Category: reason

The Connecticut Supreme Court will hear arguments May 5 on Comm’n on Hum. Rts. & Opportunities v. Edge Fitness, LLC, which raises whether Connecticut public accommodation discrimination law should be read as having an implied exception for women-only workout areas. Connecticut law generally bans sex discrimination in places of public accommodation, which is defined broadly enough to include health clubs; and though it has an express exception for “bathrooms or locker rooms,” it has no broader exception for customer preferences that are seen as reasonable (or seen as linked in some measure to privacy defined broadly).

The trial court held that the law should indeed be read as implicitly allowing such areas:

The uncontroverted evidence in the record, which is supported by common experience, is that if the women-only work-out areas were eliminated, and women were deprived of the choice to exercise without men present, women would suffer from sexual objectification, extreme embarrassment, anxiety, stress, and many would choose not to exercise in public accommodations…. Exercising requires people to move and pose in ways that increase the possibility of sexual objectification and body shame, particularly for women. Thus, it appears that the gender privacy interest here is on par with the same interest that caused the legislature to specifically exempt bathrooms and locker rooms.

Although the sex based antidiscrimination provisions … protect both sexes equally, these provisions were originally included, to a large extent, to protect women and to correct historical discrimination patterns against women. Civil rights laws exist for the vindication and protection of human dignity. Thus, in interpreting and enforcing these statutes, we must ensure that we seek to be true to the overall goals.

With that in mind, it would be unusual to interpret and enforce a statute in a manner that injures women, when the statute’s primary goals are the preservation of human dignity, the protection of women, and the correction of historical discrimination against women. That being said, the court also recognizes that discrimination itself injures society, however, the legislature, as noted, has allowed for limited exceptions in the pursuit of more important interests in certain circumstances.

As best I can tell, the issue has been litigated surprisingly little in other states—a Pennsylvania court read the state public accommodations statutes to allow women-only exercise facilities, see Livingwell (North) Inc. v. Pa. Hum. Rels. Comm’n, 606 A.2d 1287 (Pa. Commw. Ct. 1992), and a Massachusetts court held the opposite, Foster v. Back Bay Spas, Inc., 7 Mass. L. Rptr. 462 (Super. Ct. 1997) (result later modified by statute). (Some states, of course, might well have statutory exceptions, or not ban sex discrimination in public accommodations at all; Title II of the federal Civil Rights Act, for instance, doesn’t cover sex discrimination in public accommodations.)

The court also added this, and an amicus brief from various Jewish, Muslim, and Catholic groups argues the same:

In addition to the protection of gender privacy interests, the women-only work-out areas also impact our right to freedom of religion…. [W]omen of certain faiths, such as Islam and certain sects of Judaism, are prohibited from exercising with men. Thus, unless women-only exercise areas are maintained, women of these faiths will not have an equal opportunity to exercise in these public accommodations…. [The Connecticut Religious Freedom Restoration Act] provides in relevant part:

(a) The state or any political subdivision of the state shall not burden a person’s exercise of religion under section 3 of article first of the Constitution of the state even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.

(b) The state or any political subdivision of the state may burden a person’s exercise of religion only if it demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest, and (2) is the least restrictive means of furthering that compelling governmental interest.

Here, the elimination of women-only exercise areas will disparately impact women of Islamic and Judaic faiths and will burden their ability to exercise in public accommodations. Although this result would be in furtherance of broad antidiscrimination prohibitions, there are exceptions to those prohibitions, as noted above, and the record does not reflect that elimination of women-only exercise areas would be the least restrictive means of accomplishing a compelling government interest. Thus, we have a potential clash of rights in eliminating discrimination without unduly burdening freedom of religion.

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I am grateful to Eugene Volokh for inviting me to post a series of blogs based on my Brookings book with David Burk and Jia Yan, Trouble at the Bar: An Economics Perspective on the Legal Profession and the Case for Fundamental Reform (hereafter Trouble at the Bar). In this introductory post, I provide some background about me, motivation for the book, and an overview of the remaining posts in the series.

I am an applied microeconomist interested in assessing the efficacy of markets and government intervention to enhance social welfare. I have conducted several assessments with colleagues that document both the vast inefficiencies from government regulations to address alleged market failures in the US transportation sector as well as the benefits from allowing markets, through deregulation, to solve many of their own problems.

The conventional view is that government regulations of prices and market entry and exit created inefficiencies in the process of redistributing income from consumers to producers. However, I came to learn that the larger costs of government regulations were dynamic; that is, they suppressed innovative activity by firms and consumers for decades that could have enhanced efficiency and spurred economic growth.

By contrast, instead of transferring wealth back from producers to consumers, transportation deregulation produced win-win outcomes. For example, air travelers and rail shippers as well as the airline and railroad industries benefited from deregulation. This was surprising, because observers did not predict that innovations in operations, utilization of equipment, and pricing that had been stymied by regulation would substantially improve industry efficiency, and that greater competition would transfer a significant share of the efficiency improvements to consumers in lower prices and better service.

Living and working in the Washington, DC area exposes me to the enormous influence of the legal profession on public policy. Trouble in the Bar notes that the legal profession lays claim to an entire branch of government, the courts; more members of Congress are lawyers than any other occupation; and since 1789, more than half of the nation’s presidents, vice-presidents, and cabinet members have been lawyers. Even when economists have expertise in a policy area, such as antitrust, it is the lawyers at the US Department of Justice and Federal Trade Commission, not the economists, who decide both whether to bring an antitrust case, and the strategy to win it.

The significant influence of the legal profession in the United States has created two important problems. Examining them is a natural extension of my research program on the efficacy of markets and government.

First, the legal profession is able to regulate itself. I approached that problem, with Robert Crandall and Vikram Maheshri, as a classic example of regulatory failure in our 2011 Brookings book First Thing We Do, Let’s Deregulate All The Lawyers. Regulation amounts to entry barriers erected by the profession that generally require lawyers to graduate from a three-year law school accredited by the American Bar Association and to pass a state bar examination to obtain a license to practice law. Kim Kardashian, who is attempting to practice law by serving an apprenticeship and passing the California bar exam, is not a common exception. Individuals who provide legal services without a license can be charged with the unauthorized practice of law.

Network industries, such as airlines and railroads, were thought to require entry regulation because they exhibited large economies of scale that prevented workable competition. Deregulation revealed that those concerns were exaggerated. Regulations created excess capacity that made it appear that network industries were characterized by large scale economies when, in fact, they were able to shed excess capacity and operate at close to constant returns to scale in a highly competitive environment.

Similarly, the justification for entry barriers to the legal profession is based on a mischaracterization of market conditions: namely, occupational licensing is necessary to ensure a minimum standard of legal services because consumers cannot distinguish between competent and incompetent lawyers, who will take advantage of them. However, advances in information technology have spurred new institutions that provide considerable information about lawyers’ qualifications, disciplinary records, and assessments by clients. Such information, which is used extensively by consumers to inform them about legal and many other services, would be even more prevalent in a fully deregulated market.

First Thing We Do concludes that occupational licensing was providing no benefits to consumers while padding lawyers’ pockets. Indeed, lawyers were earning premiums that were estimated to be an eye-popping $71,000 per practicing lawyer in 2004, and those premiums were widely shared among the profession. First Thing We Do called for deregulation that would make occupational licensing optional and would stimulate competition that would reduce the prices of legal services.

As noted, the larger costs of regulations are dynamic, which are reflected in the second important problem caused by the legal profession’s enormous influence: lawyers have compromised the efficacy of policies affecting consumers of legal services, as well as policies affecting the public more broadly. In Trouble at the Bar, we take a long-run view of how the adverse effects created by barriers to entry in the practice of law have appeared throughout a lawyer’s education in law school and subsequent career, including, in some cases, serving in elected or appointed high-level government positions. We conduct empirical analyses to shed light on the profession’s key institutions and indicate how the profession’s culture has evolved in a protected regulatory environment and how it has affected the rest of society.

The topic areas we discuss and the major conclusions we reach include:

• Law schools and legal education—the returns to a law degree are declining; the law school curriculum should expand as should alternative forms of legal education.
• Private law firms—the work environment and quality of life of attorneys is troubling, especially because lawyers who take leave to work in government have not been instilled by their law firm experience with the value of efficient and compassionate public policy.
• Lawyers’ choice of sector—an earnings penalty is associated with working in the public sector, which affects the allocation of legal talent between the private sector and the government.
• Lawyers in the highest level of government—even when the government can attract highly capable lawyers, for example, at the Office of the Solicitor General, their effectiveness is limited by organizational and workplace constraints, while Justices on the U.S. Supreme Court are increasingly contributing to ideological polarization.

In the final analysis, Trouble at the Bar is concerned with policy toward the legal profession and how the legal profession affects policy, so in this series of posts I will use the book to discuss the public’s access to justice, ideological polarity on the Supreme Court, and the efficacy of government microeconomic policy. I then synthesize the posts and draw conclusions about ways the legal profession and its impact on society could be improved.

Full disclosure: I am an economist applying my discipline’s (annoying) practice of judging scholars and practitioners in other disciplines and telling them how to analyze the world and reach constructive solutions to difficult problems. I raise and address anticipated counterarguments to my positions, but you will have the last word with your online comments. I hope you find the material provocative.

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4/26/1995: U.S. v. Lopez decided.

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Salazar: The Dictator Who Refused To Die, by Tom Gallagher, Hurst Publishers, 360 pages, $34.95

Antonio Salazar secured power by resigning. In 1929, when he was minister of finance in Portugal’s military-led government, a minor scandal over regulating church bells divided the government’s secular and religious factions. Salazar, a Catholic, resigned. The president sided with him, a reversal that led the prime minister and the minister of war to resign instead. Three years later, Salazar himself was prime minister. He ruled for the next 36 years.

So it was with Salazar. The reserved, academically minded dictator held power through a combination of ability, work, factional balance, repression, and ultimately military support.

Salazar was a nationalist, an “integralist,” and a foe of liberalism, and he was prone to presenting himself as a defender of Western civilization. As those ideas come back into fashion, Salazar has seen a resurgence of interest. Into this vogue comes Salazar: The Dictator Who Refused to Die, a quickly produced biography, enthusiastically covered in The American Conservative and First Things, about the man at the heart of an alleged “dictatorship without a dictator.”

Tom Gallagher, a Scottish historian and political scientist, gives a largely even-handed if somewhat forgiving biography of Salazar. One of Gallagher’s chief contributions is bringing many Portuguese-language secondary texts, from which he quotes extensively, into English.

Portugal was wildly unstable in the early 20th century, rotating through 45 governments from 1910 to 1926. Politically, it took its cues from France, splitting the country between anti-clerical urban republicans, Catholics, monarchists, and the army. In 1926, a military coup marked, Gallagher writes, “the end of over a century of a broadly liberal ascendancy.”

Born into a peasant family, Salazar rose within the Catholic education system. At the University of Coimbra, he wrote two doctoral theses, earning him a chaired professorship in economics and finance. There, Gallagher writes, he joined a circle of “intellectuals from the upper and middle classes known as Integralists” who “offered a searching critique of parliamentary government. Their remedies were conservative and, indeed, authoritarian.”  Salazar joined the cabinet in 1928, where he balanced the nation’s books and stabilized the currency. These feats earned him a lifetime of political capital.

Salazar resisted mass politics in both their parliamentary and their totalitarian forms. Espousing an elite literary anti-liberalism that ran against the egalitarian tenor of the era—T.S. Eliot with teeth—he dismissed democracy as a “fiction” if “it believes that power emanates from the masses and that government ought to be the work of the masses and not of the elites.” To establish his particular form of elite rule, Salazar neither maintained the constitution nor restored the monarchy nor kowtowed to the army once he was elevated to leadership. Instead, he created the Estado Novo, or New State, perhaps the first consciously post-liberal regime.

How “new” it was is “open to doubt,” Gallagher remarks. It was “a modern, more complex, authoritarian extension of 19th-century managed politics under civilian, professorial leadership” that nevertheless contained “genuine innovations.” The Estado Novo had a deliberative but not legislative assembly; political power lay with the prime minister. It was a “corporative state,” based on the idea that class and social interests were complementary. The Estado Novo mandated tame unions while bringing representatives of “various functional interests drawn from agriculture, commerce, industry, the military, the church, the universities, and various ministries and municipal authorities” into an upper chamber.

Over time, Salazar favored elite interests over the needs of the peasants and working classes. Salazar’s constitution enshrined some liberal rights, but it allowed considerable state repression and censorship.

In the 1930s, Salazar and his regime drew close to Italian fascists, creating a 40,000-strong youth movement, the Portuguese Legion. But he also warned in 1934 that fascism could create “essentially pagan” states that were “incompatible with the character of our Christian civilization” and could lead to “religious wars more terrible than those of the old.” Fearing violence and instability, he eventually defanged the mass elements of the Estado Novo and the Portuguese far right.

Salazar supposedly claimed that he was not really a dictator. Gallagher acknowledges that he was but still compares Portuguese state violence favorably with that of postwar Italy. Salazar, he writes, lacked a “preoccupation” with “militarism, territorial expansion, revolutionising society or asserting ethnic supremacy.” Gallagher also expends considerable ink arguing Salazar’s record with refugee Jews is as creditable as other Portuguese figures known for saving Jewish lives.

Quoting the French political scientist Raymond Aron, Gallagher calls Salazar’s regime “a traditional autocracy.” He argues that Salazar tamed the radical right and “shrank from releasing popular energies,” in stark contrast to Hitler and Mussolini, who “‘politicize’ or fanaticize them.” The administrative dictatorship and repression of Salazar’s regime “depoliticized” Portugal in, Gallagher implies, a positive way: “It was a rule-based authoritarian government rather than a party dictatorship where informal and extreme forms of violence could periodically be unleashed.”

Portugal’s independence was key to Salazar’s decisions, particularly on foreign policy. His support for Franco in the Spanish Civil War derived from Salazar’s fear of Spanish radicalism and its “threat to Portuguese sovereignty.” Despite his devout Catholicism, Salazar’s relationship with Rome remained cool, maintaining Portugal’s official secularity and independence. Likewise, Gallagher details Salazar’s tough negotiations with Portugal’s old ally Britain and, more tetchily, with the United States and NATO.

For much of his reign, Salazar enjoyed spectacular P.R. overseas. In 1962, Life magazine called him “by far the world’s best dictator” and the “greatest Portuguese since Prince Henry the Navigator.” Such affinity was especially strong on the right. William F. Buckley, no stranger to Iberian authoritarians, published a full speech of Salazar’s in an early issue of National Review. Portugal’s post-dictatorship prime minister, Aníbal Cavaco Silva, once claimed that Salazar “would everywhere be considered a great statesman if only he had retired in the middle ’50s.”

Instead, the Estado Novo deteriorated into a bloated state characterized by inefficiency, nepotism, repression, and poor education. Internal critics condemned it. Commissions compiled massive public grievances and were summarily buried. One British diplomat noted in the early 1950s that “the rich were only moderately so”; the middle class, although growing, was “sustained not by agriculture or industry, but by the accumulation of war profits, the remittances of Portuguese citizens…and the produce of the African colonies”; and the poor “were miserable and destitute.” Stable but stagnant, the Estado Novo left Portugal with what Gallagher calls “one of the highest levels of income inequality in the developed world.”

Salazar insisted on maintaining Portugal’s grip on its empire, without which he felt the country would be a fringe state. Fortified by “Lusotropicalism”—the idea that, by virtue of history and ethnic heritage, the Portuguese were suited to salutary colonial relations—Salazar defied African liberation movements and U.S.-led diplomatic pressure to let its colonies go.

Gallagher’s book is weakest when it covers the colonial empire. Antonio Salazar never left Europe and barely traveled beyond Portugal. This biography follows suit: Gallagher dwells on the Salazar regime at its metropole, but it only grazes the enormous periphery of Angola, Mozambique, Guinea-Bissau, Goa, and beyond, where—especially in the African colonies—widespread forced labor and staggeringly high rates of illiteracy belied the Lusotropical propaganda. Portugal’s colonial subjects were part of the Salazarist regime, and their wars of independence were critical to that regime’s collapse. Here they are regrettably relegated to the margins.

Above all, Salazarism was personalism. Salazar had no succession plan. His refusal to cultivate mass support or a political party put a time limit on his regime, which crumpled shortly after his death. For a dictator, he was exceptionally restrained and ascetic. Even so, he clung to power, taking oxycodone to deal with pressure and governing in his fantasies after a debilitating stroke removed him from power.

In our moment of polarization, some parts of the right feel tempted by the idea of the virtuous strongman. Salazar had more virtues than the typical strongman, but he is far from an appealing model. His repression flattened civil society. He may have suppressed violent political impulses, but in the process he funnelled the opposition into the underground Communist Party. Conservative bulwarks always falter, and the Carnation Revolution that overthrew the Estado Novo unleashed a surge of upheaval and attempted coups. Nowhere was this clearer than Portugal’s colonial possessions, which rapidly achieved independence in the mid-1970s, generating a million Portuguese refugees. Angola and Mozambique both descended into brutal civil wars between rival rebel groups. Salazar’s intransigence helped create the conditions for these bloodbaths.

Even a relatively restrained dictatorship is bad. And for every Salazar, there are dozens of Somozas, Batistas, Francos, and Mobutus. To the extent that Salazar is unlike other 20th century dictators, he was the exception that proves the rule.

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The Minden, Louisiana, police department says it is investigating after video showed officers punching and kicking a man they were trying to subdue. Officers had responded to a call of a man down in the street. They say the man was incoherent and appeared to be under the influence of some substance and when they tried to help him he began to struggle with him. The man’s family says he was walking his grandchild to school and had a seizure. The child can be seen nearby in video of the scene. One officer, who was seen in the video kicking the man, has been placed on administrative leave.

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