans with eggs would be complicated for foreign producers — but not because of political tensions over the myriad import tariffs President Donald Trump has imposed or threatened to impose on his nation’s top trading partners.
Even if they were eager to share, European countries don’t have many surplus eggs because of their own avian flu outbreaks and the growing domestic demand ahead of Easter.
One of the biggest obstacles, however, is the approach the United States takes to preventing salmonella contamination. U.S. food safety regulations require fresh eggs to be sanitized and refrigerated before they reach shoppers; in the European Union, safety standards call for Grade A eggs to be sold unwashed and without extended chilling.
Here is the full story, via Rich Dewey. So no, American scientists will not be moving to Europe — their eggs are too dangerous. And yes it is Germany too:
It is common in parts of Europe, for example, for consumers to buy eggs that still have feathers and chicken poop stuck to them.
Here is Patrick Collison, comparing the virtues of America to the virtues of Europe. I do not mind that he left out the chicken poop, for me it is a sign of authenticity. As for eggs, the best ones I ever had were in Chile.
Bastiat’s revenge
“S.F. auto glass shops suffering as car break-ins drop”
Here is the San Francisco Chronicle link, via Air Genius Gary Leff.
Book ban sentences to ponder
Using a staggered difference-in-differences design, we find that the circulations of banned books increased by 12%, on average, compared with comparable nonbanned titles after the ban. We also find that banning a book in a state leads to increased circulation in states without bans. We show that the increase in consumption is driven by books from lesser-known authors, suggesting that new and unknown authors stand to gain from the increasing consumer support. Additionally, our results demonstrate that books with higher visibility on social media following the ban see an increase in consumption, suggesting a pivotal role played by social media. Using patron-level data from the Seattle Public Library that include the borrower’s age, we provide suggestive evidence that the increase in readership in the aggregate data is driven, in part, by children reading a book more once it is banned. Using data on campaign emails sent to potential donors subscribed to politicians’ mailing lists, we show a significant increase in mentions of book ban-related topics in fundraising emails sent by Republican candidates.
That is from a new paper by Uttara M. Ananthakrishnan, et.al., via Kris Gulati.
The roots of gun violence
An estimated 80 percent [of U.S: gun shootings] seem to instead be crimes of passion — including rage. They’re arguments that could be defused but aren’t, then end in tragedy because someone has a gun. Most violent crimes are the result of human behavior gone temporarily haywire, not premeditated acts for financial benefit.
That is from the new and interesting Unforgiving Places: The Unexpected Origins of American Gun Violence, by Jens Ludwig.
How to do regulatory reform (from my email)
“Philip Howard here. I enjoyed your discussion with Jen Pahlka. Here are a few notes:
1. This current system needs disrupting, but I fear DOGEs indiscriminate cuts are making the status quo look good. Here’s Peter Drucker, criticizing Gore’s reinventing got: “patching. It always fails. The next step is to rush into downsizing. Management picks up a meat-ax and lays about indiscriminately. …amputation before diagnosis.” (from Management, revised ed).
2. Most of the newcomers to the realization that govt is paralyzed (Ezra Klein, Dunkelman etc) think that the red tape jungle can be pruned, or organized with better feedback loops (Pahlka). This is falling into Gore’s pit. There’s a fatal defect: the operating system is designed around legal compliance–instead of human authority to make tradeoff judgments. Law should be a framework setting the boundaries of authority, not a checklist. That’s why some reforms I championed (page limits, time limits) haven’t worked; there’s always another legal tripwire. I describe what a new framework should look like in this recent essay. https://manhattan.institute/article/escape-from-quicksand-a-new-framework-for-modernizing-america
3. Public unions: Democracy loses its link to voters–quite literally–if elected executives lack managerial authority. The main tools of management– accountability, resource allocation, and daily direction–have been either removed by union controls or are subject to union veto. Government is more like a scrum than a purposeful organization. There’s a core constitutional principle –private nondelegation–that prevents elected officials from ceding their governing responsibility to private groups. Stone v Mississippi: “The power of governing is a trust…, no part of which can be granted away.” That’s the basis of the constitutional challenge we’re organizing. The Trump admin could transform state and local govt by invoking this principle.
Fwiw, I see these points– authority to make tradeoff judgments, authority to manage— as microeconomic necessities, not policy positions. Nothing can work sensibly until people are free to make things work. We’re organizing a forum at Columbia Law School, The Day After Doge, on the morning of April 23. Here’s the lineup. https://www.commongood.org/the-day-after-doge. Let me know if you’d like to weigh in.”
My Conversation with the excellent Jennifer Pahlka
Here is the audio, video, and transcript. Here is the episode summary:
Jennifer Pahlka believes America’s bureaucratic dysfunction is deeply rooted in outdated processes and misaligned incentives. As the founder of Code for America and co-founder of the United States Digital Service, she has witnessed firsthand how government struggles to adapt to the digital age, often trapped in rigid procedures and disconnected from the real-world impact of its policies. Disruption is clearly needed, she says—but can it be done in a way that avoids the chaos of DOGE?
Tyler and Jennifer discuss all this and more, including why Congress has become increasingly passive, how she’d go about reforming government programs, whether there should be less accountability in government, how AGI will change things, whether the US should have public-sector unions, what Singapore’s effectiveness reveals about the trade-offs of technocratic governance, how AI might fundamentally transform national sovereignty, what her experience in the gaming industry taught her about reimagining systems, which American states are the best-governed, the best fictional depictions of bureaucracy, how she’d improve New York City’s governance, her current work at the Niskanen Center, and more.
Excerpt:
COWEN: Does that mean we need something like DOGE? I’ve lived near DC for about 40 years of my life. I haven’t seen anyone succeed with regulatory reforms. You can abolish an agency, but to really reform the process hasn’t worked. Maybe the best iteration we can get is to break a bunch of things now. That will be painful, people will hate it, but you have a chance in the next administration to put some of them back together again.
Maybe it’s just in a large country, there’s no other way to do it. We have separation of powers. The first two years of DOGE will seem terrible, but 8, 12, 16 years from now, we’ll be glad we did it. Is that possible?
PAHLKA: I don’t know what’s going to happen. I do think this is the disruption that we’re getting, whether it’s the disruption we wanted. The question of whether it could have been done in a more orderly manner is a tough one. I just feel sad that we didn’t try.
COWEN: Are you sure we didn’t try?
PAHLKA: I don’t think we really tried.
COWEN: The second Bush presidency, people talked about this, what we need to do. Al Gore — some of that was good, in fact, reinventing government. We’ve been trying all along, but this is what trying looks like.
PAHLKA: Yes. I think reinventing government happened at a time when we were just at the beginning of this digital revolution. It was trying with a very 20th-century mindset. Fine, did well within that context, but we don’t need that again.
We need 21st century change. We need true digital transformation. We need something that’s not stuck in the industrial ways of thinking. I don’t think we tried that. I think the efforts have just been too respectful of old ways of working and the institutions. There was really not an appetite, I think, for what I would call responsible disruptive change. Would it have worked?
COWEN: Is there such a thing?
PAHLKA: I don’t know. [laughs]
COWEN: Say you’re approaching USAID, where I think the best programs are great. A lot of it they shouldn’t be doing. On net, it passes a cost-benefit test, but the agency internally never seemed willing to actually get rid of the bad stuff, all the contracting arrangements which made American Congress people happy because it was dollars sent to America, but way inflated overhead and fixed costs. Why isn’t it better just to blow that up — some of it is great — and then rebuild the great parts?
PAHLKA: It’s so hard to say. [laughs] I’ve had the same thought. In fact, before inauguration, I wrote about the Department of Defense. It’s the same thing. There’s a clear recognition by the people in the institution, as you saw with USAID, that this is not okay, that this is not working. It’s just strange to be in an institution that large where so many people agree that it’s not working, from the bottom to the top, and yet nobody can make really substantive change.
Of great interest, obviously.
One economist removed from the Naval library
Deirdre McCloskey, can you guess which book? See #197. I might add the text to that one is remarkably non-salacious, perhaps many readers were somewhat disappointed.
Via the excellent CW.
Federal Judge Rejects FDA Power Grab
In Don’t Let the FDA Regulate Lab Tests! and The New FDA and the Regulation of Laboratory Developed Tests I warned that the FDA’s power grab over laboratory developed tests was both unlawful and likely to result in deadly harm (as it did during COVID). Thus, I am pleased that a Federal judge has vacated the FDA’s rule entirely, writing:
…the text, structure, and history of the FDCA and CLIA make clear that FDA lacks the authority to regulate laboratory-developed test services.
…FDA’s asserted jurisdiction over laboratory-developed test services as “devices” under the FDCA defies bedrock principles of statutory interpretation, common sense, and longstanding industry practice.
The judge also noted some of the costs that I had pointed to:
…the Fifth Circuit has made clear that district courts should generally “nullify and revoke” illegal agency action, Braidwood, 104 F.4th at 951. The Court finds that such relief is appropriate here. The final rule will initially impact nearly 80,000 existing tests offered by almost 1,200 laboratories, and it will also affect about 10,013 new tests offered every year going forward. The estimated compliance costs for laboratories across the country will total well over $1 billion per year, and over the next two decades, FDA projects that total costs associated with the rule will range from $12.57 billion to $78.99 billion. FDA acknowledges that the enormous increased costs to laboratories may cause price increases and reduce the amount of revenue a laboratory can invest in creating and modifying tests.
… For these reasons, it is ORDERED that the Laboratory Plaintiffs’ Motions for Summary Judgment, (Dkt. #20, #27), are GRANTED. The final rule is hereby SET ASIDE and VACATED.
HHS head RFK Jr. should immediately instruct the FDA to halt any further efforts to regulate laboratory developed tests.